LIU WAI YAN ANGELA v. LIU MEI YUK and LIU MUN YUK, the co-executrices named in the Will of LIU CHI MAN, deceased

HCAP 7/2023

[2025] HKCFI 945

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 7 OF 2023

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DECISION

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A. INTRODUCTION

1.  This is the defendants’ application made by a summons filed on 25 September 2024 (“the Summons”)  for, inter alia, the following orders:

(1)  summary judgment on their counterclaim, namely, to pronounce the will executed by the late Liu Chi Man (“the Deceased”)  on 6 October 2022 (“the Will”)  in solemn form for its force and validity;

(2)  the Writ of Summons and the Statement of Claim filed on 8 February 2023 be struck out.

B.  BACKGROUND

2.  The relevant background may be summarised as follows.

3.  The Deceased was born in 1948.  He was the 4^th child amongst 7 siblings.  The first-named defendant (“Mei Yuk”), the second-named defendant and Liu Lai Yuk (“Lai Yuk”)  were his younger sisters.  The Deceased also had two elder brothers.  His eldest sister, Liu Pui Yuk (“Pui Yuk”), had already passed away.

4.  The Deceased was married to Madam Kwan Kwan Fong (“Mother”)  who had passed away on 6 October 2021.  The plaintiff is their only child.

5.  The plaintiff and her husband has two children, namely, Ryan Chan and Linus Chan (collectively, “the Grandchildren”). They have all emigrated to England in around March 2022.

6.  On 6 October 2022, the Deceased executed the Will at the office of Messrs. Chow, Griffiths & Chan Solicitors (“Messrs. CGC’s Office”)  in the presence of Ms Amanda Mok (“Ms Mok”)  (who was admitted as a solicitor of Hong Kong in September 1996)  and Dr Kwok Wai Ming Henry (“Dr Kwok”)  (a psychiatrist specialist).  The Will provided that each of the Grandchildren and the Deceased’s 3 younger sisters is entitled to 1/5 of the Deceased’s estate.

7.  The Deceased passed away on 16 October 2022.

8.  On 8 February 2023, the plaintiff commenced these proceedings to seek a pronouncement against the validity of the Will.

9.  As aforesaid, the defendants filed the Summons on 25 September 2024.

C.  SUMMARY JUDGMENT IN PROBATE ACTION

10.  It is now well established that the Court may grant summary judgment in a probate action.  The relevant principles have been summarised succinctly by G Lam JA in Re Estate of Chan Fook Lai (Deceased) [2024] 1 HKLRD 29, [2023] HKCA 1177:

“2. That summary judgment can in principle be given in a probate action to propound a will in solemn form is not in dispute: Re Lau Siu Wah, Deceased [2005] 1 HKC 364, §§13-19; Re Estate of Yau Tung Hoi (HCAP 9/2016, 10 March 2017), §16. Such an application nevertheless needs to be approached with care, having regard to the special nature and features of a probate action, of the role of the court therein and of an order pronouncing in favour of a will, as explained in Choy Po Chun v Au Wing Lun [2012] 2 HKLRD 148, §§15-20. At the end of the day, the person propounding a will ‘must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable Testator’: Barry v Butlin (1833)  2 Moo PC 480, 482.

3.  Summary judgment is, of course, for clear cases, whether in probate or other cases.  Where the plaintiff has on his evidence established the constituent elements of his cause of action, it is for the defendant to show an issue in dispute that ought to be tried or that for some other reason there ought to be a trial.  In setting up her defence the defendant must condescend upon particulars; the mere assertion in an affidavit of a given situation is not sufficient.  Where the defendant has raised factual disputes, the court may nevertheless enter judgment summarily if the defendant’s allegations are not credible.  But where the allegations cannot be dismissed in this way, the court will not conduct a trial by affidavit.”

D.  THE DEFENDANTS’ CASE

11.  The defendants, as propounders of the Will, accepted that they have the legal or persuasive burden to prove on the balance of probabilities that:

(1)  there was due execution of the Will;

(2)  the Deceased was of testamentary capacity; and

(3)  he knew and approved of the contents of the Will.[1]

12.  In this regard, they have adduced the evidence of Ms Mok, who affirmed that:

(1)  In around late 2021, she was introduced to the Deceased and Mei Yuk by a Mr Wong (the son of Pui Yuk (the Deceased’s late eldest sister)), who was Ms Mok’s lawyer friend in Mainland China, for the administration of Mother’s estate;

(2)  At the time, the Deceased told Ms Mok that he was worried and felt uncomfortable as he did not think the plaintiff was filial and was afraid that she would not administer and distribute the assets of Mother in accordance with the law;

(3)  In late December 2021, the Deceased also told Ms Mok that Mother also did not want to leave any part of her estate to the plaintiff because Mother did not feel that the plaintiff was filial towards herself and the Deceased;

(4)  In around mid-September 2022, the Deceased personally called Ms Mok over the telephone and informed her that he would like to make a will.  He explained that Mother’s passing had made him aware of the effect of the Intestates’ Estate Ordinance, and that he wanted to ensure that his estate would be distributed according to his own wish rather than pursuant to statutory provisions;

(5)  On 23 September 2022, the Deceased met Ms Mok at Messrs. CGC’s Office.  They initially talked in the conference room thereat in private, during which Ms Mok explained the legal consequence of making a will which the Deceased appeared to understand.  He also firmly confirmed to Ms Mok that he was not subject to any oppression nor undue influence by any one.  Mei Yuk was only invited to join the meeting thereafter;

(6)  During the meeting, the Deceased provided Ms Mok with a written instruction in Chinese dated even date (“the Written Instruction”)  which was written by him.  In a gist, it provided that:

(a)  The defendants be appointed as executrices;

(b)  His estate be divided into 5 equal parts, and to be distributed to the Grandchildren, the defendants and Lai Yuk;

(c)  The plaintiff would not be one of the beneficiaries because she has got a share in Mother’s estate already;

(7)  Ms Mok then asked the Deceased the list of questions set out in [2.4] of the Court of Appeal’s Judgment in Re Estate of Au Kong Tim [2018] 2 HKLRD 864.  She recorded the Deceased’s answers in her attendance note (“the 23/9/2022 Attendance Note”)  which was exhibited. While Ms Mok, for the sake of convenience, had used English to jot down the Deceased’s answers to other questions, she had specifically used Chinese to record his reasons as to why he did not want to leave anything to the plaintiff as follow:

“Client 不分遺產給女兒，他告訴我女兒移民英国沒有事先通知他，女兒不关心他，很少致电給他傾計，沒有問候他，女兒在其母親遺產中可分到錢，已足夠她生活。”

(“the Recorded Reasons”)

(8)  The Deceased also explained that Mei Yuk has been chosen as one of the beneficiaries because she had taken care of him after Mother’s death;

(9)  Ms Mok proceeded to draft the Will after the meeting pursuant to the Deceased’s instructions;

(10)  Upon Ms Mok’s request, the Deceased went to Messrs. CGC’s Office again on 6 October 2022.  He was accompanied by Mei Yuk;

(11)  Upon his arrival, he was examined by Dr Kwok, who confirmed that the Deceased:

(a)  had testamentary capacity;

(b)  understood the content of the draft Will;

(c)  was free from oppression or undue influence;

(12)  Ms Mok enquired with the Deceased once again as to the reason why the plaintiff was not named as one of the beneficiaries, and the Deceased replied that that was because the plaintiff:

(a)  had already received a significant amount of money from Mother’s estate;

(b)  had her own savings;

(c)  did not care much for him and she seldom called him by the telephone and only had meals with him during festive occasions;

(d)  was not filial towards him.

(13)  Having completed the above enquiries and explanations once, Ms Mok repeated the process again, but this time the process was audio recorded (a copy of which together with the transcript thereof (“the 6/10/2022 Transcript”)  were exhibited);

(14)  Ms Mok was fully satisfied that the Deceased possessed the requisite testamentary capacity to execute the Will, that he knew and approved the contents thereof without oppression nor undue influence, and that he had exhibited sufficient physical and mental strength that nothing appeared to overbear his own will or affect his testamentary intention in the execution of the Will;

(15)  Therefore, after the said explanations, she asked the Deceased to sign on each page of the Will, and the Deceased did so in the presence of Ms Mok and Dr Kwok, who also signed under the attestation clause of the Will as well as on every page of the Will.

13.  Ms Mok’s evidence concerning what happened in her meeting with the Deceased on 6 October 2022 is also corroborated by Dr Kwok’s affirmation, in which Dr Kwok affirmed further that:

(1)  He had conducted a mini-mental state examination on the Deceased in private in Messrs. CGC’s Office.  This is a clinical test of a person’s cognitive function which is used extensively in clinical setting to measure cognitive impairment.  The Deceased scored 29 out of 30;

(2)  The Deceased confirmed with him that the content of the draft Will represented his true intention;

(3)  The Deceased also confirmed that he was not acting under any oppression or undue influence but out of his own free will.

E.  OVERVIEW OF THE DEFENCE

14.  The plaintiff does not dispute that the Will had been duly executed by the Deceased.  Neither does she argue against the testamentary capacity of the Deceased at the material time.  She only contends that the Summons should be dismissed because there are triable issues in relation to the following two questions:

(1)  Whether the Deceased knew and approved of the contents of the Will (“the Want of Knowledge and Approval Defence”);

(2)  Whether the Deceased executed the Will because of undue influence (“the Undue Influence Defence”).

F.  DISCUSSION

F1.  The Want of Knowledge and Approval Defence

15.  It is now trite that if someone wishes to dispute the validity of a will on the grounds that there is want of due execution, or of testamentary capacity, or of the requisite knowledge and approval, that person bears an evidential burden of putting the relevant ground of challenge in issue.  If the evidence adduced by him or otherwise arising in the case is of a sufficient cogency to raise such an issue, the court, when assessing the evidence as a whole at the end of the case, decides whether the proponent of the will has discharged the persuasive burden in relation to the relevant fact in issue on the balance of probabilities: Nina Kung v Wong Din Shin (supra), at [176].

16.  In Re Estate of Au Kong Tim (supra), Cheung JA also had the following to say:

“2.8 It has been repeatedly said in the authorities that the fact that a will is prepared by a solicitor and is, on the face of it, properly executed by a testator in front of the solicitor after having had the contents read over to him provides strong evidence of the testator’s knowledge and approval of the contents of the will and represents the testator’s intention at the moment he executes the will. Hence in Gill v Woodall [2010] Ch 380 Lord Neuberger MR held that :

‘14. ..... As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testatrix, raises a very strong presumption that it represents the testatrix’s intentions at the relevant time, namely the moment she executes the will.

15. In Fulton v Andrew (1875)  LR 7 HL 448, 469, Lord Hatherley said that

‘when you are once satisfied that a testator of a competent mind has had his will read over to him, and has thereupon executed it … those circumstances afford very grave and strong presumption that the will has been duly and properly executed by the testator …’ ”

17.  Mr Tang, quite rightly, accepted that the “very strong presumption” referred to by Cheung JA is applicable herein.  However, he submitted that it is arguable that the “strong presumption” may be rebutted. He has made two arguments in this regard.

18.  Firstly, it was suggested that:

(1)  Mei Yuk’s allegation that the Deceased held the view in as early as late 2021 that the plaintiff had been unfilial and/or had a tendency not to properly administer Mother’s estate is a bare assertion, because the Written Instruction, the 23/9/2022 Attendance Note, the 6/10/2022 Transcript and the Will were all created in 2022;

(2)  The evidence shows that the Deceased and the plaintiff were still having a good relationship despite the latter’s emigration to the UK.  It is therefore irrational for the Deceased to disinherit her.

19.  As to whether the Deceased was already considering that the plaintiff was not filial back in 2021, that is in fact a red herring, because the relevant point of time for the present purpose must be around the time when the Deceased made the Will.

20.  In any event, it is not a bare assertion made by Mei Yuk, as it is supported by Ms Mok, who also affirmed that the Deceased had expressed the same view in front of her in late 2021.

21.  In relation to the plaintiff’s argument on “irrationality”, it is important to bear in mind what A Cheung J (as the Chief Justice then was)  stated in Ip Wai Hung v Yip Man Chiu & Others (HCAP 15/2004, unreported, 19 December 2007):

“170. After all, the law is not so presumptuous that unless the court can understand and find a rational basis for the dispositions made in a will by a testator, the will will never be admitted to probate. As I said, the law recognises that a testator is entitled to be moved by capricious, frivolous, mean or even bad motives. A testator may disinherit his children to gratify his spite or benefit charity to gratify his pride but the court must nevertheless uphold his will. A fortiori, where the testator had good reasons of his own for the contents of his will which were simply not fully known to the court.

171. Where the evidence is clear on knowledge and approval, where the attesting witnesses’ evidence is truthful and is accepted, and where the person who took instructions from the deceased and prepared the will for him to execute has given clear and firm evidence which is accepted by the court, the court cannot strike down the will simply because it does not understand why the testator has made the dispositions in the will. The court’s job is to make sure that the will represents his true wishes. The court has no right or jurisdiction to reject a testator’s will simply because it does not understand the testator’s rationale or agree with the way he has wanted his estate to be disposed of after his death. To a limited extent, the Legislature has stepped in to modify the general position by enacting the Inheritance (Provision for Family and Dependants)  Ordinance (Cap 481). But then that is another story.

[…]

175.  In Sharp v Adam, the court has accepted that a testator may make a valid will disinheriting his children out of capricious, frivolous, mean or even bad motives, and it is not the function of the court to substitute its own view of what the testator should have done.  But the court has gone on to point out that it does not follow that the court should not look for a justification for the change in the will or enquire why the testator in that case disinherited his daughters.  An irrational, unjust and unfair will must be upheld, the court has noted, if the testator had the capacity to make a rational, just and fair one, but it could not be upheld if he did not.  It follows that the court must enquire why a testator has disinherited his children where there is a possibility that it is due to disease of the mind.  The inquiry, the court has emphasised, must be directed to the testator’s soundness of mind (based on the facts of that case), and not to general questions of perceived morality (para 79)  […].” 

22.  In the present case, the Deceased had on several occasions explained his decision on disinheriting the plaintiff:

(1)  Explanation to Ms Mok on 23 September 2022;

(2)  Explanation to Dr Kwok on 6 October 2022;

(3)  Explanation to Ms Mok and Dr Kwok on 6 October 2022.

23.  Ms Mok and Dr Kwok are independent witnesses and are professionals.  The plaintiff has not put forward any possible reason why they have any motive not to tell the truth (or indeed, to tell lies)  in their respective affirmations.

24.  That being the case, I hold the view that the evidence is clear on knowledge and approval.

25.  For the sake of completeness, I should also say that the plaintiff has failed to put forward any arguable case on “irrationality” as a matter of fact:

(1)  The plaintiff does not dispute the allegation that she did not inform the Deceased before her emigration to the UK;

(2)  There is no evidence that the plaintiff had ever called the Deceased on the phone after her emigration (not even in her own affirmation);

(3)  She would indeed be entitled to part of Mother’s estate.

26.  Insofar as it is the plaintiff’s argument that since she has been communicating with the Deceased after her emigration and therefore it would be irrational if the Deceased did not name her as a beneficiary, I am afraid the plaintiff has over-simplified the matter.  The evidence clearly indicates that what the plaintiff perceives to be enough in terms of showing care to her father was far from adequate from the point of view of the Deceased.  If one really has to examine the WhatsApp messages which are heavily relied on by the plaintiff (which I do not agree to be necessary), in fact they only show that it was the Deceased who initiated the communication with the plaintiff most of the time, instead of the other way round.

27.  Even if the distribution under the Will may be described as “irrational” (which I do not agree), that does not mean that the Court should declare such a will invalid.  On this matter, reference may also be made to Ip Wai Hung (supra):

“75. Furthermore, one must not forget the general principle in probate cases that a testator is quite entitled to be moved by capricious, frivolous, mean or even bad motives in making his will.

[…]

77. For as I say, the ultimate aim is to find out whether the testator knew and approved of the contents of the will. And as Williams has pointed out (at para 13-03):

‘The law does not call for a perfectly balanced mind, nor is a will to be pronounced against merely because the testator was moved by capricious, frivolous, mean or even bad motives. A testator may disinherit his children to gratify his spite or benefit charity to gratify his pride but the court must nevertheless uphold his will.’

78. In other words, if the entire evidence is such that the court can be satisfied, on the balance of probabilities, with the testator’s knowledge and approval of the contents of the will, despite the fact that there is, on the evidence, no satisfactory explanation for disinheriting the other children, the court should still pronounce for the will, although why the testator wanted to disinherit all his children but one would remain forever a mystery […]

79.  But my point here is that everything depends on the balance of probabilities.  And the focus of attention must always be and remain the testator’s knowledge and approval, rather than the dispelling of ‘suspicious circumstances’ as an aim in itself.”

28.  I therefore reject the plaintiff’s argument.

29.  Secondly, the plaintiff relied on a number of “apparent suspicious circumstances”.

30.  Before I consider those circumstances, it is worthwhile to remind ourselves what had been held in Ip Wai Hung (supra)  at [74]:

“One must not be misled by the requirement that the court’s ‘suspicion’ be dispelled into thinking that unless each and every relevant or ‘suspicious’ circumstance has been satisfactorily explained, a will can never be successfully propounded, or more particularly, the court can never be satisfied that the testator has known and approved of the contents of the will. To do so would be to forget the ultimate aim of the exercise, namely to find out whether the testator really knew and approved of the contents of the will. Relevant or ‘suspicious’ circumstances are pointers. They are not the end in themselves. For the court’s ultimate task is to see whether the court’s ‘suspicion’ can be removed, ie the suspicion that the testator did not really know or approve of the contents of the will. Its task is not to see to it that each and every ‘suspicious’ circumstance surrounding the making of the will is satisfactorily explained, even though the two are to some extent, depending on the facts of each case, inter-related. One can easily imagine situations where because of the paucity of the evidence available or otherwise because very little is known about a testator, the court simply does not understand why a testator chose to dispose of his estate in the way set out in his will, yet there is the clearest evidence that he knew and approved of the contents. In those cases, the court’s duty is to pronounce in favour of the will.” (emphasis added)

31.  I now turn to the alleged suspicious circumstances.  In a gist, they are as follow:

(1)  There are some doubts as to whether the Deceased was actually aware of the legal implications of the Intestates’ Estates Ordinance, given he was not highly educated;

(2)  There was no contemporaneous attendance notes taken by Ms Mok regarding the telephone conversation held in mid-September 2022 (during which the Deceased allegedly said he would like to avoid dying intestate);

(3)  Mei Yuk was present when Ms Mok took instructions from the Deceased on 23 September 2022;

(4)  It is unsure whether the Written Instruction was written and signed by the Deceased personally and whether Mei Yuk had participated in the preparation process.

32.  With greatest respect, these submissions are totally unmeritorious:

(1)  The so-called doubts on the Deceased’s understanding of the effect of the Intestates’ Estate Ordinance are totally irrelevant for the present purpose.  In any event, the Deceased’s express exclusion of the plaintiff as a beneficiary is a clear indication that he understood and was minded to avoid the effect of the said Ordinance;

(2)  The lack of attendance notes in relation to the telephone conversation between Ms Mok and the Deceased is neither here nor there;

(3)  Mei Yuk was present in the meeting on 23 September 2022 only after Ms Mok had confirmed the Deceased’s understanding of the effect of the making of the will and the absence of any undue influence.  In any event, even though Mei Yuk was present for the latter part of the said meeting, it is the evidence of Ms Mok that she got all her instructions directly from the Deceased.  The content of the Will (which was drafted pursuant to such instructions)  was also confirmed by the Deceased in front of Dr Kwok on 6 October 2022 when they were meeting in private;

(4)  The fact that the Written Instruction was written by the Deceased himself had been confirmed by Ms Mok[2].  Any suggestion that Mei Yuk was involved in the process is nothing more than speculation.

33.  For reasons of the aforesaid, I take the view that the plaintiff has failed to raise any triable issue on the Want of Knowledge and Approval Defence.

F2.  The Undue Influence Defence

34.  I would gratefully adopt the summary of legal principles set out by Madam Recorder Rachel Lam SC in Wong Tug Wai v Wong Tung Po [2023] HKCFI 1240 as follows:

“25. Undue influence in the law of probate is different from undue influence as understood in equity. It is more stringent in the sense that actual undue influence is required to be proved, and undue influence is not presumed in making a testamentary gift: Hubbard v Scott [2012] WTLR 29 at [2].

26. In Li Chi Loy v Li Lai Lan Candice [2008] 5 HKLRD 74 at [83], Poon J (as the Chief Judge then was)  adopted the summary of undue influence in a probate litigation in Re Edwards [2007] WTLR 1387 at [47]:

‘… The approach that I should adopt may be summarised as follows:

(i)  In a case of testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence.

(ii)  Whether undue influence has procured the execution of a will is therefore a question of fact.

(iii)  The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps, no more than a reminder of the high burden, even on the civil standard, that a claimant bears in providing undue influence as vitiating a testamentary disposition.

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

(v)  Coercion is pressure that overpowers the volition without convincing the testator’s judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator’s free judgment, discretion or wishes, is enough to amount to coercion in this sense.

(vi)  The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness’s sake to do anything. A ‘drip drip’ approach may be highly effective in sapping the will.

…

(ix)  The question is not whether the court considers that the testator’s testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes.  The question, in the end, is whether in making his disposition, the testator has acted as a free agent.”

27.  As to the nature of the influence exerted that constitutes undue influence, Sir J.P. Wilde in Hall v Hall (1868)  L.R. 1 P. & D. 481 at 482 held:

‘To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, -- these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator’s judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of someone else’s.’

28.  Similarly, in Wingrove v Wingrove (1885)  11 P.D. 81 at 82-83, it was held:

‘To be undue influence in the eye of the law there must be – to sum it up in one word – coercion. It must not be a case in which a person has been induced, by means such as I have suggested to you, to come to a conclusion that he will make a will in a particular person’s favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he does not desire to do, that it is undue influence.

The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness’ sake, to do anything.  This would equally be coercion, though without actual violence.

These illustrations will sufficiently bring home to your minds that even very immoral considerations either on the part of the testator, or of someone else offering them, do not amount to undue influence unless the testator is in such a condition, that if he could speak his wishes to the last, he would say, ‘this is not my wish, but I must do it’ …

There remains another general observation that I must make, and it is this, that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator.  It is necessary to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power, that the will such as it is, has been produced.’

29.  ‘Victimisation’, ‘domination’ and ‘coercion’ are the words used in the authorities: Hubbard v Scott [2012] WTLR 29 at [46].  As Lord Haldane said in Craig v Lamoureux [1920] 1 AC 349 at [357], citing Boyse v Rossborough (1856)  6 HLC 2 at [52]:

‘In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis.’

30.  As to the proof of actual undue influence, In Re Good (deceased), Carepeto v Good [2002] WTLR 801 at [126], it is held that in the absence of any direct evidence, coercion may be found by the court drawing inferences from the general circumstances.”

35.  The plaintiff relied on the following matters to establish that undue influence was exerted on the Deceased to execute the Will :

(1)  The Will was prepared and executed at a time when Mei Yuk exerted considerable control and influence over the Deceased who relied a lot on Mei Yuk for his living, and as a result the Deceased was not acting as a free agent at the material time;

(2)  The preparation of the Will was procured by Mei Yuk who was heavily involved, including attending the meeting with Ms Mok on 23 September 2022 in which it was probable that Mei Yuk had given her comments;

(3)  It is inherently improbable that the Recorded Reasons represent the true thoughts of the Deceased;

(4)  The fact that Mei Yuk was included as one of the beneficiaries.

36.  It must be borne in mind that undue influence in this context means that the testator has been coerced into doing that which he does not desire to do, and that he is in such a condition, that if he could speak his wishes to the last, he would say, “this is not my wish, but I must do it”.

37.  I should also bear in mind that this is a summary judgment application.  Therefore, even if the plaintiff’s case is weak, if she nonetheless succeeds in raising an arguable case on undue influence, she should be allowed to have the issue decided at a full trial, rather than summarily in this application. 

38.  However, I have no hesitation in coming to the view that the plaintiff’s defence of undue influence is hopeless, for the following reasons:

(1)  The mere fact that Mei Yuk had the opportunity to spend time with the Deceased does not necessarily mean that there is an arguable case that she had unduly influenced the Deceased into making the Will;

(2)  Any allegation that Mei Yuk was instrumental in the Deceased’s will-making process is pure speculation with no evidential foundation at all;

(3)  Even the plaintiff admitted herself that the Deceased could take care of himself;

(4)  The suggestion that Mei Yuk had given comments in the meeting on 23 September 2022 is also speculative and is made without evidential basis;

(5)  As discussed, the evidence placed before the Court shows that the Recorded Reasons are all valid;

(6)  The inclusion of Mei Yuk as a beneficiary does not mean that she had indeed unduly influenced the Deceased.  In fact, if she had done so, it is difficult to understand why she only caused the Deceased to give her 20% of his estate;

(7)  Any suggestion of undue influence may be quickly negated by the evidence of Ms Mok and Dr Kwok who have respectively confirmed with the Deceased that he had given his instructions on the distribution of his estate out of his own free will without any influence from others.

39.  To conclude, the plaintiff’s case on undue influence is bound to fail.

G.  CONCLUSION

40.  I am satisfied that while the defendants have established the constituent elements of her cause of action, the plaintiff has failed to show any issue in dispute that ought to be tried or that for some other reason there ought to be a trial. 

41.  At the invitation of Mr Yung for the defendants, I have also listened to the audio recording of the meeting among the Deceased, Ms Mok, Dr Kwok and Mei Yuk on 6 October 2022 at Messrs. CGC’s Office.  That only reinforces my view that the plaintiff has no defence to the present application, for it is clear that the Deceased knew exactly what he was doing at the material time out of his own free will.

42.  I therefore enter judgment summarily in favour of the defendants. I pronounce in solemn form for the force and validity of the Deceased’s will dated 6 October 2022.

43.  The plaintiff’s counsel accepted that the defendants’ application for summary judgment and their application to strike out should stand or fall together.

44.  I therefore order that the plaintiff’s Writ of Summons and the Statement of Claim filed on 8 February 2023 be struck out.

H.  COSTS

45.  The plaintiff shall bear the defendants’ costs of the action, including the costs of this application and all costs reserved, to be taxed on trustee basis if not agreed.  The defendants’ costs which are not recovered from the plaintiff shall be paid out of the Deceased’s estate.