TSANG TAT HUNG AND ANOTHER v. TSANG TAT WING

HCAP 6/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 6 OF 2013

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J U D G M E N T
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1. The plaintiffs seek an order to revoke the letters of administration of the estate of the deceased issued to the defendant on 10 July 2012 and for the grant of letters of administration with the will annexed.

2. The members of the family in the action are:

Ng Hau Siu (伍巧笑), deceased    (“Mdm Ng”)	Mother
TSANG Yin Ping (曾燕萍)	Lawful and natural eldest
(“Yin Ping”)	daughter
TSANG Tat Wing (曾達榮)	Lawful and natural second son
(“the defendant”)
TSANG Tat Hung (曾達鴻)	Lawful and natural third son
(“P1”)
Chiu Ngai Sam Ida (趙藝深)	Wife of P1
(Ida Chiu”)
TSANG Tat Chi (曾達志)	Lawful and natural fourth son
(“Tat Chi”)
TSANG Tat Wo (曾達和)	Lawful and natural fifth son
(“P2”)
Mok Man Fai	Husband of Yin Ping
(“Man Fai”)

3. Mdm Ng died on 1 October 2011 at the age of 80.  She was domiciled in Hong Kong.

The plaintiffs’ claim

4. The defendant applied on 16 May 2012 for letters of administration of Mdm Ng’s estate to be issued to him. The letters of administration with a duplicate of the schedule of assets and liabilities of Mdm Ng were issued to him on 10 July 2012 under Grant No. 5819 of 2012. The defendant had not informed his brothers about the application or grant of the letters of administration to him. 

5. The schedule of assets and liabilities listed a property situated at Flat 6, 21st Floor, Block B, Jade Plaza, No. 3 On Chee Road, Tai Po, New Territories (“the Property”) and a small amount of cash as the assets owned by Mdm Ng at the time of death.

6. The defendant, after having obtained the letters of administration on 10 July 2012, entered into an agreement dated 19 October 2012 for the sale of the Property to one Kwok Chi Wai at HK$2,260,000.00 (“the Agreement”).  The Agreement was registered in the Land Registry by memorial no. 12111401660191 on 19^th October 2012.  The Agreement was completed on 30 November 2012 and the assignment was registered by memorial no. 12122800220289 on 30 November 2012. 

7. The defendant had not disclosed the sale to his brothers beforehand.  The title deeds and documents of the Property were kept by his brother Tat Chi.  But the defendant did not enquire with his brothers for them.  He instead made a declaration of their loss and completed the Agreement on such basis.  He is still keeping the net proceeds of sale as the administrator of Mdm Ng’s estate.

8. The plaintiffs say that Mdm Ng had in fact made her last will on 29 August 2011 (“the Will”) and her execution of the Will was witnessed by three witnesses; namely Mak Lung Fei (麥龍飛) (“Mak”), Ida Chiu, and Leung Yiu Wing (梁耀榮) (“Leung”).  The Will reads:

「平安紙

本人伍巧笑(Ng Hau Siu)，身份証號碼：B ( )，本人確認在身體及精神健康正常況下，現以書面確立此平安紙，並在下列三位人士見証下，簽署及確認這份文件的真確性。

本人在此聲明及確認如本人因任何原因身故，本人名下位香港新界大埔安慈路3號翠屏花園B座21樓6室 (Flat 6, 21/F, Block B, Jade Plaza , 3 On Chee Road, Tai Po, N.T., Hong Kong) 的房地產物業，將會全部由第三兒子曾達鴻 (Mr Tsang Tat Hung)，身份証號碼：C ( ) 及第五兒子曾達和先生 (Mr Tsang Tat Wo)，身份証號碼：C ( )，承繼及擁有，任何人士不得異議。

此致
立紙人	見証人
伍巧笑 (Ng Hau Siu)	麥龍飛 (Mak Lung Fei)
HKID: B ( )	HKID: G ( )
日期：2011年8月29日	日期：2011年8月29日
見証人	見証人
趙藝深 (Chiu Ngai Sam Ida)	梁耀榮 (Leung Yiu Wing)
HKID: G ( )	HKID: G ( )
日期：2011年8月29日	日期：2011年8月29日」

 

(Free translation)

“WILL

I, Ng Hau Siu, Hong Kong Identity Card No.: B…( ), hereby confirm that I, in normal physical and mental health, hereby establish in writing this will and, in the presence of the below three witnesses, sign and confirm the authenticity of this document.

I hereby declare and confirm that if I should die for whatever cause, the entirety of the real property under my name at Flat 6, 21/F., Block B, Jade Plaza, 3 On Chee Road, Tai Po, the New Territories, Hong Kong will be inherited and owned by my third son Tsang Tat Hung, Hong Kong Identity Card No.: C…( ) and my fifth son Tsang Tat Wo, Hong Kng Identity Card No.: C…( ), nobody should raise any objection.

In WITNESS whereof:
Will maker	Witness
Ng Hau Siu	Mak Fei Lung
HKIC: B…	HKIC: G…
Date: 29 August, 2011	Date: 29 August, 2011
Witness	Witness
Chiu Ngai Sam Ida	Leung Yiu Wing
HKIC: B…	HKIC: G…
Date: 29 August, 2011	Date: 29 August, 2011”

9. The plaintiffs further say that the defendant had been shown the Will in a gathering of the brothers on about 5 February 2012.  On that occasion, the brothers also authorized P1 to deal with the money in a bank account owned by Mdm Ng in her sole name.

10. Despite the defendant’s knowledge of the existence of the Will, he still applied for letters of administration of Mdm Ng’s estate by affirming falsely that he was unable to find any will by Mdm Ng.

11. The plaintiffs in this action seek the revocation of the letters of administration granted to the defendant, an order to issue them the letters of administration with the Will annexed, an account of the administration of Mdm Ng’s estate by the defendant and payment pursuant to the account. 

The defence and counterclaim

12. The defendant denies that Mdm Ng had ever executed the Will.  He pleaded that the Will is a fake as Mdm Ng did not have testamentary capacity at the time when she had allegedly executed the Will.  The particulars he pleaded are that:

(i) The defendant visited and had dinner with Mdm Ng everyday.  They chatted about everything that happened during the day.  But Mdm Ng never revealed to him that she had made a will;

(ii) the Will was only mentioned but not disclosed to him in about September, 2012 by P1 and on about 7 November 2012 by the plaintiffs’ solicitors when he was about to complete the sale in the Agreement; and

(iii) Mdm Ng would not have signed her name as in the Will because she was then using her thumb print instead. 

13. Alternatively, the defendant pleaded that Mdm Ng’s execution of the Will was obtained by the plaintiffs by undue influence as Mdm Ng at the material time was of unsound mind, memory and understanding and lacked testamentary capacity.  However, the defendant said in cross-examination that Mdm Ng had a strong will, commanded everything, was authoritative and would not have been influenced by others to make a will.  The elder sister Yin Ping also agreed in cross-examination that there was no reason to suspect that Mdm Ng had any mental problem.  This alternative plea was then withdrawn in the closing submissions of Ms Athena Wong, counsel for the defendant. 

14. Regarding the gathering of the brothers on about 5 February 2012, the defendant agrees that the brothers had in the meeting authorized P1 to deal with the money in the bank account owned by Mdm Ng solely.  But he denies that the Will was mentioned or shown in the gathering.

15. The defendant also denies knowledge that the title deeds and documents of the Property were kept by Tat Chi.

16. The defendant does not dispute that he had not informed the plaintiffs about the sale of the Property but pleaded that the plaintiffs had sufficient information of the same without his telling them.

17. The defendant had a counterclaim against the plaintiffs for payment of the sums standing in the joint accounts opened by Mdm Ng and each of the plaintiffs at the time of her death.  The counterclaim was however abandoned on the second day of trial.  I then dismissed it with costs against the defendant.

The reply and defence to counterclaim

18. The plaintiffs pleaded that Mdm Ng had operated her bank accounts with her signature and her chop but not her thumb print.  Her signature in the Will was the same as that she had used to operate her bank accounts.

The 1st plaintiff Tsang Tat Hung (曾達鴻)

19. P1 said that before Mdm Ng’s death, he and Mdm Ng were living in the same building with his flat one floor below the Property (i.e. Flat B6 on 20th Floor). 

20. All the sons of Mdm Ng owned their respective residence save P2, who was the youngest son.  P2 did not own any residence and was living in rented premises in the mainland.

21. Sometime in early 2010, Mdm Ng told P1 that she wanted to make a will to dispose of the Property to P2 because all the siblings of P2 had their self-owned residence.  Mdm Ng chased P1 on the matter sometime between early 2011 and May 2011.  P1 then prepared a draft of the Will in Chinese.  He did not know computer typing and paid somebody in the mainland to type the draft for him.

22. In accordance with Mdm Ng’s direction, the Will provided that P1 and P2 were the only two beneficiaries of the Property. 

23. The Will mis-described P1 as the second son when he was the third son.  This error was corrected before Mdm Ng executed the Will on 29th August 2011.

24. Before Mdm Ng executed the Will, P1 had read out and explained its contents to Mdm Ng.

25. Mdm Ng then read the Will herself for about 5 minutes before executing the same. 

26. Mdm Ng executed her Will in the presence of:-

(1) Mak, a friend of P1 for over 40 years who had personally known Mdm Ng for many years;

(2) P1’s wife Ida Chiu; and

(3) Leung, who was also a taxi driver and known to P1 for over 3 years prior to execution of the Will.

27. Mdm Ng was the first one to sign the Will.  She did so at or about 9 a.m. on that day. Though she suffered from diabetes, high blood pressure and gout, she was mentally sound and physically fit to execute the Will.  She wore her spectacles and spent about one minute in writing her signature with her right hand. Though she suffered from some minor handshaking, she had no problem in executing the Will.  After that, Mak, Ida Chiu and Leung also signed as witnesses one by one.

28. Mdm Ng, after executing the Will, asked P1 to keep it in safe custody for her. 

29. Mdm Ng really cared about P2.  She intended to give P2, her youngest son the Property absolutely and for his sole use and benefit.  However, P2 had failed in his business previously so that Mdm Ng was not confident to give him the Property.  She thus asked P1 to be made a co-owner to help manage and preserve the Property for the sole use and enjoyment of P2 and his family.

30. After Mdm Ng had passed away, the brothers were busy in dealing with her funeral matters.  Afterwards, there was a dinner gathering on 5th February 2012.  P1, P2 and his family, the defendant and Tat Chi and his family attended the gathering.  It was at a restaurant in Tai Po. 

31. After the dinner gathering, the four brothers went to the Property and had a discussion.  P1 produced the Will and showed it to his three brothers.  The three brothers also authorized P1 to administer Mdm Ng’s bank account which was in her sole name. 

32. On that occasion, Tat Chi also told everybody present that he was keeping the bundle of title deeds and documents of the Property.

33. P1 did not proceed to apply for the grant of letters of administration to deal with the Property.  He explained that there was no urgency to do so and that he was in the course of obtaining information for the application and arranging a time convenient to him and P2 so that they could apply together.  He was also trying to resolve a dispute between the estate of Mdm Ng and the Incorporated Owners of Jade Plaza (“the IO”) over certain outstanding payments of management and refurbishment fees.

34. The defendant applied on 16 May 2012 for letters of administration of Mdm Ng’s estate to be issued to him. The letters of administration were issued to him on 10 July 2012 in Grant No. 5819 of 2012.  The plaintiffs were not aware of the application or the grant.

35. On 21 September 2012, the defendant came to the Property and changed the lock to the main door.  He did not tell the plaintiffs about this in advance.  He posted up at the main entrance of the Property a notice by his solicitors saying that he was the sole administrator of Mdm Ng’s estate and anybody entering the Property without his consent would be prosecuted for theft.

36. When P1 came to know about the change of the lock, he reported the matter to the police immediately.  (He clarified in oral evidence that the report was actually made by his wife Ida Chiu.)  The defendant then came to the scene and produced the letters of administration.  (P1 and P2 then wrote a letter on 26 September 2012 to the Probate Registry seeking to revoke the defendant’s appointment as administrator (pp 372 – 392).)

37. Later on the plaintiffs also discovered that the defendant had sold the Property without their knowledge, consent or notice.  The defendant entered into the Agreement on 19th October 2012 and completed the sale on 30th November 2012.  But he did not have the title deeds and documents of the Property which were kept by Tat Chi.  He also paid the IO all the disputed amounts.

38. When P1 was cross-examined, he further disclosed that there was a family dinner in the beginning of 2011 and around the Chinese New Year in which all four brothers but not Yin Ping had attended. Mdm Ng told the brothers that she wanted to make a will bequeathing the Property to P2 as everybody owned a flat except P2.  She wanted to give the Property to P2 so that if his child should come to Hong Kong to study, he would have a place to stay.  The defendant at that time said that Mdm Ng’s idea was not so good, but he did not elaborate.  Owing to this conversation, P1 thought that the brothers should expect that Mdm Ng would make a will.  Sometime later, Mdm Ng asked the defendant to help her make a will, but the defendant failed to do so.  She then asked P1 to do it for her.

39. P1 then set out to prepare a draft will for his mother’s approval.  He started to draft it in May 2011.  He prepared two to three or three to four drafts. 

40. In the 1st draft, he only provided for P2 as the beneficial owner of the Property.  His mother then wanted to include him as a beneficiary as well for the reason stated in his witness statement.  He completed the handwritten final draft in about the end of July or early August.  In the meantime, he also obtained the consent of Mak and Leung to be the attesting witnesses. 

41. He said he had not consulted his brother-in-law Man Fai, who had worked in a solicitors firm as a legal executive before his emigration to Canada in 1996.  He did not do so not because of any worry about letting Man Fai know about the Will, but because Man Fai was not living in Hong Kong.  He then arranged with Mak and Leung to visit Mdm Ng in the morning of a day that was about a week before 29 August for execution of the Will.  By then, he already had the final draft typed and printed for him.  This draft had Mak and Leung and their identity card numbers typed in it.

42. Mak and Leung duly arrived at Jade Plaza on that day in the morning.  They had breakfast at a café downstairs and P1 took the draft Will upstairs for his mother’s consideration.  Mdm Ng, after having read the typed draft, wanted to include Ida Chiu as an additional attesting witness.  Ida Chiu was then with Mdm Ng. 

43. Owing to this further direction by Mdm Ng, P1 postponed the execution of the Will to a later date for inclusion of Ida Chiu into the typed draft.  Mak and Leung then left without visiting Mdm Ng.

44. P1 then had a fresh draft of the Will made by including Ida Chiu as a witness.  That was three or four days before 29 August.  He then made an appointment with Mak and Leung to attend to the execution of the Will on 29 August.  He said he had to give prior notice to Mak who needed to ask for leave from his employer to attend to the occasion.

45. On 29 August when Mdm Ng, P1, Mak, Leung and Ida Chiu were gathered at the Property, it was after 8 a.m. P1 then read out and explained the Will to Mdm Ng.  In the course of doing so, P1 discovered an error in the Will in that he was described as the 2nd son when he was the third.  He therefore corrected it by adding a horizontal stroke to the Chinese character “二” (two) so that it became the character “三” (three).  The Will was then executed by Mdm Ng and her execution attested to by the three witnesses.  The whole process took about 15 minutes.  Mdm Ng then told P1 to keep the Will for her.  P1 then left with Mak and Leung for tea and breakfast downstairs.

46. Mdm Ng only intended to make P1 the trustee or manager to look after the Property for P2, but the Will made P1 and P2 absolute owners of the Property, P1 thus agreed that the Will did not reflect Mdm Ng’s testamentary intent.  P1 also said in re-examination that Mdm Ng had directed P1 to assign the Property to P2 absolutely upon P2 reaching 60.

47. After the Will was made, P1 had not discussed it with his brothers or his elder sister Yin Ping as Mdm Ng had not asked him to do so.  But he thought the brothers should have expected a will by Mdm Ng as she had declared her intention to make one in the family dinner in early 2011.  P1 also said that Mdm Ng had told him that she had consulted the defendant and Yin Ping on the inclusion of P1 as a beneficiary of the Property and both of them had no objection.

48. Regarding Mdm Ng’s ability to sign her signature on the Will, P1 agreed in cross-examination that Mdm Ng’s right thumb was suffering from rheumatoid arthritis and was hardened with the 1st joint bent outwards.  Mdm Ng had been referred to specialist treatment in early 2010.  A surgery had also been scheduled for her to take place in about July 2011, but she did not want it and had it cancelled sometime in late 2010.  She used holly cream for pain relief.

49. However, P1 maintained that the second joint of Mdm Ng’s right thumb, though not as flexible as a healthy thumb, could still function as only the 1st joint had bent outwards away from the index finger.  Mdm Ng could still use chopsticks though with inconvenience.  She used both chopsticks and spoon to eat.  She would also use chopsticks to handle vermicelli. P1 also maintained that Mdm Ng was still using her signature at the banks in 2011.

50. The documentary evidence shows that Mdm Ng had used her signature to open bank accounts in 2003 and 2005. Some of the operation mandates she gave the banks in those days only provided for her chop mark.  Hence, she should use her chop mark instead of her signature to operate those accounts.  Mdm Ng had opened a new account on 7 September 2001.  Nevertheless, she did not sign her signature on the account opening form on this occasion, but used her chop mark only.

51. There are also produced in evidence four written consents given by Mdm Ng to the Hospital Authority for blood transfusion due to her anaemia.  She signed her signature in the first form dated 13 December 2010.  For the three later forms dated 26 February 2011, 10 April 2011 and 31 August 2011, she just applied her thumb or right thumb print to signify her consent.

52. The medical report from Alice Ho Miu Ling Nethersole Hospital dated 25 July 2013 stated that the exact reason why Mdm Ng did not sign her full name was unknown.  But Mdm Ng might be too frail to sign her full name because of anaemia on those occasions.

The 2nd plaintiff Tsang Tat Wo (曾達和)

53. P2 was the youngest son of Mdm Ng.  He lived in Shenzhen with his wife and child at all material times. He was a cross-border truck driver.  He had not taken any part in the preparation and execution of the Will.  He did not know about the existence of the Will until it was shown by P1 to him and his two brothers in the evening of 5 February 2012. He did not feature in the change of lock incident.  Subject to these, his evidence in the witness statement is the same as that of P1.

54. In cross-examination, he said his mother had never given him any financial assistance in the purchase of real property.  He had bought a flat in Yuet Lai Court in Tsuen Wan in 1994.  He bought it with mortgage finance provided by the Hong Kong Bank that covered 100% of the purchase price and legal costs.  The bank provided this special arrangement for him because his first wife was killed in an accident in the premises of the bank’s branch office.  Owing to this special arrangement, it was unnecessary for his mother to give him any financial assistance for the purchase of this flat.

55. Apart from the flat in Yuet Lai Court, P2 also has a ¼ interest in a flat in Hoi Pa Street, Tsuen Wan.  (This flat used to be owned by Mdm Ng and her husband Mr Tsang Lun as joint tenants. Mr Tsang passed away in 1999.  Mdm Ng then assigned the flat to Yin Ping, the defendant, P1 and P2 in August 1999.  Tat Chi was not given a share of this flat because Mdm Ng was going to surrender her tenancy of a low costs housing flat at Lok King Hse, Lai King Estate in exchange for the right for Tat Chi to purchase a home ownership flat).

56. Regarding the Will, though he only saw it in the evening of 5 February for the first time, he knew that there was a will by Mdm Ng.  He did not know its contents until he saw it.  But he knew the Will would give him the Property as Mdm Ng had said so to him privately in 2010.

57. Mdm Ng wished that he could move back to Hong Kong.  She also told him later that she had told Yin Ping and the defendant that she wanted to make a will to give him the Property.  Both of them said that it was not so good.  After this, Yin Ping phoned him and suggested that the Property should be sold and if he needed to move back to Hong Kong, he could rent the Hoi Pa Street flat from her, P1 and the defendant.  When he relayed this conversation to Mdm Ng, Mdm Ng responded by saying that the real property of the Tsang family was not to be sold.  It was also not to be given to P2, but to P2’s son so that he could have a place to stay when coming to Hong Kong to study. Mdm Ng had also told P2 in about mid to late 2010 that she would add P1’s name as a beneficiary to prevent P2 from selling the Property.

Tsang Tat Chi (曾達志)

58. Tat Chi was the fourth son of Mdm Ng.  His evidence in the witness statement is the same as that of P2.  He added that the title deeds and documents of the Property were kept by him. 

59. Tat Chi said in cross-examination that the meeting of the brothers after the mother’s death was on 13 February.  I however find that it should be on 5 February as 5 February was a Sunday and the 14thday of the first lunar month.  P2 was not available on the previous Sunday (29 January) as he had to go with his wife to her homeland in Sichuan from the 1st to the 7thday of the first lunar month.  13 February was also not a Sunday. 5 February was thus a convenient date after the Chinese New Year for the brothers to have a gathering.

60. Tat Chi also said that the Will was produced by either P1 or P2 on that occasion.  He knew that the Property would be given to P2 as Mdm Ng had said so in a few family dinner gatherings in 2009 and 2010.  Mdm Ng also told him privately in August 2011 on the day of a dinner to celebrate her birthday that she had made a will giving the Property to P2.  I think Mdm Ng should have said that she would make a will instead of saying that she had made a will because the dinner took place a few days before but not after 29 August.  After reading the Will, Tat Chi learnt that P1 was also a beneficiary of the Property. He had no idea that Mdm Ng intended that P1 would be the trustee to look after the Property for P2.

61. He had also told his three brothers in the evening of 5 February that the title deeds and documents of the Property and the Hoi Pa Street flat were kept by him.  He told them that if there should be any dealing with the Property, it would be necessary to ask him for the title deeds and documents.

Chiu Ngai Sam Ida (趙藝深)

62. Ida Chiu had married P1 for over 20 years. They were living in a flat immediately below the Property of Mdm Ng.

63. She said Mdm Ng had been in good health and of sound mind. 

64. On a day in August 2011, P1 asked her to be a witness to Mdm Ng’s execution of the Will.  She went to the Property in the early morning of 29 August.  She remembered that Mak and Leung were also there as witnesses.  Mak was a secondary schoolmate of P1 with whom she had also known for a long time.  Leung was their common friend.

65. Before Mdm Ng had signed the Will, P1 read out its contents.  It was the first time that she came to know of the contents of the Will.  Basically, it stated that the Property in which Mdm Ng was then living would be given to P1 and his younger brother P2.

66. When P1 read out the Will, Mdm Ng was seated in her chair in the living room.  She was conscious.  Her physical condition looked good.

67. Mdm Ng signed the Will first. Ida Chiu then followed.  Mak was either the second or last witness to sign on it.

68. She recalled thatMdm Ng did not behave in any unusual manner which would suggest that Mdm Ng was not executing the Will at her free will.  Mdm Ng was very conscious and behaved normally in the whole morning.

69. She said in cross-examination that before 29 August, she had not seen the Will or any draft of it.  Mdm Ng had also not discussed the Will with her.  She only knew about the Will on 29 August.

70. On 29 August, P1 told her to go upstairs to serve as a witness of the making of the Will by Mdm Ng.  When she arrived at the Property, Mdm Ng, P1, Mak and Leung were there.  P1 then produced the Will read out and explained its contents.  The Will provided for the Property to be given to P1 and P2.  Mdm Ng, who was seated in the living room, read the Will for a while and then executed it.  She then attested the execution followed by Mak and Leung, but she could not remember their order of signing.  She was acquainted with both of them.

71. I find that Ida Chiu is a responsive witness giving answers directly.  Her evidence remained unshaken in cross-examination.  She was adamant that she saw Mdm Ng executing the Will which was followed by the attestation of the three witnesses.

Mak Lung Fei (麥龍飛)

72. Mak is a salesman.  He and P1 were secondary school-mates.  He had known P1 for over 40 years.  When he was young, he often went to play at P1’s home.  Hence, he had been acquainted with Mdm Ng for over 30 years.  He knew that P1’s relationship with Mdm Ng was very good.

73. Mak recalled that on a day in early August 2011, P1 asked him to be a witness of Mdm Ng’s execution of her will.  He was then unemployed and was free.  So he acceded to P1’s request immediately.

74. He remembered that P1’s wife Ida Chiu and Leung were also witnesses.  He had known Ida Chiu for a very long time.  He had come to know Leung through P1. 

75. The rest of his evidence is the same as that of Ida Chiu.

76. After the Will was signed by Mdm Ng, it was attested by Ida Chiu followed by him and Leung, but he could not remember whether he or Leung was the last to sign.

77. He and the others had stayed in the Property for over an hour during which they had some casual chatting.

78. For the whole morning until he left at about 11:00 a.m. (but he could not recall the exact time), Mdm Ng was conscious and acted in her normal way.

79. In cross-examination, he said after Mdm Ng had seated, P1 took out the Will and read it out.  P1 then asked if everybody had heard it and if Mdm Ng had any problem with it.  Mdm Ng then executed the Will and Ida Chiu attested the execution.  Mak then attested and followed by Leung.  When questioned, Mak also said that everybody signed with the same pen (However, the examination of the Will afterwards showed that Ida Chiu signed with a blue ball pen whilst the other three signatures appeared to have been signed with the same black ball pen).

80. I find that Mak was straight forward in answering questions.  He was adamant that he had witnessed Mdm Ng’s execution of the Will.  His evidence was unshaken in cross-examination.

Leung Yiu Wing (梁耀榮)

81. Leung was a taxi driver and was acquainted with P1 for over 3 years.  He had been to P1’s home in Jade Plaza on more than one occasion.  P1’s mother Mdm Ng lived in the Property which was right above P1’s home.  He was also acquainted with Mdm Ng personally.

82. To Leung’s knowledge, P1’s relationship with Mdm Ng was very close and intimate.  Leung knew that P1 went to Mdm Ng’s flat every day to prepare breakfast and lunch for her and to assist her in the household chores and the satisfaction of other needs.

83. On a day in August 2011, P1 asked Leung to be a witness to Mdm Ng’s execution of the Will.  He went to the Property in the early morning on that day.  He remembered that Mak and Ida Chiu were also witnesses.

84. The rest of his evidence is the same as that of Mak.

85. He also recalled that after Mdm Ng had signed the Will, Ida Chiu signed as a witness followed by him and Mak, but he could not remember whether he or Mak signed the last.  He confirmed in oral evidence that he did not see anything peculiar about Mdm Ng that could have affected her making of the Will.

86. After the making of the Will, he and the others stayed there for over an hour.  For the whole morning until he left at about 12:00 noon, Mdm Ng was conscious and acted in her normal way.

87. He said in cross-examination that he had not been to Mdm Ng’s flat before 29 August.  He recalled that he had been to Jade Plaza once before 29 August also with a view to attest Mdm Ng’s execution of the Will.  However, Mdm Ng wanted to include Ida Chiu as a witness.  Hence, the event was postponed and he did not visit Mdm Ng on that occasion.

88. He recounted the event of the execution of the Will on 29 August.  He said he, P1 and Mak arrived at the Property at about 10:00 am.  They met Mdm Ng there and Ida Chiu came later.

89. P1 then read out the Will. P1 then showed it to Mdm Ng.  He told Mdm Ng that it had been shown to her before and she wanted to include Ida Chiu as a witness.  Mdm Ng then read it before signing. After Mdm Ng had signed, the three witnesses signed in the order of Mak, Leung and Ida Chiu.

90. He also recalled that P1 seemed to have corrected the Will by amending the Chinese character “二” (two) to “三” (three) before the Will was signed by Mdm Ng.  Mdm Ng then asked P1 to keep the Will.  When the parties left, it was already noon time.

91. He was asked why he said in the witness statement that he was acquainted with Mdm Ng when he had not been to the Property.  He explained that he had conversed with Mdm Ng on the phone when he had previously given some gifts made by his mother to Mdm Ng.

92. I also find him a straight forward witness.  He answered the questions directly and without hesitation.  His evidence was also unshaken in cross-examination.

The defendant Tsang Tat Wing (曾達榮)

93. The defendant was the second son of Mdm Ng.  He was and is a day time taxi driver.  The defendant visited Mdm Ng everyday and prepared dinner for her everyday.  They also had dinner together.

94. He said Mdm Ng had been suffering from rheumatoid arthritis for several years before her death.  Her right thumb had bent outwards and hardened owing to serious arthritis.  Her thumb had difficulty in touching the index finger.  She could not hold chopsticks and had to use her index and middle fingers to hold a spoon to eat. 

95. The defendant had enquired repeatedly with Mdm Ng on whether she had sought medical treatment for her thumb.  She said she had mentioned the problem to the doctor on duty at Nethersole Hospital when making consultation or receiving diagnosis. But the doctor only gave her some holly cream which did not prove to be effective despite repeated use.  

96. The defendant also said that Mdm Ng treated all her children fairly and equally.  He cited the example of her assignment of the Hoi Pa Street flat to four of her five children in equal shares.  Tat Chi was not given a share of interest in the flat because she had already given Tat Chi some financial help in his purchase of his residence.   

97. After Mdm Ng’s death, P1 told him that Mdm Ng had not left any money for him.  He was rather unhappy.  After seeking legal advice, he in the position of the eldest male descendant, applied for letters of administration of the estate of Mdm Ng.  

98. After he had been granted the letters of administration, he discovered that there was an occupant in the Property. He therefore instructed his solicitors to issue a warning letter to the unknown occupant who then vacated from the Property.  He then posted at the entrance to the Property a warning notice against trespass of his solicitors.  He also arranged the change of the lock to the premises. 

99. As a result of the change on 20 September 2012, P1 intervened and called the police.  P1 claimed to be the beneficiary of the Property under a will of Mdm Ng, but could not produce it.  He however produced the letters of administration of the estate of Mdm Ng.  (It was in fact Ida Chiu who intervened and called the police.) 

100. He then sold and completed the sale of the Property at the end of November 2012.  He said he did so because he did not wish the Property to be trespassed again.  It was at about the completion of the sale that the solicitors of P1 and P2 wrote to him claiming that P1 and P2 were the beneficiaries of the Property.  The Will was later provided to him by their solicitors upon request.  But he did not know the witnesses Mak and Leung.

101. He was surprised that Mdm Ng was able to write her full signature so clearly and completely in the Will. He thought that it was absolutely impossible for her to have done so in September 2011 (or 29 August 2011) because of her serious rheumatoid arthritis.  Since the beginning of 2011, the joint of her right thumb had bent outwards and hardened.  The thumb could not touch the index finger and could not hold chopsticks.  She had to use her index and middle fingers to hold a spoon to feed herself.  She also could not write.  Since the beginning of 2011, she had given up signing her signature and had used her chop mark or thumb print instead. 

102. Mdm Ng used to frequent Nethersole Hospital for treatment.  He requested the hospital for medical records of the rheumatoid arthritis on her thumb. Unfortunately such records were not available and the hospital provided the four written consents of Mdm Ng referred to above. 

103. The defendant also enquired with the Bank of China and the Hang Seng Bank Ltd. for records of signature of Mdm Ng.  He said that the documents showed that Mdm Ng just used her chop mark in place of her signature since 2011.  (That is however an inaccurate statement.  The mandate given by Mdm Ng’s to these banks stipulated that the accounts should be operated by her chop mark only.  Hence, the documents evidencing her operation of the accounts all bore her chop marks only.  The only document that she could have signed but only bore her chop mark was an account opening form dated 7 September 2011.) 

104. In cross-examination, he repeated Mdm Ng’s difficulty in using her right thumb.  He maintained that she could not have signed the Will as she could not hold a pen.  She also stopped her habit of practising calligraphy at the old people’s centre.

105. When the defendant was shown a letter purportedly signed by Mdm Ng and addressed to the IO dated 21 June 2011, he said the signature was a forged one.

106. Regarding the unauthorized occupation of the Property, he said he had discovered it in April to May 2012.  In those months when he passed by Jade Plaza at about 7:00 pm every day, he looked up and saw lights coming out from the Property.  He went upstairs and heard the sound of people living in the Property.  The caretaker upon his enquiry also told him that there were people living in the Property.  But he had not thought of pressing the door bell and enquire with those living in the Property on who were they and how come they could live in the Property.  He also knew that he and P1 had the keys to the Property, but he was then not on speaking terms with P1.  Hence, he did not enquire with P1 on who was occupying the property.

107. Regarding his application for the letters of administration, he said he had been to the Property to search for a will of Mdm Ng but in vain. Hence, he affirmed that Mdm Ng did not have a will.

108. Regarding the sale of the Property, he also said that he had looked for the title deeds and documents in the Property, but in vain. Hence, he made a statutory declaration saying that the deeds and documents had been lost.  He then completed the sale on that basis.

109. His case on the Will is simply that it is a fake as Mdm Ng could not write.  He confirmed in clear terms that Mdm Ng had the mental capacity to make a will and could have made one if she should have desired to do so.  She was an authoritative person who would not have been influence to make a will.

Tsang Yin Ping (曾燕萍)

110. Yin Ping was Mdm Ng’s eldest child.  She married Man Fai in 1975 and emigrated to Canada in 1994.  Man Fai was a legal executive in law firms until 1996 when he joined his family in Canada.  Members of the Tsang family always consulted Man Fai on their legal problems. 

111. Yin Ping and Man Fai returned to Hong Kong in June 2011.  They had lunch with Mdm Ng in a restaurant.  P1 and Ida Chiu were present.  Yin Ping noticed that Mdm Ng was using a spoon instead of chopsticks to eat.  Mdm Ng said that her right hand and feet had been affected seriously by rheumatoid arthritis for sometime. The hospital gave her some holly cream, but that only relieved her pain, it could not cure the illness.  For that reason, she needed a wheelchair in going out.  She also could not close her right thumb to hold chopsticks or a pen.

112. When Yin Ping and Man Fai were on the way back to Canada, Man Fai told Yin Ping that Mdm Ng had asked him what she should do to give her estate to her children.  Upon being told that she intended to give her estate to all her children in equal shares, Man Fai advised her that there was no need for her to do anything as the law would carry out such a wish in absence of a will made by her.

113. Yin Ping also said in oral evidence that Mdm Ng would not have made the Will as she could not write and could not hold chopsticks.

114. Yin Ping denied that Mdm Ng had ever told her that Mdm Ng would give the Property to P2 or both P1 and P2. She also denied that she had suggested to P2 over the phone that P2 could rent the Hoi Pa Street flat for use as his residence if he should come back to Hong Kong but the Property should be sold.

115. In cross-examination, Yin Ping said that Mdm Ng was very careful about her money.  She was very proud of her investment results.

116. Mdm Ng had also told her in the beginning of 2011 that Mdm Ng could not hold chopsticks and had stopped practising calligraphy as she could not write.

117. She also confirmed that there was nothing to suspect that Mdm Ng had mental problem.

Mok Man Fai

118. Before leaving Hong Kong, Man Fai had from time to time handled legal matters for the Tsang family.  Even after his emigration to Canada, P1 and Ida Chiu still phoned him often regarding legal matters.

119. In June 2011, he and Yin Ping returned to Hong Kong.  They had lunch with Mdm Ng.  P1 and Ida Chiu were present. He noticed that Mdm Ng was using a spoon to eat.  She said that her right thumb could not close to hold chopsticks because her rheumatoid arthritis had become worsened.  She was known to have the rheumatoid arthritis problem in her feet and then her right hand for quite sometime.  She said the hospital only gave her holly cream to relieve her pain, but it could not cure the problem.

120. After P1 and Ida Chiu had left, Mdm Ng asked Man Fai how she could deal with her estate after her death. She would like to distribute everything to her five children in equal shares.  Man Fai said that she did not need to do anything as the succession law would give her estate to all her children in equal shares if she died intestate. 

121. Man Fai further had also told Mdm Ng that if she needed to distribute her estate other than in equal shares, he could arrange a solicitor to prepare a will for her.  The will should be prepared and witnessed by a solicitor to avoid dispute in future.  Mdm Ng was happy with his answer.

122. Man Fai said he could not believe that Mdm Ng would have changed her mind by giving everything to the 3 sons to the exclusion of the defendant and Yin Ping.

The issues

123. Ms Wong set out in §7 of her closing submissions three major issues as follows:

i. Have the Plaintiffs proved that there was due execution of the Will?

ii. Have the Plaintiffs proved that Mdm Ng was of testamentary capacity?

iii. Have the Plaintiffs proved that Mdm Ng knew and approved of the contents of the Will?

124. There is a further issue of whether the Will was signed by Mdm Ng or her signature on it was forged by someone.

Criticisms of the evidence adduced by the plaintiffs’ evidence

125. Ms Wong made a number of criticisms on the credibility of the plaintiffs’ witnesses.

126. For P1, she referred to his evidence that when he showed the draft of the Will to Mdm Ng about a week before 29 August in the presence of Ida Chiu, Mdm Ng pointed at Ida Chiu and directed her inclusion as a witness. However, Ida Chiu said in evidence that it was P1 who asked her to be a witness and the request was made by P1 on the day of execution.

127. Though there is this conflict between P1 and Ida Chiu, P1 was corroborated by Leung who said in cross-examination that he had been to Jade Plaza twice to act as a witness in Mdm Ng’s making of a will.  The first occasion was about a week before 29 August and he did not go up to the Property as P1, after having gone up to the Property, told him that his mother wanted to include Ida Chiu as a witness and the Will was not ready.  Hence, Leung and Mak had to go there again.

128. Ida Chiu had also said repeatedly that the event happened too long ago and she was unable to answer a few questions because of lack of memory.  I also find it unlikely that Ida Chiu was only asked to be a witness in the morning of the day when the Will was to be executed as her name and identity card no. had already been typed in the Will.

129. Furthermore, this is only a minor conflict in evidence. Bearing in mind that the event took place about four and half years ago, some discrepancy can be expected.

130. Ms Wong then submitted that P1 was unable to recall whether Mdm Ng was the first one to sign on the Will.  I think this criticism is unfair.  P1 at first did have some hesitation on whether Mdm Ng was the first to sign.  However, after making an effort to recall the matter, he said clearly that he firstly corrected the error that he was the 2nd son, then passed the Will to Mdm Ng who was the first to sign on it.  I therefore do not agree that P1 was unable to recall that Mdm Ng was the first person to sign the Will.

131. Ms Wong then referred to Mdm Ng’s disability in her right thumb which bent outward.  She submitted that Mdm Ng must have held the pen in an awkward manner and took some time to sign her full name.  But then none of the three attesting witnesses mentioned any peculiar manner in which Mdm Ng had signed her name.

132. Though these witnesses did not described that Mdm Ng had signed slowly, P1 did say in §17 of his witness statement that Mdm Ng had spent about 1 minute in signing the Will.  Furthermore, Mdm Ng’s purported signature on the Will (p 368) clearly shows that it was written stroke by stroke and should have taken sometime to compose.  This signature is similar to her undisputed signatures on the consent form given to the Hospital Authority on 13 December 2010 (p 405) and three bank withdrawal slips all dated 27 November 2010 (pp 444 – 446) in that they were all composed by an unsteady hand stroke by stroke.  In contrast, her undisputed signatures made on 21 May 2003 (p 432-1) and 13 April 2005 (p 426) on bank documents appeared to have been written by a more skilful and steady hand in a much more cursory fashion.

133. Ms Wong, in order to buttress her argument on Mdm Ng’s inability to sign on 29 August 2011, made a distinction that Mdm Ng was able to sign in 2010 but not so in 2011.  I do not agree that a line can be drawn on 31 December 2010.  Mdm Ng’s problem with her right thumb did not come into being all of a sudden.  It developed gradually.  P1 said that Mdm Ng’s thumb problem was referred to expert medical care in beginning of 2010 and a date had been fixed in July or August 2011 for an operation on it.  Ms Wong accepted this in her submissions. Owing to the thumb problem, Mdm Ng’s signatures in November and December 2010 all revealed an unsteady hand of the signatory.  I have also mentioned above that the appearance of these signatures are similar to the one in the Will.

134. Ms Wong then referred to Ida Chiu’s ignorance of the alleged declaration of intent by Mdm Ng at family dinner gatherings that she would give the Property to P2.  I would not be surprised if Ida Chiu should have heard of but forgotten about it as she did say several times that she could not recall some of the matters as they happened too long ago.

135. Ms Wong also pointed to Ida Chiu’s inability to recall who changed the Chinese character “二” (two) to “三” (three).  But that again is a minor detail.  The important matter to consider is her evidence overall and how does that tally with the evidence given by the other witnesses.

136. Ms Wong’s next point is on the conflict between P1 and Ida Chiu on who actually reported the change of lock to the police and whether it was the change of the lock of the letter box or of the entrance to the Property.

137. It is however the evidence of Ida Chiu and Leung that P1 only came to the scene after he had been told by Ida Chiu on the phone about the change of lock.  P1 also said that he had not taken part in the dialogue between Ida Chiu with the police officers but was standing aside.  It also appeared from the evidence of Ida Chiu that she had made the report to the police on P1’s suggestion. Putting the evidence of P1, Ida Chiu and Leung on this incident in context, I do not think there is any serious conflict.  This is particularly so bearing in mind that the event occurred in September 2012.

138. Ms Wong also said that P1 had said at one time that he had kept the Will at home but at another time he said he had kept it in a safe-deposit box at a bank.  However, I do not think P1 had said that he had kept the Will at home.  He merely said that he had kept the Will.

139. Ms Wong then referred to the evidence of Leung and submitted that his timing of events was not right.  Leung said that he arrived at the Property at about 10:00 am.  He also said that it took about half an hour to complete the execution of the Will.  He then left.  But Ms Wong referred to his witness statement where he said it was about noon when he left the Property.  In fact, Leung was consistent on this as he said the same thing in cross-examination. He had probably forgotten about the chatting after the execution of the Will as deposed to by Mak.  This again is a minor detail that does not have a significant effect on the overall picture.

140. Ms Wong also criticised Leung of being inconsistent on whether he was acquainted with Mdm Ng.  Leung said in his witness statement that he knew Mdm Ng.  But he said he had not been to the Property.  When asked to explain the difference, he said there was a previous occasion when he talked to Mdm Ng on the phone after he had given some snack prepared by his mother to Mdm Ng.  This again is a small point and can assume little significance in the evidence of Leung overall.

141. Ms Wong also referred to the conflict of evidence between P1 and Mak.  Mak said in his witness statement that he was unemployed at the time when P1 arranged with him for the date for execution of the Will.  P1 however said in oral evidence that he had to fix a date with Mak as Mak had to seek leave from his employer.  I however consider that even if Mak was then unemployed, it was still convenient to fix a date in advance.  P1 and Mak were also consistent as they both said that the date of execution was fixed a few days beforehand.  I also note that the date of the Will is typed in the Will.  This date must have been fixed beforehand.  P1 might just have forgotten the reason for fixing the day beforehand and gave the wrong one.  This again is of little importance.

142. Ms Wong also pin-pointed at Mak’s omission about the first visit to Jade Plaza about a week before 29 August when the Will was not executed because Mdm Ng wanted to include Ida Chiu as a witness.  I would however note that this event was mentioned by P1 and Leung only in cross-examination and not in their witness statements.  Mak was not asked about it and he did not mention it.  I do not think Mak’s omission of this event is of significance.

143. Ms Wong also referred to the discrepancy between P1 on the one hand and Leung and Mak on the other with regard to how the party had dispersed after the execution of the Will.  P1 said that the three men went downstairs to the café whilst Leung and Mak said that they went their own way afterwards. This is a discrepancy, but is on a peripheral matter that was not mentioned in the witness statements and probably not in the focus of their memory.

144. Ms Wong also submitted that Mak said that he had been in the Property for over an hour, but he could only say that the living room was very small and could recall nothing else.  Bearing in mind the time lapse, I do not think this is surprising.  I would instead note that P1 and the three attesting witnesses all said that the place was small and only Mdm Ng was seated while everybody else was standing.

145. The next discrepancy referred to by Ms Wong is Mak’s answer in cross-examination that Mdm Ng and the three witnesses all used the same pen in signing the Will.  When the Will was later inspected, it was found that whilst the signatures of Mdm Ng, Mak and Leung all appeared to have been signed with the same black ball pen, Ida Chiu’s signature was written with a blue ball pen.  This is a discrepancy but it at least shows that Mak did see the black ball pen having been passed from one person to another.  Furthermore, this matter was raised in Mak’s cross-examination.  It is again not a matter of core importance and the long time lapse is again a factor not to be overlooked. 

146. Ms Wong also referred to a letter dated 3 August 2012 (pp 466-467) from the defendant’s then solicitors and a reply dated 19 August 2012 signed by Tat Chi (pp 468-469).  This letter was supposedly sent by the solicitors to advise some unknown occupier of the Property that the defendant was the administrator of Mdm Ng’s estate having all the power to manage and dispose of the Property and to threaten the unknown occupier with legal action.  A copy of the letters of administration was enclosed in the letter.  Tat Chi’s reply was to dispute the defendant’s entitlement to administer the estate of Mdm Ng.  Tat Chi further said in the reply that he had evidence of Mdm Ng’s direction on disposal of her assets. 

147. There are discrepancies between P1, P2 and Tat Chi on who collected the solicitors’ letter, who gave it to Tat Chi and whether Tat Chi had discussed this letter and his reply with P1 and P2.  But this exchange of letters is of very peripheral importance.  I do not think the plaintiffs and Tat Chi had borne them in the forefront of their minds.  This explains the discrepancies.

Findings of facts

148. I am of the view that the evidence of the plaintiffs’ witnesses on the execution of the Will on the whole is consistent. P1 had made two appointments for the execution because Mdm Ng decided on the day of the first one to include Ida Chiu as an additional witness.  The Will was then executed on 29 August.  Before the Will was executed, P1 had read out and explained it to Mdm Ng.  There was indeed not much to explain as the only direction by Mdm Ng was to give the Property to P1 and P2.  P1 also corrected the Chinese character “二” (two) to “三” (three) in the course of his reading out and explanation.  He then passed the Will to Mdm Ng who read it before signing.  The three attesting witnesses were present and witnessed her signing it.  The witnesses then signed their names on the Will as well.

149. I find that all three attesting witnesses are straight forward witnesses.  They were responsive and gave clear answers in cross-examination. Bearing in mind that the event took place at the end of August 2011, some discrepancies in their evidence would be inevitable.  I find that they are honest and truthful witnesses.  I do not believe that they would have conspired together to forge this will of Mdm Ng by signing as false attesting witnesses and then came to court to give false evidence that there was the event of execution of the Will by Mdm Ng. I reject the defendant’s criticisms of their evidence.  I accept their evidence on the execution of the Will.

150. Regarding the evidence of P1, P2 and Tat Chi, I also find that on the whole they are reasonable.  I accept that they are honest witnesses despite the minor discrepancies in their evidence.

151. I find that Mdm Ng had on previous occasions indicated her desire to give the Property to P2, her youngest son as she had provided financial assistance to the defendant, P1 and Tat Chi in purchasing their residence but had not done so for P2.  P2 also does not own any residence in Hong Kong.  He only has a ¼-interest in the Hoi Pa Street flat.

152. The defendant and Yin Ping said that they had not heard of Mdm Ng’s intention of giving the Property to P2.  I reject this expressly. I think they said this to cast doubt on whether the direction in the Will was indeed the intention of Mdm Ng.

153. If Mdm Ng should have asked Man Fai in June 2011 on how to make a will and told him that she intended to give her assets to her children equally, I think Mdm Ng was just trying to be pleasant by saying to Man Fai that she would not leave anything to his wife Yin Ping.  I find that her intention was to give the Property to P2.

154. Mdm Ng asked P1 to draft the Will for her to carry out her intention.  P1 then prepared the Will which she executed on 29 August.

155. Regarding the rheumatoid arthritis on Mdm Ng’s right thumb, that was already a significant problem in early 2010 as the Hospital Authority had devoted expert medical care to it.  That problem however did not prevent Mdm Ng from signing her bank withdrawal slips in November 2010 and a medical consent form in December 2010.  These signatures looked similar to the signature said to be hers in the Will.  I think when P1 said Mdm Ng was still signing her name in bank documents in 2011, he might have recalled the signatures that Mdm Ng signed in November 2010.

156. I accept P1’s evidence that though Mdm Ng’s right thumb had rheumatoid arthritis that made it difficult for her to use chopsticks in eating or a pen in writing, she was still able to and did use these instruments. The fact that Mdm Ng could not sign in August 2011 as skilfully and smoothly as she did in 2003 and 2005 can be seen from her signature on the Will which was composed by an unsteady hand stroke by stroke and her signatures she signed in November and December 2010. 

157. Regarding the medical consent forms that Mdm Ng signed with her right thumb prints in February, April and August 2011, they show that she could still use her right thumb despite the arthritic problem.  It was not beyond her control.  However, I can well understand that she would have used her thumb print to indicate consent if it was acceptable for the purpose intended.  The same applied to her opening of a bank account on 7 September 2011 when the use of her chop mark was sufficient.  However, her having used her thumb print and chop mark in place of her signature on these occasions did not mean that she could not have signed her name.  I hold that Mdm Ng was able to sign her name on 29 August though with an unsteady hand and with some difficulty. 

158. Having considered all the evidence, I find that Mdm Ng did sign her signature on the Will at the Property on 29 August in the presence of P1 and the three attesting witnesses.  It could well be that she wanted to sign her full name to avoid any argument on whether it was her will. 

159. I also find that the letter dated 21 June 2011 (p 355) addressed to the IO was signed by Madam.  This signature has a similar appearance to her signature in the Will.  I also find that there was no need for her signature in this letter to be forged as the letter was merely a request for an appointment with the IO to sort out their disputes over management and refurbishment fees. P1 could have signed his name to represent Mdm Ng. 

160. Ms Wong said that this letter was not signed by Mdm Wong as the defendant had said that Mdm Wong did not want to argue with the IO on management fees for the reason that the caretakers were very nice to her.  I disagree with Ms Wong and reject the defendant’s evidence on this matter.  All the children agree that Mdm Wong had command of all her affairs.  She was careful with her money and proud of her investment gains.  She was an authoritative person too.  In the light of all these, I cannot imagine how a sum of over HK$100,000 of outstanding management and other fees could have been charged on the Property contrary to Mdm Ng’s intent.

161. I also reject the defendant’s evidence that there was at any time after Mdm Ng’s death that the Property was occupied by an unknown person.  If there was, I cannot imagine why he would not have pressed the door bell of the Property and enquired who was the occupier and how did he get into the Property.  The defendant made up this story to justify his changing the locks of the letter box and the entrance to the Property so as to bar the access of P1, P2 and Tat Chi thereto after he had secretly applied for and obtained the letters of administration.  He then sold the Property secretly to defeat the intention of Mdm Ng to leave it to P2.

162. If the defendant was acting honestly in applying for the grant of letters of administration and/or selling the Property, he would not have done so without letting any of his brothers know about it.  Even if he was unhappy with P1 who, on his evidence, had told him that Mdm Ng had left no money to him, there was no reason for him to have kept P2 and Tat Chi in the dark about what he intended to do.

163. In the premises, I reject the evidence adduced by the defendant in so far as it is in conflict with the evidence adduced by the plaintiffs. 

The legal principles

164. Section 5 of the Wills Ordinance, Cap. 30 provides for the requirements of formal validity of a will:

“(1) …, no will shall be valid unless-

(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction;

(b) it appears that the testator intended by his signature to give effect to the will;

(c) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time; and

(d) each witness either-

(i) attests and signs the will; or

(ii) acknowledges his signature,

in the presence of the testator (but not necessarily in the presence of any other witness),

but no form of attestation shall be necessary.”

165. The legal principles governing the propounding of a will is well settled.  They have been set forth by Ribeiro PJ in the judgment of the CFA in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387 at paras 171 to 173:

“G.2 The burden of proof when a will is propounded

171. A person who propounds a will has the legal or persuasive burden of satisfying the court that it is the will of the deceased: Barry v Butlin (1838) 2 Moo PC 480; Robins v National Trust Company Limited [1927] AC 515; Wintle v Nye [1959] 1 WLR 284 (HL).

172. The standard of proof is the balance of probabilities. The proponent of the will must show on a preponderance of the evidence that it is the will of the deceased: Worth v Clasohm (1952) 86 CLR 439, 453; Fuller v Strum [2002] 1 WLR 1097, 1120.

173. This means that the proponent of the will has the persuasive burden of proving on a balance of probabilities that:

(a) there was due execution of the will;

(b) the testator was of testamentary capacity; and,

(c) the testator knew and approved of the contents of the will.

(Barry v Butlin (above); Harmes v Hinkson [1946] 3 DLR 497 (PC))”

166. On the second issue of testamentary capacity, Williams, Mortimer & Sunnucks, Executors, Administrators and Probate (20^th edn) states at para 13-03:

“For a will to be valid:

(1) The testator’s mind must be sound to be capable of forming the testamentary intentions embodied in the will;

(2) The testator’s memory must be sound to recall the several persons who ought to be considered as his possible beneficiaries; and

(3) The testator’s understanding must be sound so that he may comprehend their various ties with him by blood or friendship, and their claims on these or other grounds upon his testamentary bounty.”

167. In addition, Banks v Goodfellow, LR 5 QB 549 at 565 also provide that:

“It is essential to the exercise of such a power that a testator

(1) shall understand the nature of the act;

(2) and its effects;

(3) shall understand the extent of the property of which he is disposing;

(4) shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural facilities – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

168. Ms Wong in her closing submissions referred to the “golden rule” mentioned by Templeman J (as he then was) in Kenward v Adams (1975) The Times 29 November 1975 as follows:

“In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfied himself of the capacity and understanding of the testator, and records and preserves his examination and findings.

There are other precautions which should be taken. If the testator has made an earlier will this should be considered by the legal and medical advisers of the testator and, if appropriate, discussed with the testator. The instructions of the testator should be taken in the absence of anyone who may stand to benefit, or who may have influence over the testator.

There are not counsels of perfection. If proper precautions are not taken injustice may result or be imagined, and great expense and misery may be unnecessarily caused.” (emphasis added).

169. Regarding the third issue of the testator’s knowledge and approval of the contents of the Will, in the usual case if the propounder of the will can prove due execution and testamentary capacity, there is a rebuttable presumption that the testator knew or approved of the contents of the will.  Ms Wong, however, submitted that there are suspicious circumstances in this case which excite the suspicion of the court, so that knowledge and approval should not be presumed.  She also relies on the second rule in Barryv Butlin.  She submitted that the court should be vigilant and jealous in examining the evidence in support of the Will.  The plaintiffs must satisfy the court affirmatively that Mdm Ng knew and approved of the contents of the Will.   

170. Ribeiro PJ has examined the second rule in Barryv Butlin in §§ 204 to 221 of Nina Kung.  The parts relevant to this case are:

“G.9 The second rule in Barry v Butlin

204. The influence of the second complication was much more profound in the courts below. In Barry v Butlin (1838) 2 Moo PC 480, Parke B set out two rules which have since repeatedly been referred to:

‘These rules are two; the first that the onus probandi lies in every case upon the party propounding a Will; and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable Testator.

The second is, that if a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased.’ (at 482-483)

205. The first rule, which allocates the persuasive burden to the person propounding the will, is not controversial. However, the second rule, which refers to a requirement that the proponent of the will remove or dispel “suspicious circumstances” has bedevilled the approach to the evidence in the courts below. An understanding of the scope of that rule (referred to here simply as “the second rule”) is therefore essential. …

206. As noted above, the person propounding the will has the burden of proving due execution, testamentary capacity and the testator’s knowledge and approval of the will’s contents. It is, and was at the time Barry v Butlin was decided, well-established that proof of the first two conditions generally meant that knowledge and approval would be rebuttably presumed without the need to adduce affirmative evidence thereof. …

…

208. The particular circumstance introduced in Barry v Butlin involved the fact that “a party writes or prepares a Will, under which he takes a benefit”. The second rule states that such circumstance ought generally to excite the suspicion of the court, so that knowledge and approval is no longer presumed. Instead, the court demands affirmative evidence which it subjects to a “vigilant and jealous” examination, refusing to pronounce in favour of the will unless satisfied that it expresses the true will of the deceased. …

209. It is therefore important to note that Parke B was not seeking to create a general rule imposing a burden on the proponent “to dispel suspicious circumstances surrounding a will”. His Lordship was careful, in Barry v Butlin itself, to stress that the second rule was concerned with proof of knowledge and approval, that it did not automatically apply and that it did not displace the usual rules concerning the burden of proof. …

…

211. … A modern authority helpfully summarising the position is Fuller v Strum[2002] 1 WLR 1097 (CA).

(a) Having referred to the doctrine of “the righteousness of the transaction” as a salutary one, Peter Gibson LJ continued in the following terms:

‘But ‘the righteousness of the transaction’ is perhaps an unfortunate term, suggestive as it is that some moral judgment by the court is required. What is involved is simply the satisfaction of the test of knowledge and approval, but the court insists that, given that suspicion, it must be the more clearly shown that the deceased knew and approved the contents of the will so that the suspicion is dispelled. Suspicion may be aroused in varying degrees, depending on the circumstances, and what is needed to dispel the suspicion will vary accordingly. In the ordinary probate case knowledge and approval are established by the propounder of the will proving the testamentary capacity of the deceased and the due execution of the will, from which the court will infer that knowledge and approval. But in a case where the circumstances are such as to arouse the suspicion of the court the propounder must prove affirmatively that knowledge and approval so as to satisfy the court that the will represents the wishes of the deceased. All the relevant circumstances will be scrutinised by the court which will be ‘vigilant and jealous’ in examining the evidence in support of the will: Barry v Butlin (1838) 2 Moo PC 480 at 483 per Parke B.’ (at 1107)

(b) Chadwick LJ stressed the continued applicability of the usual rules on the burden and civil standard of proof and the need to understand references to removing suspicions in that light:

‘...... there is no basis for an approach that requires, in all cases, that a person propounding a will which he has prepared, and under which he takes a benefit, must satisfy the court by evidence which excludes all doubt -- or by evidence which excludes all reasonable doubt (the standard of proof required in criminal proceedings) -- that the testator knew and approved the contents of the will. The standard of proof required in probate proceedings (as in other non-criminal proceedings) is satisfaction on the preponderance (or balance) of probability. But the circumstances of the particular case may raise in the mind of the court a suspicion that the testator did not know and approve the contents of the document which he has executed which is so grave that, as Viscount Simonds observed in Wintle v Nye [1959] 1 WLR 284, 291, it can hardly be removed.’ (at 1121)

(c) Longmore LJ put the point simply as follows:

‘The vigilance and jealousy of the court is directed to being satisfied that the testator did know and approve the contents of his will; no less but also no more.’

(at 1123)”

171. In a nut-shell, when the circumstances are such as to arouse the suspicion of the court as to whether the testator knew and approved of the contents of the will, the second rule in Barry v Butlin applies. There is then no presumption of knowledge and approval of the will by the testator upon discharge of the burden of proof on due execution and testamentary capacity, but that the person propounding must prove on a balance of probability that the testator knew and approved of the contents of the will.  All relevant circumstances will be scrutinized by the court in the exercise.

Analysis and finding on due execution or forgery of the Will

172. I have accepted the evidence of P1 and the three attesting witnesses of Mdm Ng’s execution of the Will and the attestation by the witnesses.  Their evidence shows that there was due execution of the Will by Mdm Ng per section 5 of the Wills Ordinance and in the presence of the three attesting witnesses.  I therefore find that the plaintiffs have proved on a balance of probability the due execution of the Will by Mdm Ng.  Based on this evidence, I also find that the defendant has failed to prove on the same standard that Mdm Ng’s signature on the Will is a forged one.

Analysis and finding on testamentary capacity 

173. Ms Wong submitted that Mdm Ng was aged.  She was 80 years old when she executed the Will.  The family dinner to celebrate her birthday took place just a few days before that.  Ms Wong also referred to her serious illnesses. She had diabetes, end-stage renal problem and rheumatoid arthritis.  She died on 1 October 2011 of end-stage renal failure and diabetic nephropathy (p 390). 

174. Ms Wong referred to the “golden rule” by Templeman J in Kenward v Adams and submitted that there was no medical practitioner to witness and approve the Will.

175. She also referred to the plaintiffs’ further and better particulars (p 65) and P1’s witness statement (§7 at p 89) that Mdm Ng’s intent was for P1 to act as a trustee of the Property for the benefit of P2.  She also referred to P1’s evidence in re-examination that Mdm Ng wanted P1 to assign the Property to P2 when P2 reaches 60.  She submitted that the Will gave the Property to P1 and P2 absolutely.  Hence, it did not spell out Mdm Ng’s testamentary intent as the real intent was not to give P1 any beneficial interest of the Property. Ms Wong submitted that P1 had failed to explain why the Will did not state that he was just to look after the Property for P2 and to assign it to P2 when P2 reaches 60.

176. Ms Wong also submitted that it was extremely dubious for P1 to have disclosed only in re-examination that Mdm Ng wanted him to assign the Property to P2 when P2 reaches 60.  But I do not see anything dubious.  This evidence obliges P1 to divest even his legal interest in the Property to P2 at a future date.  That does not change P2’s beneficial interest in the Property, nor would it affect the position of the other siblings.

177. Though Mdm Ng was aged and suffering from serious illnesses, I find that her mental faculty was not affected.  It is the evidence of her children including the defendant and Yin Ping that she would not be influenced to make a will.  She was still an authoritative person in command of her affairs. The evidence of the attesting witnesses also shows that in the morning of 29 August, she behaved normally.  She also read the Will before signing it.  In the light of the plaintiffs’ evidence, I find that Mdm Ng had a sound mind and was capable of forming the testamentary intention in the Will.  Though she gave the Property to P1 and P2, she had in 2010 already explained that she was going to give it to P2 absolutely and the reason for her doing so.  The evidence also shows that the only significant asset yet to be disposed of was the Property.  Apart from that, she only had some HK$10,000 odd in a bank account in her sole name.

178. Regarding the discrepancy between her oral testamentary intent as relayed by P1, P2 and Tat Chi and her bequeath in the Will, I agree with Mr Vaughan that she should have regarded the bequeath in the Will sufficient for her purpose as P1 was included as a beneficiary of the Property so that P2 could not sell it.  There is the clear evidence of P1 and the attesting witnesses that the simple bequeath of the Will had been read and explained by P1 to Mdm Ng who had also read it by herself before signing.  This evidence shows that Mdm Ng was happy with this bequeath. 

179. Ms Wong also criticised P1 for not giving evidence on how he had explained the Will to Mdm Ng.  Given the very simple bequeath in the Will, P1’s reading it out to Mdm Ng would have conveyed its meaning clearly.  I do not think there was anything else that needed explanation.  Though P1 did not say how he had explained the Will to Mdm Ng, in the light of the fact that Mdm Ng had also read the Will by herself before signing, I find that Mdm Ng had no problem in understanding her bequeath.

180. In the premises, I find that Mdm Ng had the testamentary capacity on 29 August 2011 to make the Will despite no evidence by a medical practitioner.

Analyses and findings on knowledge and approval of the Will

181. Ms Wong referred to some so-called suspicious circumstances in §§76 to 112 of her closing submissions and submitted that grave suspicion of the Court ought to be aroused.  Hence, knowledge and approval should not be presumed even if I should find for the plaintiffs on due execution and testamentary capacity.  I should scrutinise the evidence for the Will with vigilance. The suspicious circumstances referred to are:

1. The Will does not represent Mdm Ng’s testamentary intent in that it provides for P1 and P2 to be the beneficiaries of the Property when her intent was just for P1 to be the trustee looking after the Property for the benefit of P2 and he should assign the Property to P2 absolutely when P2 reaches 60;

2. P1 and P2 received a substantial benefit in that they are the beneficiaries of the Property;

3. The Will was prepared by P1 from drafting to picking witnesses and P1 arranged its execution by Mdm Ng, but P1 did not seek help from Man Fai;

4. P1 has a close relationship with all the witnesses as Ida Chiu is his wife and Mak and Leung are his good friends; and

5. P1 concealed the Will from his brothers and sister both before and after the death of Mdm Ng until his solicitors disclosed it to the defendant in November 2012.

182. I however note that Order 76 rule 9(3) Rules of the High Court provides that: “any party who pleads that at the time when a will, the subject of the action, was alleged to have been executed the testator did not know and approve of its contents must specify the nature of the case on which he intends to rely …”. 

183. The particulars pleaded by the defendant in support of the plea that the Will is a fake are:

1. The defendant had dinner and chatted with Mdm Ng on everything everyday.  But she never said that she had made the Will;

2. the Will was not disclosed to him until after 7 November 2012 by the plaintiffs’ solicitors; and

3. Mdm Ng would not have signed her name as in the Will because she was then using her thumb print instead. 

184. There is no particular pleaded that relate to the discrepancies between the Will and Mdm Ng’s so-called real testamentary intent. I will not deal with this issue.  In fact, this issue has been dealt with above in another context.  Nevertheless, it was P1 who prepared the Will from scratch and took a benefit from it.  I therefore will not presume that Mdm Ng had knowledge and approved of the Will.

185. Regarding the drafting and preparation of the Will, Ms Wong submitted that P1’s failure to consult Man Fai and the reason for the failure was dubious.  P1 said that if Man Fai was in Hong Kong, he would have consulted Man Fai.  Man Fai emigrated to Canada in 1996.  Man Fai’s evidence is that P1 had consulted him on legal matters when he was in Hong Kong and also during the first few years after he had moved to Canada.  This evidence shows that P1 had not consulted him for over ten years before the drafting of the Will.  That lends weight to P1’s evidence on why he did not consult Man Fai on the Will.

186. Ms Wong commented that P1 and P2 were the beneficiaries of the Property absolutely.  However, the evidence of P1 and P2 explains that Mdm Ng had wanted to give the Property to P2 with P1 as the co-legal owner to look after it as P2 did not own any residence in Hong Kong and Mdm Ng had assisted his brothers to acquire their residence.

187. Ms Wong then commented that all three attesting witnesses were close to P1 and none of them was a professional and independent witness.  That may be so.  I have however found that these witnesses are truthful and reliable. All children of Mdm Ng have also confirmed that she would not have been influenced by others to make a will.

188. Ms Wong then said that P1 had concealed the Will from his siblings both before and after Mdm Ng’s death.

189. The Will belonged to Mdm Ng.  Before her death, if she did not direct disclosure, I see no reason why P1 should have disclosed it even to his siblings.  This was particularly so when Mdm Ng was an authoritative person having her own affairs under her command.

190. Mdm Ng passed away on 1 October 2011.  Ms Wong submitted that if P1 indeed had the Will with him, he would have disclosed it at Mdm Ng’s funeral.  But I do not find the funeral parlour a particularly suitable place for production and inspection of a will of the deceased.

191. The plaintiffs’ case is that P1 disclosed the Will to his brothers at the Property after a Chinese New Year gathering at a restaurant in the evening of 5 February 2012.  That was the first occasion after the funeral that the four brothers gathered together.  I hold that P1 did not purposely conceal the Will after Mdm Ng’s death.  I also do not think there was any delay in its disclosure by P1 in the evening of 5 February 2012.

192. It is the defendant’s case that the Will only appeared for the first time in November 2012.  That is factually incorrect even on the defendant’s case.  Even ignoring P1’s production of the Will in the evening of 5 February, the Will was enclosed in a letter dated 26 September 2012 by P1 and P2 to the Probate Registry of this court seeking to set aside the letters of administration granted to the defendant (pp 372-392).

193. Having considered all the criticisms against the plaintiffs’ evidence, I am of the view that these criticism are all on minor details of events that took place a few years ago or matters of mere peripheral significance. The plaintiffs’ case on the whole is still intact despite these criticisms.  I find that the plaintiffs have proved on a balance of probability that Mdm Ng had knowledge and approved of the Will immediately before she signed it on 29 August 2011.

Judgment

194. I have found for the plaintiffs on all relevant issues. I therefore order that the letters of administration issued to the defendant on 10 July 2012 under Grant No. 5819 of 2012 be revoked.  I also grant the plaintiffs the letters of administration of the estate of Mdm Ng with the Will annexed.  I pronounce and decree in solemn form for the Will.  I also order the defendant to provide an account to the plaintiffs of his prior administration of the estate of Mdm Ng showing all the sums belonging to the estate which include the net proceeds of the Property.  I further order the defendant, after rendering the account, to pay such sums (less the net proceeds of the Property) to P1 and P2 as administrators of the estate but to pay the net proceeds to P2.  I declare that the defendant is holding such sums including the net proceeds on trust for the plaintiffs as administrators of Mdm Ng’s estate pending payments of the same to P1 and P2.  I further direct the defendant to pay to P2 the said sum of HK$2,077,441.95 kept in the defendant’s account at Hang Seng Bank Ltd. (pp 340-341) as part of the net proceeds of the Property. I make this order for direct payment because P1 has undertaken to the court in the course of the trial that in the event of the plaintiffs succeeding in this action, he would ask for an order of direct payment of the net proceeds by the defendant to P2. 

195. The plaintiffs have an alternative prayer for damages to be assessed for breach of duty of trustee by the defendant.  However, I do not see any evidence of damages save the sale of the Property.  I also consider the payments made by the defendant to the IO upon sale of the Property as proper payments as there is nothing to suggest that the claims of the IO were not justified.  I therefore make no order for damages to be assessed.

Costs order nisi

196. Regarding costs, I make a costs order nisi that the defendant do pay the plaintiffs the costs of this action to be taxed.  The costs of the counterclaim have been dealt with in the course of the trial.