LAW CHUN FU v. LO CHEN SENG

1986 No. P3

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PROBATE JURISDICTION

------------------

-----------------

JUDGMENT

-----------------

1. In this Probate Action, the validity of two alleged testamentary instruments is called in question. The late Luo Yin Hai executed a will in a Hong Kong firm of solicitors on the 9th November 1983. His signature and attestation are not challenged. In other words, due execution of this 1983 will before a solicitor is not disputed. The deceased allegedly signed a testamentary document in the Chinese language in Guangzhou on the 27th April 1985, some seventeen and a half months later. The plaintiff is the sole beneficiary under this 1985 will. The defendant's son is the sole beneficiary under the will executed in 1983. I shall call them "the 1983 Hong Kong Will" and "the 1985 Guangzhou Will" respectively.

2. The central issue is the mental testamentary capacity of the deceased at the time of these instruments. The Court is asked to pronounce for or against their validity.

3. It was agreed that as a beneficiary under the 1985 Guangzhou Will which is later in time, procedurally the plaintiff must begin.

4. There has been litigation in Guangzhou directly or obliquely on some of the questions posed for my consideration. At this trial, the parties did not seek to take advantage of any adjudication in those extra territorial proceedings. No point was taken that not all the parties interested on intestacy were joined.

5. In essence, the plaintiff's case is that the 1985 Guangzhou Will is a valid testamentary instrument and therefore has the effect of revoking the earlier 1983 Hong Kong Will, either on its own or as a codicil to it, and alternatively, that if the deceased had not possessed the mental capacity to make a will in April 1985, he would not have been mentally fit for making the 1983 Hong Kong Will seventeen and a half months earlier, hence total intestacy.

6. The defendant attacks the validity of the 1985 Guangzhou Will on the grounds that the plaintiff has failed to prove (1) its due execution, (2) the deceased's competent mental capacity as at April 1985 and (3) the deceased's knowledge and approval of its contents. As for due execution, the formality of execution in Guangzhou is admittedly acceptable under our law. The defendant merely demands strict proof that the deceased did sign the 1985 Guangzhou Will. The Court is urged by the defendant to pronounce against the validity of the 1985 Guangzhou Will or, if the 1985 Guangzhou Will were to stand, to admit to probate both instruments, the 1983 Hong Kong Will and the 1985 Guangzhou Will. The effect of this will be, so argues the defendant, that the 1985 Guangzhou Will revokes only the disposition of the Hong Kong property, leaving the residuary estate of the late Mr Luo to be distributed on intestacy.

7. Under the 1983 Hong Kong Will, the defendant was named the only executor and the entire net estate of the deceased, wheresoever situate, was to devolve upon the defendant's son. The 1985 Guangzhou Will sought to bequeath to the plaintiff only the decased's Hong Kong flat in Chau's Building. The deceased was a widower and a flat in Guangzhou was purchased in the name of his late wife. According to the defendant, the deceased laid claim to half of this Guangzhou flat. The deceased was known to have a bank account with a passbook. Photostat copies of some pages of the passbook have been produced as Exhibit "D3". The extent of the deceased's estate is not a matter for investigation in this Probate Action. Reference is made to these possible entitlements to illustrate the likelihood of a residuary estate after the Hong Kong property.

8. The full text of the 1985 Guangzhou Will is set out Below:

 

"After I Lo Kim Hoi (Luo Yin Hai) die, my only son Law Chun Fu (Luo Zhen Fu) may inherit my property situate at Block 8, 5th Floor, Chau's Building, No. 4 Siu Wo Street, Tsuen Wan, Kowloon, Hong Kong and has the right to reside in and to possess. Other persons are not allowed to have any objection or to attempt to encroach upon. Words of mouth is no proof; this document is made as evidence. "

9. The document carries a signature "Luo Yin Hai" with a heavy thumb print over it. There was another thumb print over the date of 27th April 1985 and the characters "at Guangzhou". The name "Luo Zhen Fu" was also lightly thumb-printed. The 1985 Guangzhou Will was said to have been witnessed on the same day by the son-in-law of the deceased, Zhou Wei Jian, at his request.

10. On the 13th June 1985, a month and a half after the 1985 Guangzhou Will, the deceased died in Guangzhou. On the 19th February 1986, probate was granted of the 1983 Hong Kong Will. As executor, the defendant was seeking to terminate the plaintiff's occupancy of the Hong Kong property. In resisting eviction, the plaintiff relied, inter alia, on the 1985 Guangzhou Will. Consequently, the 1983 Hong Kong Will has been called in and is now being, lodged with the Registry. Thus, for the 1983 Hong Kong Will the defendant is also put to proof in solemn form of law after probate has been taken in common form.

11. At the conclusion of this probate Action, this Court shall have to pronounce either for or against each of these instruments in solemn form of law.

12. As for legal principles applicable, counsel on both sides are of one voice. The mental testamentary capacity at any given time, i.e. sound disposing mind, must be such "that three things must exist one and at the same time :

13. Needless to say that the testamentary instrument must be signed by the deceased and witnessed by way of due attestation and that the testator must be aware of and approve its essential terms. See para. 905 at p. 476 Halsbury Laws of England 17, 4th Edition.

14. Under our law, a person is presumed to be of sound disposing mind. However, where an alleged testamentary document is questioned, once there is prima facie evidence of mental incapacity, it would be incumbent upon the person propounding the will to prove it in solemn form, and the Court's assistance is sought to pronounce for its vailidity. "While there must be a vigilant examination of all the evidence, if the Court feels there is no doubt substantial enough to defeat the grant of probate, the grant must be made. Complete proof of capacity or even proof beyond reasonable doubt is not essential." Pages 27 and 28 Williams on the Law of Wills, 6th Edition. If the will is couched in irrational terms, the initial presumption of sound disposing mind would likely be affected. See Cartwright v. Cartwright ⁽³⁾. With evidence of a prevailing mental disease, a transient lucid interval may exist for a will to be validly made. "To establish the existence of a lucid interval, it is not necessary to prove complete mental recovery. It is sufficient if it is shown that the testator understands that he is making a testamentary disposition and what is required of him in making the disposition and that any delusion from which he is still suffering does not affect such dispostion. A person may suffer from intermittent insanity and perhaps the burden of proving a lucid interval is then less than where it is sought to prove an isolated interval." See pages. 28 and 29 Williams on the Law of Wills, 6th Edition.

15. As for medical evidence, where a conclusion on the state of mental health of a person is drawn from information supplied without any specialist clinical investigation, it would be more susceptible to error of judgment. Whereas family members "can only contrast the doubtful cases with the sane, the physician has at hand the alternative contrast with the isane." It is therefore difficult to assess the real value and function of medical evidence in the instant case. See para. 891 at p. 468 17 Halsbury's Laws of England, 4th Edition.

16. In these proceedings, the Court was given the report of Dr. Graham of the Haven of Hope hospital, Dr. Ng of the Geriatric Unit of Princess Margaret Hospital, and Dr. Chiu of the same Unit. None of these doctors is a mental health specialist. Dr. Chiu elaborated his report in a Statutory Decoration as he is presently attending the Part II Examination of the Royal College of physicians in United Kingdom. The parties called a Neurosurgeon, Dr Stroff and a Psychiatrist, Dr. Chen to assist the Court with their respective opinions formed on information supplied by the litigants, witnesses, statements and medical reports.

17. Next I turn to the Luo family, with a running commentary on the main events. I shall then deal with the physical condition and mental condition of the late Luo Yin Hai separately, but it must be recognised that these symptoms may not always be mutually exclusive.

18. The late Luo Yin Hai was a widower. His wife pre-deceased him in 1969 in Indonesia. The deceased left surviving him five children, two sons and three daughters with a number of grand-daughters but one grand-son. The eldest child of the deceased was Luo Hwa Qing who is in Indonesia. The defendant, Luo Zhen Sheng is second in seniority but the elder of the two sons. The plaintiff, Luo Zhen Fu, is next. The other two daughters are both in Guangzhou. Luo Yur Qing does not live in the Guangzhou flat now registered in the name of her late mother. The youngest daughter, Luo Len Qing lives in that Guangzhou flat with her husband, Zhou Wei Jian. The only grand-son is the son of the defendant, and he is Luo Bin. The same romanization of these names is adopted in this judgment for the ease of reference.

19. The defendant returned to China from Indonesia for education and stayed on to work before he came to Hong Kong. The deceased was displeased with the defendant's move to China as he had hoped to depend on him for his Indonesian business. The plaintiff also went to China to be educated for some months before he returned to Indonesia. In or about 1961, the deceased and his wife visited China. Apparently, they soon returned to Indonesia. The plaintiff came to Hong Kong in 1972. The defendant came here in 1973 with his wife and family. In 1974, the deceased came to Hong Kong and for about 8 months he stayed with the defendant and the plaintiff after the Hong Kong flat in Chau's Building was purchased in September 1975. The deceased came to Hong Kong permanently in or about 1979. The business in Indonesia was wholly left to the eldest sister. Despite the defendant's denial, I accept that the deceased requested contributions from both brothers by way "rental". $500 per month was to come from the plaintiff and $300 from the defendant. The plaintiff was then single and his requested contribution was higher. I derive much support from an entry in the deceased's diary at p. 17 of the Agreed Bundle, to which I shall return later. In between 1976 - 1978, the deceased returned to Indonesia for, inter alia, a wife of the plaintiff. He selected one to whom the plaintiff married in 1978. From this union, there are only daughters. The defendant has daughters and a son, Luo Bin. There are two bedrooms in this flat in Chau's Building. Previously, the deceased shared a bedroom with the plaintiff and the defendant's family occupied the other one. After the plaintiff's marriage in 1978, the deceased moved out to the living room.

20. The deceased was a careful and meticulous man with a very traditional outlook. He could be quite brutally assertive as can be seen in some of his remarks in his letters. He was orthodox. He preferred his grand-son to grand-daughters. He took exception to the plaintiff's then gambling habit. The plaintiff's more care-free attitude often caused unintended irritations to the deceased. The defendant charged that at one time the deceased solicited his assistance to have the plaintiff evicted. On the other hand, as a settled family man the defendant seemed to have a more steady life-style having little friction with his father.

21. On the 1st January 1979, the defendant vacated from his bedroom and moved into a wooden but acquired together with his wife's brother at Fu Yung Hill. Only two days before his move, did the defendant break the news to his father. The deceased was said to have objected to the impending separation and become very angry with the defendant. In the latter part of 1981 or early 1982, the defendant moved to a Resettlement Estate at Sek Yam Chuen. In 1984, he moved to Sek Tao House at Shek Wai Kok Government Housing Estate. The wooden hut at Fu Yung Hill was up on the hillside. Sek Yam Chuen is far from Chau's Building, although served by a direct public transport route. The Sek Wai Kok Government Housing Estate is quite close to Chau's Building, within half an hour's walk.

22. The plaintiff contracted tuberculosis. He claims to have been cured in 1980. In 1983, his tuberculosis revived with enough intensity for him to be admitted into the Ruttonjee Sanitorium. He was discharged in March/April 1984. During his confinement, the plaintiff's wife obtained social welfare assistance and was from time to tine subsidized by the deceased.

23. The relationship between the deceased and the plaintiff's wife was less than amicable. It was hotly debated whether she had at all accused her father-in-law of indecent assault. In any case, on one occasion, the wife of the plaintiff reported to the police of beating, by her father-in-law. From 1983 to early 1984, the plaintiff was himself away from home for his tuberculosis treatment except for the time when his father was reported lost. Thereupon he took a day's leave the next morning and located his father in a hospital. On his discharge from Ruttonjee Sanitorium, the plaintiff stayed at home but his wife went out to work.

24. After a series of ailments in Hong Kong, the deceased was taken by the plaintiff and the defendant to Guangzhou on, according to the youngest sister's statement, the 26th February 1985. The Hong Kong Will had been executed. In fact, it was, processed on the 9th November 1983 in a firm of solicitors. On the 27th April 1985, the deceased allegedly signed the 1985 Guangzhou Will. The deceased died less than two months later on the 13th June in Guangzhou.

25. The deceased was indeed angry with the defendant, so the plaintiff maintains, but for a different reason. The plaintiff's version is that the plaintiff was thrown out of the family home for his suspension of "rent" contribution and possibly also "pocket money" and that the deceased had no known subsequent contact with the defendant apart from the rare telephone conversations after the eldest sister's mediation on her visit in 1982. The plaintiff also claims that but for one occasion, the defendant never visited the deceased at Chau's Building and that the strained relationship with the defendant continued to deteriorate until the deceased's death.

26. After the deceased was taken to Guangzhou to live with his youngest daughter, his conditions allegedly improved, though still weak. The deceased was said to be wholly disappointed with the defendant and the grand-son for paying him no money or visit, for having pressured him to assign over to the defendant the Guangzhou flat, for having taken away his savings and for having manipulated him into executing the 1983 Hong Kong Will in favour of Luo Bin.

27. For and by the plaintiff, what transpired on the 27th April 1985 was described as follows : the deceased condemned the defendant as "very unfilial" and asked for paper and pen. The plaintiff agreed in his cross-examination that the deceased's hand was trembling. In any case, the deceased was said to be too weak to write but have to dictate what was faithfully recorded down in the 1985 Guangzhou Will by the plaintiff. If the deceased had sufficiently regained his faculties to be the author of such a dictated instrument, his knowledge and approval of its contents could not have been a live issue. Upon completion, the deceased read it over at close range, without glasses a number of times and thereafter signed his name and thumb-printed the document. The son-in-law Zhou Wei Jian was asked to witness the will, which he did. Instructions were given by the deceased that the will should not be shown to anyone except for the Hong Kong Authority.

28. The plaintiff obeyed such instructions and only told his wife about the will immediately upon the death of the deceased. But the plaintiff testified that disclosure of the existence of the will was made for the first time not to his wife but to a Mr Chan, a Tsuen Wan District Board member in March 1986 subsequent to his receipt of the letter before action from the defendant's solicitors dated the 17th March 1986.

29. Statements from two gentlemen I accept as scientific experts in their respective field were adduced. One of the thumb-prints has been identified as sharing 12 ridge characteristics, in agreement and in sequence, with those in the deceased's right thumb. The signature examiner also took the view that line quality of the questioned signature was natural, smooth and fluent giving no obvious sign of forgery. However, he drew attention to the existence of dissimilarities and the fact that the signature of the deceased was extentively covered by a black thumb-print blurring details of its structure. The signature examiner also faced the difficulties created by lack of adequate controlled samples for comparison, the time gap of at least 4 years between the controlled and questioned specimens and the undisciplined handwriting of the deceased. The examiner's conclusion is that "it was possible that the disputed signature and the samples were written by one and the same person but the degree of certainty is only about 55%. "

30. No evidence was adduced as to whether the signature examiner had been forewarned that the deceased had a trembling hand and allegedly preferred not to write out but to dictate the 3 1/2 lines in Chinese characters. The signature examiner does not seem to have been invited to comment on these matters and his conclusion may not therefore be wholly satisfactory.

31. The defendant's version is that far from being evicted, the father became angry at the news of the defendant's imminent departure and made an attempt to retain the grand-Son and that it was in fact a well-planned withdrawal as demonstrated by his part acquisition of the hut. The defendant recounted how, after a cooling period, the deceased managed to climb the hill and visit him in the wooden hut about once a month some seven months after his vacation. In the Sek Yam Chuen Resettlement Estate, the father's visit was said to have become more frequent, though in cross examination, the defendant conceded such visits as rarely, in fact only 4 to 5 times in all. The Sek Yam Chuen Resettlement Estate is at a considerable distance from Chau's Building but served by a direct public transport route. After the final move to the Shek Wai Kok Government Housing Estate in 1982, within half an hour's walking distance from Chau's Building, the defendant claims that his father paid him daily visit at about 9:00a.m. and stayed for lunch with the grand-son until January 1984 when the father chose to keep away because his tuberculosis had become more acute. The deceased was suspected to be suffering from lung disease in August 1983 and was issued a medical card, but it was not until October or November 1983 when tuberculosis was confirmed by further X-ray.

32. In November 1983, the deceased returned to Guangzhou attending to documentation of the Guangzhou flat. He had earlier executed the 1983 Hong Kong Will. The plaintiff was then a patient of the Ruttonjee Sanitorium. The defendant claims that as a result of a surprise message from a firm of solicitors to the defendant through iris wife, he took the juvenile Identity Card of Luo Bin to the solicitors office in which the 1983 Hong Kong Will was executed and that thereafter, he accompanied the deceased to the nearby premises of Madam Chan Ngan Ying, sister of the defendant's wife, for the use of her lavatory. The 1983 Hong Kong Will together with other documents of title as well as the travel document and death certificate of the late mother were allegedly given by the deceased to the wife of the defendant for safe-keeping.

33. One or two days later on the 12th November 1983, the deceased left for Guangzhou. There was certain outstanding balance to be paid for the Guangzhou flat. Registration document of the Guangzhou flat was issued at the end of November in the name of the late mother. The father returned to Hong Kong on the 18th November. By the time of the defendant's return, he was allegedly told by the deceased that he had started taking drugs for tuberculosis. Soon thereafter, due to reactions to drugs community nursing service was provided to the deceased until his admission into the Haven of Hope Hospital in March 1984.

34. The defendant described his attendance on the deceased as follows : in early January, weak in the legs the deceased could still manage to set foot outside Chau's Building for meals, but the defendant saw fit to deliver home-cooked lunch and supper to him once everyday. The defendant then worked mid-shift, and his daily visit was from 9:00a.m. well into noon. The plaintiff was then receiving treatment in hospital. At or about this time, the father was found lost at, least twice. Shortly after, in mid March the deceased was admitted into the Haven of Hope Hospital and was not discharged until nearly 6 months later in September 1984. From then on to February 1985, the plaintiff resumed bringing food to the deceased between 8 - 9a.m. daily. The defendant constantly met the plaintiff and some members of his family in Chau's Building. The deceased entered hospital for a short spell in January 1985, suffering from pneumonia. On the 1st February 1985, the father was re-admitted into hospital for pneumonia again plus further deterioration. This time it was the Princess Magaret Hospital. After his discharge in mid February, his condition was poor and was ultimately despatched to Guangzhou.

35. I pass then to the father's physical conditions at various times. Mr Lim came from Indonesia and speaks Hakka. He and the defendant worked for Philips in 1980. In 1981, Mr Lim gave the defendant a hand in his move from the wooden but in Fu Yung Hill to the Resettlement Estate. He saw the deceased in Good condition, helping the defendant with loose ends. The deceased spoke to and understood Mr Lim in Hakka. Subsequently in 1983, when the defendant secured accommodation in the Sek Wai Kok Government Housing Estate, the defendant was living quite close to Mr Lim. The deceased often met and talked to Mr Lim in the garden outside the Estate. At the end of 1983, the deceased "looked very high-spirited" and mentioned to Mr Lim that he had made a will and praised Mr Lim for his well-earned promotion. Of course, the deceased just had his tuberculosis confirmed, but nevertheless the making of a will was probably still a good cause for elation. The relationship between the deceased and Luo Bin was good, as observed by Mr Lim who witnessed purchases of garments and shoes for the grand-son. The deceased was often seen in the company of Luo Bin. Mr Lim met the deceased 10 - 20 times up to the end of November 1983, always carrying an umbrella. The sister of the defendant's wife, Madam Chan, recalled the deceased's visit in October/ November 1983 for the use of her tiolet and his passing comment that his heart was more at ease as he had made a will for Luo Bin. The deceased had then good bladder control. In Chinese New Year of 1984, Madam Chan again met the deceased in the defendant's home in the Sek Wai Kok Government Housing Estate. The deceased was then appeared to be suffering from no apparent disabilities. One week or two later, when the deceased was met by Madam Chan in the street in the morning, he was seen carrying an umbrella or a cane. Madam Chan at one time described the deceased as being supported by something and in her evidence, she gave the impression that the deceased needed assistance. She said that she entertained the thought of offering to escort the deceased home but that she discarded it as she was herself well preoccupied. The deceased had earlier been issued with a medical card for suspected lung disease around August 1983. His tuberculosis was confirmed in November. According to the defendant, before the confirmation the deceased flatly refused to take medicine, but he started to do so after his return from Guangzhou on the 18th November 1983 and suffered from it. At the beginning of 1984, the deceased was said to talk less and tired more easily, having often to close his eyes to rest; he was for forgetful and misplaced items in the flat; he experienced urine incontinence complaining that he had not enough time to make it to the lavatory. I have already set out the defendant's evidence of the deceased's visits : The deceased was a frequent visitor until January 1984. The deceased was found lost in early March 1984 and again a little later. In "Ching Ming" around March/April of 1984, the deceased was observed by Mr Lim in poorer health, but it caused no alarm because Mr Lim described his condition as still being quite good. At about this time, the deceased had the service of a community nurse three times a week and he was suffering from reactions to drugs resulting in double incontinence requiring more extensive nursing care. The deceased was finally admitted into the Haven of Hope Hospital on the 16th March 1984 until the 3rd September 1984. His general condition was still fair but he had various health problems. On the 26th May 1984 he fell and broke his left leg. Between 28th May to 8th June 1984, he was operated on in the United Christian Hospital. The defendant testified that the deceased was able to recognise and talk to him in hospital but that after his operation, on one occasion, in the presence of a nurse, the deceased seemed to have some visual hallucination and tried to draw the defendant's attention to his youngest sister "playing in a beam". Back to Haven of Hope Hospital, the deceased was said to have mistaken the defendant as his brother on one visit Mr Lim and Luo Bin both corroborated the defendant's evidence. From the deceased's discharge on the 3rd September 1984 to the 1st February 1985, the deceased stayed at home receiving out-patient treatments from facilities in South Kwai Chung. The defendant described the deceased as physically extremely weak during this period : the deceased could still feed himself but with a trembling hand and difficulty; he was no longer able to bathe himself or dress unaided; he remained sedentary most of the day time; he did not seem to feel hunger and his double incontinence persisted.

36. On the 14th of November 1984, the deceased was referred to South Kwai Chung Geriatric Out-patient Department and was seen by Dr Ng. The referral was made by the South Kwai Chung Chest Clinic who observed that "the wishes of his family (were) to send him to an old age home". The deceased was referred to the South Kwai Chung Day Hospital on the 26th of November 1984 "because of dyspnoea and decrease in mobility". The decease improved and could walk again by himself.

37. Finally, on the 1st February 1985 the deceased had to be admitted into Princess Margaret Hospital where he stayed until the 18th February 1985. His condition further deteriorated. According to Mr Lim : the deceased was unable to recognise him; he looked bemused, perplexed; he was dull and inactive and did not respond. The defendant and Luo Bin shared the same experience. When the deceased was discharged, the defendant and Luo Bin described his condition as worsening : the deceased was unable to speak to them nor did he give any sign that he could recognise them; hedid not respond; he was very thin and pale; he could not walk and "looked bewildered and puzzled".

38. The father was taken to Guangzhou in a wheelchair. The defendant and Luo Bin told the Court that at the railway station the deceased was unable to respond and appeared to be completely lost as to what was happening to or around him. In her statement, the youngest sister agreed that the deceased was "extremely weak" when returned to Guangzhou.

39. Even the plaintiff agreed that after the deceased's discharge from the Princess Margaret Hospital on the 18th February 1985, he had a poor memory but that sometimes he brought up past events, which "baffled" him. The plaintiff also conceded in cross-examination that during the journey to Guangzhou, the deceased did not say or do anything to indicate that he was aware of his return to Guangzhou. However, the plaintiff's wife claimed that before his departure for Guangzhou, the deceased was quite aware that he was returning to China for treatment.

40. What progress the deceased allegedly made in Guangzhou is largely given in the statement of the youngest sister: the deceased was spoon-fed three times a day and he improved; he could pick up chopsticks for his meal; he was able to recall past events; he was feeling happier and was at one time able to recognise and comment on her dress, a gift from the deceased. The youngest sister also related to the various anxieties of the deceased and anger expressed by him at or about the defendant and Luo Bin. The plaintiff and his wife visited the deceased but agreed that they had no discussion with him.

41. Lastly, I deal with the medical history. In August 1983, a medical card for lung disease was issued to late Mr. Luo Yin Hai. In November 1983, his lung disease was confirmed to be tuberculosis and chronic obstructive airway disease by the South Kwai Chung Chest Clinic. In or about March 1984, the deceased was found lost and ended up in a hospital. After the discharge of the plaintiff from Ruttonjee Sanitorium in March or April 1984, the deceased was again found lost and was relocated in a police station. At about this time, he received community nursing service three time a week. Due to his reactions to drugs and double incontinence, he was admitted into the Haven of Hope Hospital on the 16th March 1984 to the 3rd September 1984. His general condition was good but with evidence of chronic obstructive airway disease and minor senile dementia. He was 76 and also suffering from asthma in addition to tuberculosis. There was a need for the deceased to be given drugs to improve his cerebral function. He had several episodes of increased dyspnoea and such breathing difficulty was primarily due to the chronic obstructive airway disease. The deceased was found to be suffering from hypertension. There were minor cerebro-vascular accidents. All these would impede the oxygenation of the blood. Dr Graham of the Haven of Hope Hospital suggested that the deceased was suffering from "senile dementia probably due to cerebral atheromatous changes" i.e. fatty degeneration of the coat in brain blood vessels. The use of the term "senile dementia" based on these clinic symptoms has not been supported by Dr Chen. The symptoms reported do not seem to relate necessarily to mental health. I accept Dr Chen's observation as well founded.

42. Between 28th May to 8th June 1984, the deceased was treated for a broken left leg in the United Christian Hospital. After the operation, on one of his visits to the deceased, the defendant's attention was drawn by the deceased to his youngest sister "playing in a beam". Such provided evidence for visual hallucination. Later, after his operation and return to the Haven of Hope Hospital, in the presence of Mr Lim and Luo Bin the deceased failed to recognise the defendant but called him brother.

43. On the 14th November 1984, when the deceased was examinated by Dr Ng of the South Kwai Chung Geriatric Out-Patient Department, he had a history of double incontinence with activities of daily living mostly dependant on family members. He was on a referral to Dr Ng by the Chest Clinic for incontinence and senility. The "wishes of his family to send him to an old age home" was also passed on to Dr. Ng. He was treated for incontinence and was referred to the South Kwai Chung day Hospital on the 28th November 1984 "because of dyspnoea and decrease in mobility". According to Dr Ng, the deceased improved his mobility and could walk unaided and he was sent back to Dr Ng's Out-Patient Department for geriatrics, but such appointment was not kept.

44. During his examination on the 14th November 1984 by Dr Ng, the deceased was found to have a poor memory, suffering from dementia and chronic obstructive airway disease. In January 1985, the deceased was admitted into United Christian Hospital for treatment of suspected pneumonia. He was discharged after one week and became bed-ridden. On the 1st February 1985, he was admitted into the Princess Margaret Hospital as a "known case of dementia".

45. His admission into Princess Margaret Hospital was on account of "further deterioration in mental state and appetite". He was tested for his "mental faculty including those to check his level of memory and in collateral comprehension, ability of calcuation and verbal expressions." And he was found to be suffering chronic oxyganic brain failure with a low mental test score.

46. Dr Chiu of the Princess Margaret Hospital found him not to have improved and his mental state as remaining poor. Dr Chiu held the opinion that he deceased's potential for rehabilitation was low "both in mental capacity and physical function if his dementia was one of Alzheimer Disease. "

47. Dr Stroff was called by the plaintiff. From the deceased's expressed desires and reaction to events as given in statements from the plaintiff, the youngest sister and her husband, he concluded that at the time of the 1985 Guangzhou will, the deceased "was in control of at least some of his mental faculties", "not emotionally blunted (as seen in severe dementia); he could recall the English will and wanted it revoke; he was aware of the requirement of a witness to be present and was able to dictate the will." Dr Shroff laid stress on the ability to dictate.

48. Dr Sylvia Chen for the defendant came to a different conclusion on the medical history as given in the medical reports and the deceased's conditions as described by the defendant. In her opinion, the deceased was at an advanced stage of senile dementia and was virtually a vegetable even before he was returned to Guangzhou and therefore at the time of the 1985 Guangzhou Will, he was not of sound disposing mind.

49. The deceased last hospital admission in February 1985 was on account of "further deterioration in mental state" as "a known case of dementia". From the time he was given community nursing service in early 1983, the medical reports show a general course of gradual deterioration probably attributable to his old age, tuberculosis, asthma, chronic obstructive airway disease and minor strokes. From time to time he was suffering from pneumonia, hypertension and reactions to tuberculosis treatments. Tuberculosis drugs are known to be neuro-toxic. Dr Chen's conclusion is that it was demonstrably a patient affected by three dementias, senile dementia of the Alzheimer type (SDAT), dementia of the multi-infarct type and anoxic dementia, and further burdened by intervening disturbances to his health. Before mid November, 1984, the family had apparently enough and pleaded for the deceased to be taken in by an old age home. For his last Hong Kong hospital confinement in February 1985, on account of the deceased's occasional inability to find his way home, his "gradual memory loss" was noted by Dr Chiu. The deceased was admitted for, inter alia, "treatment of deterioration in mental alertness". He was tested and found to have "a low mental test score" His 17 days' hospitalization brought him "no improvement" "and his mental state remained poor". I accept Dr Chen as being more than justified in concluding, that the deceased suffered from global intellect impairment and was at an advanced stage of senile dementia.

50. Both Dr Chen and Dr Shroff agree that there can be no remission in advanced senile dementia, but Dr Shroff seemed to have worked backwards from the deceased's alleged conditions as given by some relatives. Dr Shroff's diagnosis is that on these alleged conditions of the deceased, he was not at an advanced stage of dementia in April 1985 and, judging retrospectively, he could not have reached that irreversible stage at any time in the past. It may therefore be said that Dr Shroff's conclusion will stand or fall with these alleged conditions. He also formed the opinion that if the deceased, had by then become wholly demented with generalized mental and intellectual impairment, as the disease of senile dementia is generally known to progress slowly, the deceased must have been at an advanced stage much earlier in time than 1983; hence on that hypothesis he could not have been of sound disposing mind merely some 18 months previously in November 1983 for the Hong Kong Will. It is to be appreciated that Dr Shroff's reconstruction was attempted from the deceased's alleged 1985 conditions while Dr Chen worked forward from the medical reports to the deceased's conditions as given by the defendant, which she found consistent with her evaluation of the reports.

51. Much capital was sought to be made by each counsel of the opinions expressed and the terms used by Dr Shroff and Dr Chen. On a fair analysis, I am unable to detect any real difference between the two doctors except in their conclusions.

52. As I shall endeavour to explain, the classification of "senile dementia" is unwarranted and inexact. "Lucid interval" is often inadvertently linked to "remission", and questions posed by counsel were understandably in very general terms. During this trial, the doctors focused on their principal themes and were at times unwary of counsel's liberal use of the fluid medical terms in this field. Both doctors share the same opinion that in advanced senile dementia, there could be no lucid interval. Dr Shroff maintains that in senile dementia of the Alzheimer type (SDAT), lucid intervals may occur at the early stages. I do not believe that the good doctor was speaking of remission truly in terms of a transient recovery. "The Organic Pychiatry - The Psychological Consequences of Cerebral Disorder" by Professor Willaim Alwyn Lishman, 2nd Edition was extensively referred to. The publication is revered by both doctors as "The Bible". At page 371, Professor Lishman laments over the "unfortunate" tendency to classify "senile dementia" "as a separate and distinct entity". Under this generalised term of "senile dementia" for all dementias setting in after age of 65, Professor Lishman describes five main groups :

(1) relates to diseased substance of the brain brought about by old age, (2) refers to dead brain cells in minute areas caused by reduction or stoppage of blood supply which in turn is brought about or aggravated by old age, (3) is a combination of the former two, (4) is dementia arising from other pathological causes in old persons and (5) deals with the normal degeneration or dealth of the brain cells as expected with age. Indeed, at p. 370, the Professor writes that multi-infarct dementia occurs both in the senile and pre-senial age ranges. But the Professor's five groups share a common denominator i.e. old age. Evidently, anything dead is dead and no transient recovery is possible after death. There can be no valid challenge to this observation of Dr Chen's. What was at times loosely described at this trial as lucid intervals in senile dementia of the Alzheimer type (SDAT) in earlier stages is a description of the symptom of improved brain function after treatment of intervening adversities which caused temporary impediment to the dying brain cells before they are totally dead.

53. Dr Chen acknowledges the fact that in the course of degeneration before any particular brain cells completely die, a patient could experience clouded moments. Sometimes functions of dying cells could be further taxed and over-burdened by various diseases causing added interference such as transient cerebral ischaemia or temporary deprivation of oxygen to the brain. The performance of the dying cells would obviously be further hindered. The removal of these intervening disturbances by treatment or medication would give the patient some apparent "lucid period" before the brain cells completely die. The "restoration" could not possibly revive the dying brain cells or enable the patient to function better than before the superimposing illnesses. That is what I understand Dr Shroff to have also, in essence, maintained.

54. On the findings I am about to make, whatever difference of opinion these two doctors hold cannot be a matter of relevance.

55. On the conditions of the deceased I have set out above, I prefer the evidence of the defendant. I have taken into consideration the defendants denial of his obligation or refusal to pay the deceased "rent". The defendant, I find, is untruthful on this aspect. The diary entry of the deceased on the 22nd June 1979 referred to a period of 40 months. At $300 a month that would make $12,000. The defendant was down as having paid $2,300, that would leave, as stated in the diary entry, $9,700 up to 30th December 1978. The second reference to the 30th December but for 1979 would probably be an error for a diary entry made on the 26th June 1979.

56. I accept that the defendant visited the deceased fairly regularly and attended to his food provisions. There have been exaggerations on both sides of service and care rendered to the ailing father, and the defendant is no exception. But the defendant did have good opportunities in observing the father's conditions at various times. I further accept that the father visited the defendant in all his three residences, daily for his last. Prior to the deceased became bed-ridden, the defendant, I find, did on week-ends contact the deceased by telephone from downstairs of the Chau's Building for walks. I also do not accept the defendant's and the grand-son's excuses for not visiting the deceased in Guangzhou.

57. There were discrepencies in the evidence of the plaintiff and his wife as to the father's spectacles, the hand-writing of the 1985 Guangzhou Will and the first disclosure of that instrument. These are not matters of crucial importance for testing the plaintiff's credibility.

58. But it would seem unreal that with his known temperament the deceased would not have also dictated a letter of reprimand to the defendant if he had been able to dictate a will. The defendant and his son had not seen the deceased for merely two months by the time of the 1985 Guangzhou Will, the father having returned to China on the 26th Febraury 1985. During, part of this period of two months, the deceased was allegedly spoon-fed from his "extremely weak" to improved condition. If the deceased had been capable of any rational thought, it would probably have been too drastic a measure to be expected of an orthodox endearing grandfather to have his only grandson completely disinherited. Even the plaintiff conceded that the deceased used to cherish the love and affection of Luo Bin.

59. The allegation of the defendant having fraudulently relieved the deceased of funds in the passbook has been, at least to a degree, rebutted by the production of photostats "D3" which contain entries from early 1984 to September 1984. Counsel for the plaintiff emphasized that the allegation relates to an earlier period. But with the account number given in "D3", there would have been no difficulty for the plaintiff to make proper enquiries and obtain bank documents to fortify such an allegation. Another equally wild allegation was made in respect to the Guangzhou property. In fact, instead of an alleged transfer to the defendant said to have been forced on the deceased, the Guangzhou property remains in the name of the late mother to-day. Moreover, the youngest sister in her letter Exhibit "D4" insisted herself that the matter should no longer be delayed but had to be concluded latest by the end of 1983. The plaintiff accused the defendant of having fed the deceased a whole day's medication in one dose and the defendant denigrated the plaintiff for his gambling habit and threat to leap from a building to force the father to sign over to him the Hong Kong property. These are matters of peripheral importance. In any case, I am unable to accept either as sufficiently proved.

60. The plaintiff's evidence that the father read the dictated version at close range and for a number of times was unsupported by the youngest sister. In her statement, the deceased read it over once. The plaintiff conceded that the deceased had a trembling hand but the signature has been certified to be natural, smooth and fluent. The questioned signature is heavily blurred by black ink. The 1985 Guangzhou Will is couched in terms that sound incredibly complex for a dying man in the condition of the deceased's, especially for a dictation even said to be slow. Moreover, the plaintiff himself does not understand what the characters "to possess" connote. There was no suggestion that the deceased ever faltered. The 1985 Guangzhou Will includes the precise address of the Hong Kong property in full. That does not seem to be very consistent with the deceased's past inability to find home. It is hard to accept that any sick old man of 78 - 79 could dictate such a will. I place no reliance on "my only son", the Chinese characters of which are open to possible other interpretation and could bear other meaning in the context of the instrument. The instructions not to disclose the will and the withholding of the 1985 Guangzhou Will until the letter from the defendant's solicitors seeking possession of the Hong Kong flat are equally intriguing. I have commented on the questioned signature. All in all, the making and execution of the 1985 Guangzhou Will is engulfed in a cloud of suspicion.

61. Madam Tong made the same allegation about the assignment of the Guangzhou flat. She recalled the deceased's visible sorrow over the sinking health of the plaintiff. If this had been true, it would have been almost unforgivable for the deceased never to attempt visiting the plaintiff in the Ruttonjee Sanitorium. It is an acknowledged fact that the deceased paid him no visit. Madam Tong's evidence is otherwise general and vague. She is no longer a young woman. She gives me the impression that she comes here with the deliberate intention of giving whatever support she could to the plaintiff.

62. I am particular impressed by the evidence of Mr Lin and the grandson as well as the sister of the defendant's wife, I find them all honest witnesses.

63. According to the defendant, upon his arrival at Guangzhou for the funeral of the deceased, the husband of the youngest sister, Zhou Wei Jian, had dinner with him. Observations were said to have been made by Mr Zhou. In my view, his remarks could only be understood as meaning that the plaintiff, the youngest sister and he had every opportunity of forging a will or other documents by obtaining the deceased's thumb-print but that they had not so misconducted themselves. I accept the defendant's evidence on this meeting as reinforced by that of his son. The necessary implication must be that there was then no will purportedly executed by the deceased in the possession of the plaintiff. This case falls to be decided primarily on evidence of the deceased's mental state, and the dinner conversation can take it no further.

64. There can be little doubt that when the deceased was finally admitted into the Princess Margaret Hospital between 1st February 1985 to 18th February 1985, he was in a very poor mental condition. From the evidence of the defendant and his witnesses I accept, the deceased was indeed, as Dr Chen described him, a vegetable before his return to Guangzhou. In my view, it could not have been possible for the deceased to have any lucid interval thereafter. The conditions of the deceased so given are wholly consistent with and reinforce the views expressed by Dr Chen on the medical reports. Dr Chen concludes that the conditions so described have taken her assessment of the deceased's mental state on the reports beyond argument. I accept Dr Chen's evaluation. When the father was being taken to Guangzhou in a wheelchair, the evidence even from the plaintiff is that he was utterly oblivious of the surroundings. I do not accept the statements from the youngest sister and her husband that the deceased had improved in China and was able to communicate or dictate a will. It has not been established to this Court, despite the Signature Examiner's opinion, that the deceased did sign the 1985 Guangzhou Will.

65. The plaintiff has failed to prove that the deceased was of sound disposing mind at the time of the 1985 Guangzhou Will. There is no therefore evidence to justify admitting the same to probate.

66. Dr Shroff's opinion is that he would have expected the deceased to be totally demented early in November 1983 if he was suffering from senile dementia and was a vegetable in September 1984 or February 1985.

67. Dr Chen expresses no surprise at the rapid degeneration for a man, like the deceased, suffering from three dementias and plagued by the intervening disturbances. From both sides of the fence, evidence was given that the deceased was well aware of the execution and contents of the 1983 Hong Kong Will. The deceased informed the defendant of it and disclosed the same to the defendant's wife, her sister, the grandchild and Mr Lim. Even the plaintiff testified that the deceased mentioned the 1983 Hong Kong will leaving all his estate to Luo Bin and that he regretted it on account of the alleged deception and misconduct of the defendant. According to youngest sister, the deceased discussed with her in confidence as to whether it "was reliable for Luo Bin to inherit the house in Hong Kong. " These assertions came from a period in which the deceased, as found by this Court, was wholly demented and regained no lucid interval, but the bare fact remains that both parties agree that the deceased knew of execution of the 1983 Hong Kong Will and approved of its contents.

68. Due execution of the 1983 Hong Kong Will has not been chanlleged. It includes a proper interpretation clause. The solicitor in attendance, Mr. Wong, would certainly not have allowed execution to proceed if he had not wholly satisfied himself that the deceased understood the contents of the document he was about to execute. I also accept the defendant's evidence as to its execution. The case of the deceased was indeed one of rapid deterioration, though I find that the deceased was of sound disposing mind at the time when the 1983 Hong Kong Will was executed.

69. If I were successfully persuaded to pronounce for the validity of the 1985 Guangzhou Will, I would accept Mr Cheung's submission that it would serve to divest the grandson of only the Hong Kong flat.

70. In the circumstances, only the 1983 Hong Kong Will is pronounced valid and I admit it to probate in solemn form of law. This Court doth pronounce against the validity of the 1985 Guangzhou Will. I so decree. Subject to what counsel have to say, the probate granted on the 19th February 1986 which has been called in and lodged with the Registry be released and returned to the defendant. I cannot part from this case without expressing my indebtedness to both counsel for their meticulous and full submissions. I make an order nisi for costs of this action and the Counterclaim be costs to the defendant and the plaintiff's own costs be taxed in accordance with Legal Aid (Scale of Fees) Regulations.

(1) (1870) L.R. 5 Q.B. 549 at pp. 565 & 569

(2) (1840) 13 E.R. 117 at p. 120

(3) (1793) 1 Phillim 90 at p. 100