TSO TAK LEE v. TSO CHUI YAN ADMINISTRATRIX OF THE ESTATE OF KAM YUK FUNG, DECEASED AND ANOTHER

HCAP 29/2012

[2024] HKCFI 1795

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 29 OF 2012

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J U D G M E N T

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THE DISPUTE

1.  The plaintiff in this action (“Tak Lee”)  is the sole executor and beneficiary named in the will dated 2 November 2001 (“Will”)  of his late mother, Madam Kam Yuk Fung (“Madam Kam”).

2.  By this action, Tak Lee seeks primarily to (1)  propound the Will and (2)  revoke the letters of administration (“Letters of Administration”)  of Madam Kam’s estate (“Mother’s Estate”)  issued on 21 April 2016 (under HCAG007080/2005)  to Tso Chui Yan (“Chui Yan”), Tak Lee’s elder sister and the 1^st defendant herein.

3.  The issue for determination is the substantive validity of the Will.  

4.  More particularly, Chui Yan and Chan Hing Lung (“Chan”), her husband and the 2^nd defendant herein (“defendants” collectively), question whether Madam Kam had the requisite testamentary capacity when she executed the Will.

5.  Other than disputing Madam Kam’s testamentary capacity when she executed the Will, the defendants initially also sought to bind Tak Lee to a written “agreement” (“Purported Agreement”)  entered into before Madam Kam’s death between her 5 surviving children (including Chui Yan and Tak Lee), whereby they purportedly agree to equally share Mother’s Estate between them.  In reliance on the Purported Agreement, the defendants originally contended in paragraph 13 of their amended defence that Tak Lee was “estopped proprietarily and/or promissorily” from denying the binding effect of the Purported Agreement.  However, it has since been formally conceded in paragraphs 321 and 385 of the written closing submission of Mr Sky Cheng an Mr Ryan Sheung, counsel for the defendants, that the Purported Agreement is invalid.

6.  Further, Chui Yan gave evidence that she had made payment(s)  to Tak Lee pursuant to the Purported Agreement.  However, there is no counterclaim for the return of Chui Yan’s alleged payment(s)  to Tak Lee in case the Purported Agreement is found to be invalid.  That being the case, the ground of defence premised upon the Purported Agreement falls away completely.

BACKGROUND

7.  Unless otherwise stated, the following background is uncontroversial or indisputable.

The Tso family

8.  Madam Kam and her husband, Mr Tso Choi Kan (“Mr Tso”), had 6 children (“Children”)in the following order of seniority:

(1)  Tso Choi Chun (“Choi Chun”), eldest daughter;

(2)  Tso Tak Po Steven (“Steven”), second son;

(3)  Chui Yan, third daughter;

(4)  Lin Tso Yuen Ting Tina, fourth daughter;

(5)  Tso Choi Ngor (“Choi Ngor”), fifth daughter; and

(6)  Tak Lee, sixth and youngest son.

The Children, except Choi Chun (the eldest daughter)  who had predeceased Madam Kam, shall be called the “Surviving Children” when referred to collectively.

The Tso family home

9.  In the 1960’s, Mr Tso purchased in his sole name Flat D, 6/F, Lai Yuen Apartments, 61 Russell Street, Causeway Bay, Hong Kong (“Property”), which had since been used as the family home for Mr Tso, Madam Kam and the Children. 

10.  Mr Tso passed away on 5 March 1991 at the age of 77.  He left a will dated 28 August 1980, naming Madam Kam as the sole executrix and beneficiary of his estate (“Father’s Estate”).  However, Madam Kam died without proving Mr Tso’s will so that the Property remained registered in Mr Tso’s sole name until the voluntary transfer of the same to Chan by Chui Yan, purportedly as the administratrix of both Father’s and Mother’s Estates.

11.  The Children moved out of the Property one after the other on various dates. 

12.  Before November 2002 (when Madam Kam was moved into a nursing home), other than the 3 periods of hospitalisation mentioned below, Madam Kam lived on her own in the Property, without any full time or part time helper or carer. 

13.  In around November 2002, Madam Kam was moved into a nursing home where she stayed until her death on 19 September 2004 at the age of 87.

Madam Kam’s mental health history

14.  According to the medical records and documents kept by the Hospital Authority in respect of Madam Kam (“HA Records”), she was compulsorily admitted to the Pamela Youde Nethersole Eastern Hospital (“Eastern Hospital”)  for in-patient psychiatric treatment for the following 3 periods of time (“1^st Admission”, “2^nd Admission” and “3^rd Admission” respectively and “Admissions” collectively):

(1)  the 1^st Admission for 21 days from 7 to 27 June 2000;

(2)  the 2^nd Admission for 34 days from 12 October to 14 November 2000; and

(3)  the 3^rd Admission for 296 days from 13 November 2002 to 25 August 2003.

15.  Each of the Admissions followed an incident of disturbance created by Madam Kam.  For details, see [57] below.

16.  The diagnosis was delusional disorder of the persecutory type.  More specifically, Madam Kam harboured persistent and fixed delusion, without grounds, that various banks and persons had cheated her.

17.  Madam Kam had poor insight into her mental health.  

The Will

18.  The Will contained only 4 clauses, written in straightforward Chinese. It named Tak Lee as the sole executor and beneficiary of Mother’s Estate (which would include Father’s Estate, particularly the Property).  The Will reads as follow:

「我兹立最後遺囑如下

一. 我取消我以前的所有遺囑及有關安排，立下本遺囑，即最後遺囑。

二. 我指定曹得利爲本遺囑的執行人。

三. 我在香港的所有財產及可繼承或得到的其他財產，包括但不限于股份、股票、房產、現金、現款等動產與不動產，在扣除稅款和辦理後事費用以後，其餘額全部給我的兒子曹得利。

四.  我僅此聲明，我的居住地是香港，本遺囑受香港法律管轄，根據香港法律解釋。」

19.  Madam Kam executed the Will at the office of Chung & Kwan (“C&K”), solicitors, on 12 November 2001.  She did so in the presence of Mr Chung Pui Lam (“Mr Chung”)  and Mr Zhang Kang Feng (“Mr Zhang”), respectively the principal and a registered PRC lawyer of C&K, who then signed as witnesses.  There is no suggestion that the execution of the Will did not satisfy the formality prescribed by s 5(1)  of the Wills Ordinance (Cap 30).

20.  It can be seen that the execution of the Will took place right in the middle between the 2^nd and 3^rd Admissions or, more precisely, about 1 year after the 2^nd Admission and about 1 year before the 3^rd Admission. 

21.  In handling the execution of the Will, the solicitors regrettably did not follow the “golden rule” referred to by Templeman J in Kenward v Adams (1975)  The Times, 29 November 1975, which might have avoided the dispute over the validity of the Will.  See [39(4)] below. 

22.  A photocopy of the Will was then kept at the office of C&K after its execution. 

23.  As for the original copy, according to Chui Yan, the Will was placed inside one of the drawers at the Property (“Drawer”)  when she first stumbled upon it.  She had taken away the original copy of the Will from the Drawer in or around early 2003.  She did so without the permission or knowledge of Madam Kam or Tak Lee.  She subsequently discarded the Will in or around early 2011 while cleaning her residence for Chinese New Year.  

Chui Yan’s dealings in respect of Madam Kam and Mother’s Estate

24.  First, Chui Yan applied for, and obtained, an order by the Guardianship Board, appointing her as Madam Kam’s guardian for 1 year commencing on 18 June 2003.  Such appointment was subsequently extended for 3 years from 4 August 2004.

25.  Then, on 7 January 2004, upon Chui Yan’s application dated 13 December 2003 under HCMP 4355/2003, pursuant to Part II of the Mental Health Ordinance (Cap 136), Deputy High Court Judge To declared Madam Kam incapable of managing and administering her property and affairs and made an order appointing a committee of estate to manage and administer Madam Kam’s property and affairs and further appointing Chui Yan as a member of such committee.

26.  At the hearing of her said application, Chui Yan represented to the court that Madam Kam had not executed any will.  Such statement was to Chui Yan’s knowledge patently false because the original copy of the Will had, on her own admission, been in her possession since early 2003 when she found, and removed, the same from the Drawer.  Such representation was further contradicted by Chui Yan’s evidence in paragraphs 51 to 53 of her witness statement: (1)  that Madam Kam had made a number of wills at different times; (2)  that Chui Yan had seen 4 such earlier wills; and (3)  that Madam Kam had invariably bequeathed equal shares of her estate to all the Surviving Children. 

27.  Second, Chui Yan applied for and was granted the Letters of Administration on the basis that Madam Kam died intestate, which she knew to be untrue.

28.  Subsequently, purportedly as the administratrix of Mother’s Estate, Chui Yan also applied for letters of administration in respect of Father’s Estate with Mr Tso’s will annexed, which was granted on 12 March 2008 under HCAG007938/2004.

29.  On the authority of the letters of administration for both Father’s Estate and Mother’s Estate, on 20 December 2008, Chui Yan transferred the Property to Chan (her husband)  for no consideration.

BURDEN OF PROOF ON PROPONENT OF THE WILL

30.  A person who propounds a will has the legal or persuasive burden of proving on a balance of probabilities that:

(1)  there was due execution of the will;

(2)  that the testator was of testamentary capacity; and

(3)  that the testator knew and approved of the contents of the will.

31.  The proof of due execution and testamentary capacity would generally mean that knowledge and approval would be rebuttably presumed without the need to adduce affirmative evidence thereof.  See, for example, Nina Kung v Wong Din Shin (2005)  8 HKCFAR 387 at [171]-[173] per Ribeiro PJ.

32.  If someone wishes to dispute the validity of a will for want of due execution, testamentary capacity or the requisite knowledge and approval, that person bears an evidential burden of putting the relevant ground of challenge in issue.  If the evidence adduced by him or otherwise arising in the case is of sufficient cogency to raise such an issue, the court, when assessing the evidence as a whole at the end of the case, decides whether the proponent of the will has discharged the persuasive burden in relation to the relevant fact in issue on the balance of probabilities.  See again Nina Kung at [176] per Ribeiro PJ.

TESTAMENTARY CAPACITY

33.  In this action, the substantive requirement disputed by the defendants is Madam Kam’s testamentary capacity when she executed the Will.

34.  The classic statement of what testamentary capacity requires can be found in Cockburn CJ’s judgment in Banks v Goodfellow (1869-70)  LR 5 QB 549 at 565:

“It is essential to the exercise of such a power that a testator [1] shall understand the nature of the act and its effects; [2] shall understand the extent of the property of which he is disposing; [3] shall be able to comprehend and appreciate the claims to which he ought to give effect; and, [4] 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 faculties – 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.”

The third and fourth criteria have also been referred to as one limb.  

35.  In Re Estate of Au Kong Tim [2018] 2 HKLRD 864 at [45][1], Kwan JA (as the Vice President then was)  held that the following three questions should be asked in investigating testamentary capacity:

(1)  Was the deceased capable of understanding the nature of the act of making the will and its effects?

(2)  Was the deceased capable of understanding the extent of the property of which he was disposing?

(3)  Was the deceased able to comprehend and appreciate the claims to which he ought to give effect?

36.  In asking and answering these questions, the court should bear in mind the following:

(1)  The court does not require proof of actual understanding, recollection or comprehension.  

(2)  The court is concerned with the testator’s capacity to form the testamentary intentions embodied in the will, to recall the possible beneficiaries and to understand and comprehend their ties with him and the claims on his bounty.

(3)  The question is whether the testator was of sound mind, memory and understanding when he made the will.  The testator’s mind must be sound to be capable of forming the testamentary intentions embodied in the will.  His memory must be sound to recall the several persons who ought to be considered as his possible beneficiaries.  His understanding must be sound so that they may comprehend their various ties with him by blood or friendship and their claims on these or other grounds upon his testamentary bounty.

(4)  The court will look at the evidence to see what inferences can properly be drawn as to capacity.  This is not an easy task.  However daunting it may be, the court will always exercise its judicial acumen to examine all the circumstances to ascertain if the testator possessed the requisite testamentary capacity.  The court will give due regard to all the available evidence, factual and expert, and assess them in the overall context of the case.

See, for example, Chiu Man Fu v Chiu Chung Kwan Ying, HCAP 9/2005, unreported, 31 January 2012, at [65], [66] and [70] per Poon J (as the Chief Judge then was); and Lee Wai Ho v Fung Kui Chuen, HCAP 21/2011, unreported, 19 August 2014, at [20] per Mimmie Chan J.

37.  Even if, on the face of the evidence, it is shown that the testator was suffering from a mental illness (such as dementia), the crux of the matter is the severity of the illness and the extent to which the illness affected his testamentary capacity at the time when he executed the will.  See Choy Po Chun v Au Wing Lun [2012] 2 HKLRD 148 at [35] per Cheung JA. 

38.  Any view that an attesting solicitor may have formed as to the testator’s capacity must be shown to be based on a proper assessment and accurate information or it is worth less.  See Ashkettle v Gwinnett [2013] EWHC 2125 (Ch)  at [43] per Christopher Pymong QC.

39.  In Re Estate of Au Kong Tim, supra, at [2.3] to [2.7], Cheung JA gave guidance to solicitors as follows:

(1)  The enquiries made by the solicitor on the day appointed for the execution of a will should, subject to the circumstances of each case, include the following:

(a)  the age of the testator;

(b)  his health condition;

(c)  whether he has a surviving spouse;

(d)  the number of children and grandchildren he has;

(e)  whether there is someone other than his immediate family member dependent on him for support;

(f)  the beneficiaries he would like to provide for in his will;

(g)  his properties;

(h)  whether he has made a previous will;

(i)  if so, whether he understands that the new will will revoke the previous will;

(j)  whether he understands the differences between the new and the previous will.

(2)  The list is not exhaustive and the extent of the inquiry will depend on the circumstances of the case.  

(3)  In the case of an elderly and infirm testator, the solicitor should also follow the checklist set out in the ‘Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers’ published by the British Medical Association and the Law Society and designed to ascertain whether the person making the will is capable of understanding the nature of the act and its effects and of understanding the extent of the property being disposed of and is able to comprehend and appreciate the claims to which a person making a will ought to give effect.

(4)  The solicitor should ensure that he follows the “golden rule” referred to by Templeman J in Kenward v Adams (1975)  The Times, 29 November 1975.  Under the rule, when a solicitor draws up a will for an aged or seriously ill testator,

(a)  it should be witnessed or approved by a medical practitioner who ought to record his examination of the testator and his findings;

(b)  an earlier will should be examined and any proposed alterations should be discussed with the testator.

(5)  However, compliance with the golden rule does not operate as a touchstone of the validity of a will, nor does non-compliance demonstrate its invalidity.  Its purpose is to assist in the avoidance of disputes, or at least in the minimisation of their scope.  Persons with failing or impaired mental faculties may seek to conceal what they regard as their embarrassing shortcomings from persons with whom they deal, so that a friend or professional person such as a solicitor may fail to detect defects in mental capacity which would be or become apparent to a trained and experienced medical examiner, to whom a proper description of the legal test for testamentary capacity had first been provided.

40.  Much depends on the particular facts and evidence of the case.  Re Estate of Au Kong Tim did not rigidly prescribe that a party propounding a will would not be able to establish testamentary capacity if the solicitor had failed to make proper enquiry and follow the golden rule as a matter of good practice.  The question of testamentary capacity is a practical question and the court has to assess it by reference to the whole of the evidence (not confining itself to the medical evidence)  and apply judicial common sense in the exercise.  See Lau Kin Wing Ken v Deng Yujia [2019] HKCA 769at [18]-[19] per Lam VP (as he then was).

41.  In the instant case, there is no direct evidence, medical or otherwise, on Madam Kam’s mental conditions specifically on 12 November 2001 (the date of the execution of the Will).  Madam Kam’s execution of the Will was not witnessed by any medical practitioner.  Nor had she been medically examined beforehand.  The court is accordingly required to retrospectively assess Madam Kam’s testamentary capacity at the material time, having regard to the whole of the evidence (both factual and expert)  and applying judicial common sense.

42.  On this note, I turn to the evidence in this case.  I shall recollect the factual evidence first.  For the avoidance of doubt, given the lapse of time since the trial, in preparing this judgment, I have re-perused all the documents in the trial bundles and the transcript of the evidence given viva voce.  Where necessary, I have also listened to the recordings of parts of the trial.  

FACTUAL EVIDENCE

Evidence of Tak Lee and his witnesses

43.  Tak Lee himself gave evidence and further called Mr Chung and Mr Zhang as witnesses[2].

Tak Lee

44.  On 12 November 2001, Madam Kam brought Tak Lee with her to the office of C&K to execute the Will.

45.  According to Tak Lee, (1)  his relationship with his mother had all along been good; (2)  Madam Kam did mention to him that she intended to leave all of her assets to him after she passed away; and (3)  despite having visited Madam Kam at the psychiatric ward of the Eastern Hospital during the 1^st and 2^nd Admissions, he never noticed that Madam Kam had any mental issues.

Mr Chung

46.  Mr Chung, together with Mr Zhang, appended their respective signature to the Will as witnesses of Madam Kam’s execution.  They both gave evidence on the impression they had formed as to Madam Kam’s mental state when she executed the Will.

47.  Mr Chung’s evidence is that he joined the meeting sometime after Mr Zhang had begun explaining the Will to Madam Kam and that he himself also explained the gist of the Will to Madam Kam.  Madam Kam then executed the Will in the presence of both Mr Zhang and Mr Chung as witnesses, stipulating that she had full understanding of the contents of the document and giving effect to it as her valid last will.

Mr Zhang

48.  According to Mr Zhang, Madam Kam herself approached him for the purpose of preparing a will sometime before April 2001.

49.  Apart from the date of the execution of the Will when she was accompanied by Tak Lee (whom Mr Zhang had not previously met or spoken to), Madam Kam had attended the office of C&K in the Central District on her own and without any company for around 5 or 6 times between April and November 2001.   Each such attendance lasted for around 30 minutes or so.

50.  Madam Kam was the only client retaining C&K to prepare the Will.  And Mr Zhang took instructions directly from Madam Kam.

51.  Madam Kam changed her instructions twice, both of which were to increase her provision for Tak Lee:

(1)  In or around April 2001, Madam Kam instructed Mr Zhang to prepare a will bequeathing all her assets to Tak Lee, save and except the Property, which Tak Lee could only reside in or rent out.  If Tak Lee should sell the Property, the sale proceeds should be distributed to the Surviving Children in equal shares.  In the event of a resumption of the Property by the government, Tak Lee would be solely entitled to the compensation.

(2)  Subsequently, but still in or around April 2001, Madam Kam changed her instruction such that Tak Lee could sell or let the Property.  If Tak Lee rented out the Property, he could keep the rental income.  If he sold the Property, he should share the proceeds equally with one Ms So Siu Ping, Steven’s wife.

(3)  Later, in or around May 2001, Madam Kam again changed her instruction to bequeathing all her assets, including the Property, to Tak Lee.  

(4)  Madam Kam’s instruction had since remained the same.

52.  While Madam Kam provided Mr Zhang with copies of the Hong Kong Identity Cards of herself and Tak Lee in the course of their said meetings, Madam Kam never produced any copy of the Hong Kong Identity Cards of Chui Yan or any of the other Surviving Children.  

53.  In or around April 2001, when Mr Zhang asked Madam Kam during one of their meetings why she was not leaving anything to her other Surviving Children, she gave a brief answer that “they are not good” (“他們不好”).

54.  At the meeting on 12 November 2001, Mr Zhang read out and explained the Will sentence by sentence in Shanghainese.  Madam Kam replied “哦” and nodded her head after Mr Zhang had read out and explained each sentence of the Will.  She also raised question(s)  and asked Mr Zhang for clarification when there was any part(s)  of the Will that she did not understand.

55.  Both Mr Zhang and Mr Chung gave evidence that they considered that, during the conference on 12 November 2001 and at the time of the execution of the Will, Madam Kam was mentally fit to execute the Will and that there was no indication that she was suffering from any mental illness.  On no occasion did either Mr Zhang or Mr Chung observe any unusual behaviour on the part of Madam Kam.  She had a clear mind and spoke normally during the said conference and at the time of execution of the Will.  The credibility and reliability of the solicitors cannot be challenged.  I accept their accounts.

Chui Yan’s evidence

56.  Chui Yan was the only factual witness for the defence[3].

57.  In support of her assertion that Madam Kam did not have the requisite testamentary capacity on 12 November 2001, Chui Yan explained in detail Madam Kam’s psychiatric history.  In summary:

(1)  Madam Kam started having the tendency to argue with, or scold, others since the 1990’s.

(2)  In around May 2000, Madam Kam brought with her a chopper to a social work service centre.  She claimed that one of the social workers there wanted to kill her.  The matter was reported to the police.  Madam Kam was then admitted to the in-patient psychiatric ward of the Eastern Hospital for 3 weeks between 7 and 27 June 2000 on a compulsory basis.  This was the 1^st Admission, during which Madam Kam was diagnosed to be suffering from delusional disorder with violent propensity and hypertension and paranoid delusions.

(3)  On discharge from the 1^st Admission, Choi Ngor had to sign a “Discharge Against Medical Advice” form.  Upon discharge from the 1^st Admission, Madam Kam refused to return to the follow-up clinic and continue to live without medical assistance.

(4)  On 12 October 2000, Madam Kam was escorted by a nurse, the police and Chui Yan to the in-patient psychiatric ward of the Eastern Hospital on a compulsory basis. This was the 2^nd Admission, during which Madam Kam was again diagnosed with delusional disorder.

(5)  During the 2^nd Admission, the medical officers and nurses informed Chui Yan that Madam Kam had behaved with symptoms of delusion, including:

(a)  Madam Kam had told one of the nurses that the then Chief Executive of the HKSAR, Mr Tung Chee Hwa (“Mr Tung”), had sent a social worker to persecute her and had sent Mr Donald Tsang (the then Chief Secretary)  to stalk her.

(b)  Madam Kam had told one of the nurses that Mr Tung had asked a social worker to send a renovation worker to steal her ring at the Property.

(c)  Madam Kam thought that a bank had cheated her HK$30,000.

(d)  Madam Kam said that it would be better if all her daughters died.

(6)  On discharge from the 2^nd Admission, Madam Kam only attended the follow-up clinic once.  She further discontinued medication after the said follow-up appointment.

(7)  In around early November 2002, Madam Kam travelled to Beijing with a view to lodging a complaint against several banks in Hong Kong for cheating her with Mr Tung who was attending the National People’s Congress.  On around 13 November 2002, Chui Yan received a phone call from an officer of the Public Security Bureau in Beijing informing her that Madam Kam had created nuisances at their office and insisted on meeting Mr Tung.  As a result, the Public Security Bureau repatriated Madam Kam back to Hong Kong.

(8)  On 13 November 2002, Madam Kam was admitted to the in-patient psychiatric ward of the Eastern Hospital for the third time on a compulsory basis.  This was the 3^rd Admission.  During the 3^rd Admission, the medical officers and the nurses told Chui Yan that Madam Kam had behaved with symptoms of delusion, including:-

(a)  Madam Kam said that several banks in Hong Kong attempted to persecute her by cheating her money.

(b)  Madam Kam alleged that Mr Tung and the then Chief Secretary Mrs Anson Chan treated her tea when she was making a complaint outside Mr Tung’s office.

(c)  Madam Kam said that she would lock herself up when she was at home because she was afraid of being persecuted or arrested.

(d)  Madam Kam said that she had been cheated out of a sum of HK$30,000 by some unknown person(s)  in Ningbo for building an elderly home exclusively for her use and occupation.

(e)  Madam Kam asked the doctors at the Eastern Hospital to discharge her.  When one of the doctors refused to do so, Madam Kam assaulted the doctor with a quadripod and caused bruises to the forearm of the doctor.

(9)  The medical officers at the Eastern Hospital informed Chui Yan that Madam Kam was suffering from persistent delusions with very poor insight.  She was also identified to be very stubborn and ego-centric with paranoid thought and personality.

58.  It is further Chui Yan’s evidence in paragraphs 43 to 44 of her witness statement that Madam Kam maintained a poor relationship with Tak Lee and she does not believe that Madam Kam would make a will giving all of her assets to Tak Lee.

EXPERT EVIDENCE

59.  With respect to expert evidence, Tak Lee instructed Dr Chung See Yuen (“Dr Chung”)  and Dr Tsang Fan Kwong (“Dr Tsang”), and Chui Yan instructed Dr Chen Char Nie (“Dr Chen”)  and Dr Chan Chung Mau (“Dr Chan”)  as their respective expert witnesses on Madam Kam’s mental capacity around the time when she executed the Will on 12 November 2001.  None of the four experts examined Madam Kam at the material times.  Their opinions are based on the HA Records and the evidence given by the factual witnesses.

60.  The 4 experts were able to reach agreement on the following issues:

(1)  The Diagnostic and Statistical Manual of Mental Disorder, Fourth Edition, Text Revision published by the American Psychiatric Association should be adopted as the diagnostic criteria system for the assessment and formulating opinion of the psychiatric condition of Madam Kam. 

(2)  Madam Kam was suffering from Delusional (Paranoid)  Disorder, and she might also be suffering from other mental condition that might impair her cognitive function.

61.  Dr Chung and Dr Tsang are of the view that Madam Kam was mentally fit to execute the Will on 12 November 2001, whereas Dr Chen and Dr Chan consider that she was unfit to do so. 

62.  Dr Tsang explains that when Madam Kam was discharged from the 2^nd Admission on 14 November 2000, she appeared remitted or at least largely remitted from her delusion disorder, but there is no information regarding her mental condition after she was discharged.  In particular, there is no direct evidence as to when Madam Kam began to have a relapse in her delusional disorder. 

63.  Dr Tsang refers to the evidence of Mr Chung and Mr Zhang on Madam Kam’s mental condition when she executed the Will on 12 November 2001 and noted that they did not mention anything abnormal in Madam Kam’s behaviour, mood or speech.  Dr Tsang takes the view that if Madam Kam did have a relapse of delusional disorder, it is highly likely that she would have persecutory ideas or beliefs against banks, her children and other people as before.  She might become agitated and uncooperative.  However, both Mr Chung and Mr Zhang, during the meeting with Madam Kam and when she made the Will, did not notice any abnormal mood, behaviour or speech.

64.  Dr Tsang further explains that people suffering from delusion disorder might present with a psychotic switch.  When this switch is pressed, he or she might spontaneously keep on talking about the delusional theme.  When Madam Kam executed the Will, which was concerned with her assets and her children, it might have triggered her psychotic switch to turn on her psychotic thought content.  If she was overtly ill and was having active persecutory delusion, when she was asked about sensitive information regarding her assets or previous probable persecutors, she would have become agitated and started talking about her abnormal thought content, which could be easily found to be abnormal by an ordinary adult.

65.  Dr Chung agrees with Dr Tsang that Madam Kam’s delusional disorder was in a largely remitted condition around the time of executing the Will.  He notes that, as suggested by the HA Records kept for the 1^st and 2^nd Admissions, Madam Kam would develop more paranoid delusion and engage in disturbing behaviour in public when the delusion disorder worsened.  She would display less paranoid delusion if her mental condition was better.  As Madam Kam did not cause any trouble in the period between the 2^nd and 3^rd Admissions, save for shortly before the 3^rd Admission, Dr Chung believes that the delusion disorder was mild around the time of executing the Will and that any paranoid delusion against her children, if present, would have been mild.

66.  Dr Chung believes that the levels of impairment by mild delusional disorder are restricted to matters related to the paranoid delusion.  Madam Kam’s analytical power, feelings and behaviour outside the delusional symptoms were comparable to a normal person without mental illness.  He considers the possibility of Madam Kam having delusion against her children to be low, although it cannot be excluded.  He notes that the information related to Madam Kam’s relationship with her children at the time of the execution of the Will would shed light on whether she was having paranoid delusion against her children.

67.  On the other hand, Dr Chen takes the view that Madam Kam suffered a delusion disorder of the persecutory type, which is a mental disorder sometimes resistant to medical treatment, especially with poor insight, defaulted follow-up, and self-discontinuation of medication.  On that basis, Dr Chen concludes that Madam Kam was not remitted around the time of executing the Will.

68.  Dr Chen believes that Madam Kam’s decision to name Tak Lee as the sole beneficiary of her estate was influenced by her delusional ideas against her daughters.  In this regard, Dr Chen refers to a number of medical notes made during the 2^nd Admission including:

(1)  “Uncooperative, scolding others, agitated, relevant speech, loud spoken, unstable emotions, harboured paranoid ideas towards bank claiming that the banks took up her money, disturbed the banks and Chief Executive Officer, had history of violent act in Social Welfare Office” (medical note dated 12 October 2000).

(2)  “Grumbled about her daughter sent her to hospital, nagged for discharge, friendly on approach, denied of hearing voice” and “expressed that her daughter ‘又整死佢’” (medical note dated 13 October 2000).

(3)  “Still expressed paranoid idea towards her daughter, said ‘個女吼佢到寧波辦老人院的時候，騙她打手指模到新華銀行呃了她的錢’ ” (medical note dated 20 October 2000).

(4)  “Said ‘D女死哂做[sic]好’” (medical note date 27 October 2000).

69.  Dr Chan observes that Madam Kam’s psychiatric illness had run a chronic downhill course as revealed by the increased length of treatment at the Eastern Hospital, i.e. 21 days (7 to 27 June 2000)  for the 1^st Admission, 34 days (12 October to 14 November 2000)  for the 2^nd Admission and more than 9 months (13 November 2002 to 25 August 2003)  for the 3^rd Admission.

70.  Dr Chan observes that Madam Kam’s delusional disorder was resistant to psychiatric treatment and that her paranoid delusions had never subsided despite intensive and supervised psychiatric treatment in the hospital including the use of depot (long acting)  injection of antipsychotic medications.  Dr Chan does not believe that for a chronic paranoid delusional disorder as suffered by Madam Kam, the paranoid symptoms would remit without medical treatment.  He relies on the medical report dated 23 September 2013 issued by Dr Wong Sze-man Queenie (“Dr Wong”), who was not an expert witness at the trial of the present dispute, stated that despite Madam Kam’s regular drug compliance under staff supervision, there was partial remission only after her discharge from the 3^rd Admission.

71.  Dr Chan further opines that many patients with paranoid delusional disorder can lead a relatively independent life and live with their active paranoid symptoms and create no active disturbance even without treatment if the contents of their paranoid delusions are not infringed on.  However, once the paranoid content is touched upon, active behavioural disturbance will appear.

DISCUSSION

72.  Chui Yan attacks the credibility of Tak Lee on his evidence that he did not know that Madam Kam was suffering from mental conditions.  However, the knowledge of Tak Lee in this regard is irrelevant to the question of whether Madam Kam in fact had the requisite testamentary capacity to execute the Will.  Accordingly, even if Chui Yan’s attack is established, it does not shed any light on Madam Kam’s testamentary capacity at the material time.

73.  Chui Yan’s disbelief that Madam Kam would make a will giving her assets only to Tak Lee on the basis that Tak Lee and Madam Kam allegedly maintained a poor relationship also sheds little light on Madam Kam’s testamentary capacity at the material time.  The unchallenged evidence of Mr Zhang is that Madam Kam’s instructions between April and November 2001 had consistently been to provide for Tak Lee under the Will.  Indeed, Madam Kam had all along only provided Mr Zhang with the photocopy of Tak Lee’s Hong Kong Identity Card (and not any of her other surviving children), which is consistent with her intention to leave her assets to Tak Lee.  The only changes in her instruction was in relation to the inclusion or exclusion of any other person as beneficiary under the Will.

74.  Rationality does not mean equal distribution of the assets.  In many cases it is perfectly rational to make unequal distribution and no presumption of irrationality can arise from a mere unequal provision for the testator’s close relatives. Detailed explanation by an elderly or infirm testator for unequal distribution of his estate in a will should not be required.  That would be undue interference with testamentary freedom which is a facet of the principle of self-determination underpinned by human right protections.  The mere absence of elaboration to Madam Kam’s reason for excluding the other Surviving Children as beneficiaries under the Will, i.e. “they are not good”, does not in itself suggest that Madam Kam lacked the requisite testamentary capacity at the material time or that her decision was irrational.  As such, the defendants’ attack on the insufficiency of Madam Kam’s explanation for the unequal distribution under the Will does not advance their case.

75.  See Lau Kin Wing Ken v Deng Yujiao [2019] HKCA 769 at [69] per Lam VP (as he then was).  

76.  In relation to Chui Yan’s assertion that Madam Kam had previously made at least 4 wills, all of which named all her Surviving Children as beneficiaries with equal entitlements, Chui Yan did not produce any of such alleged wills to substantiate her assertion.  In addition, it should also be noted that Chui Yan’s assertions with regards to these 4 alleged earlier wills do not appear to be consistent with the factual background of the present case:

(1)  It is asserted that in or around 1994, Madam Kam made her first will with the assistance of some officers of the Public Security Bureau in her village near Ningbo, which stipulated that her 5 Surviving Children would equally share her assets.  However, in 1994, Madam Kam’s eldest daughter Choi Chun was still alive.  In other words, at the time this alleged will was made, Madam Kam had 6 surviving children. Chui Yan did not explain which of the then 6 Surviving Children was excluded under the alleged will and why.

(2)  Similarly, it is contended that in or around 1996 or 1997, Madam Kam made her second will in her village near Ningbo with a chop of the office of the Public Security Bureau, which was drafted by an officer of the bureau.  Again, it is alleged that this alleged earlier will provided that her 5 children would equally share her assets.  Again, Madam Kam’s eldest daughter was still alive at the time this alleged will was made.  Likewise, Chui Yan did not explain which of the then 6 surviving children was excluded and why.

(3)  While it is alleged that Madam Kam made her fourth will in or around 1999 or 2000 in Hong Kong, which was drafted by a care-taker of the building where the Property is situate and stated that her 5 Surviving Children would equally share Madam Kam’s assets, there is no explanation as to why Chui Yan applied for the Letters of Administration on the basis that Madam Kam died intestate instead of applying for probate and proving this alleged fourth will.

77.  Chui Yan’s allegation in this regard is therefore unsubstantiated.

78.  More importantly, whilst Chui Yan has described in detail Madam Kam’s psychiatric history, such descriptions do not cover Madam Kam’s mental capacity on or around the date of execution of the Will, i.e. 12 November 2001.

79.  The only direct evidence that might shed some light on Madam Kam’s mental capacity on 12 November 2001 is that of Mr Chung and Mr Zhang who witnessed and attested the execution of the Will by the Deceased.  Although Mr Zhang and Mr Chung are not medically trained, they are legal practitioners with experience in handling wills.  Prior to 1985, Mr Zhang worked in a notary public office in Shanghai where he gained extensive experience in assisting people in the execution of wills.  After he became a foreign registered lawyer in Hong Kong in or around 2000, he drafted and witnessed the execution of 5 or 6 wills, including the Will.  Mr Chung is also experienced in providing legal services to the elderlies.

80.  The Will was neither witnessed nor approved by a medical practitioner.  While the non-compliance of Mr Zhang and Mr Chung with the golden rule is not satisfactory, this in itself does not render the Will invalid.  The court is still required to consider all relevant evidence to determine whether Madam Kam had the requisite testamentary capacity at the time of execution of the Will.

81.  As set out above, it is Dr Chan’s opinion that many patients with paranoid delusional disorder can lead a relatively independent life and live with their active paranoid symptoms and create no active disturbance even without treatment if the content of their paranoid delusions is not infringed on and that once the paranoid content is touched upon, active behavioural disturbance will appear.  This is largely consistent with Dr Tsang’s view that people suffering from delusion disorder might present with a psychotic switch and that when this switch is pressed, he or she might spontaneously keep on talking about the delusional theme.

82.  When Madam Kam discussed with Mr Chung and Mr Zhang at the meeting on 12 November or with Mr Zhang at the meetings between April and November 2001 about her assets and how to distribute them amongst her children, which would have touched upon Madam Kam’s paranoid content (in Dr Chan’s terms)  or pressed Madam Kam’s psychotic switch (in Dr Tsang’s terms)  if she had a relapse of delusional disorder at the time, neither Mr Chung nor Mr Zhang found Madam Kam to have any persecutory preoccupation against banks, her children or others.  There is no evidence to suggest that Madam Kam displayed any “active behavioural disturbance” or became “agitated and started talking about her abnormal thought content” at any of these meetings.

83.  The evidence of Mr Zhang and Mr Chung therefore suggests that when Madam Kam executed the Will, she was likely to be remitted from delusional disorder.  Alternatively, even if she had any paranoid delusion at the material time, it was mild.

84.  Further, Dr Chung’s evidence is that the levels of impairment by mild delusional disorder are restricted to matters related to the paranoid delusion.  Madam Kam’s analytical power, feelings and behaviour outside the delusional symptoms were comparable to a normal person without mental illness.

85.  Dr Chan’s reliance on Dr Wong’s medical report dated 23 September 2013 in support of his view that Madam Kam’s paranoid delusions had never subsided does not appear to be supported by the contemporaneous medical evidence:

(1)  It was stated in the discharge summary for the 1^st Admission that the “Outcome” was “Stable mental state”.  It was also recorded in the medical note dated 27 June 2000 upon Madam Kam’s discharge that she was “stable, no active problem reluctant to return (fear of hospitalization)”.

(2)  It was remarked in the Discharge Summary for the 2^nd Admission that the “Outcome” was “Partial remission only”.  The following medical notes were also made during the 2^nd Admission:

(a)  On 4 November 2000, Madam Kam was “calm and settled, responsive on approach, appeared friendly and polite, no active psychotic features was noted” and was “alert and responsive on approach, speech coherent and relevant”.

(b)  On 5 November 2000, Madam Kam was “speech coherent and relevant, friendly and polite on approach” and was “co-operative on approach”.

(c)  On 12 November 2000, Madam Kam was “stable mood, speech coherent and relevant, responsive and friendly on approach, enjoyed talking to nursing staffs, drugs taken well by self”.

(d)  On 14 November 2000, Madam Kam “appears more settled and cooperative than before”, “pleasant and friendly on approach” and “mentally remained calm and settled, friendly and co-operative on approach, was discharged”.

(3)  In any event, it should be highlighted that Madam Kam was discharged from the 3^rd Admission on 25 August 2003, which was almost two years after the execution of the Will.  Dr Wong’s medical report on Madam Kam’s mental condition upon discharge from the 3^rd Admission sheds little light on Madam Kam’s testamentary capacity on 12 November 2001 when she executed the Will.

86.  Insofar as the reliance by Dr Chen on various medical notes to suggest that Madam Kam was influenced by her delusional ideas against her daughters at the material times is concerned, it should be noted that those medical notes were all made during, and not after, the 2^nd Admission, the relevance of which to Madam Kam’s mental condition on the date of execution of the Will on 12 November 2001 is limited.  As mentioned above, upon her discharge from the 2^nd Admission on the 14 November 2000, Madam Kam was assessed to be partially remitted.  Further, none of Madam Kam’s delusional behaviour against her daughters recorded in the medical notes was observed by either Mr Chung (who met Madam Kam before the execution of the Will on 12 November 2001)  or Mr Zhang (who met Madam Kam 6 or 7 times before the execution of the Will on 12 November 2001).  When Mr Zhang asked Madam Kam why she did not include her daughters as beneficiaries of her estate, she gave a simple and straight forward answer that “they are not good”, which is in stark contrast to the more aggressive or abusive reactions recorded in the available medical notes when the Deceased had a relapse of delusion disorder during the Admissions.

87.  Importantly, contrary to the defendants’ contention, there is no evidence to suggest that, after her discharge from the 2^nd Admission, Madam Kam had a relapse of delusional disorder or that Madam Kam’s symptoms affected her testamentary capacity on or before 12 November 2001. 

88.  Accordingly, I prefer the evidence of Dr Tsang and Dr Chung to that of Dr Chen and Dr Chan.

89.  Having considered all of the factual and expert evidence, I am of the view that on the balance of probabilities, it is more likely than not that Madam Kam did have the requisite testamentary capacity at the time when she executed the Will. 

CONCLUSION ON THE VALIDITY OF THE WILL

90.  In the premises, I am satisfied that the Will was duly executed, the testatrix was of testamentary capacity, Madam Kam knew and approved of the contents of the Will.  Accordingly, the Will is valid.  

REVOCATION OF THE LETTERS OF ADMINISTRATION

91.  Section 33(1)  of the Probate and Administration Ordinance (Cap 10)  provides:

“Where it appears to the court that a probate or administration either ought not to have been granted or contains an error, the court may call in the probate or administration and if satisfied that it would be revoked at the instance of a party interested, may revoke it.”

92.  In light of the findings above on the validity of the Will, the Letters of Administration ought not to have been granted in that Madam Kam did not pass away intestate.  The Letters of Administration should accordingly be revoked.

ORDERS

93.  For the above stated reasons, I make an order that:

(1)  The letters of administration of both Mr Tso’s estate and Madam Kam’s estate shall be revoked.

(2)  The Will shall be pronounced in solemn form.

(3)  Probate of the Will shall be granted to Tak Lee. 

(4)  Chan do, at his own costs (inclusive of Tak Lee’s costs on a full indemnity basis), assign the Property to Tak Lee, free of encumbrances and with stamp duty, if payable, paid, within 28 days from today.

(5)  Each of Chui Yan and Chan shall give an account on oath of all the assets and monies of Mr Tso’s and Madam Kam’s estates that have been received by him/her and all his/her dealings with the same.

(6)  Each of Chui Yan and Chan shall pay to Tak Lee all sums found to be due from them to Tak Lee upon the taking of such accounts.

94.  I also make an order nisi that the costs of this action be to Tak Lee.  The order nisi shall be made absolute 14 days after the date of the handing down of this judgment.

95.  Lastly, I thank counsel for their thorough assistance.