TAN CHENG GAY AND OTHERS v. TAN CHOO SUAN AND OTHERS

HCA 439/2020 and HCAP 3/2021

[2025] HKCFI 4788

(Heard together)

HCA 439/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 439 OF 2020

________________________

BETWEEN

________________________

AND

HCAP 3/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 3 OF 2021

________________________

BETWEEN

________________________

(Heard Together)

________________________

JUDGMENT

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A. Introduction

1.  This is the trial in respect of 2 actions that involve members of the Tan family, who are no strangers to litigation.

2.  The first action, ie HCA 439 of 2020 (the “Elison Action”), concerns the beneficial ownership of a bank account maintained with Credit Suisse (the “Credit Suisse Account”) held by a corporate vehicle named Elison International Limited (“Elison”).

3.  The second action, ie HCAP 3 of 2021 (the “Probate Action”), concerns the validity of various wills and a codicil executed by the parents of the Tan family during the period from April 2006 to May 2008.

B. Material Background

B1. General Background

4.  The late Mr Tan Kiam Toen (hereinafter “Father”) was the patriarch of the Tan family. He passed away on 15 November 2008 at the age of 89.

5.  Father was married to Madam Ng Giok Oh (hereinafter “Mother”) in 1943. Mother passed away on 28 February 2022 at the age of 99.

6.  Father and Mother had 5 children, namely:-

(1) Madam Tan Choo Suan (“TCS”), who was born in 1944;

(2) Mr Tan Cheng Gay (“TCG”), who was born in 1947;

(3) Mr Tan Yok Koon (“TYK”), who was born in 1948;

(4) Madam Tan Choo Pin (“TCP”), who was born in 1950; and

(5) Mr Tan Chin Hoon (“TCH”), who was born in 1951.

7.  Father was a self-made entrepreneur who accumulated a substantial amount of wealth during his lifetime. Back in 1961, he set up a Singaporean company named Afro-Asia Shipping Company (Pte) Limited (“AAS”), whose assets include the shares of a publicly listed company named EnGro Corporation Ltd (“EnGro”). Other shares in EnGro are held by a Hong Kong company named Afro-Asia International Enterprises Pte Ltd (“AAIE”).

8.  Father, being a traditional patriarch, desired and expected his children to enter the family business and made contributions thereto.

9.  In the circumstances, TCG, TYK, TCP, and TCH worked in the family business. AAS is of great significance to them. AAS was where they worked directly or indirectly throughout their careers. It is not in dispute that after 1974 (when Father and Mother moved to Hong Kong permanently), TCG, TYK, TCP and TCH were involved in the day-to-day operation of AAS.

10.  TCS was the only child who pursued an independent career outside of the family business. Whilst she worked in AAS from 1969 to 1974, she soon pursued further studies overseas. Having obtained a doctorate degree and worked in Australia, TCS worked for the World Bank in the United States from 1982 to 1993.

11.  In 1993, TCS (who had been unmarried and childless) moved to Hong Kong in order to take care of Father and Mother (who were of advanced ages at the time). According to Vinodh Coomaraswamy J[1] of the Singaporean High Court (whose findings will be further elaborated below):-

“In 1993, TCS made the decision to re-enter her parents’ lives after having been away for most part of the two preceding decades. [Father] and [Mother] gradually fell under TCS’s influence over the years. This influence became most profound after the Bajumi litigation ended in 2004. It is impossible to say whether TCS acquired and exercised this influence as a result of a deliberate plan or as the natural consequence of the increase in the amount of time which TCS spent with [Father] and [Mother] when they were most in need of her care and required the assistance in decision-making. But the influence was real in the case of [Father] and is real and ongoing in the case of [Mother]” [2]

12.  It appears that as a result of TCS’s involvement in the lives and personal affairs of Father and Mother as well as the affairs of AAS and/or AAIE, the relationship between TCS, Father, and Mother on the one hand and on the other hand TCG, TYK, TCP, and TCH had deteriorated. The dispute and discord culminated in a litigation in the High Court of Singapore under HCS No 250/2010 (the “Singaporean 570 Action”), which TYK, TCP and TCH[3] commenced in 2010 shortly after Father passed away in November 2008.

13.  The subject matter of the Singaporean 570 Action concerned, inter alios, the beneficial ownership of the shareholding in AAIE and AAS. For present purposes, it is unnecessary to dwell on the details of the findings and analysis of the Singaporean High Court. It suffices to say that TYK, TCP, TCH, and TCG[4] were the successful parties. Vinodh Coomaraswamy J (whose findings were subsequently affirmed by the Singaporean Court of Appeal) held that 70% of the shareholding in AAIE and 97.78% of the shareholding in AAS were held for members of the whole family, not for Father alone. In light of her unsatisfactory conduct, Vinodh Coomaraswamy J ordered TCS to pay part of TCG, TYK, TCH, and TCP’s costs on an indemnity basis.

14.  For present purposes, it is also worth mentioning that:-

(1) Vinodh Coomaraswamy J made the following observations regarding TCS’s relationships with her siblings and parents:-

“I do not doubt that TCS, like the rest of [Father]’s children, deeply loves both of her parents. It is also undisputed that she has been the main caregiver for her aged parents since 1993. But I find that TCS is, or perceives herself to be, alienated from her family- and particularly from her siblings, as opposed to her parents- for two reasons. First, [Father] tended to favour his sons over his daughters. This is unfortunate, but it is typical of his generation. I have no doubt that TCS, given her undoubted intelligence and her status as the eldest child, felt that favouritism most acutely. Second, TCS was, by her own election, the only child of the family who did not build a career in the family business. TCP and TCH devoted their entire working lives to the family business. TCG and TYK each gave up their professions to build their careers in the family business. TCS deliberately chose to build her career, successful as it was, outside the family business.[5]

All of this clearly still rankles with TCS. As TCS herself puts it, she believes that [Father] saw her as “the unmarried daughter [who] didn’t…live up to his aspirations of a successful entrepreneur.”[6]

(2) The Singaporean Court of Appeal was critical of TCS’s conduct and the way in which she treated her siblings. As stated in its judgment:-

“TCS admitted that she had removed TCP and TCH because, as employees and as the company secretary and director respectively, they were not giving her due respect as a director, chairman and shareholder. In our view, her removal of TCP and TCH was, in truth, a move calculated to provoke, intimidate and embarrass them. If TCH and TCP were really disruptive and had kept harassing TCS, it is regrettable but it remains their prerogative as the (beneficial) owners of the company to act according to their own lights within the boundaries of the law; TCS should have ceded control to them and not have ousted them from AAS.[7]

TCS instigated and precipitated the litigation by removing TCH and TCP as director and company secretary. She unceremoniously removed them from AAS and subsequently drew her siblings into a long-drawn suit and subsequently even tried to reimburse her own costs from [Father]’s estate…she was motivated by personal financial gain and/or a personal vendetta against the four siblings; over the course of trial she traduced her late father’s name by calling him a liar and a coward, and sought to humiliate the four siblings by painting them as greedy children after their late father’s estate.”[8]

15.  Despite the conclusion of the Singaporean 570 Action, the disputes between TCS and her siblings have not come to an end. The parties have disputes regarding (i) the beneficial ownership of the Credit Suisse Account (which is the subject matter of the Elison Action); and (ii) the validity of the wills and a codicil executed by Father and Mother between April 2006 and May 2008 (which are the subject matters of the Probate Action).

16.  It would be helpful to set out the respective case of the parties in the two Actions separately.

B2. The Elison Action

The Case of TCG, TYK and TCP[9]

17.  On 22 June 1995, Elison was set up pursuant to Father’s instructions in the British Virgin Islands. It is not in dispute that Elison has never carried on any business operation, and Elison’s only activity was to hold the Credit Suisse Account.

18.  After Elison was set up, on 18 October 1995, pursuant to Father’s instructions:-

(1) TCS and Mother became the first and only directors of Elison; and

(2) TCS and Mother became the only registered shareholders of Elison, and each of them was allotted one bearer share.

19.  Pursuant to Father’s instructions, on 13 November 1995, TCS and Mother passed a board resolution for Elison to set up the Credit Suisse Account with Credit Suisse’s Zurich head office. The Credit Suisse Account could be operated by Father, Mother, or TCS in a single capacity.

20.  Importantly, from 12 December 1995 to 29 March 1996, the following events took place:-

(1) On 13 November 1995, Father signed a form titled “Verification of the Beneficial Owner’s Identity (Form A)”[10] (the “1^st Form A”). It was declared that the 5 children, namely TCS, TCG, TYK, TCP, and TCH (collectively the “5 Siblings”), were the beneficial owners of the assets deposited with Credit Suisse under the Credit Suisse Account[11].

(2) On 12 December 1995, Mother and TCS signed a further form titled “Verification of the Beneficial Owner’s Identity (Form A)”[12] (the “2^nd Form A”). It was declared that the 5 Siblings were the beneficial owners of the assets deposited with Credit Suisse under the Credit Suisse Account[13]

(3) On 29 March 1996, Mother and TCS signed a further form titled “Verification of the Beneficial Owner’s Identity (Form A)”[14] (the “3^rd Form A”). Again, it was declared that the 5 Siblings were the beneficial owners of the assets deposited with Credit Suisse under the Credit Suisse Account[15].

(The 1^st Form A, the 2^nd Form A, and the 3^rd Form A are hereinafter collectively referred to as the “Form As”.)

21.  It is common ground that TCG, TYK, TCP, and TCH were not informed of the existence of the Credit Suisse Account as well as the existence of Elison. According to the re-amended statement of claim[16] of TCG, TYK, and TCP in the Elison Action[17], they discovered the Credit Suisse Account under the following circumstances:-

(1) In March 2018, TYK received an email from some corporate managers in the BVI requesting payment of fees in respect of Elison. However, he did not pay attention to the matter as he was clueless about Elison.

(2) TCG, TYK, and TCP only discovered the existence of the Credit Suisse Account and Elison as a result of the application for 3^rd party discovery against Hastings under HCMP 1192/2018 in relation to the wills and codicils executed by Father.

(3) Pursuant to the order made by Marlene Ng J on 29 January 2019, various documents that show the existence of the Credit Suisse Account and Elison came to light. Upon examining these documents, they became aware that the 5 Siblings were the beneficial owners of the Credit Suisse Account in equal shares.

22.  Apart from the Form As, TCG, TYK, and TCP also relied on the following contemporaneous documents/records produced by Hastings:-

(1) According to TCS’s note of instructions to Ms Hwang Sok Inn of Hastings (hereinafter “Ms Hwang”) dated 18 March 2009[18], Father did inject his personal funds into the Credit Suisse Account under Elison’s name, and under the Form As, the 5 Siblings were declared to be the beneficial owners of the Credit Suisse Account.

(2) According to the attendance notes prepared by Ms Hwang[19] in respect of a conference on 18 March 2009[20], TCS gave instructions that under the 3^rd Form A, she and Mother did declare that the 5 Siblings were the beneficial owners of the Credit Suisse Account in equal shares.

(3) The note dated 30 April 2009 from Ms Hwang to Mr John Brewer of Counsel contained a draft letter to Credit Suisse prepared by Hastings (as solicitors for Elison). In this letter, Credit Suisse was requested to update the list of beneficial owners in respect of the balance in the Credit Suisse Account from the 5 Siblings to Mother. TCG, TYK, and TCP contended that this was an illegitimate attempt to nullify and/or conceal their beneficial ownership over the Credit Suisse Account.

23.  Relying on the contents of the Form As as well as the contemporaneous notes/records produced by Messrs Hastings, Mr Victor Dawes SC, leading Ms Bonnie Cheng and Mr Brian Lee, (for TCG, TYK and TCP) submitted that a trust over the Credit Suisse Account was created by express declaration, words, and/or conduct.

24.  TCG, TYK, and TCP also relied on the pre-action letter dated 19 September 2019[21] from TCS’s former solicitors, namely ONC Lawyers. In this letter, ONC Lawyers admitted (i) the existence of the Form As; (ii) the fact that Elison was incorporated upon the instructions of Father; and (iii) the fact that in April 1996, Father injected his personal funds into the Credit Suisse Account. However, it was contended that the Form As were executed solely for the purpose of satisfying the due diligence requirements under Swiss laws, and there was no intention to create any trust. As such, pursuant to Father’s instructions, the funds in the Credit Suisse Account were used for (i) personal investments; (ii) paying the school fees of TYK’s children; and (iii) defraying Father and Mother’s personal, living and travelling expenses.

25.  In their amended defence[22], TCS and Mother also alleged that between April 1996 and 2006, the funds in the Credit Suisse Account were, in accordance with their wish, used for, inter alios, (i) investment in stocks and securities; (ii) making payments to TCS in accordance with her ½ beneficial interest; and (iii) defraying the legal expenses for various lawsuits.

26.  In these premises, it is TCG, TYK, and TCP’s case that:-

(1) There were breaches of trust by Elison as the funds in the Credit Suisse Account were used for purposes unrelated to TCG, TYK, TCP, and TCH.

(2) TCG, TYK, TCP, and TCH are entitled to seek proprietary relief, and recover the funds that were withdrawn from the Credit Suisse Account and/or their identifiable substitutes.

(3) TCS and Mother, as directors of Elison, dishonestly assisted in the said breaches of trust and unconscionably received the trust funds. Thus, they are liable to pay equitable compensation and/or damages.

The Case of TCS and Mother[23]

27.  Whilst TCS and Mother admitted that Elison had no business operation, they asserted that Elison was set up for the purpose of holding assets beneficially belonging to themselves. In this connection, Mr Edward Tang, together with Ms Clara Wong, (for TCS and Mother) submitted that this was the reason why:-

(1) Only TCS and Mother (i) were appointed as directors of Elison and (ii) became registered shareholders of Elison; and

(2) Father never informed TCG, TYK, TCP, and TCH about the existence of the Credit Suisse Account.

28.  In the premises, on 18 April 1996 and 29 May 1996, TCS and Mother deposited US$3,000,000 and US$1,000,000 into the Credit Suisse Account. The funds came from another account maintained with Credit Suisse bearing account number 9857116 LIKELY (hereinafter the “Likely Account”), which was jointly held by TCS and Mother.

29.  However, TCS and Mother were not in a position to deny the genuineness of the Form As. In this connection, they contended that the purpose of filing the same was to comply with Credit Suisse’s anti-money laundering policy, and as such there was no intention to create a trust at all.

30.  Insofar as the creation of trust is concerned, TCS and Mother contended that the trust alleged by TCG, TYK, and TCP (the existence of which is denied) concerned future properties. As such, the same is anyhow void for want of certainty of subject matter and failure of proper constitution.

31.  TCS and Mother also contended that the Plaintiff’s claims against them are time-barred. They relied on the fact that during the trial of the Singaporean 570 Action back in April 2013, TYK was cross-examined in relation to his knowledge about Elison[24]. As such, had TYK, TCG, and TCP pursued an enquiry with reasonable diligence, they could have discovered the alleged breach of trust by April 2013.

B3. The Probate Action

The Case of TCS and Mother[25]

32.  It is not in dispute that on 21 April 2006, Father executed a will (the “2006 Will”)[26], which was prepared by Mr Hoon Tai Meng (“Mr Hoon”). He is an advocate and solicitor who has been practicing in Singapore.

33.  In gist, the 2006 Will provides that:-

(1) TCS and TCP be appointed as joint executrixes and trustees of Father’s estate;

(2) 50% of Father’s estate be bequeathed to Mother, and the remaining 50% be bequeathed to the 5 Siblings in equal shares of 10% each.

34.  The 2006 Will was witnessed by Mr Hoon and Dr Clyde Lane.

35.  According to the pleaded case of TCS and Mother[27], Father was misled by TCP to believe that the 2006 Will was a document executed for the purpose of giving effect to a letter of undertaking that dealt with the distribution of the shares in AAIE. As such, the 2006 Will is invalid, and it does not reflect the testamentary intent and wish of Father.

36.  TCS and Mother relied on the evidence of Dr Wong Ling Yuen (hereinafter “Dr Wong”[28]). She specializes in otorhinolaryngology, and treated Father on various medical issues (such as diabetes, respiratory infection, nasal itchiness, and nose bleeding) from October 2005 onwards. According to Dr Wong (who testified in court):-

(1) In 2006 to 2007, Father told her about his displeasure with the children in Singapore (ie TCG, TYK, TCP, and TCH). Although Father provided for them and gave them good education, they neither respected nor cared for him.

(2) Father told her that his daughter in Singapore (ie TCP) deceived him into signing a document, which turned out to be the 2006 Will.

37.  Dr Wong’s evidence is corroborated by the evidence of Ms Hwang, who was a consultant of Hastings. According to Ms Hwang (who testified in court):-

(1) In early 2007, TCS introduced her to Father and Mother at a dinner. On this occasion, Father chatted with her in Malaysian Hokkien (a dialect that she spoke). Father candidly told her that he was disappointed with some of his children who were not filial in his views. He was also critical of his sons’ choices of spouses.

(2) On a Saturday in around February or March 2007, Father requested to meet her on an urgent basis at his home in Hong Kong[29]. Father was visibly upset. He showed her the 2006 Will, and repeatedly told her (in the Hokkien dialect) that this document did not reflect his wish. In response, she informed Father that it was possible to revoke the 2006 Will by making a new one.

(3) In light of the advanced age of Father, she informed TCS that it was necessary to engage a psychiatrist to assess Father’s mental capacity, and it was preferable that such a psychiatrist could speak the Hokkien dialect. Eventually, she and Mr Fu Chi Kai (hereinafter “Mr Bruce Fu”), an associate solicitor of Hastings, managed to identify Dr Chen Char-Nie (“Dr Chen”).

38.  Initially, a meeting was scheduled for Ms Hwang and Mr Bruce Fu to meet Father in person.

39.  However, it transpired that Father was suddenly admitted to Canossa Hospital for treatment of twisted intestine (Volvulus).

40.  In the circumstances, on 26 March 2007, TCS attended Hastings’s office alone. There, TCS informed Ms Hwang and Mr Bruce Fu that Father wanted to (i) make a new will and (ii) appoint her as the sole executrix under the new will. Ms Hwang and Mr Bruce Fu informed TCS that they had to take instructions directly from Father independently. According to Ms Hwang and Mr Bruce Fu (who also testified in court), they were told by TCS that Father wanted to meet them urgently in order to finalize the new will.

41.  On 29 March 2007, Ms Hwang and Mr Bruce Fu attended Canossa Hospital to meet Father and to take instructions from him directly. The process took about an hour. Ms Hwang and Mr Bruce Fu were of the view that Father was of sound mind. Father had no difficulty in (i) communicating with them and (ii) understanding what they said to him.

42.  According to Ms Hwang:-

(1) Father’s objective was to revoke the 2006 Will, which did not represent his wish.

(2) Father’s wish was simple and clear, in that he wanted to give the entirety of his estate to Mother, and should Mother predecease him, his assets would be given to charity.

(3) Father also made it clear that since his children were very well provided for during his lifetime and financially comfortable, it would not be necessary to bequeath any assets to them.

43.  According to Mr Bruce Fu:-

(1) Father wished to revoke the 2006 Will, and leave the entirety of his estate to his wife, and afterward to charity.

(2) Father was worried that if anything unfortunate happened to him during his stay in the hospital, his assets would be dealt with according to the 2006 Will.

(3) Father did not want to bequeath his assets to his children as they had received enough from him.

(4) Father wanted to utilize his assets to help the needy. He indicated that whilst 1/3 of his assets should be used for charitable purposes in Hong Kong, 2/3 of his assets should be used for charitable purposes in his native county, namely Shanting Village, Maxiang Town, Xiangan District, Fujian Province as well as Xiamen.

44.  Having taken instructions from Father, Mr Bruce Fu returned to office and drafted a will in Chinese (hereinafter the “Father’s 2007 Will”)[30]. In gist, Father’s 2007 Will provides that:-

(1) TCS be appointed as the sole executrix and trustee of Father’s estate;

(2) The entirety of Father’s estate be bequeathed to Mother;

(3) However, in the event that Mother predeceases Father or dies within 30 days after the death of Father, 1/3 of Father’s estate would be donated to charities in Hong Kong and the remaining 2/3 of Father’s estate would be donated to charities in Shanting Village, Maxiang Town, Xiangan District, Fujian Province and Xiamen;

(4) The executrix and trustee should decide the charitable organizations that receive the donations;

(5) Since Father’s children and descendants have received adequate and appropriate care during his lifetime, Father does not intend to bequeath any assets to them.

45.  On 30 March 2007 (ie the next day), Ms Hwang and Mr Bruce Fu visited TKT again at Canossa Hospital for the purposes of (i) explaining the 2007 Will to Father; and (ii) executing Father’s 2007 Will. Before these were done, Father was examined and assessed by Dr Chen, who is an experienced psychiatrist and who has been practicing medicine in Hong Kong since 1981.

46.  According to Dr Chen (who testified in court):-

(1) He had extensive conversations with Father in Mandarin Chinese and the southern Fujianese dialect (mixed occasionally with English).

(2) Father was alert and sharp despite his old age.

(3) Father understood that he interviewed him for the purpose of making a will.

(4) Father had good memory of past events.

(5) A Chinese version of the Mini-Mental State Examination was carried out, and Father obtained a full score of 30.

(6) Despite his fragile physical appearance, Father’s mental capacity was amazingly normal and good with a well-preserved ability to maintain social interactions. He spoke with confidence and in a good tone.

47.  In the premises, Dr Chen was satisfied that Father had good mental capacity. He certified that Father was fit to make a will and to deal with his testamentary affairs.

48.  In light of Dr Chen’s confirmation, Mr Bruce Fu explained the contents of Father’s 2007 Will, and Father confirmed with Mr Bruce Fu and Ms Hwang that he knew and approved the contents thereof.

49.  Meanwhile, Dr Wong (who was responsible for treating Father’s medical issues at the time) also confirmed that Father completely understood the effect of his 2007 Will and could, in his own words, describe how he intended to dispose of his assets. According to Dr Wong, what Father said was compatible with the contents of his 2007 Will.

50.  In the circumstances, Father executed his 2007 Will. The process was witnessed by (i) Ms Hwang; (ii) Mr Bruce Fu; (iii) Dr Chen; and (iv) Dr Wong.

51.  Meanwhile, Mother also executed a will (hereinafter “Mother’s 2007 Will”)[31], the contents of which mirror Father’s 2007 Will. Mother’s 2007 Will was also prepared by Mr Bruce Fu. It provides that:-

(1) TCS be appointed as the sole executrix and trustee of Mother’s estate;

(2) The entirety of Mother’s estate be bequeathed to Father;

(3) However, in the event that Father predeceases Mother or dies within 30 days after the death of Mother, 1/3 of Mother’s estate would be donated to charities in Hong Kong and the remaining 2/3 of Mother’s estate would be donated to charities in Shanting Village, Maxiang Town, Xiangan District, Fujian Province and Xiamen;

(4) The executrix and trustee should decide the charitable organizations that receive the donations;

(5) Since Mother’s children and descendants have received adequate and appropriate care during her lifetime, Mother does not intend to bequeath any assets to them.

52.  The purpose of arranging Mother to execute her 2007 Will simultaneously was to ensure that if Father predeceases Mother, the assets which Mother inherits from Father would be utilized for donation in favour of charities. However, the arrangement fell short of dealing with the possibility that it would be open to Mother to revoke her 2007 Will, in which case the assets that Mother inherited from Father would not be utilized for charitable donation.

53.  In the following months after Father and Mother’s 2007 Wills were executed, Mr Bruce Fu continued to advise Father as to how to minimize the risk that his 2007 Will be challenged by the 5 Siblings in the future. As Father appreciated that some of the 5 Siblings might challenge his 2007 Will, he instructed Mr Bruce Fu and Ms Hwang to (i) prepare another will that was more comprehensive and (ii) prepare a statutory declaration (the “1^st Statutory Declaration”)[32] that set out his testamentary wish in detail. To this end, Mr Brewer and Mr Warren Chan SC were instructed to act for Father.

54.  Father eventually executed the 1^st Statutory Declaration on 31 January 2008. This document, in detail, set out, inter alios, (i) how Father accumulated his wealth and the history of his business ventures; (ii) the history of the Tan family and the background (including education and careers) of the 5 Siblings; (iii) Father’s view that the 5 Siblings had received more than enough and were well off; (iv) Father’s poor relationship with TCG, TYK and TCH after 2004; (v) the fact that 2006 Will did not represent Father’s testamentary wish; (vi) Father’s wish that the shareholding in AAIE and EnGro be distributed amongst members of the Tan family, and his remaining assets be donated for charitable purposes.

55.  According to Mr Bruce Fu:-

(1) Mr Brewer was in charge of preparing the Statutory Declaration, and the same was settled by Mr Warren Chan SC.

(2) On various occasions, he and Ms Hwang accompanied Mr Brewer to attend Father’s home for the purposes of taking instructions from Father.

(3) Since Mr Brewer drafted the Statutory Declaration in English, he had to translate the same into Chinese for Father’s perusal. Whilst Father read the drafts of the Statutory Declaration word for word, he read and explained the contents, paragraph by paragraph, for Father’s comments and confirmation.

(4) In light of Father’s comments, the draft Statutory Declaration was amended several times before the contents were finalized.

56.  Meanwhile, Mr Bruce Fu prepared two draft wills for Father[33]. One of them covered the assets in Singapore, and the other covered the assets outside of Singapore. Initially, it was envisaged that Father would execute the Statutory Declaration as well as the two draft wills at the office of Hastings on 31 January 2008.

57.  On 31 January 2008:-

(1) Dr Chen interviewed and examined Father again. According to Dr Chen:-

(a) Father appreciated that the purpose of the interview was concerned with making wills. He was articulate in southern Fujianese. He spoke spontaneously and responded to questions without pauses, and the flow of the conversation was normal.

(b) Father, on his own volition, said that he was discontented with his children in Singapore. Whilst TCG hardly visited him and Mother, TCP procured him to sign an English document (which he did not understand) and it transpired that such a document was a will (ie the 2006 Will) that did not reflect his testamentary wish.

(c) A follow-up Mini-Mental State Examination was carried out, and Father obtained a full total score of 28.5. He demonstrated extremely good cognitive power.

(d) In the circumstances, it was concluded that Father possessed good mental capacity and excellent cognitive capacity. He was fit to manage his own affairs and to make a will.

(2) After Dr Chen confirmed that Father had mental capacity to execute a will, Mr Bruce Fu began to explain the draft wills to Father, and he reminded Father that when his assets were devolved unto Mother after his death, those assets would belong to Mother absolutely, and as such Mother would be in a position to dispose of them in whatever way she wished.

(3) Having considered the advice of Mr Bruce Fu, Father had some second thoughts. He merely executed the Statutory Declaration, and instructed Mr Bruce Fu to explore the feasibility of making mutual wills or a joint will.

58.  In the premises, Mr Bruce Fu approached Mr Nelson Miu of Counsel for advice, and a meeting took place on 1 February 2008. As evidenced by his advice dated 4 February 2008[34], Mr Nelson Miu took, inter alios, the views that (i) it would be desirable to execute one will that dealt with all the assets owned by Father and Mother globally; and (ii) it would be possible for the deceased spouse to create a life interest in favour of the surviving spouse with regard to the income arising from the capital of the assets, and the capital of the assets should only be donated to charity after both spouses pass away. As such, Mr Miu prepared the draft of a joint will of Father and Mother in English, and Mr Bruce Fu translated the same into Chinese.

59.  As evidenced by his email dated 5 February 2008 (at 13:08)[35], in a telephone conversation that took place in the morning on the same day, Mr Bruce Fu explained the advantages and disadvantages of the approach proposed by Mr Nelson Miu, and Father accepted that he and Mother would make one will that dealt with their assets worldwide.

60.  In the circumstances, it was unnecessary to conduct a physical meeting, and Father and Mother were requested to attend Hastings’s office on the next day (ie 6 February 2008) to execute the joint will (the “2008 Joint Will”)[36].

61.  On 6 February 2008, Father and Mother attended the office of Hastings, where they met Ms Hwang, Mr Bruce Fu as well as Mr Brewer. This was the Chinese New Year’s Eve, and Dr Chen (who previously examined Father on two occasions) were not available. As such, Dr Chan Wai Man (“Dr Chan”), who is a medical doctor specializing in gastroenterology and hepatology and who treated Father from February 2007 to November 2008, was arranged to examine Father. Dr Chan was of the view that Father was fully oriented and mentally normal, and as such he possessed testamentary capacity.

62.  According to Mr Fu:-

(1) After Dr Chan confirmed that both Father and Mother were of sound mind and mentally fit to make a will, he asked Father and Mother to read the contents of the 2008 Joint Will carefully.

(2) After Father and Mother completed the exercise, he explained the contents of the 2008 Joint Will to them, paragraph by paragraph, in Cantonese.

(3) He paused at different intervals and asked if Father and Mother understood the contents and had any questions. Each and every time, Father and Mother indicated that they understood the contents and had no questions.

63.  In the circumstances, Father and Mother executed the 2008 Joint Will. The process was witnessed by (i) Dr Chan and (ii) Mr Fu. In gist, the 2008 Joint Will[37] provides that:-

(1) TCS be appointed as the sole executrix and trustee for Father’s and Mother’s estates;

(2) Should one of Father or Mother predecease the other, the surviving spouse shall be entitled to the income for life of the predeceased spouse’s entire residuary estate after payment of debts, funeral and testamentary expenses;

(3) Upon the death of both Father and Mother:-

(a) HK$100 million would be donated for charitable purposes in Hong Kong;

(b) HK$100 million would be donated for charitable purposes in Shanting Village, Maxiang Town, Xiangan District, Fujian Province and Xiamen;

(c) the residuary estate would be donated to (i) the Singapore Buddhist Lodge; (ii) National University of Singapore; (iii) top-ranked universities (for setting up scholarships for students of Chinese descent); (iv) other entities in Singapore for the care of the aged and entities in Singapore that provide medical and/or social services; and

(d) the executrix and trustee shall exercise absolute discretion to decide the organizations receiving the donations, the amounts of the donations and the way in which the donations are to be made.

(4) Since Father and Mother’s children and descendants have received adequate and appropriate care during their lifetime, they do not intend to bequeath any assets to them.

64.  It was Mr Bruce Fu’s evidence that:-

(1) TCS was not present when (i) Father and Mother were examined by Dr Chan; (ii) the contents of the 2008 Joint Will were explained to Father and Mother; and (iii) the 2008 Joint Will was executed by Father and Mother.

(2) TCS (together with a domestic helper) merely attended Hastings’s office to pick up Father and Mother after the process was completed.

65.  The next material event took place on 8 May 2008 when Father and Mother executed a joint codicil (the “2008 Joint Codicil”)[38]. This document was prepared by Hastings, and the execution thereof was witnessed by (i) Dr Chan and (ii) Mr Bruce Fu. In gist, the 2008 Joint Codicil provides that:-

(1) TCS was arranged to become the third joint tenant of the property at 14 Daymar Place, Castle Cove, Sydney, Australia (the “Sydney Property”) on 24 May 2003, and as such TCS would automatically become the sole owner thereof by operation of law after the demise of Father and Mother; and

(2) Father and Mother’s property in Hong Kong, ie Flat 504, Bowen Mansion, 7C Bowen Road, Hong Kong (the “Bowen Property”)[39], be inherited by TCS after their demise.

66.  On the occasion when the 2008 Joint Codicil was executed, Father further executed his 2^nd statutory declaration that was also dated 8 May 2008 (the “2^nd Statutory Declaration”)[40]. Father stated:-

(1) the circumstances in which he was led by TCP to execute the 2006 Will, and the fact that the contents thereof did not represent his testamentary wish; and

(2) the reasons why he and Mother wished to donate their assets to charity upon their demise: ie (i) they provided very well for their children; (ii) the children should rely on themselves; and (ii) they wished to make contributions to the society and help those who were less fortunate.

67.  According to TCS, she only knew about the existence of the 2008 Joint Codicil after the same was executed, and she was not privy to the discussion between Father and Mother. As such, she could not have exerted any influence on them.

68.  By reason of the matters set out hereinabove, TCS’s stance is that:-

(1) The 2008 Joint Will and the 2008 Joint Codicil evince the testamentary wish of Father and Mother, and the same are valid.

(2) Whilst Father’s 2007 Will and Mother’s 2007 Will were superseded by the 2008 Joint Will and the 2008 Joint Codicil, the same represented the testamentary wish of Father and Mother at the time.

(3) Father did not approve the contents of the 2006 Will, and the same did not represent his testamentary wish. In any event, the 2006 Will was revoked and superseded by Father’s 2007 Will as well as the 2008 Joint Will and the 2008 Joint Codicil.

The Case of TCG, TYK, and TCP[41]

69.  The stance of TCG, TYK, and TCP is that:-

(1) Father did not know and approve the true contents of (i) his 2007 Will; (ii) the 2008 Joint Will; and (iii) the 2008 Joint Codicil;

(2) TCS, by undue influence, procured the execution of (i) Father’s 2007 Will; (ii) the 2008 Joint Will; and (iii) the 2008 Joint Codicil; and

(3) The 2006 Will evinces Father’s testamentary wish, and the same is last valid will made by Father.

70.  TCG, TYK, and TCP heftily rely on the evidence of Mr Hoon. He informed the court that he took direct instructions from Father in Singapore and that he did fully explain the contents of the 2006 Will to Father. In his submissions, Mr Dawes (for TCG, TYK, and TCP) emphasized that as found by the Singaporean High Court, Mr Hoon was a disinterested third party who was unshaken under cross-examination. In the circumstances, Mr Dawes submitted that the 2006 Will (the contents of which are simple and straightforward) reflects Father’s testamentary intention, and it was unlikely that he would change his mind drastically within a short period of time. Mr Dawes also pointed out it is TCS’s case that TCP provided a copy of the 2006 Will to Father, and TCP would not have done so, had she intended to trick Father into executing the 2006 Will.

71.  As a separate point, relying on the findings made by the Singaporean courts in the Singaporean 570 Action (see paragraph 11 above), Mr Dawes reminded this court that (i) TCS exerted considerable influence over Father and Mother in their twilight years; and (ii) TCS was closely involved in the process of preparing the two sets of 2007 Wills and the 2008 Joint Will.

72.  Further, Mr Dawes also contended that there were glaring inconsistencies between (i) the instructions provided to Hastings and (ii) the contents of the two sets of 2007 Wills as well as the 2008 Joint Will.

73.  In this connection, Mr Dawes emphasized that according to Mr Bruce Fu, Father’s wish was to “leave the entirety of his estate to [Mother], and afterward to charity.” Mr Dawes then went on to make two points.

74.  First:-

(1) Only a mutual will or a “joint and mutual” will (both of which are premised on an enforceable agreement that the testamentary distribution cannot be altered by the surviving spouse) could achieve the effect alleged by Mr Bruce Fu: see Williams, Mortimer & Sunnucks (22^nd Ed) at paras 10-13 and 10-24.

(2) However, neither the 2007 Wills executed by Father and Mother nor the 2008 Joint Will constituted mutual wills and/or “joint and mutual wills” as they did not contain a provision against alteration and/or revocation.

(3) In the premises, Mr Dawes suggested that it would be open to Mother (ie the surviving spouse in the present case) to revoke the 2008 Joint Will subsequently (in which event Father’s assets could not be utilized for charitable purposes).

(4) In fact, Mother did revoke the 2008 Joint Will after Father passed away. On 12 February 2015, Mother executed a new will (“Mother’s 2015 Will”) whereby she (i) revoked all her previous wills, (ii) appointed TCS as the sole executrix of her estate, and (iii) bequeathed all her immovable and movable assets to TCS.

75.  Second:-

(1) Under Father’s 2007 Will, Father’s assets would only be given to Mother in the event that Father predeceases Mother. This, Mr Dawes submitted, is different from Father’s instruction that Father’s estate should go to Mother first and thereafter to charity.

(2) As regards the 2008 Joint Will, Mr Dawes pointed out that according to the advice of Mr Nelson Miu in an email dated 4 February 2008 at 5:50pm[42], it would be open to TCS to appoint herself as the beneficiary since clause 10 of the initial draft was not exclusively charitable, and as such the ultimate destination of the assets may be not necessarily charities (as contemplated by Father). Although clause 10 of the initial draft of the 2008 Joint Will (which contains a problematic phrase) was removed eventually, Mr Nelson Miu, in his email dated 6 February 2008 at 16:32[43], indicated that he had some “little lingering doubt” as to whether clause 9(4) of the revised or final draft was laden with the same ambiguity. This issue was not addressed at all. Hastings simply went on to arrange Father and Mother to execute the 2008 Joint Will, despite the “little lingering doubts” expressed by Mr Nelson Miu.

76.  As will be further elaborated below, TCG, TYK, and TCP also contended that:-

(1) The purported testamentary intention of Father (as evidenced by the documents disclosed by Hastings) was inconsistent, ambulatory and ever-changing.

(2) Hastings (ie Ms Hwang and Mr Bruce Fu) conspicuously failed to take adequate contemporaneous records that evidence the instructions given by Father and the advice that he received.

(3) TCS was heftily involved in giving instructions to Ms Hwang and Mr Bruce Fu on Father’s behalf, and they did not independently verify these instructions with Father.

(4) Father and Mother’s 2007 Wills as well as the 2008 Joint Will were prepared hastily.

(5) There was an alleged “concerted effort” in creating a will with legal effect that is not apparent from the face of its wording.

C. Legal Principles on Assessing Credibility

77.  In Lee Fu Wing v Yan Paul Po Ting [2009] 5 HKLRD 513 at 534, DHCJ Au (as Au JA then was) set out the well-established approach to assessing credibility. In the course of assessing the credibility of a party’s case, the court shall consider the following matters:

(1) whether the party’s case is inherently plausible or implausible;

(2) whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;

(3) where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests, this is relevant to the assessment of his overall credibility; and

(4) the demeanour of the witnesses.

78.  In the context of adjudicating a dispute in relation to an alleged oral agreement or understanding, in Joint and Several Trustees of the property of Yeung Wing Sing v Yeung Wing Sing & Anor [2021] HKCFI 2018 at para 26, Recorder Yvonne Cheng SC (as Cheng J then was) pointed out that:

(1) contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility;

(2) in deciding whether to accept a witness’s account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events;

(3) care should be taken in regard to the consistency of the witness’s evidence with undisputed or indisputable evidence, and the internal consistency of the witness's evidence;

(4) care should be taken in drawing conclusions about truthfulness and reliability solely or mainly from the appearance of a witness or from the assessment of a witness’s character; and

(5) witnesses’ credibility should be tested by reference to the objective facts proved independently of their testimony, and to the court should consider their motives and the overall probabilities.

D. Deliberation: the Elison Action

D1. Factual Findings

79.  Having considered the inherent probabilities, the apparent logic of events, the contemporaneous documents, the parties’ objective conduct, the evidence of the witnesses, and counsel’s submissions, I find that:-

(1) Elison was set up pursuant to Father’s instruction, and it was a corporate vehicle used for the sole purpose of holding the Credit Suisse Account.

(2) Father’s intention was that the 5 Siblings should become beneficial owners of the Credit Suisse Account in equal shares.

(3) This was why Father deposited a sum of US$4 million into the Credit Suisse Account in April 1996. This fund did not belong to Mother and/or TCS beneficially.

(4) TCS and Mother shared Father’s intention that the assets under the Credit Suisse Account and the rights and interests in relation thereto belonged to the 5 Siblings beneficially. This was the reason why they executed the 2^nd and 3^rd Form As, declaring that the assets under the Credit Suisse Account belonged to the 5 Siblings beneficially.

80.  I make these findings for the following reasons.

81.  First of all, the contents of 3 sets of Form As amply demonstrate it was intended that the Credit Suisse Account were held on trust for the 5 Siblings in equal shares. There is no suggestion that Father, Mother, and TCS were unable to understand the same. When TCS gave oral evidence, she fairly admitted that the instruction regarding the Form As came from Father[44]. It is obvious that Father intended that the Credit Suisse Account be beneficially owned by the 5 Siblings, and TCS and Mother accepted Father’s decision. This was the reason why they executed the 2^nd and 3^rd Form As.

82.  Second, I have no hesitation in rejecting TCS’s pleaded case that the 5 Siblings were named as the beneficial owners for the purposes of fulfilling the formalities required by Credit Suisse. There is neither truth nor substance in this assertion. Had Father, Mother, and TCS intended that Mother and TCS should become the beneficial owners of the Credit Suisse Account, they could have stated so in the Form As. There was no reason why they would have named the 5 Siblings as the beneficial owners in equal shares in the Form As. This was wholly inexplicable. In this connection, articles 1 and 3 of the Swiss banks’ code of conduct[45] expressly provide that, in case of doubt, a Swiss bank should obtain a declaration from its client by means of a Form A that sets forth the identity of the beneficial owner of the assets deposited with the bank. When TCS was cross-examined by Mr Dawes[46], she fairly acknowledged that it was important to provide true and accurate information to Credit Suisse with regard to the beneficial ownership of the Credit Suisse Account. However, TCS was unable to provide any explanation as to why the beneficial owners stated in the Form As were the 5 Siblings, instead of Mother and herself.

83.  Third, TCS’s suggestion that Mother and herself are the beneficial owners of the Credit Suisse Account is an ex post facto assertion that is plainly untrue. TCS’s note of instructions to Ms Hwang dated 18 March 2009[47] as well as Ms Hwang’s attendance note in respect of the conference on 18 March 2009[48] show that TCS, Ms Hwang, and Mr Brewer discussed how to deal with the Credit Suisse Account. Had TCS believed that Mother and herself were the beneficial owners of the Credit Suisse Account, this would have been one of the first things that TCS informed Ms Hwang and Mr Brewer. However, not an iota in contemporaneous records show that TCS made an assertion that the beneficial ownership of the Credit Suisse Account was vested in Mother and herself.

84.  Fourth, TCS’s suggestion that the funds deposited into the Credit Suisse Account originated from Mother and herself is also an untrue ex post facto assertion. In this regard, TCS’s case and assertions have undergone a sea change:-

(1) As stated in her note of instructions to Ms Hwang[49] dated 18 March 2009, TCS unequivocally asserted that “[Father] injected his personal funds into [Elison]’s account with Credit Suisse”.

(2) In the letter dated 19 September 2019 from ONC Lawyers[50], it was also unequivocally stated that Father injected his personal funds into the Credit Suisse Account in April 1996. As admitted by TCS when she gave oral evidence[51], ONC took instructions from her[52].

(3) In paragraph 37 of the initial defence filed on 6 October 2020, TCS admitted[53] that Father and Mother deposited a sum of US$4 million into the Credit Suisse Account.

(4) However, when TCS amended the defence on 7 October 2022[54], she deleted the aforesaid admission and asserted that (i) the aggregate sum of US$4 million in the Credit Suisse Account originated from the Likely Account and (ii) she and Mother were the beneficial owners of the sum of US$4 million[55].

(5) TCS’s new case is hardly credible. As pointed out by Mr Dawes, in light of the amount of money involved, it is unbelievable that TCS would have forgotten that the sum of US$4 million came from herself and Mother.

(6) In her witness statement[56], TCS explained that contrary to her initial impression, she managed to discover some new documents after she changed legal representatives. As will be elaborated in the paragraph immediately hereinbelow, the new documents do not show that TCS and Mother were the beneficial owners of the sum of US$4 million at all.

(7) In any event, when TCS was cross-examined by Mr Dawes[57], she admitted that the sum of US$4 million:-

(a) did not belong to herself;

(b) did not belong to Mother (who was a housewife); and

(c) could only belong to and originate from Father.

(8) This admission (which is consistent with (i) the contents of the attendance notes[58] and instructions[59] in respect of the conference on 18 March 2009 (ii) ONC’s letter dated　19 September 2019[60]; and (iii) the deleted pleas in paragraph 37 of the initial defence filed on 6 October 2020) is fatal to TCS’s new case.

85.  Fifth, the new bank documents from TCS do not show that the sum of US$4 million belonged to and/or originated from her and Mother:-

(1) TCS relied on the following bank documents: (i) the contract in respect of the Likely Account[61]; (ii) a bank statement in respect of the Likely Account showing that a sum of US$2,999,979 was deposited on 30 November 1995[62]; (iii) a credit advice showing that the said sum of US$2,999,979 was deposited into the Likely Account pursuant to the instruction of Mr Lau Bing Sum[63]; (iv) a confirmation dated 17 April 1996 showing that Elison placed US$3 million for time deposit; and (v) a letter dated 27 May 1996 requesting Credit Suisse to transfer approximately US$1 million to Elison in the next few days upon receiving the sum.

(2) As pointed out by Mr Dawes, the aforesaid bank documents do not show that:-

(a) The sum of US$2,999,979 deposited into the Likely Account on 30 November 1995 came from Mother or TCS;

(b) The sum of US$1 million came from Mother or TCS;

(c) The sum of US$3 million was actually transferred to the Credit Suisse Account from the Likely Account;

(d) A sum of US$1 million was actually paid into the Likely Account and subsequently transferred to the Credit Suisse Account; and

(e) The beneficial owners of the assets deposited with the Likely Account were TCS and Mother.

(3) The aforesaid bank documents only show that:-

(a) Mr Lau Bing Sum deposited US$2,999,979 into the Likely Account on 30 November 1995;

(b) As of 17 April 1996, Elison had US$3 million, and the sum was placed on a time deposit; and

(c) On 27 May 1996, TCS requested Credit Suisse to transfer a sum of US$1 million (which was expected to be received in the next few days) to Elison.

(4) Despite the incomplete documentation, Mr Dawes did not seriously dispute the fact that a sum of around US$3 million found its way to the Credit Suisse Account via the Likely Account. On the evidence, it appears that this was the case. There was no other explanation as to why there was an aggregate sum of US$4 million in the Credit Suisse Account.

(5) In this connection, apart from admitting that the aggregate sum of US$4 million originated from Father, TCS also admitted[64] that Mr Lau Bing Sum was a relative of his parents, and he was instructed by Father to effectuate the transfer of the fund.

(6) In light of TCS’s admissions, I have no doubt that the sums that were paid into the Credit Suisse Account originated from Father and that the same did not belong to TCS and/or Mother.

86.  Sixth, I do not lose sight of the fact that Father did not inform TCG, TYK, TCP, and TCH about the existence of the Credit Suisse Account. In light of the overwhelming circumstances in favour of the case of TCG, TYK, and TCP, I am of the view that this factor is incapable of showing that Father did not intend to benefit the 5 Siblings equally. There could be various reasons why Father would wish to be opaque or simply did not bother to inform his children about the arrangement. Whilst I did not have the benefit of hearing Father’s explanation, it appears to me that objective intention of Father was crystal clear. In my view, he did intend to benefit his children equally. After all, Father, being the patriarch of the family, was the one who gave instructions to set up Elison[65], whose only activity was to hold the Credit Suisse Account. As admitted by TCS[66], she and Mother (i) followed Father’s instructions regarding the matters of Elison and (ii) allowed Father to hold out himself as having authority to act on behalf of Elison. TCS also admitted[67] that Father was involved in opening the Credit Suisse Account, and he gave instructions for her and Mother to execute the 2^nd and 3^rd Form As (which list the 5 Siblings as the beneficial owners in equal shares). Had Father intended that the beneficial owners of the Credit Suisse Account be TCS and Mother, he would have (i) stated so in the 1^st Form A and (ii) instructed TCS and Mother to state so in the 2^nd and 3^rd Form As. This was not what happened. I have no doubt that as reflected by the contents of the three sets of Form As, Father’s intention (which was shared by TCS and Mother) was that the 5 Siblings should become the beneficial owners of the Credit Suisse Account in equal shares.

87.  Seventh, Mr Tang and Ms Wong submitted that as evidenced by the contents of Father’s 2007 Will and the 2008 Joint Will, Father did not have the intention to benefit the 5 Siblings in equal shares. This submission simply conflates Father’s testamentary intent in regard to his personal assets in 2007 and 2008 with Father’s intent in regard to the assets held under the Credit Suisse Account back in 1995/1996. As will be elaborated below in Section E , I find that as of 2007 and 2008, Father did have the testamentary intent to donate his personal wealth to charity. However, it does not follow that back in 1995/1996, Father did not want the 5 Siblings to benefit from the assets held under the Credit Suisse Account, including the sum of US$4 million. As pointed out, Father repeatedly ensured that the 5 Siblings were listed as the beneficiaries of the Credit Suisse Account under the Form As. Had Father intended that the 5 Siblings should not benefit from the sum of US$4 million, he would not have made arrangements and given instructions for depositing the sum with the Credit Suisse Account.

D2. Constitution of the Trust

Legal Principles

88.  It is trite that an express trust can be constituted by declaration, and the settlor is presumed to intend the consequence of his or her words and action: see Lewin on Trusts (20^th Ed) at para 3-004.

89.  An express trust has to satisfy the requirement of the three certainties of (i) intention; (ii) subject matter; and (iii) object: see Lewin on Trusts (20^th Ed) at para 5-004

90.  Insofar as intention is concerned, it has been suggested that technical or formal words are not required for creating an express private trust. What is required is a sufficiently clear manifestation to create such a trust. In Lee Sai Nam v Li Shu Chung & Ors (HCA 1711/2009, 9 December 2015) at para 85, DHCJ Leung (as Leung J then was) stated:-

“Mr Wong submitted that technical or formal words are not required for the creation of an express private trust. What was required was a sufficiently clear manifestation of an intention to create such a trust, whilst words such as “trust” or “confidence” or the like are not a must: see Hudson, The Law of Trusts (2nd Ed) at §2.03; and at§2.04:

‘Thus, in appropriate circumstances, an express trust may be created by means of an informal declaration, or may be inferred from the acts of the settlor or the circumstances of the case. So, in Paul v. Constance, the words ‘the money is as much yours as mine’, referring to moneys in a bank account, were held, in the circumstances of the case, to have created a trust. A similar result was reached in Rowe v Prance, where the legal owner of a yacht referred to it, in many conversations with his mistress, as ‘ours’ or as ‘our boat’.’”

(emphasis added)

Certainty of Intention

91.  Whilst the 1^st Form A was executed by Father (who was, on TCS’s admission[68], a de facto director of Elison), the 2^nd and 3^rd Form As were executed by TCS and Mother (who were, on records, Elison’s directors).

92.  There is no question that Father, TCS and Mother had authority to act on Elison’s behalf. TCS did not suggest otherwise.

93.  In my view, the intention manifested by the contents of three sets of Form As could not be clearer. The three sets of Form As provide that:-

“the undersigned hereby declares the beneficial owner of the assets deposited with the bank is [(i) TCS (20%); (ii) TCG (20%); (iii) TYK (20%); (iv) TCP (20%); and (v) TCH 20%]”.

94.  I have no doubt in finding that Father, TCS, and Mother, acting for and on behalf of Elison, had made repeated declarations evincing and manifesting an intention that the rights and assets relating to the Credit Suisse Account were held on trust for the 5 Siblings in equal shares.

95.  Accordingly, the requirement of certainty of intention is satisfied.

Certainty of Subject Matter

96.  As regards the certainty of subject matter, TCS raised a technical argument. She suggested that the funds that were subsequently injected into the Credit Suisse Account were future assets that did not exist at the time when the trust was constituted. As such, the requirement of certainty of subject matter was not satisfied.

97.  I disagree with TCS’s contention, which is based on an incorrect legal assumption that a bank account consists of monies. Whilst a layman may take the view that this is the case, as a matter of law, this is not the position.

98.  Mr Dawes helpfully referred to Foskett v McKeown [2001] 1 AC 102 at 127H to 128B. As pointed out by Lord Millet, there is no money in a bank account; instead, there is merely a “single debt of an amount equal to the balance standing to the credit of the account holder”. His Lordship stated:-

“We speak of money at the bank, and of money passing into and out of a bank account. But of course the account holder has no money at the bank. Money paid into a bank account belongs legally and beneficially to the bank and not to the account holder. The bank gives value for it, and it is accordingly not usually possible to make the money itself the subject of an adverse claim. Instead a claimant normally sues the account holder rather than the bank and lays claim to the proceeds of the money in his hands. These consist of the debt or part of the debt due to him from the bank. We speak of tracing money into and out of the account, but there is no money in the account. There is merely a single debt of an amount equal to the final balance standing to the credit of the account holder.” (emphasis added)

99.  In my view, Mr Dawes was correct in pointing out that what Elison, being the holder of the Credit Suisse Account, had was a legal right to demand Credit Suisse to make payment in respect of an amount of money that did not exceed the balance standing to the credit. This legal right was a chose in action.

100.  In the premises, the subject matter of the trust was such a chose in action. This chose in action was not a future property as alleged. Instead, it was a right that had always existed and owned by Elison since the date when the Credit Suisse account was set up (ie 12 December 1995). I do not see any reason why Elison (and/or its directors) might not declare that such a chose in action be held on trust for the 5 Siblings.

101.  If TCS’s argument were correct, extreme inconvenience would arise. Like the present case, there are reasons why a person would wish to create a trust account for the benefit of others. In a typical case, the intention of the settlor is that the right to demand payment in respect of the balance standing to the credit of the trust account should beneficially belong to the beneficiaries. If TCS’s argument were correct, the implication is that whenever a further sum is deposited into the trust account after the trust over the bank account was declared or constituted, the credit or debt in respect of the further sum would not fall within the preexisting trust. Thus, whenever a further sum is deposited, the settlor will have to make a fresh declaration of trust in order to create a new trust over the further deposit. The extreme inconvenience involved is unthinkable, and the practical outcome is simply absurd.

102.  For all the above reasons, I reject TCS’s argument regarding future property. I find that the requirement of certainty of subject matter is satisfied.

Certainty of Object

103.  The trust in question involves a fixed list of beneficiaries, namely the 5 Siblings (whose identities are unequivocally set out in the Form As).

104.  There is no question that the requirement of certainty of object is satisfied.

Sum Up

105.  For all the above reasons, I hold that the requirement of the three certainties, ie (i) certainty of intention; (ii) certainty of subject matter; and (iii) certainty of object, is satisfied. Accordingly, a trust over the rights relating to the Credit Suisse account was validly constituted.

106.  I further find that:-

(1) the beneficial owners of the Credit Suisse Account are the 5 Siblings; and

(2) the right to demand payments from Credit Suisse in respect of the balance standing to the credit of the Credit Suisse Account (which is a chose in action) belongs to the 5 Siblings beneficially in equal shares.

D3. No Resulting Trust

107.  The doctrine of resulting trust is a legal presumption that has no application when the actual intention is clear: see Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9 at paras 44 to 45 (per G Lam J, as Lam JA then was).

108.  In light of the findings and analysis set out in Sections D1 and D2 above, I find and conclude that:-

(1) The sum of US$4 million that was deposited with Credit Suisse under the Credit Suisse Account previously belonged to Father, not TCS and Mother.

(2) When Father deposited the said sum, his intention was to benefit the 5 Siblings. Mother and TCS knew and accepted that this was the case.

109.  In the premises, there is no room for TCS and Mother to rely on the doctrine of resulting trust. They did not even own the fund in question. Having executed the Form As, TCS and Mother knew (and ought to know) that the beneficial owners of Credit Suisse Account were the 5 Siblings. Had TCS and Mother owned the sum of US$4 million, the same would not have been deposited with Credit Suisse under the Credit Suisse Account at all.

D4. The Liability of TCS and Mother

Breach of Trust

110.  As expressly admitted in their pleaded case (see paragraphs 33(3), 39(1b) and (1c) and 41 of their amended defence), TCS and Mother (who were the directors of Elison on records and signatories of the Credit Suisse Account) treated themselves as the beneficial owners of the Credit Suisse Account, and they used the funds withdrawn therefrom for purposes that were unrelated to the 5 Siblings, including investment in stocks and securities, defraying litigation expenses and defraying living and travelling expenses.

111.  Whilst there was indisputably no less than US$4 million standing to the credit of the Credit Suisse Account at one stage, TCS was only able to provide documentary evidence showing how US$439,150 (out of US$4 million) was utilized[69]. As to the sum of US$439,150, only US$550 and US$600 were concerned with the corporate services rendered to Elison.

112.  In other words, in regard to the sum of US$4 million:-

(1) TCS was only able to account for an aggregate sum of US$1,150 (ie US$550 plus US$600).

(2) On TCS’s admission, US$438,000 (ie US$439,150 less US$1,150) was used for purposes unrelated to the 5 Siblings.

(3) The balance of US$3,560,850 (ie US$4 million less US$438,000 less US$1,150) had been unaccounted for.

113.  In paragraph 20 of her witness statement[70], TCS stated that she and Mother allegedly owned the sum of US$4 million, and as such they “have always used it however [they] wished to, without recourse to any other person including [Father]”.

114.  In light of this admission, I have no doubt that TCS and/or Mother had received, disposed of, and/or spent an aggregate sum of US$3,998,850 (ie US$438,000 plus US$3,560,850).

115.  It is plain that there were breaches of trust.

Dishonest Assistance

116.  Elison (being a company) could only act through TCS and Mother (who are its directors).

117.  TCG, TYK, and TCP contended that TCS and Mother are liable on the basis of dishonest assistance.

118.  The elements of dishonest assistance are summarized in China Metal Recycling (Holdings) Ltd & Anor v Chun Chi Wai & Ors [2021] HKCFI 378 at paras 76 to 79 (per DHCJ MK Liu) citing Grupo Torras SA v Al-Sabah (No 5) CLC 1469 at 1664A-B (per Mance J, as he then was). In short, the plaintiff has to show that:-

(1) There was a breach of trust by someone.

(2) The defendants assisted. In this connection, the plaintiff has to show that the defendants’ acts, conduct, or omission had some causative impact. It is not necessary to show causation, and it suffices to show that the defendants’ acts, conduct, or omission rendered the breach of trust “easier than it would otherwise have been”.

(3) There was dishonesty on the part of the defendants. In this connection, the test is objective. It suffices to show that the conduct complained of is dishonest by the standards of ordinary and reasonable people[71].

(4) A loss is resulted. In this connection, once liability is established, the defendants are liable for all loss and damage resulting from the breach of trust which has been dishonestly assisted.

119.  I have no hesitation in finding that each of the aforesaid requirements for establishing dishonest assistance is satisfied:-

(1) As mentioned, funds were withdrawn from the Credit Suisse Account for TCS and Mother’s personal purposes. There were plainly breaches of trust. As pointed out in paragraphs 111 to 114 above, insofar as the sum of US$4 million was concerned, TCS was only able to account for US$1,150 (which was utilized for defraying corporate expenses). Whilst US$438,000 was spent on purposes unrelated to the 5 Siblings, US$3,562,000 had been unaccounted for. In light of TCS’s admission[72], there is every reason to believe that the balance sum of US$3,562,000 had been received, spent, and/or disposed of by TCS and Mother.

(2) The breaches of trust were on admission orchestrated by TCS and Mother, who were the only directors of Elison on records and signatories of the Credit Suisse Account. There is no question that TCS and Mother assisted the breaches of trust.

(3) TCS and Mother were objectively dishonest. Having executed the 2^nd and 3^rd Form As, they knew (and ought to know) that the 5 Siblings were the beneficial owners of the Credit Suisse Account. Further, for the reasons explained above, they also knew that the funds deposited into the Credit Suisse Account did not belong to them beneficially. In the circumstances, they should not have withdrawn sums from the Credit Suisse Account and utilized such sums for their own purposes. I do not lose sight of Mr Tang’s observation that members of the Tan family maintained another bank account that was referred to as “the number 2 account” and that the funds deposited thereunder were available for members of the Tan family. In my view, the matters relating to “the number 2 account” are simply irrelevant to the question of whether TCS was objectively dishonest in regard to her conduct relating to the Credit Suisse Account. As pointed out by Mr Dawes, the arrangements in respect of the two bank accounts were simply different.

(4) As a result of TCS and Mother’s act and conduct, the credit standing to the balance of the Credit Suisse Account was reduced, and the 5 Siblings (except TCS) did not take any benefit. Accordingly, the 5 Siblings (except TCS) must have suffered loss and damage.

120.  In the premises, I find that TCS and Mother are liable to TCG, TYK, TCP, and TCH on the basis of dishonest assistance.

Knowing Receipt

121.  The requirements for establishing knowing receipt are set out in China Metal Recycling (Holdings) Ltd (supra) at paras 84 to 87, citing Lewin on Trust (20^th Ed) at para 42-023 and El Ajou v Dollar Land Holdings plc [1994] 2 All ER 685 at 700g (per Hoffman LJ, as he then was). The Plaintiff has to show that:-

(1) there is a property subject to a trust;

(2) the property is transferred;

(3) the transfer is in breach of trust;

(4) the property (or its traceable proceeds) is received by the defendant;

(5) the receipt is for the defendant’s own benefit; and

(6) the defendant receives the property with the requisite knowledge.

122.  For the reasons set out above, I am satisfied that each of these requirements is satisfied. It is hardly disputable that TCS and Mother withdrew funds from the Credit Suisse Account, and they used the funds for their personal purposes. As mentioned, I have no doubt in finding that TCS and Mother, who executed the 2^nd and 3^rd Form As, must know that the 5 Siblings were the beneficial owners of the Credit Suisse Account.

123.  Accordingly, I find and conclude that TCS and Mother are also liable to TCG, TYK, TCP, and TCH on the basis of knowing receipt.

Proprietary Claim

124.  As pointed out by the learned authors of Lewin on Trust (20^th Ed) at para 4-025, in order to pursue proprietary remedies in equity, it suffices to establish the first four of the requirements set out in paragraph 121 above.

125.  This is consistent with the well-established principle that when property is obtained by fraud or unconscionable conduct, equity imposes a constructive trust on the fraudulent or unconscionable recipient so that the property is recoverable and traceable in equity: see Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 at 716C-D.

126.  In Predicine Holdings Ltd v Bianchi (Hong Kong) Ltd [2021] HKCFI 123 at para 90, Coleman J stated:-

“When property is obtained by fraud, equity imposes a constructive trust on the fraudulent recipient, so that the money is recoverable and traceable in equity. Even if the recipient is not a party to the fraud, if his state of knowledge is such as to make it unconscionable for him to retain the money, the defrauded claimant has a tracing remedy, that is the property is held on constructive trust for the claimant.”

127.  For the reasons elaborated above, I am satisfied that the first four of the requirements set out in paragraph 121 above are satisfied.

128.  Furthermore, having said that TCS and Mother knew (and ought to know) that the beneficial owners of the Credit Suisse Account are the 5 Siblings, I am also satisfied that they were unconscionable in receiving and/or retaining the funds that were withdrawn therefrom.

129.  I am satisfied that TCG, TYK, TCP and TCH are entitled to seek equitable proprietary reliefs against TCS and Mother.

D5. The Claims are Time-Barred?

130.  However, TCS on behalf of herself and Mother’s estate contended that the claims brought by TCG, TYK, and TCP had been time-barred.[73]

131.  Order 18, rule 8(1) provides that:-

“a party must in any pleading subsequent to a statement of claim specifically plead any matter, for example…any relevant statute of limitation (a) which he alleges makes any claim of the opposite party not maintainable.” (emphasis added)

132.  In their defence[74], TCS and Mother alleged that TCG, TYK, and TCP should have known about the trust over the Credit Suisse Account by reason of the cross-examination of TYK in the Singaporean 570 Action back in April 2013. Although TCS and Mother alleged that TCG, TYK, and TCP’s claims had been time-barred, they failed to plead the applicable provisions of the Limitation Ordinance (Cap 347).

133.  In the premises, it is doubtful as to whether it is open to TCS and Mother to pursue a limitation defence based on the provisions in the Limitation Ordinance.

134.  In any event, putting aside the pleading point, I disagree with TCS and Mother’s suggestion that the limitation period should start to run in April 2013.

135.  In this connection:-

(1) TCG, TYK, and TCP’s case against TCS and Mother is based on fraud and concealment, and it is common ground TCG, TYK, TCP, and TCH had not been informed of the existence of Elison and the Credit Suisse Account.

(2) Although TYK was cross-examined in regard to the existence of Elison at the trial of the Singaporean 570 Action, this was in the context of exploring the funds used by TCS for purchasing 1.419 million shares in EnGro[75]. The cross-examination did not even touch upon the Credit Suisse Account and/or the Form As. TYK was merely asked whether he was familiar with a company named Elison, and he simply answered “not at all”[76].

(3) In the premises, I fail to see how TCS and Mother could seriously suggest that by reason of the trial of the Singaporean 570 Action, TCG, TYK, and TCP should have carried out an investigation to ascertain whether they had an interest in the bank account(s) held by Elison. This suggestion does not make sense to me.

136.  Meanwhile, I accept TCG, TYK, and TCP’s case[77] (which was not seriously challenged during cross-examination and which was corroborated by the contemporaneous records) that only on 26 February 2019 did their solicitors, pursuant to the order dated 29 January 2019 made by Marlene Ng J in the discovery proceedings under HCMP 1192/2018, receive the materials (ie various attendance notes prepared by Hastings) that shed light on (i) the existence of the Credit Suisse Account and (ii) the trust arrangement in respect thereof.

137.  In the circumstances, prior to February 2019, TCG, TYK, and TCP could not have carried out any investigation in respect of the matters relating to the Credit Suisse Account, and they could not have discovered the existence of the trust arrangement in respect thereof as well as the wrongdoings on the part of TCS and Mother (which have been concealed).

138.  Thus, even if it is open to TCS and Mother to pursue a limitation defence, TCG, TYK, and TCP would be entitled to invoke section 26 of the Limitation Ordinance to postpone the limitation period.

139.  Obviously, it would take time for TCG, TYK, and TCP as well as their legal advisors to review and analyze the materials produced by Hastings. In my view, in light of the factual complexity and number of documents involved, they could only have, with due diligence, discovered the existence of the Credit Suisse Account and the trust arrangement in respect thereof three months after the documents were produced. This would be 26 May 2019 (ie three months after 26 February 2019).

140.  Accordingly, the claims brought by TCG, TYK, and TCP in the Elison Action (which was commenced on 6 May 2020) could not be time-barred as alleged.

141.  For completeness, it should be reiterated that TCG, TYK, and TCP have established a proprietary claim in equity[78]: see paragraphs 124 to 129 above. Under section 20(1)(b) of the Limitation Ordinance, TCG, TYK, and TCP’s proprietary claim in equity (which is based on a substantive constructive trust) is not subject to any limitation period.

142.  In the premises, TCS and Mother cannot rely on the limitation defence to absolve themselves from liability.

D6. Sum Up

143.  For all the above reasons, TCS and Mother have failed to raise any valid defences to the claims brought by TCG, TYK, and TCP.

144.  As mentioned in paragraphs 79(3), 85 to 87, 108 to 109, and 110 to 114 above, there was, at least, US$4 million standing to the credit of the Credit Suisse Account at one stage, and only US$1,150 was used for the legitimate purpose of defraying Elison’s corporate expenses. I find that the remaining sum of US$3,998,850 was unaccounted for and had been received, spent, and/or disposed of by TCS and Mother.

145.  In the premises, I am satisfied that TCG, TYK, and TCP are entitled to seek equitable compensation against TCS and Mother on the basis of dishonest assistance and knowing receipt to the extent of US$2,399,310 (ie 60%[79] x US$3,998,850).

146.  I am also satisfied that as TCS and Mother had unconscionably received and/or disposed of the sum in question (part of which belonged to TCG, TYK, and TCP beneficially), a constructive trust has arisen[80]: see Westdeutsche (supra) at 716C-D; and Predicine Holdings Ltd (supra) at para 90.

147.  There should be:-

(1) An enquiry and/or account in respect of (i) all the funds that were transferred to and away from the Credit Suisse Account; (ii) the traceable proceeds or substitutes in respect of the funds transferred away from the Credit Suisse Account; and (iii) the traceable proceeds or substitutes that had been received and/or retained by TCS and Mother; and

(2) An order that TCS and Mother are liable to pay TCG, TYK, and TCP all sums found due to them upon the said enquiry and/or account.

E. Deliberation: the Probate Action

E1. The Plaintiffs’ Claims under the Probate Action constitute an Abuse of the Court’s Process?

148.  As early as 2013, TCG, TYK, TCP, and TCH commenced HCMP 246/2013 asking the court to construe the 2008 Joint Will, and TCS and the Secretary for Justice were respectively joined as the 1^st and 2^nd defendants. The main issue in dispute was whether (as TCS contended) the phrase “我們名下所有（不論在世界任何地方）的財產” under clause 2 of the 2008 Joint Will subsumes all assets belonging to Father beneficially, including assets that were held on trust for him. The case eventually went to the Court of Final Appeal: see judgment dated 5 November 2015 under FACV 3/2015 ((2015) 18 HKCFAR 430). The Court of Final Appeal answered the question in the affirmative and rejected the contentions advanced by TCG, TYK, TCP, and TCH. It was held that the phrase in question (ie “我們名下…的財產”) covered all properties belonging to Father.

149.  In their opening submissions, Mr Edward Tang, together with Ms Clara Wong, raised a preliminary objection. They submitted that under the proceedings in HCMP 246/2013, TCG, TYK, and TCP elected to accept that the 2008 Joint Will is the last valid will of Father.

150.  In the premises:-

(1) Relying on First National Bank plc v Walker (2001) 1 FLR 505[81], Mr Tang and Ms Wong submitted that TCG, TYK, and TCP’s act of bringing the Probate Action constituted an abuse of the court’s process, and this was tantamount to mounting a collateral attack against the Court of Final Appeal’s ruling in FACV 3/2015.

(2) They further relied on the wider Henderson doctrine[82], and contended that as TCG, TYK, and TCP could have disputed the validity of the 2008 Joint Will in the previous proceedings under HCMP 246/2013 and FACV 3/2015, they should not be allowed to litigate the same issue in the present proceedings.

151.  For the following reasons, I reject Mr Tang and Ms Wong’s submissions.

152.  First of all:-

(1) The starting point is the well-established principle that issues in dispute in a litigation are defined according to the parties’ pleadings, and a litigant should not seek to “slip in” an unpleaded issue. In Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663 at para 21, Ma CJ stated:-

“It should by now really be quite unnecessary to issue yet another reminder on the rationale behind pleadings. The basic objective is fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party (in other words, that party’s case) so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on other issues:- Wing Hang Bank Limited v Crystal Jet International Limited [2005] 2HKC 638, at 643G-H (para 6(1)).. It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced. As the Court of Appeal remarked in Wing Hang Bank Limited v Crystal Jet International Limited at 643H-I (para 6(2)) :-

‘(2) In a trial, particularly where evidence is given by witnesses, it becomes extremely important that each side knows exactly what are the live issues. Where issues are sought to be introduced that have not been adequately or properly pleaded, amendments must be sought unless the consent of the other party or parties has been obtained. It will simply not do for unpleaded issues to be ‘slipped in’ when evidence is being given in the hope that the other side is not sufficiently alert to object.’” (emphasis added)

(2) For reasons best known to TCS and/or her advisors, TCS did not plead the factual bases for alleging (i) that the claims in the Probate Action constituted an abuse of the court’s process; and (ii) TCG, TYK, and TCP are barred or estopped from pursuing the claims in the Probate Action.

(3) In my view, this is not a matter of sheer technicalities. As pointed in Total Lubricants HK Ltd v De Chanterac (No 2) [2013] 2 HKLRD 383 at para 30 (per Kwan JA, as Kwan VP then was), the question of whether there is an abuse of the court’s process depends on the facts of the case as well as the precise circumstances, and it would be wrong to adopt a dogmatic approach.

(4) In the premises, as a matter of substantive fairness, TCG, TYK, and TCP were entitled to know the precise factual and legal bases of TCS’s complaints, such that they would be in a position to (i) know the case that they were required to meet and (ii) come up with a full response.

(5) Without knowing the precise factual and legal bases of TCS’s complaints, TCG, TYK, and TCP were not in a position to plead and come up with a full response as to, inter alios,:-

(a) the factual matters that were known to them when the previous proceedings took place;

(b) the factual matters that were not known to them when the previous proceedings took place;

(c) the stance that they adopted in the previous proceedings;

(d) the assertions that were raised or pursued in the previous proceedings;

(e) the assertions that were not raised or pursued in the previous proceedings;

(f) the reason(s) why they adopted their stance in the previous proceedings; and

(g) the reason(s) why certain assertions were pursued (or not pursued) in the previous proceedings.

(6) The aforesaid matters are highly pertinent. TCG, TYK, and TCP have been deprived of the opportunity to come up with a full response.

(7) I am not of the view that it is open to TCS to pursue her unpleaded case that (i) TCG, TYK, and TCP’s claims in the Probate Action constitute an abuse of the court’s process; and (ii) TCG, TYK, and TCP are barred or estopped from pursuing the claims in the Probate Action.

153.  Second:-

(1) As shown by the pleas contained in TCG, TYK, and TCP’s amended statement of claim in the Probate Action and as evidenced by the contemporaneous documents, it is obvious that the TCG, TYK, and TCP’s case in the Probate Action is built upon the documents that were disclosed pursuant to the discovery application under HCMP 1192/2018.

(2) It appears that after reviewing the documents disclosed by Hastings, TCG, TYK, and TCP took the view that there are grounds for contending that (i) Father might not have known and approved the contents of the 2008 Joint Will; and (ii) Father acted under TCS’s undue influence.

(3) The question of whether there are merits in the grounds pursued by TCG, TYK, and TCP (which will be addressed in Section E3 below) is a separate matter. For present purposes, it suffices to say it is obvious that some further evidence came to light after the previous proceedings in HCMP 246/2013 and FACV 3/2015 were concluded. It does not appear to me that TCG, TYK, and TCP’s conduct was grossly abusive and/or unreasonable. I am of the view that they are entitled to their days in court.

154.  Third:-

(1) It is important not to lose sight that a probate action is an action in rem, and the probate court’s findings will bind all persons who have a rival claim. In the premises, the probate court’s function is “inquisitorial” in nature, and the probate court will, at trial, make a “positive finding” as to the validity or invalidity of a will: see Choy Po Chun v Au Wing Lun [2012] 2 HKLRD 148 at para 16 (per Cheung JA); Li Cheong v Lee Kwai Tai (2020) 23 HKCFAR 116 at para 42 (per Fok PJ).

(2) As Claims J said in In re Muirhead [1971] P 263 at 265 (cited in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387 at para 643):-

“…it is the duty of the Court of Probate to give effect, if it can, to the wishes of the testator as expressed in the testamentary documents.”

(3) Bearing in mind the unique nature of the probate court’s jurisdiction, I am not inclined to the view that the stance adopted by TCG, TYK, and TCP in the previous litigations constitute a valid reason that prevents this court from (i) discharging its “inquisitorial” function and (ii) making “positive” findings regarding the state of affairs in relation to Father’s testamentary intent and the wills that he made.

E2. Legal Principles

155.  As explained in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387 at paras 171 to 178:-

(1) The party who propounds a will carries the legal or persuasive burden of satisfying the court that it is the will of the deceased.

(2) The standard of proof is the balance of probabilities. This means that the proponent of the will has the persuasive burden of proving on the balance of probabilities that: (i) there was due execution of the will; (ii) the testator was of testamentary capacity; and (iii) the testator knew and approved the contents of the will.

Knowledge and Approval

156.  The will must represent the testator’s testamentary intention, and the testator must approve the contents and effect of the will. It is not enough if the testator merely knew the words contained in the will: see Theobald on Wills (19^th Ed) at paras 4-042 to 4-044 and 4-053; Gill v Woodall [2011] Ch 380 at para 71; and Re Estate of Lau Heung [2020] 2 HKC 19 at para 84.

157.  Where a party disputes the validity of a will for want of knowledge and approval, it carries the evidential burden of putting the relevant ground of challenge in issue. If the evidence adduced is sufficiently cogent to raise an issue, the court, when assessing the evidence as a whole, will decide whether the proponent of the will has discharged the persuasive burden in relation to the relevant facts on the balance of probabilities: see Nina Kung (supra) at para 176.

158.  It has been suggested that:-

(1) Where the will was duly executed and the testator had the requisite testamentary capacity, knowledge and approval of the testator is rebuttably presumed: see Nina Kung (supra) at para 206.

(2) As “a matter of common sense and authority”, if a will has been properly executed after being prepared by a solicitor and read over to the testator, this raises a “very strong presumption” that the will represents the testator’s intention at the material time when he executed the will: see Gill v Woodfall (supra) at para 14 (per Lord Neuberger MR).

(3) Evidence that the will was read over to or by the deceased is the “most satisfactory evidence” to establish knowledge and approval: see Li Wai Chu & Anor v Li Wai Ling (HCAP 6/2012, 20 June 2017) at para 129 (per DHCJ Kent Yee).

159.  However, the inquiry undertaken by the court is necessarily fact-sensitive in nature: see Nina Kung (supra) at para 206. The suspicious circumstances that the court will take into account include the following:-

(1) a beneficiary was involved in drawing up the will or those who drew up the will are closely related to the beneficiary;

(2) the contents of the will in question radically depart from the contents of the previous wills;

(3) the evidence of the propounder of the will is unsatisfactory;

(4) suspicious circumstances relating to the execution of the will;

(5) lack of contemporaneous documents in relation to the preparation and execution of the will; and

(6) refusal to call doctors who witnessed the execution of the will to give evidence.

see Nina Kung (supra) at para 218; and Re Estate of Lim Por Yen [2025] HKCFI 1401 at paras 207 to 208 (per Wilson Chan J).

160.  If some “triggering” suspicious circumstances exist, the propounder of the will is required to adduce affirmative evidence to prove on the balance of probabilities that the will was executed with the testator’s knowledge and approval: see Nina Kung (supra) at para 218; and Re Estate of Lim Por Yen (supra) at para 78.

161.  After all, the court will consider all the relevant factual matters, including the testator’s character, state of mind, preference, and likely desire, as well as the circumstances in which the will in question was drafted and executed: see Gill v Woodall (supra) at para 14.

Undue Influence

162.  Where a person seeks to challenge a will on the ground of undue influence, he bears the persuasive burden to establish undue influence, and the person seeking to propound the will does not carry a burden to disprove undue influence: see Nina Kung (supra) at paras 177 to 178.

163.  The burden of proving undue influence is a high one. There is no presumption of undue influence, and actual undue influence must be proven as a matter of fact: see Li Chi Loy v Li Lai Lam Candice [2008] 5 HKLRD 74 at para 83 (per Poon J, as Poon CJHC then was).

164.  It has been suggested that:-

(1) In the present context, undue influence means influence exercised either by coercion (in the sense that the testator’s will must be overborne) or by fraud.

(2) Coercion is pressure that overpowers the volition without convincing the testator’s judgment, and this is distinguished from mere persuasion, appeals to ties of affection, or pity for future destitution, all of which are legitimate.

(3) Pressure causing a testator to succumb for the sake of a quiet life or escaping from distress of mind or social discomfort (if carried out to an extent that overbears the testator’s free judgment, discretion, or wish) is enough to amount to coercion, even though no force or violence is used.

(4) Undue influence may also take the form of control, domination, or emotional pressure over a period of time, such that a person is so controlled, crushed, intimidated, or dominated that he will do almost anything to please the abuser, avoid conflict with him/her, or to have a peaceful existence.

(5) A person in the final days of his life may have become so weak and feeble that very little pressure will be sufficient to bring about the desired result. He may be so fragile and fatigued that he is willing to do anything asked of him for the sake of quietness. This could constitute coercion.

(6) The court may draw inferences from the general circumstances, and undue influence occurs where the testator is coerced into doing things that he does not desire to do.

See Wong Tug Wai v Wong Tung Po [2023] HKCFI 1240 at paras 25 to 30; and Walker v Walker & Anor [2007] All ER (D) 418 (March) at para 221.

E3. Factual Findings on Father’s Testamentary Intent

165.  It is incumbent on this court to make positive findings as to (i) Father’s testamentary wish; and (ii) the validity or invalidity of the 2006 Will, Father’s 2007 Will, the 2008 Joint Will, and the 2008 Joint Codicil.

166.  Having considered the inherent probabilities, the apparent logic of events, the contemporaneous documents, the parties’ objective conduct, the evidence of the witnesses, and counsel’s submissions (the details of which are elaborated hereinbelow), I find that:-

(1) As of March 2007, Father wished to disown the 2006 Will. He was adamant that the 2006 Will did not reflect his testamentary wish and thus the same should be revoked as soon as possible (see paragraphs 168, 170(18)-(19), 171, 198 and 199 below).

(2) From March 2007 onwards, Father’s testamentary wish had been consistent, and the same can be broadly summarized as follows:-

(a) There was tension in the relationships between Father, on the one hand, and, on the other hand, TYK, TCG, TCP, and TCH.

(b) Father took the view that he had (i) provided good education to the 5 Siblings, (ii) provided adequately for the 5 Siblings. As such, the 5 Siblings were financially comfortable.

(c) In the premises, Father’s wish was that: (i) if he passes away, Mother should be adequately provided for; and (ii) when both he and Mother pass away, his personal assets should be donated to charity.

(see paragraphs 168, 170, 171, 172, 173, 181, 182, and 183 to 195 below)

(3) In the circumstances, Father, via TCS, approached Hastings’s Ms Hwang for the purpose of executing a new will. However, before the meeting that was initially scheduled on 27 March 2007 took place, Father was hospitalized due to twisted intestine (Volvulus). (see paragraphs 196(1) & (2)(a)-(c) and below)

(4) On Father’s volition, Hastings’s Ms Hwang and Mr Bruce Fu took instructions from him at Canossa Hospital in the afternoon on 29 March 2007. Father wanted them to prepare a new will for execution as soon as possible. (see paragraphs 168(3)-(6), 170(1)-(10), 196, and 197(1) below)

(5) Based on Father’s instructions, Mr Bruce Fu drafted Father’s 2007 Will and Mother’s 2007 Will. The two sets of 2007 Wills were drafted up by the evening on 29 March 2007. Mr Bruce Fu explained the contents of the 2007 Will to Father over the phone in the morning on 30 March 2007. Father was contented. (see paragraphs 170(1)-(10) and 196 below)

(6) Upon obtaining Dr Chen’s confirmation that Father and Mother were mentally fit to deal with their testamentary affairs, on 30 March 2007, Mr Bruce Fu, again, read out and explained the contents and effect of the sets of 2007 Wills to Father and Mother at Canossa Hospital. On this occasion, Father carefully and seriously read and approved the contents of the 2007 Wills, and he understood the effect thereof. In the circumstances, Father and Mother duly executed their 2007 Wills in the presence of (i) Dr Wong; (ii) Dr Chen; (iii) Ms Hwang; and (iv) Mr Bruce Fu. (see paragraphs 168 and 169(1), (3), (4), (5) & (6) below)

(7) Despite his old age and physical conditions, Father was mentally sharp and alert. He did not have the slightest difficulty in (i) explaining his thoughts to others and (ii) understanding the words spoken by others. (see paragraphs 168(1), (2), (4) & (5) and 202 below)

(8) Father and Mother’s 2007 Wills reflect and evince Father’s testamentary intent at the time, and the contents were known to and duly approved by him. Father also appreciated the effect of the two sets of 2007 Wills. Father was not coerced or pressurized to execute his 2007 Will, and he was not subject to any undue influence. (see paragraphs 168, 169, 170(1)-(10) & (20)-(25), 171, 172, 173, 174, 181, 182, 196, 197(1), 202, 203, 204, 205, 207, 208, 209, 210, and 211 below)

(9) However, the two sets of 2007 Wills had a loophole, in that if Father predeceases Mother, it would be open to Mother to revoke her 2007 Will subsequently, in which case the assets that Mother inherits from Father may not be used for charitable purposes. At the time when the two sets of 2007 Wills were executed, Father appreciated the loophole. However, in light of the trust between Father and Mother, Father was contented with the arrangement under the two sets of 2007 Wills. (see paragraphs 170(20)-(25) and 182(4) below)

(10) After the two sets of 2007 Wills were executed, Hastings were engaged to prepare (i) a statutory declaration that set out Father’s background, history, thoughts, and wish; and (ii) fresh wills with more comprehensive contents to be executed by Father and Mother. (see paragraphs 171, 190 and 191 below)

(11) Insofar as the statutory declaration is concerned, Mr Brewer was engaged to take charge of the process. From May 2007 to January 2008, Father attended at least four physical meetings where Mr Bruce Fu and Mr Brewer took instructions from him directly. (see paragraph 171 below)

(12) The drafts of the 1^st Statutory Declaration of Father had been amended several times pursuant to Father’s instructions. Whilst Father had read the contents of the 1^st Statutory Declaration, Mr Bruce Fu had also read and explained the contents to Father. Father duly approved the contents of the 1^st Statutory Declaration. (see paragraph 171 below)

(13) The 1^st Statutory Declaration reflects and evinces Father’s testamentary intent set out in subparagraph (2) hereinabove. (see paragraph 171 below)

(14) As reflected by the contents of the 1^st Statutory Declaration, Father erroneously assumed that he was still the beneficial owner of the shareholding in AAIE/EnGro and AAS and he intended that such shareholding be given to members of the Tan family pursuant to an intended deed of family arrangement to be effectuated during his lifetime. If the 5 Siblings did not accept the arrangement under the deed of family arrangement, the shareholding would be given to charity. (see paragraphs 171(8), 184, 185, 188, and 189 below)

(15) Father executed the 1^st Statutory Declaration at the office of Hastings on 31 January 2008. Before Father executed the 1^st Statutory Declaration, Mr Bruce Fu had read and explained the contents thereof to Father, and Father approved the same. (see paragraph 171 below)

(16) On the occasion of 31 January 2008, it was envisaged that Father would also execute the two sets of wills prepared by Mr Bruce Fu that separately dealt with assets within Singapore and assets outside of Singapore. However, upon receiving the advice of Mr Fu (who reiterated the viewpoint articulated by Mr Brewer) that it would be open to Mother to revoke her will after Father passes away (in which case the assets may not be used for charitable purposes), Father decided (i) not to execute the two draft wills prepared by Mr Bruce Fu, and (ii) to seek advice from a counsel with expertise in probate. (see paragraphs 170(20)-(25) and 182(4) below)

(17) In the circumstances, during the period between 1 and 6 February 2008, Hastings sought advice from Mr Nelson Miu, who had considered the possibility of executing mutual wills or a joint mutual will. Bearing in mind that mutual wills or a joint mutual will might have the effect of severing the joint tenancies in respect of the Bowen Property and the Sydney Property, Mr Miu devised the following design:

(1) Father and Mother should execute a joint will that would not be expressly identified as a mutual will.

(2) Under such a joint will (which eventually transpired to be the 2008 Joint Will):-

(a) the surviving spouse (who turned out to be Mother) could only inherit the income deriving from the assets of the deceased spouse (who turned out to be Father);

(b) when both spouses pass away, the executrix or trustee should apply the capital of the assets of the deceased spouse (which would not be inherited by the surviving spouse) for charitable purposes.

(see paragraphs 170(11)-(15), 178, and 182(4) below)

(18) This design was a bona fide attempt to ensure Father’s charitable intent could be implemented and fulfilled, while the joint tenancies in respect of the Bowen Property and the Sydney Property might not be severed. With the aforesaid concerns in mind, Mr Nelson Miu prepared the first draft of the 2008 Joint Will, which was circulated on 4 February 2008. (see paragraphs 170(11)(b), 178, and 182(4) below)

(19) After conducting a conference in the morning on 6 February 2008, Mr Nelson Miu revised the Chinese draft of the 2008 Joint Will by removing a clause (ie clause 10) that might be utilized by the executrix/trustee (ie TCS) to render herself a beneficiary. This was another bona fide attempt to ensure Father’s charitable intent would not be defeated. (see paragraphs 170(11)(g)-(h) and 179 below)

(20) The aim of the mechanism under the 2008 Joint Will is to give effect to Father’s charitable intent, and the 2008 Joint Will is capable of implementing and fulfilling Father’s charitable intent. (see paragraphs 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, and 195 below)

(21) In the afternoon on 6 February 2008, Father and Mother attended Hastings’ office for the purpose of executing the 2008 Joint Will. Whilst TCS was not present on this occasion, those who were present included Ms Hwang, Mr Bruce Fu, Dr Chan, and Mr Brewer. After Dr Chan confirmed that Father and Mother were mentally fit to make a will, Father and Mother were invited to read the contents of the 2008 Joint Will. Thereafter, Mr Bruce Fu read and explained the contents and effect of the 2008 Joint Will to Father and Mother. In the circumstances, Father and Mother duly executed the same, and the process was witnessed by Dr Chan and Mr Bruce Fu. (see paragraphs 169(2), (3), (4) & (6) and 206 below)

(22) The 2008 Joint Will reflects and evinces Father’s testamentary intent, and the contents and effect thereof were known to and duly approved by Father. Father was not coerced or pressurized to execute the 2008 Joint Will, and he was not subject to any undue influence. (see paragraphs 168, 169, 170(11)-(25), 171, 172, 173, 174, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197(2), 202, 203, 204, 205, 207, 208, 209, 210, and 211 below)

(23) Since it was envisaged that (i) the shareholding in AAIE/EnGro and AAS (which was erroneously assumed to be owned by Father) would be disposed of pursuant to an intended deed of family arrangement to be executed during Father’s lifetime and that (ii) if the 5 Siblings did not accept the terms of the deed of family arrangement, the shareholding would be donated to charity, it is explicable as to why the 2008 Joint Will does not contain a provision that expressly deals with the shareholding. This is consistent with Father’s intent. (see paragraphs 171(8), 184, 185, 188, and 189 below)

(24) The contents and effect of the 2008 Joint Will (as well as the two sets of 2007 Wills) make sense. They are not irrational. (see paragraph 174 below)

(25) On 8 May 2008, Father and Mother duly executed the 2008 Joint Codicil at the office of Hastings in the presence of Dr Chan and Mr Bruce Fu, and the purpose of this document was to provide that TCS would inherit the Bowen Property after both of them pass away. (see paragraphs 175, 176, and 177 below)

(26) Bearing in mind that (i) TCS had been unmarried and childless and (ii) TCS had shouldered up the responsibility of acting as Father and Mother’s primary caregiver for years, it was understandable why Father and Mother would want TCS to inherit the Bowen Property. (see paragraphs 175, 176, and 177 below)

(27) The 2008 Joint Codicil reflects and evinces Father’s testamentary intent, and the contents thereof were known to and duly approved by Father. Father was not coerced or pressurized to execute the 2008 Joint Codicil, and he was not subject to any undue influence. (see paragraphs 175, 176, and 177 below)

(28) Throughout the process of preparing Father and Mother’s 2007 Wills, the 2008 Joint Will and the 2008 Joint Codicil, TCS did not exert undue influence over Father, who was mentally sharp and alert. Indeed, Hastings’s Ms Hwang and Mr Bruce Fu had taken adequate steps to ensure that the instructions came from Father and that Father understood the contents and effect of the documents that he executed. The conduct of Hastings’s Ms Hwang and Mr Bruce Fu was proper. Whilst they did act in Father’s interests, they did not rush through the “will-making” process unreasonably or illegitimately on TCS’s instigation; nor did they seek to advance TCS’s personal interests insidiously at Father’s expense. (see paragraphs 170, 178, 179, 196, 197, 202, 203, 204, 205, 207, 208, 209, 210, and 211 below)

Knowledge and Approval

167.  Insofar as Father’s knowledge and approval are concerned, my reasons for making the aforesaid factual findings are as follows.

168.  First of all, TCS and Mother’s case regarding Father’s testamentary intent is supported by the evidence of (i) Dr Wong; (ii) Dr Chen; (iii) Ms Hwang; and (iv) Mr Bruce Fu. In my view, they were credible witnesses. They informed the court that they were expressly and directly told by Father that (i) he was displeased with some of his children (not TCS); (ii) he took the view that he had provided enough for his children; (iii) the 2006 Will did not reflect his wish; and (iv) his wish was to donate his assets to charity:-

(1) Insofar as the evidence of Dr Wong is concerned:-

(a) In her witness statement[83], Dr Wong stated that back in 2006 or 2007, (i) Father indicated his displeasure with the children in Singapore (ie TCG, TYK, TCP and TCH), and (ii) Father told her that his daughter in Singapore (ie TCP) deceived him into singing the 2006 Will, which did not reflect his testamentary wish[84].

(b) Regarding the occasion on 30 March 2007 (where the Father’s 2007 Will was executed), Dr Wong, in her witness statement, stated she was satisfied that Father had the mental capacity to make a will, and Father could “tell [her] in his own words about the way to dispose of the assets which was compatible with the contents of the will that he was about to sign”[85].

(c) In her medical report dated 30 April 2007[86], Dr Wong also stated, inter alios, that Father “completely understood the nature of his act in making his Will on 30 Mar 2007 and its effect” and “was able to comprehend and appreciate the claims by potential beneficiaries of his will to which he ought to give effect”.

(d) When Dr Wong was being prodded in the course of giving oral evidence[87], she further mentioned that:-

(i) On the occasion of 30 March 2007, she was provided with a copy of the draft 2007 Will.

(ii) Father told her he appreciated that he would make a will.

(iii) Father said to her the effect of the arrangement under the 2007 Will was such that: (A) if he passes away before Mother passes away, his assets will be inherited by Mother; (B) if Mother passes away before he passes away, Mother’s assets will be inherited by himself; and (C) when both Mother and himself pass away, their assets will be donated for charitable purposes.

(iv) What Father said was consistent with the contents of the 2007 Will. As such, she was satisfied that Father understood the effect and contents of the will in question (ie the 2007 Will).

(e) Mr Dawes pointed out that Dr Wong did not record the aforesaid verbal conversations in her witness statement and medical report. This was true. However, for the following reasons, I am not of the view that Dr Wong concocted evidence by putting words in Father’s mouth:

(i) First of all, it is not in dispute that (i) Father and Dr Wong had a long-term professional relationship; and (ii) the occasion of 30 March 2007 was the only time where Dr Wong (who specializes in otorhinolaryngology) was asked to act as a witness to a will and to confirm whether a patient had mental capacity. In the circumstances, it was explicable why Dr Wong had a vivid recollection as to what Father said to her. In this connection, as pointed out by Dr Wong when she gave oral evidence, the contents of the 2007 Will and Father’s intent were easy to understand. I agree. I am satisfied that Dr Wong was capable of remembering the salient matters that took place on 30 March 2007.

(ii) Second, in her medical report dated 30 April 2007[88] and witness statement[89], Dr Wong did unequivocally state that Father “completely understood the nature of his act in making [his 2007 Will] and its effect” and “could tell [her] in his own words about the way to dispose of his assets which was compatible with [the 2007 Will]”. I accept that these were the “conclusion”, and the “process” whereby Dr Wong came up with such a conclusion was not elaborated. In my view, it is important not to lose sight of the fact that Dr Wong was not an experienced psychiatrist, who appreciated that it would be prudent to prepare perfect documentation in view of potential litigation in the future. This explained why Dr Wong took the view that it was sufficient to set out the conclusion in a succinct manner. In my view, Dr Wong did not conjure up matters regarding the process out of the blue. I am not of the view that there was any improper conduct, negligence, sharp practice or dishonesty on the part of Dr Wong.

(f) In the premises, I accept Dr Wong’s evidence (both written and oral). All in all, having observed the way in which Dr Wong responded to the questions asked of her, I am of the view that she was a responsible, reliable, and conscientious witness who sought to ensure that her answers were accurate.

(2) As regards the evidence of Dr Chen:-

(a) On 30 March 2007 (ie the occasion where the two sets of 2007 Will were executed), Dr Chen was engaged to verify whether Father had the mental capacity to make a will. For the reasons elaborated in his witness statement and medical report dated 10 September 2007[90], Dr Chen opined that Father (who was “sharp and alert”[91]) had “good mental capacity”[92].

(b) It is not in dispute that Dr Chen had extensive conversations with Father. Insofar as Father’s wish and intent are concerned, Dr Chen mentioned that (i) Father and Mother “both expressed their wish to donate a major part of the value of their assets to charity”[93]; and (ii) Father “was serious and carefully reading through his [2007 Will] when it was presented to him by his solicitor”[94].

(c) In regard to (ii) above, when Dr Chen gave oral evidence[95], he gave further elaboration. He mentioned that after he interviewed Father, the solicitors came in and presented the will (ie the 2007 Will) to Father. Father took the 2007 Will and carefully read the contents thereof. Dr Chen could recall that Mr Bruce Fu was the one who explained the contents of the 2007 Will to Father. Whilst Dr Chen could not recall whether Father asked any questions, he remembered that Father was very serious throughout the process and that Father agreed to the contents of the 2007 Will.

(d) Dr Chen was further engaged to assess Father’s mental capacity on 31 January 2008 at Hastings’s office (where Father signed the 1^st Statutory Declaration, but not the two sets of draft wills prepared by Mr Bruce Fu). Again, Dr Chen was satisfied that Father had good mental capacity, and his analysis was elaborated in his witness statement and medical report dated 6 August 2008[96].

(e) It is not in dispute that as part of the examination, Father had extensive conversations with Dr Chen. Insofar as Father’s wish and intent are concerned, Dr Chen informed the court he was told by Father that[97]:-

(i) Father came from a humble background. However, he became affluent. He wished to have a meaningful life and make the best use of his money.

(ii) Father’s children had been well-educated and were more capable than himself. There was no need to give any money to them, and he preferred to help the needy.

(iii) Father wished to make donations to the Singapore Buddhist Lodge, the National University of Singapore as well as those who were poor, sick and/or old.

(iv) TCS who was unmarried took care of Father and Mother for years. Father wanted TCS to manage his assets and carry out what he intended to do.

(f) In light of what Father said to Dr Chen (whose evidence was truthful in my view), Father’s charitable intent could not be clearer.

(g) I also accept (i) Dr Chen’s opinion that Father was sharp, alert and mentally fit at the material times; (ii) Dr Chen’s factual evidence that Father had carefully read the 2007 Will; and (iii) Dr Chen’s factual evidence that Mr Bruce Fu had explained the contents of the 2007 Will to Father, and Father approved the contents of the 2007 Will.

(h) In light of the contents of the 2007 Will (which Father had (i) carefully read and (ii) approved), it is abundantly clear that Father’s intention was to donate his wealth and assets to charity, and he did not want his children to inherit his personal assets.

(i) I have no doubt that Dr Chen is an honourable and honest professional who sought to relay what Father told him to the best of his abilities. In this connection, it is worth mentioning that as evidenced by Hastings’s letter dated 12 October 2007[98], Dr Chen was invited to amend part of the contents in his medical report on the basis that some of the facts mentioned by Father might not be accurate. As evidenced by the letter dated 8 January 2008[99], Dr Chen, having reviewed his clinical notes, was adamant that some of the alleged inaccuracies originated from Father. Bearing in mind that Father was the one who was being assessed, Dr Chen refused to rectify these alleged inaccuracies. In my view, this episode shows that Dr Chen was genuinely neutral and did not take sides.

(j) However, Mr Dawes submitted that Dr Chen’s evidence contradicts the case of TCS and Mother. He pointed out that according to Dr Chen’s witness statement, the wish of Father and Mother was “to donate a major part of the value of their assets to charity”[100]. This is not the effect of Father’s 2007 Will.

(k) Whilst I see where Mr Dawes was coming from, I do not see much force in his submissions. It is important not to lose sight that the role of Dr Chen was to assess the mental capacity of Father. In the circumstances, Dr Chen had no reason to pay attention to the mechanism for giving effect to Father’s wish. As explained by Dr Chen when he gave oral evidence, this was the job of the solicitors. Thus, Dr Chen, in his witness statement, simply “casually”[101] stated that Father and Mother “both expressed their wish to donate a major part of the value of their assets to charity”[102]. In my view, this was merely a general impression that Dr Chen gathered. This might not be something that Father and/or Mother specifically said to Dr Chen on 30 March 2007.

(l) However, even if Father and Mother did say to Dr Chen that only the major part of their assets would be donated to charity, this was not surprising. As will be elaborated in paragraphs 184 to 185 and 188 to 189 below, Father (who erroneously assumed that he still retained beneficial ownership) intended that the shareholding in AAIE and AAS be distributed to members of the family pursuant to a deed of family arrangement to be executed during his lifetime, and if the 5 Siblings did not accept the terms of the deed of family arrangement, the shareholding will be donated to charity. As will be elaborated, this intended arrangement was consistent with the terms of the two sets of 2007 Wills and the 2008 Joint Will.

(3) As regards the evidence of Mr Bruce Fu:-

(a) He took direct instructions from Father at Canossa Hospital on 29 March 2007 (which was one day before the two sets of 2007 Wills were executed on 30 March 2007).

(b) When Mr Dawes challenged Mr Bruce Fu in regard to the technical discrepancies between (i) paragraph 5 of his witness statement[103] and (ii) paragraph 7 of his witness statement[104], Mr Bruce Fu made it loud and clear that Father did make it clear to him that he and Mother would wish to donate all their assets to charities, but of course they would take care of each other first. In other words, the intention was that Father and Mother’s assets be given to each other first (if one of them passes away) and thereafter (when both of them pass away) the assets should be donated to charities.

(c) Having observed the way in which Mr Bruce Fu gave evidence, I am of the view that his answers were succinct yet adamant and convincing. Despite Mr Dawes’s criticisms, I am of the view that Mr Bruce Fu was a truthful and honest witness. I accept his evidence.

(4) As regards Ms Hwang’s evidence:-

(a) In her witness statement, she mentioned that:-

i. At the dinner gathering back in early 2007 (which was attended by Father, Mother, TCS and herself), Father indicated that he was displeased with some of his children[105].

ii. On a Saturday afternoon in February or March 2007, upon learning from TCS that Father wished to meet her urgently, she attended the Bowen Property. Father, sitting on a cane chair, was visibly upset. He told Ms Hwang that the 2006 Will did not express his wish. Ms Hwang comforted Father by saying that he could make a new will, thereby revoking the 2006 Will. Father seriously said to Ms Hwang that he wanted to give all his estate to charity, though no specific details were provided[106].

(b) Mr Dawes criticized Ms Hwang for not taking contemporaneous notes that recorded the discussion in February or March 2007. However, as pointed out by Ms Hwang in her witness statement[107] and oral evidence[108], she had not yet been instructed to act for Father as of the time when the aforesaid discussion took place. I accept Ms Hwang’s explanation. This was an informal occasion. I understand why instead of locating a piece of paper to jot down what Father said, Ms Hwang’s foremost concern was to comfort and calm down Father (who was an elder in his late 80s). This was sensible.

(c) Having observed the way in which Ms Hwang gave oral evidence in regard to the occasion in February or March 2007, I have no doubt that Ms Hwang had vivid recollection as to his exchange with Father, who was distressed and emotional at the time. I accept her evidence. I do not believe that she concocted the incident for the purpose of corroborating TCS’s case.

(d) Ms Hwang was present on the occasion of 29 March 2007 where instructions were taken from Father directly at Canossa Hospital. In paragraph 18 of her witness statement, Ms Hwang said Father’s wish regarding the new will was simple and clear: “all he wanted was to give the entirety of his estate to Mother, and if she predeceases him, his estate would go to charity and not to his children”. Father also said that (i) his children were very well provided for and hence financially comfortable; and (ii) the 2006 Will must be revoked.

(e) Mr Dawes pointed out that the suggestion in paragraph 18 of Ms Hwang’s witness statement is different from what Father told Ms Hwang back in February or March 2007. Whilst Father said he wanted to give all his estate to charity on the occasion in February or early March 2007[109], on the occasion of 29 March 2007, Father said that his estate should only be given to charity if Mother predeceases him.

(f) The criticism is a forensic one.

(g) It is important not to lose sight that the occasion back in February or early March 2007 merely involved a general discussion when Father was visibly upset and distressed. It was understandable why on this occasion, Father merely expressed his wish in general. This was not the occasion where proper and detailed instructions were taken. In my view, there was nothing unusual or suspicious about the fact that when Father was asked to give detailed instructions on the occasion of 29 March 2007, he made it clear that Mother should be adequately provided for during her lifetime before his assets are utilized for charitable purposes upon the demise of both himself and Mother.

(h) As Ms Hwang explained in her oral evidence[110], the testamentary wish of both Father and Mother was that their assets be donated to charity. What Ms Hwang told the Court is consistent with the effect of the two sets of 2007 Wills made by Father and Mother. Unless the surviving spouse revokes his/her 2007 Will subsequently [111](which was a loophole that was plugged subsequently under the 2008 Joint Will), the assets of the deceased spouse (which the surviving spouse would inherit) would be utilized for charitable purposes when both spouses pass away. In the premises, it can be said that the contents and effect of the two sets of 2007 Will are compatible and consistent with Father’s earlier suggestion back in February or early March 2007 (ie he wanted to give the entirety of his estate to charity). I am not of the view that Father’s charitable intent had changed at all.

(5) For the reasons elaborated above, I accept Dr Wong, Dr Chen, Mr Bruce Fu, and Ms Hwang’s evidence. Having observed the way in which they responded to the questions asked of them, I am of the view that Dr Wong, Dr Chen, Mr Bruce Fu, and Ms Hwang were credible and cooperative witnesses who were candid with the court.

(6) Indeed, Dr Wong, Dr Chen, Mr Bruce Fu and Ms Hwang have no interests in the outcome of these proceedings. I am unable to discern any reason why they would wish to lie on oath. As Mr Tang submitted, it is unlikely that these professionals would conspire together to give false evidence for the purpose of supporting TCS’s case. I do not accept that this was what happened.

169.  Second, I accept the evidence of (i) Mr Bruce Fu; (ii) Dr Chen; and (iii) Dr Chan that the contents and effect of Father’s 2007 Will as well as the 2008 Joint Will were read over and explained to Father. This is the “most satisfactory evidence” to establish knowledge and approval: see Li Wai Chu (supra) at para 129, and there is a “very strong presumption” that Father’s 2007 Will and the 2008 Joint Will represent Father’s intention at the material times: see Gill v Woodfall (supra) at para 14:-

(1) Insofar as the evidence of Dr Chen is concerned:-

(a) As mentioned in paragraph 168(2)(c) above, Dr Chen personally witnessed the following facts on 30 March 2007:-

i. After his interview with Father was completed, the solicitors came in and presented the will (ie the 2007 Will) to Father.

ii. Father took the 2007 Will and read the contents carefully.

iii. Mr Bruce Fu explained the contents of the 2007 Will to Father.

iv. Father was very serious throughout the process.

v. Father agreed to the contents of the 2007 Will.

(b) For the reasons elaborated in paragraphs 168(2), (5) and (6) above, I have no doubt that Dr Chen was an honest and disinterested witness who had no reason to lie.

(c) It is true that the factual matters set out in sub-paragraph (1)(a) above were not specifically set out in Dr Chen’s medical report dated 10 September 2007[112]. However, as a clinical psychiatrist, Dr Chen would, understandably, focus on the matters that shed light on Father’s mental capacity (such as behavior, speech, mood, thoughts, memory, etc). It does not follow that the factual matters relating to the execution of the 2007 Will would necessarily escape Dr Chen’s attention. I accept Dr Chen’s evidence that he simply took the view that it was unnecessary to address the factual matters relating to the execution of Father’s 2007 Will in his medical report. This is entirely understandable.

(d) Having observed the way in which Dr Chen gave evidence in court, I am of the view that he had a good recollection of the relevant events. I am not of the view that he concocted or distorted any factual matters.

(2) As regards the evidence of Dr Chan:-

(a) Whilst Dr Chan made a brief witness statement, he reluctantly testified in court[113] pursuant to a writ of subpoena that was served on him[114].

(b) It is not in dispute that Dr Chan (who specializes in gastroenterology and hepatology) examined Father on 6 February 2008 at Hastings’s office (where Father and Mother executed the 2008 Joint Will). Having satisfied that Father was fully oriented[115] and had full comprehensive ability, Dr Chan was of the view that Father was able to give consent, and thus he was capable of making a will[116].

(c) Mr Dawes criticized Dr Chan for failing to understand the requisite requirements for establishing testamentary capacity. However, Father’s testamentary capacity is not a disputed issue in the Probate Action. Thus, the criticism is beside the point.

(d) The importance of Dr Chan’s evidence is that he was able to testify as to the process of executing the 2008 Joint Will. When Dr Chan gave oral evidence, he informed the court that at the time when 2008 Joint Will was executed:-

i. Father sat in front of a large table, and a lawyer sat next to him.

ii. The lawyer pointed at the contents of the will (ie the 2008 Joint Will) and explained the same to Father.

iii. When the lawyer explained the contents of the 2008 Joint Will, Father would nod his head and indicated that he understood.

(e) When Mr Dawes challenged Dr Chan’s recollection, Dr Chan was able to inform the court that he remembered two specific details. First, he remembered that 2008 Joint Will involves huge sums in the region of HK$100 million, and the solicitor did speak the word “億”. Second, he remembered that Father’s assets would be donated. Dr Chan further said that he had recollection about the aforesaid details because (i) huge amounts of monies were involved; and (ii) huge amounts of monies would be donated.

(f) Mr Dawes also criticized Dr Chan for not recording his assertions in his medical report[117]. However, like Dr Chen, the task of Dr Chan was to assess Father’s mental capacity. As such, it is understandable why Dr Chan’s medical report focuses on matters relating to Father’s physical conditions, rather than matters relating to the discussion and the execution of the 2008 Joint Will. I am not of the view that Dr Chan conjured up the aforesaid factual matters out of the blue.

(g) All in all, I am of the view that Dr Chan’s evidence makes sense and is credible. Having observed the way in which Dr Chan gave evidence, it appears to me that he was a reluctant witness who was forced to testify in court. Although Dr Chan did not wish to be involved in this litigation, he did discharge his duties and informed the court of the matters that he knew. I accept his evidence.

(3) As regards Mr Bruce Fu’s evidence:-

(a) Mr Bruce Fu informed the court[118] that his practice was that whenever a client executed a will in his presence, he would explain the entirety of the will to the client from the beginning till the end.

(b) In his witness statement[119], Mr Bruce Fu confirmed that:-

i. On the occasion of 30 March 2007, he explained the contents of the 2007 Will to Father, and Father confirmed that he knew and approved the contents.

ii. On the occasion of 6 February 2008, Father and Mother were asked to read the 2008 Joint Will. Afterwards, he, with intervals, slowly explained the contents and effect of the 2008 Joint Will to Father and Mother (paragraph by paragraph), and Father and Mother confirmed that (i) they did not have any question and (ii) they knew and approved the contents.

(c) Mr Dawes vigorously challenged Mr Bruce Fu’s evidence. He pointed out that Mr Bruce Fu did not take any contemporaneous notes in regard to process where the two sets of 2007 Wills and the 2008 Joint Will were read and/or explained to Father. In this connection, Mr Dawes contended that in light of his busy practice, Mr Bruce Fu could not have remembered the events that took place years ago. Mr Dawes also expressed concerns as to whether Father knew and appreciated that Mother would be in a position to dispose of the income arising from the capital of his assets for non-charitable purposes.

(d) Despite the force of Mr Dawes’s submissions, I accept Mr Bruce Fu’s evidence that (i) the contents and effect of the 2008 Joint Will as well as the two sets of 2007 Wills were explained to both Father and Mother; and (ii) Father and Mother knew the effect thereof and approved the mechanisms thereunder. For the following reasons, I believe that he told the truth to the court.

(e) First of all, Mr Bruce Fu’s evidence was corroborated by the evidence of (i) Dr Chen and (ii) Dr Chan. They were, in my view, honest and disinterested witnesses who had no reason to lie.

(f) Second, having said that it was Mr Bruce Fu’s practice to explain the entirety of his clients’ wills, I understand why Mr Bruce Fu might not see the need to record a routine that was regularly performed. I do not suggest that this was good practice. However, in the circumstances of the present case, I am unable to infer that Mr Bruce Fu lied on oath simply because he was not vigilant enough to create contemporaneous records in respect of a process that appeared to be routine to him. On the evidence, I am simply unable to discern a good reason why Mr Bruce Fu would wish to depart from his usual practice.

(g) Third, as to Mr Bruce Fu’s recollection, there is no question that Hastings acted for Father and Mother for a prolonged period of time, and Hastings was involved in the subsequent litigations[120]. Mr Bruce Fu, in his oral evidence[121], empathetically stressed that he had vivid recollection as to the events relating to Father and Mother. He pointed out that despite their wealth and status, Father and Mother were kind, courteous, and humble, and they were very respectful towards the solicitors. In the circumstances, he had considerable sympathy for Father and Mother in regard to the situation that they faced. I accept Mr Bruce Fu’s evidence, and I believe that he was capable of having recollection of the material events that involved Father and Mother.

(h) Fourth, as will be elaborated below, although there was latitude on the part of Mr Bruce Fu in preparing contemporaneous records, I am of the view that he is, by and large, a responsible solicitor who is mindful of his duties owed to clients. I do not see any reason why Mr Fu, who has no interests in the outcome of the matter, would wish to trick and/or mislead Father and Mother. I believe that in discharge of his duties as a solicitor, Mr Fu had read the entirety of the contents of the two sets of 2007 Wills and the 2008 Joint Will to Father and Mother and adequately explained the mechanisms thereunder to both of them. As mentioned, I do not see a good reason why Mr Bruce Fu would wish to depart from his usual practice.

(4) In the premises, I am satisfied that the contents and effect of the 2008 Joint Will as well as the two sets of 2007 Wills were read out and adequately explained to Father and Mother. I am also satisfied that Father and Mother had read the contents of the 2008 Joint Will. In my view, the contents of the 2008 Joint Will and the two sets of 2007 Wills are fairly straightforward and easy to understand. Bearing in mind Father was, in Dr Chen’s words, “sharp and alert”[122] and had “good mental capacity”^[123], I am not of the view that Father would fail to understand and appreciate the effect of the 2008 Joint Will and the two sets of 2007 Wills.

(5) I also take into account the evidence of Dr Wong, who confirmed that Father was capable of spelling out the contents of the two sets of 2007 Wills in his own words. As discussed in paragraph 168(1), (4), and (5) above, I am of the view that Dr Wong was a credible, reliable and conscientious witness, and I accept her evidence.

(6) For completeness, it should also be pointed out that as TCG fairly admitted when he gave oral evidence[124], Father spoke and understood Cantonese (which was the language used by Mr Bruce Fu to explain the contents of the 2008 Joint Will and Father’s 2007 Will). Bearing in mind that Father had lived in Hong Kong since 1974, TCG’s admission was hardly surprising. In the premises, there is simply no room for TCG, TYK, and TCP to contend that Father had difficulty in communicating with his legal representatives. Indeed, this contention was not seriously pursued throughout the trial.

170.  Third, Mr Dawes criticized Mr Bruce Fu as well as Ms Hwang for not taking adequate contemporaneous notes to record the process, through which Father’s 2007 Will and the 2008 Joint Will were prepared. Mr Dawes submitted that this casts doubt on whether the Father’s 2007 Will and the 2008 Joint Will truly reflected Father’s instructions and testamentary intent. Despite Mr Dawes’s forceful submissions, I am not in a position to agree with him:-

(1) It is not in dispute that Ms Hwang and Mr Bruce Fu met Father and took instructions from him at Canossa Hospital in the afternoon on 29 March 2007. Mr Bruce Fu was the solicitor who took up the task of drafting Father’s 2007 Will. In the evening on 29 March 2007, Mr Bruce Fu managed to circulate the draft 2007 Will of Father. On the next day (ie 30 March 2007), after Dr Chen examined Father and Mother, they executed their 2007 Wills in the presence of (i) Dr Wong; (ii) Dr Chen; (iii) Ms Hwang; and (iv) Mr Bruce Fu.

(2) The process was evidenced by, inter alios, the following contemporaneous records:-

(a) The handwritten notes jotted by Mr Bruce Fu on the occasion of 29 March 2007[125];

(b) Mr Bruce Fu’s email dated 29 March 2007 at 9:27pm (i) circulating the draft 2007 Will of Father and (ii) inviting TCS to explain the contents of the draft 2007 Will to Father[126];

(c) Mr Bruce Fu’s handwritten note dated 30 March 2007 at 12:23pm recording that (i) he spoke to Father and TCS over the phone; and (ii) they were contented with the contents of the draft 2007 Will[127]; and

(d) The handwritten notes jotted by Ms Hwang on the occasion of 30 March 2007 (which recorded Dr Chen’s examination on Father and Mother)[128];

(3) Having heard Ms Hwang’s evidence[129], it appears obvious to me that Ms Hwang (who was the more senior member in Hastings) relied on Mr Bruce Fu to draft and prepare the two sets of 2007 Wills. Although Ms Hwang was involved in the process of taking instructions from Father, she did not take contemporaneous notes on the occasion of 29 March 2007.

(4) Mr Dawes criticized Mr Bruce Fu in regard to his failure to record that (i) Father’s intention was to leave his assets to Mother and afterwards in charity; and (ii) the 2006 Will should be revoked. I saw where Mr Dawes came from. However, I cannot agree with his criticisms of Mr Bruce Fu.

(5) Whilst Mr Bruce Fu might have envisaged that the 2007 Will would be challenged in the future, his task at the material times was to draft up the contents of the 2007 Will on an urgent basis in light of Father’s instructions that a new will should be executed as soon as possible. I have no doubt that Mr Bruce Fu’s foremost concern at the time was not to prepare perfect records for litigation purposes in the future. In the circumstances, it was understandable why the contemporaneous notes jotted by Mr Bruce Fu on the occasion of 29 March 2007[130] were brief.

(6) In this connection, I accept Mr Bruce Fu’s explanation that Father’s instruction was simple and easy to understand. It is plain that Father’s wish was that Mother be adequately provided for during her lifetime, and after both of them passed away, the assets should be donated to charities. I have no doubt that Mr Bruce Fu, who was an experienced practitioner, would have no difficulty in retaining this information in his mind. This explained why he did not see the need to jot down the same expressly in the contemporaneous notes. As regards the revocation of the 2006 Will, this could be achieved automatically once a new will is executed. As such, Mr Bruce Fu was entitled to take the view that it would not be necessary to jot down this point expressly. In fact, Mr Bruce Fu was able to come up with the first draft of the 2007 Will just a few hours after he took instructions from Father. In my view, Mr Bruce Fu’s memory must be fresh at the material times. There is no room to suggest that Mr Bruce Fu and/or any member of Hastings put words into Father’s mouth and/or fabricated his testamentary intent. I do not believe that this was the case.

(7) I accept Mr Bruce Fu’s explanation that what he sought to do at the material times when he jotted the contemporaneous notes was to record the information that needed to be confirmed by Father. Such information, such as names, Hong Kong Identification Card numbers, address, and destinations of the intended donations, could not be remembered easily. This explained why Mr Bruce Fu’s contemporaneous notes set out (i) the full names of Father, Mother and TCS; (ii) their Hong Kong Identification Card numbers; (iii) the address of the Bowen Property; and (iv) the instruction that 1/3 of the donations should go to the charities in Hong Kong and 2/3 of the donations should go to the charities in Shanting Village, Maxiang Town, Xiangan District, Fujian Province and Xiamen.

(8) Insofar as (iv) is concerned, it is not in dispute that the Chinese words “翔安山亭村 (Shanting Village, Xiangan)” that appear in Mr Bruce Fu’s contemporaneous notes were written down by Father. This amply reflected Father’s charitable intent. If Father had no intention to bequeath his assets for charitable purposes in his hometown, he would not have written down the said Chinese words in Mr Bruce Fu’s contemporaneous notes. In my view, the truth was that Father was eager to assist Mr Bruce Fu to complete the task of drafting up his 2007 Will as well as Mother’s 2007 Will.

(9) It is also important to mention that Father’s instruction was that his new will (ie his 2007 Will) should be executed as soon as possible. Bearing in mind Father’s advanced age and the fact that he was hospitalized at the time, this was entirely understandable. In the circumstances, Mr Bruce Fu acted under considerable time pressure. He simply did not have the time to prepare perfect documentation for the purpose of records. Whilst one can always suggest that a professional could have done a better job, there is no point in criticizing him or her with the benefit of hindsight.

(10) For all the above reasons, I am not of the view that Mr Bruce Fu failed to discharge his duties owed to Father. I am of the view that he prepared Father and Mother’s 2007 Wills based on Father’s instructions in a bona fide and serious manner.

(11) Insofar as the preparation of the 2008 Will is concerned, I am of the view that Hastings genuinely sought advice from an experienced counsel (namely Mr Nelson Miu) in order to (i) plug the loophole that Mother may defeat Father’s charitable intent by revoking her 2007 Will and (ii) ensure that Father’s charitable intent could be implemented and fulfilled. The preparation process and the input from Mr Nelson Miu were well-documented and evidenced by, inter alios, the following contemporaneous emails and records:-

(a) The email from Mr Bruce Fu to Mr Brewer and TCS on 1 February 2008 summarizing the initial advice from Nelson Miu[131];

(b) The email from Nelson Miu dated 4 February 2008 at 19:44[132] enclosing (i) his advice in writing[133]; and (ii) the first draft of the 2008 Joint Will (which was in English)[134];

(c) Mr Bruce Fu’s email dated 4 February 2008 at 19:54[135], circulating the advice and draft will prepared by Mr Nelson Miu;

(d) Mr Bruce Fu’s email dated 5 February 2008 at 13:08[136] where it was recorded, inter alios, that (i) he explained Mr Nelson Miu’s advice to Father, including the pros and cons of Mr Miu’s proposal; and (ii) Father accepted that he and Mother would make one will to deal with their assets worldwide.

(e) TCS’s email dated 5 February 2008[137] at 14:25, requesting Mr Bruce Fu to explain the contents of the draft 2008 Joint Will to Father;

(f) Mr Bruce Fu’s email dated 5 February 2008 at 20:00, circulating the Chinese version of the draft 2008 Joint Will (which he translated)[138];

(g) The note in respect of the conference that took place at Mr Nelson Miu’s chambers in the morning on 6 February 2008[139], and it can be seen Mr Miu advised that (i) a mutual will would have the effect of serving joint tenancies; and (ii) for the purposes of probate, the phrase “charitable or benevolent” is not exclusively charitable;

(h) Mr Nelson Miu’s email dated 6 February 2008 at 11:33am enclosing a revised version of the draft 2008 Joint Will[140], and it can be seen that in light of the aforesaid advice that was rendered during the conference, Mr Miu deleted clause 10 (which contains the phrase “charitable or benevolent” and which allows the executrix/trustee to apply the residue of the estate to defray her own medical expenses) in its entirety[141];

(i) Mr Bruce Fu’s email dated 6 February 2008 at 13:34[142], (i) enclosing a revised draft that contains a minor addition that Father and Mother’s wish was such that the donations be made in the name of a trust under their names, and (ii) asking Mr Nelson Miu whether he had further comments on the draft 2008 Joint Will;

(j) Mr Nelson Miu’s email dated 6 February 2008 at 16:32[143], where he indicated that he could not respond in time due to an extended lunch and that he still had some “little lingering doubt” as to whether clause 9(4) of the draft will was exclusively charitable in nature; and

(k) Mr Bruce Fu’s email dated 6 February 2008 at 17:01[144], where he (i) informed Mr Miu that the 2008 Joint Will had been executed already and (ii) indicated that, if necessary, a codicil could be executed subsequently.

(12) The contemporaneous emails show that:-

(a) Hastings extensively relied on Mr Nelson Miu’s expertise for the purposes of (i) preparing the 2008 Joint Will and (ii) giving effect to the testamentary wish of Father.

(b) Mr Nelson Miu was the person who prepared the first draft of the 2008 Joint Will. As evidenced by his advice in writing dated 4 February 2008, Mr Nelson Miu had considered the circumstances of Father and Mother as well as their charitable intent.

(c) TCS sought to make sure that Mr Bruce Fu would explain the contents and effect of the draft 2008 Joint Will to Father.

(d) Having reviewed the draft 2008 Joint Will before the same was executed, Mr Nelson Miu’s advised that clause 10 in the draft might not be exclusively charitable and as such it was open to TCS to rely on it to render herself a beneficiary. In the circumstances, Mr Miu deleted this clause in its entirety.

(e) After the 2008 Joint Will was executed, Mr Bruce Fu became aware that Mr Nelson Miu still had some “little lingering doubt” as to whether clause 9(4) is exclusively charitable. However, having said that this was merely a “little lingering doubt”, Mr Nelson Miu did not insist that the 2008 Joint Will be revised and executed afresh; nor did he insist that a codicil be prepared to address the issue.

(13) As will be further elaborated hereinbelow in paragraph 179, I am of the view that clause 9(4) is indeed exclusively charitable, and there is no realistic possibility that TCS could rely on this clause to render herself a beneficiary. In my view, Mr Nelson Miu simply, out of an abundance of caution, pinpointed a plausible imperfection. Had Mr Miu taken the view it is likely that TCS would be in a position to rely on clause 9(4) to defeat the testamentary wish of Father, he would have advised that the 2008 Joint Will be revised and replaced by a fresh will or that a codicil be executed. This did not happen.

(14) For all the above reasons, I reject the suggestion that clause 9(4) of the 2008 Joint Will was maliciously or calculatedly designed for the purpose of enabling TCS to enrich herself. This was not the intention at all.

(15) I am of the view that as evidenced by the contemporaneous emails and records, the 2008 Will was prepared in a manner that was bona fide and responsible. I am not of the view that Hastings and/or Mr Nelson Miu acted in bad faith, and I reject the suggestion that they acted in such a way as to advance TCS’s personal interest.

(16) For completeness, it should be mentioned that the discussion during the initial meeting between TCS, Ms Hwang and Mr Bruce Fu on 26 March 2007 was also evidenced by (i) the typed-up attendance notes prepared by a trainee solicitor[145]; and (ii) the hand-written notes jotted by Mr Bruce Fu[146].

(17) In this connection, Mr Dawes made a number of criticisms.

(18) First of all, Mr Dawes criticized Mr Bruce Fu for not recording Father’s intention to revoke his 2006 Will and that Father was deceived into signing his 2006 Will.

(19) In my view, the criticism has been overblown. The trainee solicitor’s attendance notes[147] did record TCS’s suggestion that Father had no memory of executing the 2006 Will. I have no doubt that the assertion was not an ex post facto concoction. More importantly, when Mr Bruce Fu testified[148], he stressed that

(a) the role of Hastings was to resolve the problem faced by Father;

(b) the problem faced by Father could be resolved by executing a new will, and when this was done, the 2006 Will would be revoked or superseded by operation of law;

(c) in the circumstances, the foremost objective was to take instructions from Father and prepare his new will (which turned out to be Father’s 2007 Will); and

(d) bearing in mind that Father (who was a decent and nice person) had no intention to hold TCP and/or Mr Hoon responsible, he did not wish to dwell on the question of whether Father was fraudulently deceived.

Mr Bruce Fu’s explanations make sense to me. In my view, Mr Fu is a solicitor who tends to resort to pragmatic solutions for resolving the problems that his clients face. In the present case, it is obvious that he did not wish to stir up further disputes amongst members of the Tan family. This was bona fide. I accept Mr Fu’s explanations.

(20) Further, Mr Dawes pointed out that the two sets of 2007 Wills were merely “mirror” wills, and he criticized Mr Bruce Fu for not recording that Father was advised as to the effect and implication of a mutual will.

(21) In this connection, I am of the view that the two sets of 2007 Wills, though imperfect, were not contradictory to Father’s wishes and instructions. As mentioned above (see paragraphs 52) and as will be elaborated below (see paragraphs 170(11)-(15) and 182(4)), it is not in dispute that the two sets of 2007 Wills had a loophole (in that if Father predeceases Mother and Mother subsequently revokes her 2007 Will, Father’s assets would not be donated to charities). This was the reason why counsel (ie Mr Nelson Miu) was subsequently engaged to provide advice and to draft the 2008 Joint Will.

(22) In any event, it was Mr Bruce Fu’s evidence[149] that on the occasion of 30 March 2007, he did provide advice to Father regarding the loophole, but the instruction that he received was that Father and Mother trusted each other immensely. In the premises, Father and Mother were contented with the arrangement under the two sets of 2007 Wills. Bearing in mind that Father and Mother were a loving couple who had spent more than 6 decades together, Mr Fu’s evidence in this regard makes sense to me, and I accept the same.

(23) However, according to Mr Fu, Mr Brewer (who was only engaged after the two sets of 2007 Wills were executed) was deeply concerned about the loophole. In the circumstances, on the occasion of 31 January 2008, upon hearing further from Mr Bruce Fu (who had the advice of Mr Brewer at the time), Father (who respected the opinion of his lawyers) took the view that it would be desirable to seek further advice from a counsel with expertise in probate matters (ie Mr Nelson Miu).

(24) I do understand why Mr Brewer took a strong view on the loophole. The question was not merely whether Father and Mother trusted each other. As pointed out in paragraph 10 of Mr Nelson Miu’s advice dated 4 February 2008[150], there was a real possibility that after Father’s demise, Mother would continue to live on for a number of years, thereby growing weak and becoming susceptible to manipulation by others.

(25) I am of the view that Mr Bruce Fu’s evidence makes sense and is consistent with the objective circumstances. In my view, there was every reason why Father would have a second thought upon further consideration of the advice from his lawyers. I accept Mr Bruce Fu’s evidence. For completeness, I do not lose sight of the fact that some of the details regarding the material events were not mentioned in Mr Bruce Fu’s witness statement. However, the reality was that these details were only explored with Mr Fu when he was cross-examined. I am not of the view that Mr Bruce Fu fabricated evidence in the witness box.

171.  Fourth, I am of the view that Father’s 1^st Statutory Declaration recorded and reflected Father’s charitable intent. This was a document that was prepared seriously based on Father’s instructions:-

(1) In his 1^st Statutory Declaration, Father stated that:-

(a) In 2004, his relationship with the sons (ie TYK, TCG, and TCH) became strained. They did not respect family values. They seldom called or visited him and Mother. They did not ensure that he and Mother were taken care of in their twilight years[151].

(b) The 2006 Will executed on 21 April 2006 “no longer” reflected his wish and thoughts. Thus, on 30 March 2007, he revoked the 2006 Will by executing his 2007 Will in the presence of (i) Ms Hwang; (ii) Mr Bruce Fu; (iii) Dr Chen; and (iv) Dr Wong[152].

(c) Under his 2007 Will:-

i. He bequeathed all his assets to Mother, and if Mother predeceases him, 1/3 of his assets would be bequeathed to charities in Hong Kong, and the remaining 2/3 of his assets would be bequeathed to the charities in Shanting Village, Maxiang Town, Xiangan District, Fujian Province and Xiamen[153].

ii. He made it clear that during his lifetime, he provided adequately for his children and their descendants. As such, it was not necessary to bequeath any assets to them[154].

iii. No distinction was drawn between the shares in AAIE/EnGro and other assets. He intended that AAIE’s 70% of its 38.38% interest in EnGro be preserved for members of the Tan family and not applied for charitable purposes[155]. However, his remaining assets should be applied towards the two charitable purposes already identified, together with the third charitable purpose in Singapore. In the circumstances, he intended to execute the 2 draft wills that disposed of his assets in Singapore and his assets outside of Singapore[156].

(2) The contents of Father’s 1^st Statutory Declaration show and reflect:-

(a) Father’s strained relationship with TYK, TCG, and TCH;

(b) Father’s intention to revoke his 2006 Will;

(c) Father’s view that the children of the family and their descendants had been adequately provided for already; and

(d) Father’s wish of donating his assets for charitable purposes in (i) Hong Kong; (ii) Shanting Village, Maxiang Town, Xiangan District, Fujian Province and Xiamen; and (iii) Singapore.

(3) Insofar as the preparation of Father’s 1^st Statutory Declaration is concerned, the contemporaneous attendance notes[157] and the summary of meetings[158] prepared by Hastings’s solicitors show that before the 1^st Statutory Declaration was executed at the office of Hastings, Father attended at least four meetings on 9 May 2007, 1 June 2007, 5 October 2007 and 28 January 2008 at the Bowen Property. This is consistent with Mr Bruce Fu’s evidence[159] that he had explained the contents of the draft 1^st Statutory Declaration to Father word by word and that the draft 1^st Statutory Declaration was amended several times in order to ensure that the contents accurately reflected Father’s instructions. I accept Mr Bruce Fu’s evidence in this regard.

(4) Like other professionals who were involved in these proceedings, Mr Bruce Fu did not have an interest in the outcome of this litigation. I do not believe that Mr Bruce Fu had reason to fabricate and/or distort Father’s instructions.

(5) I do not lose sight of the fact that as evidenced by her email dated 2 October 2007[160] to Mr Brewer and Ms Hwang, TCS candidly indicated that she had edited the draft of Father’s 1^st Statutory Declaration. In my view, had TCS sought to put words into Father’s mouth, she could have said to the lawyers that the editing was done pursuant to Father’s instructions. This was not what she did. In my view, TCS did not seek to hijack the process in a dishonest or illegitimate manner. She simply sought to speed up the process.

(6) Despite the involvement of TCS, I accept Mr Bruce Fu’s evidence[161] that he had read and explained the contents of the draft 1^st Statutory Declaration to Father. Had Father disagreed with the contents, he would have voiced out, and Mr Bruce Fu would have been duty-bound to rectify the same.

(7) In this connection, I disagree with the suggestion that Ms Hwang’s email dated 27 December 2007^[162] shows that she sought to discourage Father from amending the draft 1^st Statutory Demand. Ms Hwang did not say that Father should refrain from providing comments on the draft 1^st Statutory Demand. It appears to me that what Ms Hwang meant in the said email was that it would be efficient and economical if Father could read and consider the document in its entirety first. In any event, I accept the evidence^[163] of Mr Fu (who is a bona fide and responsible solicitor) that he duly took instructions from Father with regard to the contents of 1^st Statutory Demand. I do not believe that Father’s legal representatives had put words into his mouth.

(8) For the above reasons, I find that the 1^st Statutory Declaration was prepared in a bona fide and proper manner and that Mr Bruce Fu, in discharge of his duties as a solicitor, had taken adequate steps to satisfy himself that the contents of the 1^st Statutory Declaration accurately recorded and reflected Father’s instructions. I am also satisfied that the contents of the 1^st Statutory Declaration did accurately record and reflect Father’s instructions.

(9) I do not lose sight of the fact that the 1^st Statutory Declaration records and reflects Father’s intention that the shareholding in AAIE/EnGro and AAS be distributed amongst members of the Tan family[164]. As will be further elaborated in paragraphs 184, 185, 188, and 189 hereinebelow, whilst Father erroneously assumed that he still retained beneficial ownership of the shareholding in AAIE/EnGro and AAS, his intention was that such shareholding be distributed amongst members of the Tan family during his lifetime pursuant to an intended deed of family arrangement, but if the 5 Siblings refused to accept the terms of the intended deed of family arrangement, the shareholding (which will become part of the capital of the estate) should be donated to charities when both himself and Mother pass away. As will be explained in paragraphs 185 and 189 below, the 2008 Joint Will and Father’s 2007 Will are capable of giving effect to Father’s intention.

(10) For completeness, it should also be mentioned that the Singaporean Court of Appeal held that Father’s 1^st Statutory Declaration was not admissible for the purpose of the Singaporean 570 Action: see paragraph 118 of the judgment[165]. For the following reasons, this has no bearing for present purposes. In the Singaporean 570 Action, the issues in dispute concerned the beneficial ownership of the shareholding in AAIE/EnGro and AAS. Understandably, applying the rule in Cartwright v Sheppard[166], the Singaporean Court of Appeal held that any subsequent declaration by Father with regard to his beneficial ownership over the shares carried no weight at all. However, in the present litigation, the purposes of adducing Father’s 1^st Statutory Declaration were to show (i) the charitable intent of Father; (ii) Father’s desire to revoke the 2006 Will; and (iii) Father’s strained relationship with his sons. These obviously have nothing to do with subsequent declaration for advancing self-interests.

172.  Fifth, Father’s charitable testamentary intent was borne out by (i) the contemporaneous letter dated 16 August 2008[167] from Father and Mother to the 5 Siblings; and (ii) the letter in reply dated 12 October 2008 from TYK, TCG, and TCH[168]:-

(1) On the first page of the letter dated 16 August 2008 from Father and Mother, it was expressly stated that in September 2004, after the litigation with members of the Bajumi family in relation to the affairs of AAS was settled, a family meeting took place, and the 5 Siblings knew that Father and Mother intended to donate their assets for charitable purposes. None of the 5 Siblings expressed any contrary view.

(2) In their letter in reply dated 12 October 2008, TYK, TCG, and TCH expressed views as to how the shares in the family companies should be disposed of. However, they did not express any view as to Father and Mother’s intention to donate their personal assets.

(3) In the premises, putting aside the question of whether TCS was involved in preparing Father and Mother’s letter dated 16 August 2008 (which was typed-up and written carefully[169]), it appears to me that back in 2008, TYK, TCG, TCP and TCH accepted and did not dispute the fact that Father and Mother intended to donate their assets for charitable purposes. In my view, had Father and Mother’s charitable intention come as a surprise, TYK, TCG, and TCH would have voiced out. They did not do so. This was consistent with the admissions made by TYK, TCG, and TCP in court proceedings (which are addressed in paragraph 173 below).

173.  Sixth, Father’s charitable testamentary intent was borne by the candid admissions on the part of TYK, TCG, and TCP:

(1) When TCG gave oral evidence[170], he honourably and candidly informed the court that:-

(a) What was stated in Father and Mother’s letters dated 16 August 2008[171] was true. After the litigation with members of the Bajumi family was settled, a family meeting took place in September 2004. There, Father did expressly mention that he wanted to donate his personal assets to charities. The children of the family had no reason to disagree with Father’s wish. Father had already transferred the interests in the family companies (ie AAS and AAIE) to his children, and told them to strive to generate wealth for themselves and the future generations with their own efforts.

(b) All along, he was aware of Father and Mother’s wish to donate the bulk of their wealth and assets to charities. He and other children believed that Father was entitled to decide how to dispose of his personal assets.

(c) In his conversations with Father throughout the years, Father kept stressing that he would not bequeath his personal assets to his children, and they had to make their own living and build their own future.

(d) In the circumstances, the 2006 Will came as a surprise to him. He found it surprising that Father would bequeath his personal assets to him.

TCG’s evidence is consistent with (i) the contents of the 2008 Joint Will as well as Father and Mother’s 2007 Wills; (ii) the instructions received by Hastings; and (iii) the contents of Father’s 1^st Statutory Declaration. I have no doubt that the children of the Tan family were aware of Father’s intent to donate his wealth to charity, and they were not in a position to disagree with Father’s laudable intent.

(2) Like TCG, when TYK was cross-examined by Mr Tang[172], he also honourably and candidly admitted the following matters:

(a) Father made it clear that all he provided to his children was good education and some good family assets (ie the shares in AAS and AAIE). Father kept saying that whatever personal assets he had, he would donate them to charity. The children of the family knew and accepted Father’s charitable intent.

(b) Whilst TYK stressed that Father could not have applied the assets that had already been given to the 5 Siblings (ie the shares in AAS and AAIE) for charitable purposes, he was not in a position to disagree with the suggestion that the intended donations under the 2008 Joint Will were consistent with Father’s wish, though he expressed doubt as to whether Father truly understood the contents of the document.

Based on what TYK said in the witness box, it appears to me his concern was that in light of her alleged greed and mala fides, TCS might not apply Father’s assets for charitable purposes. Due to the mistrust amongst the parties, TYK’s concern was understandable. However, this is not a reason to invalidate the 2008 Joint Will. For the reasons explained in paragraphs 168 to 170 above and paragraphs 180 to 197 below, I am not of the view that Father failed to understand the contents and effect of the 2008 Joint Will and the two sets of 2007 Wills; nor am I satisfied that these Wills were some malicious designs that aimed at benefiting TCS through some loopholes that were not readily apparent.

(3) As regards TCP:-

(a) When she testified in the trial of the Singaporean 570 Action, TCP admitted that the intended donations under the 2008 Joint Will[173] reflected the true wishes of Father and Mother[174]. Like TYK and TCG, TCP also made it clear that Father’s commitment to charities was based on his own assets and had nothing to do with the shares in AAS (which had been given to the children as early as 1985)[175].

(b) When TCP testified in the present trial, she also acknowledged that Father always had an intention to donate his assets to charities[176].

(c) However, she emphasized that after she and her lawyers reviewed the 26 boxes of documents produced by Hastings, she had reasons to disagree with the suggestion that the 2008 Joint Will reflected Father’s testamentary wish.

In my view, TCP merely made a bare assertion in the present trial. TCP was not privy to the process through which the two sets of 2007 Wills and the 2008 Joint Will were prepared. More fundamentally, there is no evidence that TCP had any discussion with Father about his testamentary intent after March 2007. Indeed, it was not even suggested that Father expressly discussed his testamentary intent with TCP before the 2006 Will was made.

174.  Seventh, I am of the view that Father’s testamentary wish and intention made ample sense. They are neither irrational nor inexplicable. Father was a self-made entrepreneur who accumulated a substantial amount of wealth through years of hard work. It was understandable why Father would take the view that if his children work hard, they could also generate fortunes for themselves. There was every reason why Father took the view that he had already adequately provided for his children, and they were financially secured and comfortable. Against this background, it is understandable why Father wished to make contributions to society by donating his personal assets to help those who are disadvantaged or less fortunate. Father had every reason to take the view that this would be the most meaningful way to utilize his personal assets.

175.  Eighth, I am also of the view that the arrangement under the 2008 Joint Codicil[177] makes sense and is not irrational:-

(1) Back in 1993, TCS gave up a respectable job in order to take care of Father and Mother. Throughout the years, TCS took up the responsibilities of taking care of them and had remained unmarried and childless. In the circumstances, it was understandable why Father and Mother would have concerns about TCS’s future, and wanted her to inherit the Bowen Property. After all, TCS spent a lot of time in the Bowen Property taking care of her parents. I understand why Father and Mother would wish to, so to speak, “reward” TCS.

(2) In this connection, Mr Bruce Fu informed the court that Father and Mother were deeply concerned about TCS’s future[178]. Mr Bruce Fu had considerable interaction with Father and Mother throughout a prolonged period of time. I accept Mr Bruce Fu’s evidence, which makes sense.

(3) Indeed, the fact that Father and Mother were concerned about TCS’s future and well-being is also borne out by the undisputed fact that she was added as a joint owner in respect of the Sydney Property. Unlike TCG, TYK, TCP, and TCH (who were married and had children), TCS had remained unmarried and childless. In the circumstances, I understand why Father and Mother wanted her to inherit some real properties that were of considerable value.

(4) It is also important not to lose sight of the fact that as of 2008, Father and Mother’s relationship with TCG, TYK, TCP, and TCH had been strained. As such, there was plainly no reason why Father and Mother would want them or any of them to inherit the Bowen Property.

176.  For completeness, I do not lose sight of the fact that TCS might have exaggerated her case by alleging that she only found out about her parents’ decision after the 2018 Joint Codicil was executed[179]. As demonstrated by Mr Dawes during cross-examination[180], the contemporaneous emails on 1 February 2008[181], 14 February 2008[182], and 25 March 2008[183] show that TCS discussed the matter with Father’s legal representatives before the 2008 Joint Codicil was executed on 8 May 2008. In my view, the inaccuracy was ascribed to either (i) (as Mr Tang suggested) TCS’s inability to recall the correct sequences of events[184]; or (ii) (as Mr Dawes suggested) TCS’s deliberate attempt to distance herself from the matter. Be that as it may, even if TCS’s assertion is to be disregarded completely, it still does not follow that Father and Mother did not want TCS to inherit the Bowen Property. In this connection:-

(1) In Ms Hwang’s email to TCS on 14 February 2008 at 18:35 (which was circulated to Mr Bruce Fu and a trainee solicitor of Hastings)[185], it was stated that there should be a discussion as to how the Bowen Property should be given to TCS, and one of the possibility was to deal with it by executing a codicil to the 2008 Joint Will.

(2) As evidenced by TCS’s email to Ms Hwang, Mr Bruce Fu, and Mr Brewer on 25 March 2008 at 15:44[186], it was stated that Father and Mother wanted to give the Bowen Property to herself when they pass away, and this was a matter to be discussed at the meeting on 26 March 2008.

(3) As evidenced by the contemporaneous notes in respect of the meeting on 26 March 2008 (which was attended by Ms Hwang, Mr Brewer, Mr Bruce Fu, and a trainee solicitor of Hastings)[187], it was recorded that there should be a letter from Father explaining why the two properties would be conveyed to TCS.

(4) As evidenced by Mr Bruce Fu’s email to a trainee solicitor on 26 March 2008 at 18:58[188], Father and Mother’s wish was that “the [Bowen Property] will be succeeded by [TCS] for her use and benefit absolutely”, and they “wanted to mention in the Codicil that it is their intention for [TCS] to succeed both the two real properties in Hong Kong and Sydney respectively”.

(5) As evidenced by the emails exchanged between Mr Bruce Fu and TCS on 5 May 2008 at 16:17 and 17:23[189], it was TCS’s understanding that her parents would like to leave the Bowen Property to her after they passed away.

In my view, had Hastings and Mr Brewer colluded together with TCS for the purposes of enabling TCS to inherit the Bowen Property against the testamentary wish of Father and Mother (which involved serious misconduct and wrongdoings), they would not have openly discussed the matter by emails and recorded the discussions in the contemporaneous notes. It is apparent to me that Hastings, Mr Brewer, and TCS genuinely engaged in a bona fide discussion as to (i) Father and Mother’s testamentary wish that the Bowen Property be inherited by TCS; and (ii) how to implement such a testamentary wish. I am not of the view that Father and Mother’s testamentary wish regarding the Bowen Property was concocted.

177.  More importantly, the 2008 Joint Codicil was, on its face, duly executed. In this connection, it is incontrovertible that the contents of the 2018 Joint Codicil are straightforward, and the reasons why Father and Mother wanted TCS to inherit the Bowen Property were adequately set out. There is no room for suggesting that Father was incapable of understanding the contents of the 2018 Joint Codicil. On the evidence, I am not of the view that Father was tricked or misled to sign the document; nor does it appear to me that there were any inexplicable circumstances.

178.  Ninth, I am unable to accept TCG, TYK, and TCP’s submissions that the 2008 Joint Will could not achieve Father’s objectives. I am of the view that although the 2008 Joint Will is not expressly identified as a mutual will, it is still capable of achieving Father’s charitable objectives:-

(1) As reflected by the contents of Father and Mother’s 2007 Wills (as well as the evidence of the witnesses including Dr Wong, Ms Hwang and Mr Bruce Fu), Father’s wish was that: (i) if he predeceases Mother, Mother be adequately provided for during her lifetime; and (ii) when both of them pass away, his assets be utilized for charitable purposes. I am of the view that the 2008 Joint Will is capable of giving effect to Father’s intent, and it is not open to TCS and/or Mother to utilize the capital of the assets left behind by Father for non-charitable purposes.

(2) Clause 5 of the 2008 Joint Will provides that the surviving spouse (ie Mother) can only inherit the income derived from the assets of the deceased spouse (ie Father). Thus, the capital in respect of the assets left behind by the deceased spouse (ie Father) will never form part of the assets of the surviving spouse (ie Mother). In the premises, the surviving spouse (ie Mother) will not be in a position to dispose of the capital in respect of the assets belonging to the deceased spouse (ie Father), and the executrix (ie TCS) is bound to apply the same for those charitable purposes set out in clauses 5, 6, 7, 8 and 9 when both spouses pass away. In this sense, Father’s charitable purpose can be achieved (at least insofar as the capital of his assets is concerned). Even though Mother, being the surviving spouse, subsequently revoked the 2008 Joint Will, she could, at most, only dispose of the income derived from Father’s assets, but not the capital (which TCS, as executrix and trustee, is duty-bound to apply for those charitable purposes set out in the 2008 Joint Will).

(3) The aforesaid design was thought through carefully. In this connection, it would be pertinent to refer to the following passages in Mr Nelson Miu’s advice dated 4 February 2008[190]:-

“9. Mutual wills are often executed by husband and wife in pursuance of an agreement as to their revocation or non-revocation. As the learned editors of Williams on Wills noted, although the reported cases deal mostly with cases where there is a mutual agreement against revocation, in modern times many such wills have expressly negative such agreement.

10. In the present case, I do not think [Father or Mother] would be concerned about the possibility of the surviving spouse re-marrying some other persons and making a new will giving his/her assets to some strangers. On the other hand, there does exist the possibility of the surviving spouse living on for a number of years, growing weak and become susceptible to undue influence or even manipulation by one of the children who may be unhappy with the provisions of [Father and Mother’s] mutual wills.

11. Although it is possible to expressly incorporate an agreement against revocation in the mutual wills, another way of incorporating/implying such an agreement would be by making a mutual will giving only the income of their respective (share of) assets to the survivor, with the whole estate going to charities thereafter.

12. The distinction between making a gift of only the income (gift of a life interest) vs an absolute gift of capital to the surviving spouse was discussed by Astbury J in Re Oldahm, Hawdwen v Myles [1925] Ch 75, distinguishing the principle (against revocation) laid down by Lord Camden in Dufour v Pereira (1976) 1 Dick 419. Astbury J said at 88:-

Finally, I think a very great difference between Dufour v Pereira and the present case is that in Dufour v Pereira the capital of the trust property was secured in fact by the life interest only being given to the survivor, whereas in the present case the survivor is given the whole estate absolutely, and could, if so minded, dispose of the property inter vivos.

13. In the present case, there is no need for the surviving spouse to require the capital of the other spouse’s (share of ) assets for his/her maintenance. So a gift of income would create a stronger implication that there was an agreement not to revoke the mutual will, This would impress the assets of the pre-deceased spouse with a trust. But the surviving spouse may still dispose of his/her own assets differently by making (or being persuaded to make) a new will.

(emphasis added)

(4) I have no doubt that Mr Miu sought to devise a design for the purpose of giving effect to Father’s charitable intent in a bona fide and responsible manner in light of the circumstances of the case. I am of the view that his advice made sense.

(5) As evidenced by a note prepared by a member of Hastings[191] in respect of the conference that took place at Mr Miu’s chambers in the morning on 6 February 2008[192], Mr Miu opined that mutual wills or a joint mutual will would have the effect of serving joint tenancies. In this connection, it is not in dispute that the Bowen Property as well as the Sydney Property were held under joint tenancies.

(6) In the circumstances, there was a reason why Mr Miu would wish to devise a design to ensure that whilst the bulk of Father’s assets (ie the capital) could undoubtedly be utilized for charitable purposes when both Father and Mother pass away, the will to be executed (ie the 2008 Joint Will) would not be expressly identified as a mutual will due to the presence of an express clause against revocation.

(7) For completeness, I do not lose sight of Mr Dawes’s contention that there could be other workable methods to address the concern regarding the joint tenancies in respect of the Bowen Property and the Sydney Property[193]. However, the purpose of the present trial is not to assess whether Mr Nelson Miu provided the most ideal advice with the benefit of hindsight. For present purposes, it suffices to say I am satisfied that Mr Nelson Miu’s advice and proposal made sense and were bona fide.

179.  Tenth, I do not agree with TCG, TYK, and TCP’s submissions that the clauses under the 2008 Joint Will are not exclusively charitable in nature, such that TCS can rely on the same to render herself a beneficiary, thereby defeating Father’s charitable intent:-

(1) Clause 10 in the draft 2008 Joint Will (which has been removed) reads as follows:

“除了上述第七項、第八項和第十項的慈善捐款以外，我們的受托人可以行使她的絕對酌情權，把我們其他剩餘財產運用在她認為值得和需要的慈善或人道工作上包括支付我們的受托人一旦入院時的醫藥費。” (emphasis added)

(2) The problematic parts of clause 10 concern (i) the phrase “charitable or benevolent purposes (慈善或人道工作)”; and (ii) the trustee’s power to use the residuary estate to defray her own medical expenses in hospitals (支付我們的受托人一旦入院時的醫藥費).

(3) Clause 10 of the draft has been removed in its entirety. The problematic contents do not feature anywhere in the finalized version of the 2008 Joint Will.

(4) Meanwhile, cause 9(4) of the 2008 Joint Will, which has been included from the outset and which has never been removed, reads as follows:

“我們的受托人須要把我們的剩餘財產作以下用途：……4. 捐款給有需要的機構、團體或單位，用作照顧新加坡共和國境內的老人、醫療及其他社會慈惠服務，而受惠的具體機構、團體或單位和捐款數目、方式，則由我們的受托人行使 她的絕對酌情權決定。”

(5) I cannot see how TCS, who is an individual, may invoke clause 9(4) to benefit herself. She is not an organization, a group, and/or a unit (機構、團體或單位).

(6) More fundamentally, clause 9(4) stipulates that the assets have to be utilized for the following purposes in Singapore: (i) taking care of elders (照顧…老人); (ii) medical services (醫療); and (iii) other charitable social services (其他社會慈惠服務).

(7) On my part, I do not see any loophole, which could be utilized by TCS to defeat Father’s charitable intent. I cannot see how TCS’s act of enriching herself and/or pocketing the capital of the assets left behind by Father may fall within the meanings of (i) taking care of elders (照顧…老人); (ii) medical services (醫療); and/or (iii) other charitable social services (其他社會慈惠服務)[194].

(8) As mentioned in paragraph 170(13) above, I am of the view that in his email dated 6 February 2008 at 16:32[195], Mr Nelson Miu merely, out of an abundance of caution, indicated that clause 9(4) might not be perfect. This was why he used the phrase “little lingering doubt” in the email. It does not appear to me that Mr Miu seriously took the view that clause 9(4) is unworkable or that Father’s charitable intent could not be achieved. Had this been the case, Mr Miu would have (i) deleted clause 9(4) before he circulated the revised draft of the 2008 Joint Will under his email dated 6 February 2008 at 11:33am and (ii) advised that the 2008 Joint Will be revised and re-executed or that a codicil be executed.

180.  Eleventh, for the reasons set out in the paragraph immediately hereinabove, I am not of the view that the 2008 Joint Will fails to give effect to Father’s charitable testamentary wish as a result of some technical loophole(s). Even if the analysis set out above were incorrect, it does not mean that Father did not approve the contents and effect of the 2008 Joint Will, which were duly read and explained to him: see paragraph 169 above. In this scenario, there are merely some technical loophole(s) that are capable of being abused to create unintended consequence(s). This is a matter of legal niceties. In this scenario, it would be appropriate for the Secretary for Justice, being the guardian of public interests, to consider (i) asking the court to construe the 2008 Joint Will in such a way as to give effect to Father’s charitable intent; or (ii) seeking rectification (if possible). It would be most unjust and unfortunate if the alleged technical loophole(s) could constitute a reason for nullifying the 2008 Joint Will in its entirety, in which case Father’s charitable intent would be defeated completely.

181.  Twelfth, in my view, there is no room for TCG, TYK, and TCH to take the words of Mr Bruce Fu that “[Father wished to] leave the entirety of his estate to [Mother], and afterward to charity”[196] literally. I disagree with the suggestion that the 2008 Joint Will did not give effect to Father’s wish. Having heard the evidence of Dr Wong, Mr Bruce Fu, and Ms Hwang and having considered the objective evidence as well as the contemporaneous records, I am of the view it was not the case that (i) Father wanted Mother to inherit the bulk of his assets and a minor or residuary part thereof be used for charitable purposes; and/or (ii) Father wanted the estate of the Mother to inherit his assets in the event that Mother predeceases him. These were not Father’s intention and/or instructions. I have no doubt Father’s intention was such that if he predeceases Mother, Mother should be adequately provided for financially before her demise, and when both he and Mother pass away, the capital of the assets left that he left behind should be utilized for charitable purposes. For the reasons elaborated above in paragraph 178, I am of the view that the 2008 Joint Will is capable of giving effect to Father’s charitable intent. In fact, Father and Mother’s 2007 Wills and the two sets of draft wills prepared by Mr Bruce Fu also intended to give effect to such a charitable intent. However, there was a loophole in that it would be open to Mother to revoke her 2007 Will in which case Father’s charitable intent may be defeated. This was precisely the reason why the advice of Mr Nelson Miu was sought. There is no doubt that the exercise of preparing the 2008 Joint Will aimed at plugging this loophole.

182.  Thirteenth, in light of the aforesaid, I am of the view that the charitable intent under the two sets of 2007 Wills is consistent with the charitable intent under the 2008 Joint Will. It is true that the mechanisms and the details under the 2007 Wills and the 2008 Joint Will are not identical. However, it does not mean that Father’s testamentary intent was ambulatory, uncertain, and/or ever-changing:-

(1) The material differences between the two sets of 2007 Wills and the 2008 Joint Will are twofold.

(2) First:-

(a) Under the two sets of 2007 Wills, the surviving spouse will inherit the assets of the deceased spouse, and when both spouses pass away, their assets will be donated to charities.

(b) Under the 2008 Joint Will, the surviving spouse will only inherit the income arising from the assets of the deceased spouse, and when both spouses pass away, the executrix/trustee will be bound to donate the capital of assets of the deceased spouse to charities (regardless of whether the surviving spouse subsequently revokes his/her will).

(3) Second:-

(a) The two sets of 2007 Wills simply provide that (i) 1/3 of the assets be donated to charities in Hong Kong; and (ii) the remaining 2/3 of the assets be donated to charities in Shanting Village, Maxiang Town, Xiangan District, Fujian Province and Xiamen.

(b) The 2008 Joint Will provides that:-

(i) HK$100 million would be donated to the charities in Hong Kong;

(ii) HK$100 million would be donated to the charities in Shanting Village, Maxiang Town, Xiangan District, Fujian Province and Xiamen;

(iii) the residuary estate would be donated to (A) the Singapore Buddhist Lodge; (B) National University of Singapore; (C) top-ranked universities (for setting up scholarships for students of Chinese descent); (D) other entities in Singapore for the care of the aged and entities in Singapore that provide medical and/or social services.

(4) Insofar as the first material difference is concerned, as explained above in paragraphs 170(11) to (15) and 181, it is abundantly clear that the design under the 2008 Joint Will aimed at plugging the loophole that Mother (who transpired to be the surviving spouse) can defeat Father’s charitable intent by revoking her 2007 Will. For the reasons elaborated in paragraphs 170(21) to (25) above, I accept Mr Bruce Fu’s evidence that at the time when the two sets of 2007 Wills were executed, Father was advised that such a loophole existed, but in light of the mutual trust between Father and Mother, Father was contented with the arrangement. However, in view of Mr Brewer’s strong view on the loophole, Mr Bruce Fu discussed the matter with Father again on the occasion of 31 January 2018, and upon hearing Mr Bruce Fu, Father decided to seek advice from a counsel with expertise in probate. It was in these circumstances that Mr Nelson Miu was engaged. As explained in paragraph 178 above, Mr Nelson Miu endeavoured to come up with a design that aimed at ensuring that at least the capital of the assets left behind by Father (who transpired to be the deceased spouse) could be donated to charities. The whole purpose of the exercise was to ensure that Father’s wealth could be donated to charities. There is no question that Father’s charitable intent had not changed.

(5) The second material difference only concerns the destinations of the donations. There is nothing unusual or suspicious about the fact that Father, after further consideration, took the view that upon donating HK$200 million to the charities in Hong Kong and Shanting Village, Maxiang Town, Xiangan District, Fujian Province and Xiamen, the residue of his estate should be donated for charitable purposes in Singapore. It is clear that all along, Father wished to apply his wealth for charitable purposes.

183.  Fourteenth, insofar as the suggestion that Father’s testamentary intent was ambulatory, ever-changing and uncertain is concerned, I disagree with the following contentions that were advanced on behalf of TCG, TYK, and TCP. I am not of the view that there were suspicious and/or inexplicable circumstances surrounding the 2008 Joint Will and/or the two sets of 2007 Will; nor am I of the view that the 2008 Joint Will and/or the two sets of 2007 Will fail to evince and/or reflect Father’s wish and intent.

184.  Mr Dawes pointed out that as recorded by the typed-up attendance notes dated 26 March 2007 prepared by a trainee solicitor of Hastings[197], the 5 Siblings would be requested to take up 20% of Father’s personal assets (ie the shares in EnGro being held by AAIE[198]) pursuant to a deed of family arrangement, and if the 5 Siblings did not agree with the arrangement, the relevant assets should be given to charity. Based on the attendance note in respect of the conference attended by Father on 1 June 2007[199], Mr Dawes further suggested that after the two sets of 2007 Wills were executed, it was still Father’s intention to distribute the EnGro shares held by AAIE (which comprised of 20% of his assets) to the 5 Siblings. However, such an intention was not reflected by the contents of the two sets of 2007 Wills, and when TCS testified, she accepted that the two sets of 2007 Wills does not deal with the shareholding in the Singaporean companies^[200].

185.  For the following reasons, I am not of the view that the two sets of 2007 Wills fail to reflect Father’s testamentary intent as alleged:-

(1) It appears that Father acted on the assumption that he was still the beneficial owner of the shareholding in AAIE and/or EnGro. As found by the Singaporean courts in the Singaporean 570 Action, this assumption was incorrect. The beneficial ownership of the shareholding was no longer vested with Father at the material times when the two sets of 2007 Wills and the 2008 Joint Will were executed.

(2) Be that as it may, nothing substantial arises out of the intended arrangement under the proposed deed of family arrangement (which was never executed).

(3) The attendance notes dated 26 March 2007[201] and 1 June 2007[202] do not show that it was Father’s intention to bequeath 20% of his assets (ie the shares in EnGro being held by AAIE) to 5 Siblings upon his demise. Assuming that he was still the beneficial owner of the shares, Father would, of course, be in a position to dispose of the same before his demise, and the shareholding would not fall within Father’s estate. Thus, technically speaking, the intended arrangement under the deed of family arrangement[203] is not contradictory to Father’s charitable testamentary intent.

(4) More importantly, as a matter of substance, as pointed out by Mr Bruce Fu in his oral evidence[204], Father intended that the 20% assets (ie the shares in EnGro being held by AAIE) be given to the children on the condition that they agreed or undertook not to dispute his will. Likewise, in her oral evidence[205], Ms Hwang also said it was contemplated that the shareholding in AAIE/EnGro be offered to the 5 Siblings pursuant to a deed of family arrangement. If the 5 Siblings accepted the arrangement, the shares would be given to them. If they did not accept the arrangement, the shares would be donated to charity.

(5) It is not in dispute that with a view to avoiding future litigation and settling the dispute with TCG, TYK, TCP, and TCH, Hastings extensively discussed this matter with Father (as well as TCS) both before and after the two sets of 2007 Wills were executed. What Mr Bruce Fu and Ms Hwang told the court was consistent with the contemporaneous records and documents:-

(a) As mentioned, the typed-up attendance notes in respect of the conference on 26 March 2007[206] recorded Father’s intention that if the 5 Siblings refused to take up the 20% assets (ie shareholding in AAIE/EnGro) pursuant to the terms of the intended deed of family arrangement, the same should be given to charity upon the demise of Father and Mother.

(b) In the instructions[207] provided to Mr Brewer on 1 June 2007[208], it was recorded that Father wished to negotiate with his children, and this was “best dealt with by transferring all the shares in AAIE to the children.”. Mr Brewer was “asked to advise and settle such documentation necessary to effect settlement”.

(c) As evidenced by Ms Hwang’s contemporaneous notes that recorded Father’s conversations with Dr Chen on the occasion of 31 January 2008[209], Father said that he would make a gift to the children as a token, and this was the last resort. If they did not accept it, all would be given to charity.

(d) As evidenced by Ms Hwang’s attendance notes in respect of a conference that took place on 8 April 2008[210], Father no longer wished to negotiate with his children, and he wished to maintain a “take-it-or-leave-it” position

(6) I accept Mr Bruce Fu and Ms Hwang’s evidence that Father had considered offering the shares in EnGro/AAIE to the 5 Siblings pursuant to a deed of family arrangement on a “take-it-or-leave-it” basis as a means to resolve the dispute within the family[211]. In my view, the purpose was either (i) to procure a promise from the 5 Siblings not to challenge the will made by himself; or (ii) to pacify the 5 Siblings, such that hopefully they would not challenge the will made by Father. Obviously, the aim was to ensure that the will made by Father could be implemented, such that his charitable intent could be fulfilled.

(7) Having said that Father contemplated that a deed of family arrangement would be executed and that the shareholding in AAIE/EnGro would be disposed of pursuant thereto, it is understandable why the two sets of 2007 Wills do not specifically cover these assets. After all, it was intended that if the 5 Siblings did not accept the arrangement under the intended deed of family arrangement, the shareholding would be donated to charity by virtue of the provisions in the two sets of 2007 Wills. However, if the 5 Siblings accepted the arrangement, the shareholding would be given to them. As such, it would be unnecessary to dispose of the shareholding upon the demise of Father and Mother.

(8) In this connection, I also accept Mr Bruce Fu’s evidence that on the occasion of 29 March 2007, Father simply did not give any specific instruction that the assets intended to be covered by the deed of family arrangement (ie the shareholding in AAIE/EnGro) should be dealt with under the two sets of 2007 Wills. This is consistent with the objective circumstances and the contemporaneous records.

186.  Mr Dawes also pointed out that in her email to Mr Bruce Fu dated 1 October 2007[212], Ms Hwang mentioned that Father was “anxious to let [Hastings] know that…he wishes [TCS] to have everything”. Mr Dawes queried whether, at one stage, Father’s testamentary wish was to bequeath all his assets to TCS.

187.  However:-

(1) The next sentence in the said email dated 1 October 2007 reads as follows: “To this end the previous affirmation that [Mr Brewer] has done has now been amended to reflect this”.

(2) The revised draft affirmation is attached to the email. In paragraphs 55 and 57 of the revised draft affirmation[213], it is stated that:- (a) “It is my intention that [TCS] succeed the entirety of the Tan family interest in AAIE’s holding in [Ssangyong Cement Singapore][214].”; and (b) “It is my intention that [TCS] succeed to the entirety of the Tan family interest in AAS. Some 45.53% of AAS is already registered in [TCS]’s name and for the avoidance of doubt I intend to execute immediately upon making this my Affirmation a Deed of Gift in respect of such shares…”.

(3) In the premises, it appears that what Ms Hwang understood from Father back in October 2007 was that he merely wanted TCS to have (i) AAIE’s interest in EnGro[215]; and (ii) the interest in AAS.

(4) It is obvious that Father did not intend to renege on his charitable intent by bequeathing all his personal assets to TCS. This was not the case.

(5) In any event, it is important not to lose sight of the fact that the matters set out in sub-paragraph (2) above are merely part of the revised “draft” affirmation. The contents in question never found their ways to the finalized version of the 1^st Statutory Declaration. I am not of the view that anything material arises out of the contents of a “draft” affirmation, which Father did not eventually approve.

188.  Mr Dawes also contended that the 2008 Joint Will does not reflect Father’s wish that the shareholding in AAIE/EnGro and AAS be carved out from his estate and distributed amongst members of the Tan family. In this connection:-

(1) As evidenced by the contents of the finalized version of the 1^st Statutory Declaration (which was dated 31 January 2008)[216], Father’s intention was that the shareholding in AAIE/EnGro and AAS be distributed amongst members of the family.

(2) Mr Dawes pointed out that it was initially envisaged that Father’s 1^st Statutory Declaration be executed on 31 January 2008 alongside the two draft wills prepared by Mr Bruce Fu that separately deals with the assets in Singapore and the assets outside of Singapore:-

(a) Insofar as the draft will that deals with the assets within Singapore[217] is concerned, it provides that:-

i. TCS be appointed as the executrix;

ii. Father’s shareholding in AAS be bequeathed to TCS;

iii. Father had a hope that the building owned by AAS (ie Afro-Asia Building) be sold; thereupon S$40 million be transferred to Hong Kong and dealt with as per the will that governs the assets in Hong Kong;

iv. Subject to the aforesaid, Father’s assets be bequeathed to Mother; and

v. If Mother predeceases Father or dies within 30 days after Father dies, the assets should be donated to (i) the Singapore Buddhist Lodge; and (ii) the National University of Singapore.

(b) Insofar as the draft will that deals with the assets outside of Singapore[218] is concerned, it provides that:-

i. TCS be appointed as the executrix;

ii. Father’s assets be bequeathed to Mother;

iii. If Mother predeceases Father or dies within 30 days after Father dies, the assets should be donated for the charitable purposes of medication, education and taking care of the old, the young and the poor; to this end, the executrix has absolute discretion to donate ½ of the assets to the charities in Hong Kong and ½ of the assets to the charities in Shanting Village, Maxiang Town, Xiangan District, Fujian Province as well as Xiamen.

(3) Mr Dawes then went on to contend that contrary to Father’s 1^st Statutory Declaration and the contents of the two unexecuted draft wills, the 2008 Joint Will (which was subsequently executed on 6 February 2008) did not provide that the interests in the Singaporean companies be bequeathed to TCS and/or other members of the Tan family. Mr Dawes queried whether the 2008 Joint Will truly reflected the testamentary wishes of Father.

189.  For the following reasons, I am unable to accept Mr Dawes’s submissions that the 2008 Joint Will did not reflect Father’s testamentary intent:-

(1) I accept that as reflected by the two sets of draft wills and Father’s 1^st Statutory Declaration, it appears that, at one stage, Father’s intention was such that (i) he assumed he still beneficially owned the shareholding in AAIE/EnGro and AAS; and (ii) he wanted to distribute such shareholding amongst members of the Tan family. Obviously, this was not reflected by the contents of the 2008 Joint Will.

(2) However, even if the contents of the 2008 Joint Will did not reflect Father’s intention as to how the shareholding in AAIE/EnGro and AAS was to be disposed of, the same still accurately reflected Father’s testamentary intention that his assets other than the shareholding in AAIE/EnGro and AAS should be donated for charitable purposes. As discussed in paragraph 178 above, under the mechanism of the 2008 Joint Will, the entirety of the capital of Father’s assets would be donated for charitable purposes after the demise of both Father and Mother. I accept that this was the intention of Father and Mother.

(3) By reason of the findings made by the Singaporean High Court and the Singaporean Court of Appeal, it is now clear that Father did not beneficially own the shareholding in AAIE/EnGro and AAS at all. In other words, the 2008 Joint Will is merely silent on some assets (ie the shareholding in AAIE/EnGro and AAS), which Father did not own.

(4) In my view, it cannot be said that Father did not have the testamentary intent to utilize his personal assets other than the shareholding in AAIE/EnGro and AAS for charitable purposes.

(5) In this connection, the recent correspondence exchanged amongst the solicitors for TCG, TYK, and TCP, the solicitors for TCS, and the Secretary for Justice shows that Father’s estate comprised of, among other things, some cash in bank accounts as well as antiques, paintings, and artworks that were worth HK$28 million to HK$30 million[219]. For the reasons discussed in this section, I have no doubt that it was Father’s intention to donate these assets to charity.

(6) More importantly, for the reasons elaborated below, I am of the view that it is explicable as to why the 2008 Joint Will is silent on the shareholding in AAIE/EnGro and AAS.

(7) As stated in paragraph 87 of his 1^st Statutory Declaration[220], Father intended to dispose of the shareholding in AAIE/EnGro pursuant to a deed of family arrangement (the draft of which is produced as an exhibit). This echoes Mr Bruce Fu’s evidence that Father wished to resolve his dispute with his children by offering them the shareholding in the Singaporean companies. However, Father’s 1^st Statutory Declaration does not suggest that as a condition of accepting the shareholding in AAIE/EnGro, the 5 Siblings should undertake or agree not to challenge the wills made by Father and Mother. In this connection, it was Mr Bruce Fu’s evidence[221] that he did advise Father that in order to minimize the chance of litigation, Father should consider gifting some assets to his children, such that they would not feel neglected. Having considered the totality of the evidence, it appears to me that what Father intended to do was to pacify TCG, TYK, TCP, and TCH, and it was envisaged that the shareholding in AAIE/EnGro would be given to them (as well as Mother and TCS) pursuant to the terms of a deed of family arrangement. Based on the contents in paragraph 87 of Father’s 1^st Statutory Declaration, it appears Father envisaged that the transfer would be effectuated pursuant to the intended deed of family arrangement to be executed during his lifetime.

(8) This could explain why the 2008 Joint Will is silent on the shareholding in AAIE/EnGro. Obviously, if the 5 Siblings accept the arrangement under the intended deed of family arrangement, the shareholding would be disposed of during the Father’s lifetime. As such, it would not be necessary to insert a clause into the 2008 Joint Will providing that the shareholding be bequeathed to the 5 Siblings.

(9) It transpired that the intended deed of family arrangement was not executed as TCG, TYK, TCP, and TCH refused to (i) accept that Father beneficially owned shareholding in AAIE/EnGro and AAS and (ii) waive their claims and entitlement in respect thereof[222]. Eventually, Father’s ownership of the shareholding in AAIE/EnGro and AAS was even challenged.

(10) Be that as it may, assuming that Father beneficially owned shareholding in AAIE/EnGro and AAS, as the 5 Siblings refused to accept the terms of the intended deed of family arrangement, the shareholding would be donated to charity after both Father and Mother pass away pursuant to the mechanism under the 2008 Joint Will.

(11) This is wholly consistent with the Father’s intention as recorded in (i) the typed-up attendance notes prepared by Hastings’s trainee solicitor in respect of the conference on 26 March 2007[223]; (ii) Ms Hwang’s contemporaneous notes that recorded Father’s conversations with Dr Chen on 31 January 2008[224]; and (iii) Ms Hwang’s attendance notes in respect of the conference on 8 April 2008[225].

(12) Insofar as (ii) above is concerned, as of late January 2008, Father made it clear that if his children did not accept the shareholding in AAIE/EnGro (which was a last resort to resolve the dispute), the assets would be given to charity. Insofar as (iii) is concerned, it was recorded that as of April 2008, Father no longer wished to negotiate with children, and he wished to maintain a “take-it-or-leave-it” position.

(13) It is clear that whilst Father assumed that he beneficially owned the shares in AAIE/EnGro and AAS, his intention was that if the 5 Siblings refused to accept the terms of the intended deed of family arrangement, the shares would be donated to charity.

(14) The mechanism under the 2008 Joint Will is plainly capable of giving effect to Father’s intent. In light of Father’s intent and the circumstances that he faced, there is no reason why the 2008 Joint Will must contain a specific clause bequeathing the shares in AAIE/EnGro to the 5 Siblings. I am not of the view that the 2008 Joint Will fails to reflect Father’s intent; nor am I of the view that there is any material defect in respect of the mechanism under the 2008 Joint Will.

190.  Mr Dawes further submitted that as evidenced by paragraph 86 of his 1^st Statutory Declaration[226], Father intended to execute the two separate wills prepared by Mr Bruce Fu because he wished to deal with his Singaporean assets and non-Singaporean assets separately. Mr Dawes pointed out that whilst the two sets of draft wills prepared by Mr Bruce Fu specifically stipulate how the Singaporean assets and non-Singaporean assets should be donated and/or disposed of, the 2008 Joint Will deals with all assets globally without seeking to draw any distinction. In the premises, Mr Dawes queried whether the 2008 Joint Will addresses Father’s concern and reflects his wish.

191.  Despite Mr Dawes’s submissions, I am of the view that the 2008 Joint Will is capable of addressing Father’s concern and reflecting his wish.

(1) In light of the overwhelming evidence, irrespective of whether one will or two separate wills was/were to be executed, there could be no doubt that Father intended that his wealth be donated to charity.

(2) It appears that Mr Nelson Miu was the one who proposed that there be a global will covering all of Father’s assets worldwide. As stated in paragraph 5 of his advice dated 4 February 2008[227], Mr Nelson Miu took the view that “it would be desirable to have one Will dealing with all the assets owned by [Father and Mother] globally, whenever and wheresoever situate”. As stated in paragraph 6 of the same advice, Mr Miu took into account the fact that whilst estate duty was abolished in Hong Kong, estate duty was still applicable in Singapore[228].

(3) In my view, a will is a technical means by which to give effect to Father’s charitable intent. There is nothing unusual about the fact that Father’s legal representatives would seek to ameliorate the same. It is futile for TCG, TYK, and TCP to make a song and dance about the process.

(4) In any event, I accept that the “global” arrangement under the 2008 Joint Will was known to and approved by Father:-

(a) As evidenced by the contemporaneous email dated 5 February 2008 at 1:08pm[229], Mr Bruce Fu had explained the matter to Father, and Father agreed that he and Mother “would make one joint mutual will to deal with all their assets worldwide”.

(b) For completeness, as pointed out in paragraph 169 above, I am also satisfied that the contents and effect of the 2008 Joint Will were adequately read out and explained to Father and Mother on the occasion of 6 February 2008 before the document was executed.

(5) All in all, there was nothing unusual about the facts that (i) Father’s lawyers sought to put forward a proposal that was advantageous in terms of tax; and (ii) Father accepted the advice and proposal of his lawyers. There was nothing suspicious or inexplicable.

192.  Mr Dawes pointed out that as reflected by the draft will prepared by Mr Bruce Fu that deals with the assets within Singapore[230], Father envisaged that a building owned by AAS (the “AAS Building”) would be sold, such that he could have the funds to fulfill his intended charitable purposes outside of Singapore[231]. However, the reality was that Father did not own the shares in AAS, and he was not in a position to procure the sale of the AAS Building.

193.  I am not of the view that anything material arises out of this observation:-

(1) As stated in clause 6(1) of the draft will that deals with the assets in Singapore[232], Father merely had a “hope” that the AAS Building be sold, such that there would be a sum of S$40 million available for achieving the charitable purposes spelled out in the draft will that deals with non-Singaporean assets. In my view, Father knew and appreciated that he might not be in a position to procure the sale of the AAS Building.

(2) In any event, there is no evidence showing that Father would not have intended to donate his personal assets had he appreciated that he no longer retained the beneficial ownership over shareholding in AAS. In this connection, the evidence in respect of Father’s charitable intent was overwhelming. As pointed out in paragraphs 173(1) and (2) above, even TCG and TYK admitted that Father, during his lifetime, repeatedly indicated that whatever personal assets he had, he would donate the same to charity, and he would not bequeath his assets to his children.

(3) In the premises, even if Father erroneously assumed that he still beneficially owned the shareholding in AAS and thus would be able to procure the sale of the AAS Building, it simply does not follow that Father’s charitable intent did not exist or that Father did not wish to donate his personal assets to charity when he and Mother pass away. In light of the overwhelming evidence, I am of the view that it must be Father’s intent that his personal assets, including the cash in his bank accounts as well as his antiques, paintings, and artworks (which were worth HK$28 million to HK$30 million)[233], be donated to charity.

194.  Lastly, Mr Dawes also queried whether Father truly accepted and understood that the effect of the 2008 Joint Will was such that Mother would be in a position to enjoy and/or dispose of the income deriving from the capital of his assets, such that the same would not be utilized for charitable purposes.

195.  In this connection:-

(1) Bearing in mind the totality of the evidence (including the evidence of Dr Wong, Ms Hwang, and Mr Bruce Fu), I have no doubt that Father’s intention was that Mother be adequately provided for during her life time, and his assets should only be donated to charity after both himself and Mother pass away. For the reasons explained in paragraphs 178 and 179 above, I am satisfied that the arrangement under the 2008 Joint Will is capable of giving effect to Father’s intent.

(2) Since the income deriving from the capital of Father’s assets are intended to be utilized for the purpose of maintaining Mother before her demise, I cannot see how TCS, TYK, and TCP can seriously suggest that Father would have envisaged that the same would be donated to charity after Mother’s demise. This suggestion is highly artificial and unreal.

(3) In any event, as pointed out by Mr Bruce Fu, at the time when the 2008 Joint Will was explained to Father, he did not insist that the personal assets of Mother be utilized for charitable purposes. I accept Mr Bruce Fu’s evidence.

(4) Indeed, Mr Bruce Fu’s evidence is consistent with the contemporaneous documents as well as the objective circumstances.

(5) Insofar as the contemporaneous documents are concerned:-

(a) As evidenced by his email dated 1 February 2008 at 1:31pm[234], when Mr Bruce Fu discussed the concept of “life interest”, he stated that “[w]e must take specific instruction from [Father and Mother] on the issue and respect their feeling on the subject. Some Chinese may have a guilty feeling if he/she does not give the estate to his/her spouse”.

(b) In light of this express indication, there is no question that Mr Bruce Fu was aware of the sensitivity of the issue. This was why he emphasized the need to take specific instruction from Father and Mother. I am of the view that Mr Bruce Fu (who is a responsible and bona fide solicitor) must have (i) taken specific instructions from Father and Mother and (ii) explained the matter to them^[235]. I am unable to discern any reason why Mr Bruce (who was aware of the sensitivity of the issue) would not do so.

(c) This is borne by Mr Bruce Fu’s email dated 5 February 2008 at 1:08pm and TCS’s email dated 5 February 2008 at 2:25pm[236]. As evidenced by these emails, Mr Bruce Fu did explain the pros and cons of Mr Nelson Miu’s approach as well as the contents of the 2008 Joint Will to Father over a telephone conversation. Further, TCS also explained Mr Nelson Miu’s suggestions to Father.

(6) Insofar as the objective circumstances are concerned:-

(a) As pointed out by Mr Nelson Miu at the conference in the morning on 6 February 2008[237], a joint mutual will would have the effect of serving joint tenancies. In the premises, if the 2008 Joint Will were drafted as a “mutual will” in order to prevent Mother from disposing of the income arising from the capital of Father’s assets by making a new will, the implication is that the joint tenancies in respect of the Bowen Property and the Sydney Property would be severed. There is no question that this was not an intended consequence.

(b) In the premises, it is explicable as to why Father would accept the design of Mr Nelson Miu.

(c) In any event, the arrangement proposed by Mr Nelson Miu ensures that (i) Father’s own assets would be ring fenced for charity and (ii) meanwhile Mother would be adequately provided for before her demise. I am not of the view that there were any inexplicable and/or suspicious circumstances.

196.  Fifteenth, whilst I accept that TCS (who was the caregiver of Father and Mother) was involved in the process of liaising with Hastings, I do not accept the suggestion that the instructions came from TCS, rather than Father. In my view, Hastings’ Ms Hwang and Mr Bruce Fu, in discharge of their duties owed to Father, were aware of the need to take proper instructions from Father, and they did take proper instructions from him.

(1) When Mr Bruce Fu was questioned by Mr Dawes, he made it absolutely clear that upon hearing what TCS said to himself and Ms Hwang at the initial meeting on 26 March 2007, he appreciated that Father and Mother, being the testators, were Hastings’ clients, and TCS merely assisted in conveying Father’s messages[238]. As such, it was necessary for Hastings to (i) take proper instructions from Father and Mother directly, and (ii) ensure that Father and Mother understood the works to be carried out as well as the contents and effect of the wills to be executed.

(2) I accept Mr Bruce Fu’s evidence, which is borne out by the contemporaneous documents. For instance:-

(a) As evidenced by Ms Hwang’s email to TCS dated 15 March 2007 at 2:43pm, she emphasized that “it is important that [Father and Mother] be in a position to give instructions”[239].

(b) As evidenced by the attendance note dated 26 March 2007 prepared by a trainee solicitor of Hastings[240], Ms Hwang indicated to TCS[241] that she sought to have a conference with Father and Mother for the purpose of taking instructions and confirming their wishes in the will to be made.

(c) As evidenced by Ms Hwang’s email dated 23 March 2007 to TCS at 5:21pm [242], she proposed to meet Father and Mother on 27 March 2007. It was obvious that this was for the purpose of ensuring that Hastings could (i) take instructions from Father and Mother directly and (ii) understand and confirm their testamentary wish. The intended meeting did not take place only because Father was suddenly hospitalized due to his intestinal issues[243].

(d) As mentioned, on the occasion of 29 March 2007, Father wrote the Chinese words “翔安山亭村 (Shanting Village, Xiangan)” on Mr Bruce Fu’s contemporaneous notes[244]. This showed that Mr Bruce Fu did take direct instructions from Father, and Father was eager to assist Mr Bruce Fu to complete the task of drafting up the two sets of 2007 Wills.

(e) As evidenced by the hand-written note dated 30 March 2007 at 12:23pm, (i) Mr Bruce Fu spoke to Father and TCS over the phone, and (ii) they were contented with the contents of the draft 2007 Will[245].

(f) As evidenced by Hastings’s contemporaneous attendance notes[246] and summary of meetings[247], Father attended at least four meetings on 9 May 2007, 1 June 2007, 5 October 2007, and 28 January 2008 at the Bowen Property for the purpose of giving and confirming instructions in regard to the 1^st Statutory Declaration.

(g) As evidenced by the email dated 5 February 2008 at 13:08[248], Mr Bruce Fu explained Mr Nelson Miu’s advice to Father including the pros and cons of Mr Miu’s proposal, and Father agreed that he and Mother would make one will to deal with their assets worldwide.

(h) In his email dated 1 February 2008 at 1:31pm[249], Mr Bruce Fu stated that “[w]e must take specific instruction from [Father and Mother] on the issue [regarding life interest] and respect their feeling on the subject. Some Chinese may have a guilty feeling if he/she does not give the estate to his/her spouse”. As mentioned in paragraph 195(3) above, I am of the view that Mr Bruce Fu must have taken specific instructions from Father and Mother and discussed the matter with them.

(3) The contemporaneous emails also show that TCS was aware that Ms Hwang and Mr Bruce Fu should (i) take instructions from Father and Mother directly, and (ii) ensure that Father and Mother fully understood the contents of the wills to be executed. For instance:-

(a) As evidenced by an email dated 6 March 2007[250], TCS invited Ms Hwang to meet Father at his home (ie the Bowen Property) as it was inconvenient for him to travel around.

(b) In her email to Ms Hwang on 15 March 2007 at 12:26pm[251], TCS mentioned that it was important for Father to review and approve all the materials, and she stated that “the best way to proceed is to get [Father]’s full involvement hereon to avoid any misunderstanding about [Father and Mother]’s wishes and how to achieve them.”

(c) In her email to Ms Hwang, Mr Bruce Fu and Mr Brewer on 5 February 2008 at 11:29am[252], TCS stated that “I think the Joint Will approach is a good one and my parents will likely[253] agree with it. However, I am seeing my father after I finish this email and will confirm my parents’ wishes no later than 1:00pm today” (emphasis added)

(d) As evidenced by the email dated 5 February 2008 at 2:25pm[254], TCS invited Mr Bruce Fu to explain the contents of the 2008 Joint Will to Father directly.

(4) The said contemporaneous emails showed that:-

(a) TCS sought to ensure that Ms Hwang would meet Father directly, such that she could fully understand Father’s wishes and instructions.

(b) TCS sought to ensure that Father was fully involved in the “will-making” process.

(c) TCS, acting as a conduit or messenger, sought to convey the views and approach suggested by the lawyers to Father and Mother, and there was no guarantee that they would necessarily agree.

(d) TCS did not seek to keep Father in the dark. On the contrary, she hoped that Father could understand the effect of the 2008 Joint Will from Mr Bruce Fu.

(5) I do not lose sight of the fact that when TCS was cross-examined by Mr Dawes[255], she admitted that at the meeting on 26 March 2007, she confirmed with Hastings that the approach for preparing Father’s new will was that some simple wills (which transpired to be the two sets of 2007 Wills) be prepared first and wills with comprehensive contents be prepared later. In this connection:-

(a) I am not of the view that there was anything sinister on the part of TCS and/or Hastings. In light of Father’s sudden hospitalization, this approach (which was suggested by Mr Bruce Fu) made sense as there was insufficient time to prepare wills with comprehensive contents.

(b) I also accept TCS’s evidence[256] (which was corroborated by the evidence of Dr Wong and Ms Hwang) that Father was bothered by this matter and felt restless. In the circumstances, there were good reasons why TCS indicated her agreement to the approach suggested by Mr Bruce Fu. This did not mean that TCS hijacked the “will-making’ process. In my view, it was abundantly clear that Father was desperate to make a new will that evinced his charitable intent and to wriggle out of the 2006 Will. There was every reason why TCS would want Father to have peace of mind as soon as possible.

(c) More importantly, as mentioned in paragraphs 169(1), (3), (4), (5) & (6) and 170(1) to (10) above, Ms Hwang and Mr Bruce Fu did take direct instructions from Father and Mother, and the contents and effect of the two sets of 2007 Wills were adequately explained to them.

(d) Having considered the totality of the circumstances, I am not of the view that Father had been abused.

(6) For the above reasons, I am not of the view that TCS had hijacked and/or unreasonably or wrongfully meddled with the process of preparing the two sets of 2007 Wills as well as the 2008 Joint Will.

(7) I am also satisfied that Hastings’ Ms Hwang and Mr Bruce Fu had taken adequate steps to ensure that (i) the instructions came from Father and Mother, and (ii) they knew and understood the contents and effect of the 2008 Joint Will and the two sets of 2007 Wills.

197.  Sixteenth, whilst I accept that the two sets of 2007 Wills and the 2008 Joint Will were drafted and prepared under time pressure, I do not accept the suggestion that Father was abused or that the process involved any impropriety:

(1) Insofar as the two sets of 2007 Wills are concerned, it is not in dispute that Father was suddenly hospitalized due to twisted intestine (Volvulus). At the material times, Father was in his late 80s, and anything could happen to an elder at such an advanced age. I fully understand why Father was eager to make a new will that reflected his charitable testamentary intent and superseded the 2006 Will. Having heard the evidence of Mr Bruce Fu and Ms Hwang, I am also of the view that they acted bona fide in preparing the two sets of 2007 Wills on an urgent basis, such that Father could have peace of mind as soon as possible. I am not of the view that they maliciously “rushed through” the process upon TCS’s instigation.

(2) As regards the 2008 Joint Will, it was executed on 6 February 2008 (which was the eve of the Chinese New Year). It was Mr Bruce Fu’s evidence[257] that Father’s instruction and wish were that the new will with comprehensive contents be executed as soon as possible before the Chinese New Year. In this connection, Mr Dawes submitted that there was no apparent urgency in the circumstances. However, it is important not to lose sight of the fact that the process of preparing the “more comprehensive’ will(s)” had dragged on for months, and I understand why Father (who was, according to Mr Bruce Fu as well as TCS, an impatient person) would become impatient. Moreover, Father was an elder from a traditional Chinese background. I understand why Father wished to “wrap up” a matter that bothered him before the new year began. It is also understandable why an elder might not wish to deal with matters relating to a will (which touches upon death) at the beginning of a new year. Obviously, this would not be auspicious. In the circumstances, I am not of the view that there was any bad faith and/or impropriety on the part of Father’s legal team (ie Mr Bruce Fu, Ms Hwang, Mr Brewer, and Mr Nelson Miu). They simply carried out Father’s instructions to the best of their abilities.

198.  Seventeenth, although I am of the view that Mr Hoon was a candid witness who cooperated with the court, his evidence is incapable of swaying me to accept the case of TCG, TYK, and TCP (which is contradicted by overwhelming evidence):-

(1) Mr Hoon was not in a position to give evidence as to Father’s testamentary intent after the 2006 Will was executed on 21 April 2006.

(2) Indeed, when Mr Hoon gave oral evidence, he candidly admitted that when he met Father before the 2006 Will was executed, Father had already indicated that he had the intention of donating his assets to charity. Whilst this is consistent with TCS’s case as well as the honest admissions made by TYK and TCG (see paragraphs 173(1) and (2) above), it is uncertain as to why the 2006 Will does not reflect any charitable intent at all.

(3) It is important not to lose sight of the fact that whilst Mr Hoon prepared Father’s 2006 Will back in April 2006, he was also involved in the preparation of various documents that concerned the shares in AAS and/or AAIE. In particular, he prepared a statement signed by Father and Mother which effectively provided that (i) Father disavowed interests over the shares that had been given to his children; and (ii) Mother alleged that the shares under her name were held on trust for TCS. Meanwhile, Mr Hoon also prepared a trust deed and some letters of undertakings relating to the shares.

(4) Against this background, I cannot rule out the possibility that Father had an impression that his dealing with Mr Hoon was concerned with matters relating to the shareholding in the Singaporean companies. This could be a consequence of not paying attention to the contents of the 2006 Will and not paying attention to the explanations made by Mr Hoon. I am also unable to rule out the possibility that Mr Hoon might have misunderstood the wish and intent of Father. In this connection, it is noteworthy that Mr Hoon did not jot any contemporaneous notes to record Father’s instructions.

(5) In any event, I have no hesitation in finding that from March 2007 onwards, Father had repeatedly made it clear that he wished to disown and revoke the 2006 Will as soon as possible. He expressed his concerns and worries to Ms Hwang, Dr Wong, Dr Chen, and Mr Bruce Fu (who were respectable professionals and credible witnesses): see paragraph 168 above. Further, Father’s intent of donating his assets to charities was evidenced by the Chinese words that he wrote on the contemporaneous notes jotted by Mr Bruce Fu on 29 March 2007: see paragraphs 170(7) to (8) above. I do not lose sight of the fact that the purported testamentary wish under the 2006 Will is also flatly contradicted by Father’s 1^st Statutory Declaration. More importantly, as confirmed by Mr Bruce Fu (whose evidence was credible in my view and corroborated by the evidence of Dr Chen and Dr Chan, who were also credible witnesses), he duly and carefully read out and explained the contents of the 2007 Will and the 2008 Joint Will to Father, and Father approved the same: see paragraph 169 above. The aforesaid matters are consistent with TCG’s honest admission that he was surprised by the contents of the 2006 Will, which did not reflect the testamentary wish expressed by Father during his lifetime: see paragraph 173(1) above.

(6) In the premises, I find and conclude that the contents of the 2006 Will did not reflect Father’s testamentary wish from March 2007 onwards. This explains why from March 2007 onwards, Father had endeavoured to revoke the 2006 Will; he had been eager to make new wills (which turned out to be his 2007 Will and the 2008 Joint Wills) as soon as possible.

199.  Eighteenth, Mr Dawes pointed out that (i) neither Father nor TCS confronted Dr Lane (who was a witness of the 2006 Will) when he was present in Hong Kong back in March 2007; and (ii) Father and/or his solicitors (ie Hastings) did not make enquiries with Mr Hoon and/or TCP regarding the 2006 Will. I am not of the view that anything material arises out of these observations. As pointed out by Mr Bruce Fu[258], Father (who was a kind person) did not intend to embark on a “witch-hunt” at all, and the objective at the time was to prepare a new will (which would automatically revoke the 2006 Will) as soon as possible. In light of the totality of the evidence and Father’s character, the fact that Father, TCS, and/or Hastings did not confront Dr Lane, Mr Hoon, and/or TCP does not show that Father accepted the 2006 Will.

200.  Nineteenth, I disagree with the suggestion that the court should draw an adverse inference from the fact that TCS did not adduce evidence from Mr Nelson Miu and Mr Brewer. In this connection, I accept TCS’s explanation[259] that she genuinely took the view that Mr Bruce Fu and Ms Hwang, who are experienced solicitors, were capable of addressing the court in regard to the will-making process. In my view, whilst the input from Mr Nelson Miu and Mr Brewer was well-documented, TCS could not have fully envisaged the lines of attack pursued by the legal representatives of TCG, TYK, and TCP at the present trial (which were highly forensic). On the totality of the evidence, I am not of the view that TCS sought to hide something sinister or some unfavourable facts.

No Undue Influence

201.  Insofar as the absence of undue influence on Father is concerned, my reasons for making the factual findings set out in paragraph 166 above are as follows.

202.  First of all, I fully accept Dr Chen’s opinion that Father was “sharp and alert”[260] and had “good mental capacity”[261]. In this connection, Dr Wong also pointed out that Father had no difficulty in explaining his wish and the contents of the two sets of 2007 Wills in his own words. On the evidence, I am of the view that despite his medical issues and advanced age, Father was mentally fit at the material times and he was not particularly vulnerable to undue pressure, domination and/or abuse.

203.  Second, in light of the evidence of (i) Dr Wong (see paragraph 168(1)); (ii) Dr Chen (see paragraph 168(2)); and (iii) Ms Hwang (see paragraph 168(4)) (which I accept), I am of the view that Father was genuinely (i) upset about the 2006 Will and (ii) determined to make new wills to evince his charitable intent and to revoke the 2006 Will. In this connection, as admitted by TCG and TYK, throughout his lifetime, Father repeatedly reiterated his charitable intent as well as his intent not to leave his assets to his children (see paragraphs 173(1) and (2)). These notions did not come from TCS at all.

204.  Third, for the reasons set out in paragraphs 170(11)-(15), 178, 179, and 182 above, I am of the view that Father’s legal representatives had endeavored to ensure that (at least) the capital of Father’s assets could be utilized for charitable purposes. Under the mechanism of the 2008 Joint Will, there is no realistic possibility that TCS could defeat Father’s charitable intent by rendering herself a beneficiary. I reject the suggestion that the “will-making” exercise was conducted for the purpose of advancing TCS’s personal interests.

205.  Fourth, for the reasons set out in paragraphs 170 and 196 above, I reject the suggestion that Hastings and TCS colluded together with ulterior motives. As evidenced by the contemporaneous emails, whilst Ms Hwang and Mr Bruce Fu were aware of the need to take instructions from Father directly, TCS was also aware that it was necessary for Ms Hwang and Mr Bruce Fu to (i) understand Father’s instructions correctly, and (ii) ensure that Father understood the contents and effect of the 2008 Joint Will. I am satisfied that Hastings had (i) taken independent instructions from Father, and (ii) taken adequate steps to ensure that Father and Mother understood the 2008 Joint Will as well as the two sets of 2007 Wills. I am of the view that Hastings acted bona fide and had duly discharged their duties owed to Father as well as Mother.

206.  Fifth, it is not in dispute that on the occasion of 6 February 2008 when the 2008 Joint Will was executed, TCS was absent. In my view, had 2008 Joint Will been part of TCS’s personal agenda and/or vendetta against TCG, TYK, TCH, and TCP, she would have attended the office of Hastings in order to make sure that her parents would duly execute the 2008 Joint Will. This was not the case. Further, had Father and Mother disagreed with the contents of the 2008 Joint Will (which they had read and which Mr Bruce Fu had duly read out and explained: see paragraph 169 above), they would have, in TCS’s absence, voiced out their concern and/or refused to sign the document. This was not what happened.

207.  Sixth, for the reasons set out in paragraph 197 above, there were explicable reasons why the two sets of 2007 Wills and the 2008 Joint Will were prepared and executed under time pressure. I reject the suggestion that Hastings unjustifiably and/or unreasonably “rushed through” the process on TCS’s instigation.

208.  Seventh, I do not lose sight of the fact that TCS was involved in liaising with Father’s legal representatives. However, Father was in his late 80s at the material times. Whilst he was incapable of using emails to communicate with his lawyers, it was not convenient for him to travel around (such that various conferences had to take place at his home, ie the Bowen Property). In the circumstances, it is understandable why Father would want TCS to assist in liaising with his legal representatives. It does not follow that TCS hijacked the process. As mentioned (see paragraph 196 above), I am satisfied that Hastings had adequately discharged their duties owed to Father by (i) taking direct instructions from him, and (ii) taking adequate steps to ensure that he understood the 2008 Joint Will, the two sets of 2007 Wills, and the 1^st Statutory Declaration.

209.  Eighth, I reject the suggestion that TCS “isolated” Father and Mother and/or prohibited them from having contact with TCG, TYK, TCH, and TCP. In this connection, in her witness statement, TCP referred to various incidents[262]. In my view, these incidents merely demonstrated her mistrust towards TCS. On the evidence[263], TCP and TCH managed to visit Father and Mother on various occasions in December 2007 and March 2008. As admitted by TCP, in some of these occasions, TCS was not present at all. Had TCS “isolated” her parents from her Siblings, TCP and TCH would not have managed to visit their parents in TCS’s absence.

210.  Ninth, I bear in mind that (i) in the Singaporean 570 Action, the Singaporean courts rejected TCS’s case regarding the beneficial ownership of the shareholding in AAIE/EnGro and AAS, and criticized her conduct; and (ii) I also reject TCS’s factual case regarding the beneficial ownership of the Credit Suisse Account in the Elison Action. These matters undoubtedly affect my assessment of TCS’s credibility. However, a “trial judge’s role is to try issues, not personality”: see Tradepower (Holdings) Ltd (in Liquidation) v Tradepower (Hong Kong) Ltd & Ors (2009) 12 HKCFAR 417 at para 140 (per Litton PJ). On the totality of the evidence before the court, I am simply unable to find that (i) TCS exerted undue influence over Father; or (ii) the charitable intent under the 2008 Joint Will and the two sets of 2007 Wills were implanted by TCS.

211.  Tenth, in light of the overwhelming evidence, I am not in a position to accept Mr Dawes’s suggestion that the 2008 Joint Will and Father and Mother’s 2007 Wills were strategic moves orchestrated or instigated by TCS for the purpose of pressurizing TCG, TYK, TCP, and TCH to accept the terms of the intended deed of family arrangement and/or weakening the bargaining position of TCG, TYK, TCP, and TCH. For the reasons canvassed in this section, I have no doubt in finding that Father’s intent was to donate his wealth to charity. Insofar as the shareholding in the Singaporean companies is concerned, as canvassed in paragraphs 184 to 185 and 188 to 189 above, Father’s intent was that if the 5 Siblings did not accept the terms of the intended deed of family arrangement, the same would be donated to charity.

E4. Conclusive Remarks

212.  Having considered the evidence carefully, I have no doubt that Father’s testamentary intent was to ensure that Mother be adequately provided for before her death, and when both of them pass away, the capital of his personal assets (which has been ring fenced) would be donated to charities. This is consistent with and borne out by the contents and effect of the 2008 Joint Will and Father and Mother’s 2007 Wills.

213.  During his lifetime, Father made known his charitable intent to his children, including TCG and TYK who candidly admitted that Father always wanted to donate his personal assets to charity and that Father did not intend to bequeath his personal assets to them: see paragraphs 173(1) and (2) above. Father also made known his charitable intent to the professionals, including Dr Wong, Dr Chen, Ms Hwang, and Mr Bruce Fu: see paragraph 168 above.

214.  I understand why TYK, TCG, and TCP would have concern as to whether TCS would be in a position to rely on the provisions in the 2008 Joint Will to benefit herself, thereby defeating Father’s charitable intent. For the reasons elaborated in paragraphs 178 and 179 above, I am firmly of the view that the alleged loophole does not exist. In fact, Father’s legal representatives, including Mr Nelson Miu and Mr Bruce Fu, genuinely sought to overcome the plausible obstacles so as to ensure that Father’s charitable intent could be implemented.

215.  In light of TCS’s conduct and attitude as well as the mistrust between TCS and her siblings, TYK, TCG, and TCP have reasons to suspect that TCS may abuse her position as executrix/trustee and may not implement Father’s charitable intent. Whilst such a concern is understandable, it does not constitute a reason for invalidating the 2008 Joint Will, the contents and effect of which were duly read and explained to Father and approved by him: see paragraph 169.

216.  If TYK, TCG and TCP take the view that TCS is not a fit and proper person who is capable of acting as the executrix/trustee of Father’s estate, the appropriate course to take is to inform the Secretary for Justice about their concern. It is for the Secretary for Justice to consider the appropriate action to be taken. If there is evidence showing TCS has misappropriated or misapplied the assets to be applied for charitable purposes, the Secretary for Justice, being the guardian of public interests, will carry out an investigation and take appropriate action.

217.  For completeness, it should be pointed out that in the course of giving oral evidence[264], TCS, on her own volition, informed the court that she intended to donate the assets that she inherited from her parents, including the Bowen Property and the shares in the Singaporean companies, to charity. It was uncertain why this was not done earlier. More importantly, as Mr Dawes rightly pointed out, what TCS said to this court has no bearing on the analysis of the substantive issues.

218.  However, what TCS said in court shows that the substance of her dispute with her siblings is much narrower than what the pleadings, witness statements, and submissions appear to show. It appears that TCS, TCG, TYK and TCP all agreed that Father intended to donate his wealth for charitable purposes. I do not believe that TCG, TYK and TCP’s intention is to obstruct any bona fide donation based on the personal assets that their parents left behind.

219.  In the circumstances, despite the findings set out in this judgment, I do not see any reason why TCS, TCG, TYK, and TCP might not seek to work out a consensus in regard to the intended donation. Hopefully, this will put an end to the dispute amongst the 5 Siblings, which have dragged on for years. I have no doubt that Father would have been glad about such an outcome had he still been alive.

F. Order and Disposition

F1. The Elison Action

220.  For the reasons set out in Section D above, I hold that TCG, TYK, and TCP have made out their claims against TCS and Mother in respect of the Credit Suisse Account.

221.  Accordingly, I order that:-

(1) TCS and Mother do pay equitable compensation of US$2,399,310 (ie 60%[265] x US$3,998,850[266]) to TCG, TYK, and TCP;

(2) There be interest at 1% above the prime rate on the said sum of US$2,399,310 from the date of the writ in this action to the date of this judgment, and thereafter interest at judgment rate until payment in full;

(3) There be an enquiry and/or account in respect of (i) all the funds that were transferred to and away from the Credit Suisse Account; (ii) the traceable proceeds or substitutes in respect of the funds transferred away from the Credit Suisse Account; and (iii) the traceable proceeds or substitutes that had been received and/or retained by TCS and Mother; and

(4) There be an order that TCS and Mother are liable to pay TCG, TYK, and TCP all sums found due to them upon the said enquiry and/or account.

F2. The Probate Action

222.  For the reasons set out in Section E above, I hold that:-

(1) Father knew, understood, and approved the contents and the effect of the 2008 Joint Will.

(2) The TCS has proved, on the balance of probabilities, that (i) the 2008 Joint Will was duly executed; (ii) Father had adequate testamentary capacity at the time when the 2008 Joint Will was made; and (iii) Father knew, understood, and approved the contents and the effect of the 2008 Joint Will.

(3) Father was not subject to any undue influence.

(4) The 2008 Joint Will is the true last will of Father.

(5) The 2006 Will was superseded and/or revoked by (i) the 2008 Joint Will; as well as (ii) Father’s 2007 Will.

(6) Insofar as Father’s 2007 Will is concerned:-

(a) Father knew, understood, and approved the contents and the effect thereof;

(b) TCS has proved, on the balance of probabilities, that (i) the same was duly executed; (ii) Father had adequate testamentary capacity at the time; and (iii) Father knew, understood, and approved the contents and the effect thereof; and

(c) Father was not subject to any undue influence.

(d) However, the same was revoked and/or superseded by the 2008 Joint Will.

223.  In the premises, I will:-

(1) make a declaration that the 2008 Joint Will is the true last will of Father; and

(2) make a decree pronouncing against the validity of the 2006 Will.

F2. Costs

224.  There is no reason why costs should not follow the event.

225.  I make a costs order nisi that:-

(1) TCS and Mother do pay the costs of TCG, TYK, and TCP in the Elison Action (including all costs reserved) to be taxed if not agreed on a party-to-party basis (with certificate for 2 counsel); and

(2) TCG, TYK, and TCP do pay TCS’s costs in the Probate Action (including all costs reserved) to be taxed if not agreed on a party-to-party basis (with certificate for 2 counsel).

F3. Other Matters

226.  Mr Victor Dawes SC, Ms Bonnie Cheng, Mr Brian Lee, Mr Edward Tang, and Ms Clara Wong provided immense assistance to me. They conducted the trial in a competent, professional, courteous, and helpful manner. I express my gratitude to each of them.