LAU KIN WING KEN AND ANOTHER v. DENG YUJIAO AND ANOTHER

HCAP 21/2013
[2018] HKCFI 121

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 21 OF 2013

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JUDGMENT

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INTRODUCTION

1.  This action concerns the Estate of Lau Heung (劉享), deceased (“the Deceased”).  The parties agree that the following are the issues to be determined:-

(1) whether a will made by the Deceased dated 8 November 2011 (“the November Will”) was executed by him with (i) the requisite testamentary capacity, and (ii) knowledge and approval of its contents;

(2) if not, whether an earlier will made by the Deceased dated 16 July 2011 (“the July Will”) was executed by him with (i) the requisite testamentary capacity, and (ii) knowledge and approval of its contents; and

(3) if not, who should be appointed as administrator(s) of the Estate of the Deceased.

2.  The November Will, alternatively the July Will, are propounded by the Defendants, but their validity is denied by the Plaintiffs.  At the trial, Mr Edward Chan, SC (for the Defendants) accepted that if the Defendants should fail to establish the validity of the November Will, it would be unlikely that they could succeed in establishing the validity of the July Will.  Accordingly, the real focus of this case is the validity of the November Will.

3.  In the course of the trial, the parties have raised numerous disputes of fact.   It is not necessary, and I do not propose, to resolve all of them, save those which I consider to be necessary for a proper disposal of this action.

BASIC FACTS

(i)   Family background

4.  The Deceased was born in 1926.  He had 3 relationships in his life.  His first marriage with Madam Ng Kam Choi (“Madam Ng”) took place in about 1947.  The validity of this marriage is not admitted by the Plaintiffs, but nothing much turns on the validity of this marriage for the present purpose.  The Deceased and Madam Ng had 8 children, with 7 surviving the Deceased, namely:-

(1) Lau Chi Sum (“Chi Sum”), the eldest son born in 1949;

(2) Lau Chi Choi (“Chi Choi”), born in 1952;

(3) Lau Chi Sing (“Chi Sing”);

(4) Lau Yin Ling (“Yin Ling”), born in 1954;

(5) Lau Chi Lam (“Chi Lam”), born in 1959 – the 2^nd Defendant;

(6) Lau Chi Kin (“Chi Kin”), born in 1961; and

(7) Lau Yin Yuk (“Yin Yuk”), born in 1962,

(collectively with Madam Ng, “the 1^st Family”).

5.  The Deceased’s second marriage with Madam Lai Lai Siu (“Madam Lai”) took place in about 1950.  The validity of this marriage is not admitted by the Plaintiffs but, as in relation to the validity of the first marriage with Madam Ng, nothing much turns on the validity of this second marriage for the present purpose.  The Deceased and Madam Lai had 5 children, all surviving the Deceased, namely:-

(1) Lau Lai Wah (“Lai Wah”), born in 1954;

(2) Lau Kin Wing Ken (“Kin Wing”), born in 1955 – the 1^st Plaintiff;

(3) Lau Lai Ying, born in 1956;

(4) Lau Kin Keung, born in 1958; and

(5) Lau Lai Har (“Lai Har”), born in 1962 – the 2^nd Plaintiff,

(collectively with Madam Lai, “the 2^nd Family”).

6.  The Deceased started a third, co-habitation, relationship with Madam Deng Yu Jiao (“Madam Deng”, the 1^st Defendant) in about 1989 in the Mainland.  The Deceased and Madam Deng had 2 children (collectively with Madam Deng, “the 3^rd Family”).

7.  Madam Ng passed away in March 2008.  The Deceased attended her funeral, but none of the members of the 2^nd Family did.

8.  The Deceased passed away on 15 September 2012, at the age of 86.  Neither Madam Lai nor any of the children of the 2^nd Family, except Kin Wing and Lai Har, attended the funeral of the Deceased.  As a matter of fact, with the exception of Kin Wing, all other children of the 2^nd Family had emigrated from Hong Kong to the United States or Canada for many years, and none of them visited the Deceased in hospital when he became seriously ill in February 2011.  For the sake of completeness, I should mention that two of the children of the 1^st Family also did not attend the Deceased’s funeral.

(ii)   Shop A and Shop B

9.  The Deceased had about 2 to 3 years of formal education in primary school.  He was able to read newspapers, and used to do so on a daily basis.  He is said to be a good businessman.  In the 1950s, he worked as a hawker in the Kowloon City area.  In the 1960s, he first operated a business under the name of “Kam Fung”.  In the late 1960s, the Deceased established “Lau Yin Kee Meat Store”, which was engaged in the selling of both frozen and preserved meat.  According to the Defendants, Madam Ng was a co-owner or partner of that business, but the same is disputed by the Plaintiffs. 

10.  In February 1967, the Deceased purchased the property known as Shop A, Ground Floor, 84 Nga Tsin Wai Road, Kowloon (“Shop A”) at the price of HK$100,000 and had it registered in the joint names of himself and Madam Ng.

11.  In July 1968, the Deceased purchased the adjoining Shop B, Ground Floor, 84 Nga Tsin Wai Road, Kowloon (“Shop B”) at the price of HK$45,000 and also had it registered in the joint names of himself and Madam Ng.

12.  The Deceased used to carry on his business from Shop A, and later on from Shop B as well, until his retirement in 1988.  Shops A and B constituted the major assets of the Deceased as at November 2011 and also at the time of his death.  According to the Plaintiffs, they had an estimated value of around HK$70 million as at the date of the writ.

(iii)   The Deceased’s residences and other properties

13.  Up to about 1966, the 1^st and 2^nd Families lived at different levels of the same building in a rented apartment at 122, Nga Tsin Wai Road, Kowloon.  The two families were separated by a level occupied by the landlord.

14.  In July 1966, the Deceased purchased a property known as 3/F, 17 Nga Tsin Long Road, Kowloon (“the Nga Tsin Long Road Property”) in his own name.  In about 1967, the 1^st Family moved to live in the Nga Tsin Long Road Property, while the 2^nd Family remained at 122 Nga Tsin Wai Road.

15.  In February 1981, the Deceased purchased a property known as Flat 4, 10/F, Block D, Ching Lai Court (“the Ching Lai Court Property”) in the name of Lai Wah.  The Ching Lai Court Property was subsequently transferred by Lai Wah to the Deceased and Madam Lai as joint tenants by way of gift in 1987.

16.  In February 1982, the Deceased purchased a property known as Flat No 2401, 24/F, Block U, Telford Gardens (“the Telford Gardens Property”) in the name of Madam Lai, and the 2^nd Family moved to live there.

17.  In around 1988, the Deceased and Madam Lai emigrated to Canada.  However, the Deceased could not get used to life there and returned to Hong Kong after about 6 months.  Madam Lai remained in Canada, although she made a number of visits to Hong Kong thereafter.  Lai Har said in evidence that Madam Lai returned to live in Hong Kong for about 3 years after 1989 but before 2006.  I do not accept her evidence on this aspect, which was only mentioned for the first time in court. It is not suggested that the Deceased or the 1^st Family were informed or aware of Madam Lai’s return to Hong Kong, which I consider to be highly unlikely if she indeed returned to live in Hong Kong for about 3 years.

18.  After his return to Hong King, the Deceased started his co‑habitation relationship with Madam Deng in the Mainland in about 1989.  The Deceased would come back to Hong Kong sometimes during weekends.  Until his demise in September 2012, the Deceased had been living with Madam Deng save for the times when he was staying in hospitals, or in an Old Age Home in Kowloon City during the period from around May 2010 to early 2011.

19.  In July 1992, the Deceased purchased a property known as Flat B, 32/F, Tower 6, South Horizons (“the South Horizons Property”) in the joint names of himself and Madam Ng. Chi Lam, his family and Madam Ng moved to reside in the South Horizons Property.  The Deceased would also stay at the South Horizons Property when he came back to Hong Kong from the Mainland.  Some time in 2001/2002, Chi Lam and his family moved out of the South Horizons Property, and Chi Sing and his family moved in to live with Madam Lai.  On 31 January 2008, Chi Sing was added as a joint tenant of the South Horizons Property. 

20.  In 1993, the Deceased purchased a property known as Flat C, 17/F, Tower 3, Rhine Garden (“the Rhine Garden Property”) in his own name.

21.  In January 2009, the Deceased purchased a property known as Flat No A8, 12/F, Block A, Wei Chien Court, 2 Wai King Street, Kowloon (“the Wei Chien Court Property”) in the joint names of himself and Madam Deng.

(iv)   The Deceased consulted Lai Yu Chung about the making of a will in March 2011

22.  In March 2011, the Deceased had a meeting with Mr Lai Yu Chung, a friend of Chi Lam.  According to Mr Lai:-

(1) He has been a family friend of Chi Lam for over 40 years, having attended the same school with him and grown up together in the same neighbourhood since he was very young until he left Hong Kong to study in Canada.

(2) In around March 2011, Chi Lam called and asked him to meet the Deceased, whom he had also known for years, to see if he could answer some preliminary queries which the Deceased had in relation to the making of a will.  Apparently, Chi Lam asked him to help because Chi Lam knew that he had studied an LL B program, and might be able to assist the Deceased.  Mr Lai said that he studied law in 1999 for about 3 years but did not complete the LL B program.  Nevertheless, having worked a project manager for a Hong Kong developer, he often came across cases relating to wills and probate in his day-to-day work when his employer acquired properties held under the names of deceased persons, and thus he had some knowledge and familiarity with the laws relating to wills and probate.

(3) On 9 or 10 March 2011, he went to an elderly home and met the Deceased.  Chi Lam was also present at that meeting.  Mr Lai spent about 2 hours with the Deceased.  A range of issues were discussed as the Deceased asked him about different aspects of wills.  The questions asked by the Deceased included:-

(a) whether estate duty was required to be paid by his estate;

(b) whether he had absolute power and free will to decide how to distribute his assets;

(c) whether under the law, there was any restriction on how he might distribute his assets;

(d) whether under the law, there was any priority list or order as to who would be regarded as “closer relative(s)” and whether he should distribute his assets in such order;

(e) whether under the law, his children or wife would be regarded as “closer relatives”;

(f) whether under the law, children from a subsequent relationship would be regarded as “less close” than those from an earlier relationship;

(g) whether he would be required to distribute his assets to his children from a subsequent relationship; and

(h) whether he could change his will after its execution.

(4) During that meeting, the Deceased spoke logically and relevantly.  Although the Deceased would take time to think and sometimes reacted a bit slowly, the Deceased was able to hold a discussion with him with proper and sensible follow-up questions and inquiries.

(5) The Deceased never told Mr Lai about his plan for distributing his assets, or what assets he had.

(v)   The July Will

23.  According to Chi Lam, on 27 May 2011, the Deceased told him that he wished to make a will and asked him to take down his certain instructions for the will to be forwarded to Messrs S T Cheng & Co (“STC”).  The Deceased also discussed with Chi Lam about his plan to purchase a property in Hong Kong and told him that he was short of funds to the extent of about HK$1.5 million.  The Deceased proposed to give Chi Lam an extra share in the proceeds of sale of Shops A and B under his will in return for HK$1.5 million in the form of a cashier order.  Chi Lam agreed.  Chi Lam jotted down the Deceased’s instructions in a note and showed it to the Deceased.  In the original note, it was mentioned that:-

(1) Chi Sing was to be given (or to have) the whole of the South Horizons Property;

(2) the following persons shall be given the following number of shares (in the proceeds of sale of Shops A and B) –

(a) Chi Sum: ½ share;

(b) Chi Choi: 1 share;

(c) Yin Ling: 1 share;

(d) Chi Lam: 2 shares;

(e) Chi Kin: 1 share;

(f) Yin Yuk: 1 share;

(g) Madam Deng: 2 shares; and

(h) Kin Wing: 1 share;

(3) all the Deceased’s cash and shares were to be given to Madam Deng;

(4) Chi Lam was willing to pay the sum of HK$1.5 million (by way of cashier order) in return for an additional “share”; and

(5) Chi Lam and Madam Deng were to be the executors of the will.

24.  Sometime in June 2011, the Deceased told Chi Lam that he wished to make two amendments to his earlier instructions, namely, (i) Chi Sum’s share of the proceeds of sale of Shops A and B should be increased from ½ share to 1 share, and (ii) 1 share was to be given to Chi Lam’s daughter, Paeonia (born in 1991), to be held by Chi Lam on her behalf.  Chi Lam then amended the note containing the Deceased’s original instructions.

25.  Chi Lam explained that the Deceased decided to give Paeonia 1 share because she had a very close relationship with her grandparents and often helped take care of them in their daily lives.  In this regard, it may be noted that Chi Lam and his family lived with Madam Ng at the South Horizons Property during the period from about 1992 to the time when they moved out of that property in about 2001/2002, and also that the Deceased would sometimes stay in that property during weekends as from 1989 onwards.

26.  On 4 July 2011, Chi Lam passed the amended note to Mr Cheng of STC.  Originally, Chi Lam said that he did so in late June 2011 (see paragraph 4 of his 3^rd affirmation filed on 13 May 2016), but now accepts that it took place on 4 July 2011 (consistently with the date of opening of STC’s file for the Deceased).

27.  Afterwards, also on 4 July 2011, Chi Lam visited the Deceased in hospital.  On that occasion, the Deceased told Chi Lam that Madam Deng should be given 3, instead of 2, shares in the proceeds of sale of Shops A and B under his will.  The Deceased further told Chi Lam that he had identified a property in the New Territories that he wanted to purchase but the HK$1.5 million that Chi Lam agreed to give him was not sufficient, and he needed an additional HK$500,000.  Chi Lam agreed to give the additional amount to the Deceased to enable him to purchase the property he had in mind.

28.  On 9 July 2011, STC sent a draft will to Chi Lam.  There were some further drafts of the will sent by STC to Chi Lam on or about 12, 15 and 16 July 2011.  It is not necessary to set out in this judgment the various changes made to the draft will.

29.  On 16 July 2011, the Deceased executed the July 2011 Will in the presence of Mr S T Cheng and Ms Yolas Ng of STC, Madam Deng and Chi Lam in a restaurant at Regal Airport Hotel, the contents thereof having first been interpreted or explained to him by Mr S T Cheng.  Part of the meeting at the restaurant was captured by video recording.

30.  Under the July Will, the Deceased:-

(1) appointed Madam Deng and Chi Lam as executors and trustees of the will;

(2) gave all his money in bank accounts, cash, shares and personal belongings to Madam Deng to provide for the living expenses of Madam Deng and her children;

(3) gave all his rights and interests in the South Horizons Property (ie, a half share in that property) to Chi Sing;

(4) directed that Shops A and B should not be sold until at least 3 years after his death, and divided the sale proceeds thereof into 12 equal shares and gave them to the following persons in the following proportions –

(a) Chi Choi: 1/12;

(b) Chi Sum: 1/12;

(c) Yin Ling: 1/12;

(d) Chi Lam: 3/12;

(e) Chi Kin: 1/12;

(f) Yin Yuk: 1/12;

(g) Madam Deng: 3/12; and

(h) Kin Wing: 1/12.

31.  In the July Will, it was also expressly stated, inter alia, that:

(1) of the 3 shares to be given to Madam Deng, 1 share was for her own use and the other 2 shares were to be held by her on trust for the children of the Deceased and Madam Deng; and

(2) of the 3 shares to be given Chi Lam, 1 share was for his own use, 1 share was to be held by him on trust for his daughter (Paeonia), and 1 share was a reward to Chi Lam for having given him (the Deceased) HK$2 million to purchase a property for use in his old days.

32.  Mr S T Cheng and Ms Yolas Ng left the restaurant after the execution of the July Will by the Deceased.  Afterwards, the Deceased asked Chi Lam to write a note (“the July Explanatory Note”) explaining his decision to “disinherit” the 2^nd Family with the exception of Kin Wing.  The July Explanatory Note was signed by the Deceased, whose signature was witnessed by Chi Lam and Madam Deng.  In that document, the Deceased stated that his decision to disinherit then 2^nd Family with the exception of Kin Wing was due to the fact that apart from him, the other members of the 2^nd Family did not take care of him in the past 10 odd years and their relationship with him was “alienated”.

33.  At the restaurant, Chi Lam also gave the Deceased HK$2 million by means of 2 cashier orders, one in the sum of HK$1,500,000 and the other HK$500,000.

34.  In passing, I should mention that there is evidence before the court that STC also drafted a codicil for the Deceased.  Chi Lam said that the instructions for the drafting of the codicil were not given by him, but by the Deceased because he was worried that he might previously have signed some testamentary documents that he should not have signed.  Nevertheless, Chi Lam settled STC’s bill dated 16 July 2011 for the amount of HK$2,000 in relation to the drafting of the codicil.  There is also evidence that at some stage there was discussion between the Deceased and Chi Lam regarding the possible sale of Shop B by the Deceased to him, and instructions were given to STC for drafting an option agreement in relation to the proposed sale.  However, no agreement was eventually reached.  I do not consider that anything turns on these matters.

(vi)   The November 2011 Will

35.  On 21 July 2011, Madam Deng entered into an agreement for the purchase of a property known as Flat H, 17/F, Tower 2, Royal Garden, No 18 Ching Hiu Road, Sheung Shiu, New Territories (“the Royal Garden Property”) for the price of HK$2,230,000. Completion of the purchase took place on 6 September 2011.  Madam Deng said that she used the HK$2 million given by Chi Lam to the Deceased to pay for the purchase of the Royal Garden Property.  Thereafter, the Deceased moved to live with Madam Deng in that property.

36.  According to Chi Lam, on 23 October 2011, during a family gathering between the Deceased, Madam Deng and himself in the newly purchased property (ie, the Royal Garden Property), the Deceased told him that he wished to make some amendments and additions to the July Will and asked him to take down his instructions, which he did (“the November Will Instructions”).  They related to three matters:-

(1) burial arrangement of the Deceased;

(2) income arrangement of Shops A and B for 24 months; and

(3) cancellation of a gift of a half share of the South Horizons Property to Chi Sing (the Deceased having transferred his half share in the South Horizons Property to Chi Sing in August 2011, see paragraph 54 below).

37.  After Chi Lam had finished writing down the Deceased’s instructions, he showed the Deceased the notes containing those instructions.  The Deceased read and confirmed that they were in accordance with his wishes.

38.  On or about the next day, the Deceased asked Madam Deng and Chi Lam to look for a solicitor in the Mongkok area to prepare and revise the July Will for his execution.  Madam Deng and Chi Lam visited a few law firms in Mongkok, including Messrs Peter W K Lo & Co (“PWKL”).  After Chi Lam had told the Deceased about the proposed charges of the various law firms, the Deceased confirmed his intention to retain PWKL to prepare the new will.  Instructions were then given by Chi Lam on behalf of the Deceased to PWKL to prepare the will.  The detailed sequence of events relating to the preparation of the will does not, in my view, matter much.  Eventually, Chi Lam brought a draft will from PWKL to the Deceased, who read and approved it.

39.  There is in the evidence before the court a document referred to as the “Procurement Note”.  It is common ground that the Procurement Note was written by Kin Wing containing a proposal to distribute the income from Shops A and B amongst the three Families after the death of the Deceased which, according to Kin Wing, was intended to be a “framework of proposal for [the Deceased’s] consideration”.  There is a dispute between the parties as to whether it was prepared (i) in a “summer night” in the course of a dinner that Kin Wing had with Madam Deng after he had visited the Deceased at Queen Elizabeth Hospital, or (ii) on 7 November 2011 at 11:30 am (as stated on the Procurement Note).  Regardless of whether the Procurement Note was prepared in the summer of 2011 or on 7 November 2011, its significance lies, in my view, in Kin Wing’s implicit recognition that the Deceased had mental capacity at that time to decide how his assets should be disposed of after his death.

40.  In the morning of 8 November 2011, the Deceased attended the clinic of Dr Hsu Yau Que (“Dr Hsu”) for medical assessment.  Apparently, it was PWKL who advised that a medical certificate of the Deceased evidencing his mental capacity should be obtained prior to the execution of the will in view of the Deceased’s advanced age.  Dr Hsu certified that the Deceased “was fully conscious, mentally alert and sound and able to make decisions.”  Dr Hsu further noted that the Deceased “could tell his name, age, address and was well oriented as to time and place.”

41.  On the same day, ie 8 November 2011, after seeing Dr Hsu, the Deceased attended the office of PKWL to execute the November Will in the presence of Mr Tang Sik Ho and Mr Hui Kim Ching of that firm. 

42.  Mr Tang, a qualified solicitor, was called to give evidence at the trial.  According to Mr Tang:-

(1) On 8 November 2011, the Deceased, accompanied by Madam Deng and Chi Lam, came to the office of PWKL to execute his last will.

(2) He was assigned by Mr Lo Wai Keung (the senior solicitor in the firm) to handle the execution of the will and act as one of the attesting witnesses.  The other attesting witness was Mr Hui Kim Ching, a clerk of the firm.

(3) The execution of the will took place in the conference room of the firm, in the absence of Madam Deng and Chi Lam.

(4) Before the Deceased executed the will, he had some casual talks with the Deceased, and found the Deceased to be alert, in a very good mood and coherent in telling him about his children and family.

(5) He carefully and slowly interpreted and explained the contents of the will, clause by clause, and its nature and legal effect, to the Deceased.  He explained, in particular, that the will would take effect only upon the Deceased’s death, and that it was generally revocable prior to his death.  The Deceased both nodded and said “understand” to show his understanding when the nature and effect of the will was explained to him.   In view of the fact that Madam Deng was, to the knowledge of Mr Tang, not the Deceased’s wife but stood to benefit substantially under his will, Mr Tang specifically asked the Deceased about the proposed bequest to Madam Deng, and the Deceased confirmed the same with Mr Tang.

(6) Mr Tang also confirmed with the Deceased that the properties mentioned in the draft will represented all that the Deceased wished to dispose of after his death.

(7) The Deceased did not make any change to the draft will and confirmed that the contents therein were in accordance with his wishes.  The Deceased was fully conversant with and understood the matters before him.

(8) Mr Tang did not ask the Deceased how many children he had, but he believed that the clerk of PWKL would have done so.

(9) Mr Tang had no doubt that the Deceased understood the legal effect of his conduct on that day and the signing of the will.

43.  Under the November 2011 Will, the Deceased:-

(1) appointed Madam Deng and Chi Lam as executors and trustees of the will;

(2) gave all his money in bank accounts, cash, shares and personal belongings to Madam Deng to provide for the living expenses of Madam Deng and her children;

(3) gave the income arising from Shops A and B to Madam Deng for no less than 24 months;

(4) divided the sale proceeds of Shops A and B into 12 equal shares and gave them to the following persons in the following proportions –

(a) Chi Choi: 1/12;

(b) Chi Sum: 1/12;

(c) Yin Ling: 1/12;

(d) Chi Lam: 3/12;

(e) Chi Kin: 1/12;

(f) Yin Yuk: 1/12;

(g) Madam Deng: 3/12; and

(h) Kin Wing: 1/12.

44.  In summary, under the November Will:-

(1) all the surviving members of the 1^st Family, with the exception of Chi Sing, were named as beneficiaries of the Estate of the Deceased;

(2) amongst the surviving members of the 1^st Family, Chi Lam got the largest share of the sale proceeds of Shops A and B;

(3) in respect of the 2^nd Family, only Kin Wing was named as a beneficiary of the Estate of the Deceased; and

(4) Madam Deng, of the 3^rd Family, was also named as a beneficiary of the Estate of the Deceased.

45.  According to Chi Lam, after the execution of the November 2011 Will, the Deceased had lunch with him and Madam Deng, in the course of which the Deceased asked Chi Lam to write down on a piece of paper what he had in mind when deciding on his testamentary dispositions as set out in the November Will.  Chi Lam did as he was told by the Deceased, which gave rise to note dated 8 November 2011 (“the November Explanatory Note”).  In the November Explanatory Note, the Deceased explained that he gave 1 share to Kin Wing but not to any other children of the 2^nd Family because, during the past ten odd years, none of them had shown any care about him, and his relationship with the members of the 2^nd Family, with the exception of Kin Wing, was very “alienated”.  The November Explanatory Note was signed by the Deceased.

(vii)   Meetings in November and December 2011

46.  In November 2011, some time after the execution of the November Will, Kin Wing, Lai Har and Lai Wah visited the Deceased at a hotel in Shenzhen.  Madam Deng and Chi Lam were also present on that occasion.  It is common ground that the Deceased did not recognize Lai Har and Lai Wah at the hotel lobby when he first saw them. Later, the whole party went to a hotel room which had been booked by Madam Deng and Chi Lam for the Deceased to stay there overnight. Afterwards, the party went to a restaurant to have lunch.  There are conflicts between the evidence of Madam Deng and Chi Lam on the one hand and Kin Wing and Lai Har on the other as regards what happened in the hotel room and in the restaurant, including:-

(1) the length of time that they spent in the hotel room: according to Chi Lam about 10 minutes, but according to Kin Wing about 2 hours;

(2) whether the Deceased could recognise Lai Har and Lai Wah as his daughters in the hotel room and the restaurant: according to Madam Deng/Chi Lam he could, but according to Kin Wing/Lai Har he could not; and

(3) what was said during the lunch: according to Madam Deng/Chi Lam, the Deceased asked Lai Har and Lai Wah many personal questions during the lunch, including Lai Har’s relationship with his Japanese boy-friend, whether Lai Har’s still placed 2 lion statutes at the door of her home in the States, and Lai Wah’s earnings and children, but according to Kin Wing/Lai Har he did not or they could not recall.

47.  In his closing submissions, Mr Miu made some heavy weather out of this meeting.  I have carefully reviewed the evidence of the witnesses in relation to this meeting which I do not propose to recite in detail in this judgment.  I accept the evidence of Madam Deng and Chi Lam that the Deceased could recognise Lai Har and Lai Wai in the hotel room and the restaurant, and reject the evidence given by Kin Wing and Lai Har to the contrary.  I also accept Madam Deng/Chi Lam’s evidence that the Deceased engaged in conversations with Lai Har and Lai Wai during the lunch about their personal lives.  I consider it unlikely that such conversations would have taken place if he did not recognise them as her daughters.

48.  On or about 17 December 2011, there was another meeting between Madam Lai and Kin Wing and the Deceased at Regal Hotel Hong Kong.  Madam Deng and Chi Lam were also present on that occasion.  Neither side has sought to make much out of this meeting.

(viii)  Property transactions and other legal documents executed by the Deceased between the end of 2010 and his demise in September 2012

49.  On 8 November 2010, the Deceased executed a tenancy agreement in respect of Shop B in favour of a third party for a term of 3 years at the monthly rent of HK$30,800.  Messrs Tony Kan & Co acted for the Deceased in relation to this transaction.

50.  On 12 January 2011, the Deceased gifted a half share of the Nga Tsin Long Road Property to Chi Sum, and on 20 May 2011, the Deceased gifted the remaining half share of that property to Chi Lam.

51.  On 25 January 2011, the Deceased gifted the Rhine Garden Property to Chi Kin.  Messrs Tam & Partners acted for the Deceased in relation to this transaction.

52.  On 31 January 2011, the Deceased and Madam Deng sold the Wei Chien Court Property to a third party for HK$2,438,000.

53.  On 27 May 2011, the Deceased executed two Statutory Declarations in respect of Shops A and B respectively, and a Deed of Severance of his joint tenancy with Chi Sing in respect of the South Horizon Property at the office of STC.  Pausing here, it may be noted that by that date, Madam Ng had already passed away.  Hence, the Deceased and Chi Sing were the only joint tenants of the South Horizons Property at that time.

54.  On 29 August 2011, the Deceased transferred his half share in the South Horizons Property to Chi Sing for the consideration of HK$1.5 million.  Messrs Tang & Associates acted for the Deceased in relation to this transaction.  The payment of HK$1.5 million by Chi Sing was effected by a cashier order dated 25 August 2011, receipt whereof was acknowledged by the Deceased in writing dated 29 August 2011.  In paragraph 7(g) of the Amended Defence, it is alleged that the payment of HK$1.5 million by Chi Sing to the Deceased was in fact a partial repayment of a loan of HK$2 million advanced by the Deceased to Chi Sing in or about 1998/1999.  This allegation is based, apparently, on what Chi Lam was told by the Deceased.  On the other hand, Kin Wing says that he was told by Chi Sing that he had not taken any loan, whether in the sum of HK$2 million or any other sum, form the Deceased in 1998/1999, and that the payment of HK$1.5 million represented the consideration for the assignment of a half share in the South Horizons Property, although Chi Sing also accepted that the South Horizon Property was worth more than HK$3 million in August 2011 (and thus there was an element of gift in the assignment).  Neither party has called Chi Sing to give evidence.  The Deceased did not refer to any loan in his written receipt, but stated that the cashier order of HK$1.5 million was “the purchase price for purchase of all my shares, interest of and in [the South Horizons Property]”.  On the evidence before me, I consider that I ought to go by what is stated on the face of the assignment and receipt, and find that Chi Sing paid the HK$1.5 million to the Deceased not as partial repayment of any loan but as consideration for the assignment of a half share in the South Horizons Property.

55.  On 6 December 2011, the Deceased executed a Power of Attorney in favour of Madam Deng to enable her to manage Shops A and B, including letting them out and receiving the rents derived therefrom.  Messrs Yip, Tse & Tang acted for the Deceased in relation to this Power of Attorney.

(ix)   Medical records relating to the Deceased’s psychiatric conditions

56.  In July 1994, the Deceased was registered as a patient of Dr Bien Tse Fang, Barry, who was not a psychiatrist.  Between 1994 and 2010, the Deceased received medical treatments from Dr Bien on numerous occasions.  The medical records between 1994 and September 2010 kept by Dr Bien do not show that the Deceased was suffering from any form of mental illness.

57.  On 26 November 2010, the Deceased was examined by Dr Tang, a psychiatrist at Kowloon Hospital, who formed the impression that the Deceased was suffering from “subclinical delirium” and suggested that, in his then current state, the Deceased was not mentally fit to sign a will. 

58.  On 3 December 2010, the Deceased was examined again by Dr Tang, who formed the impression that the Deceased was suffering from “dementia superimposed by delirium”.  As on the last occasion, he suggested that the Deceased was currently mentally not fit to sign a will. 

59.  It is of note that both examinations were, apparently, carried out upon the request of Chi Sum to assess his mental capacity to execute a will.  It is also of note that Dr Tang did not, it would seem, consider the Deceased’s mental impairment to be permanent.  In his medical report dated 26 November 2010, he suggested a re-consultation when the patient “had improvement in mental state”.  Similarly, in his medical report dated 3 December 2010, Dr Tang stated only that the Deceased was “currently” mentally not fit to sign a will, and suggested a re‑consultation in future.

60.  On 12 January 2011, the Deceased was examined by Dr Foo Kam-so Stephen (a Specialist in Family Medicine), who certified that the Deceased was “mentally fit to give instructions”, “mentally clear with a sound mind”, and “was able to make a decision according to his own will”.  As earlier mentioned, on that date, the Deceased executed a Deed of Gift giving a half share of the Nga Tsin Long Road Property to Chi Sum.

61.  During the period between 24 November 2010 and 13 April 2012, the Deceased took 6 MMSEs (Mini-Mental State Examinations), with the following results:-

Date	Place where MMSE was carried out	MMSE Score
24.11.2010	Kowloon Hospital	16/30
30.11.2010	QEH	11/30
14.02.2011	QEH	13/30
11.07.2011	QEH	14/30
16.07.2011	July Will
08.11.2011	November Will
05.04.2012	QEH	11/30
13.04.2012	Kowloon Hospital	20/30

62.  It is not in dispute that MMSE is only a screening test for cognitive function, and not a diagnostic test for dementia.  If the patient reaches the cut-off score, he/she is “screened out”.  In such a case, generally, no further investigation would be carried out or required, and the patient would not be considered as demented. However, if the patient scores below the passing mark, he/she is regarded as mentally impaired and further investigation would, or may, be carried out in order to determine the cause of the mental impairment.  In relation to the Deceased, having regard to his education level, the cut-off score was 20.  In other words, he failed the first 5 MMSEs, but passed the last one.

(x)   The present action

63.  As earlier mentioned, the Deceased passed away on 15 September 2012. 

64.  On 22 March 2013, probate of the November Will was granted to Madam Deng and Chi Lam.

65.  On 16 October 2013, the Plaintiffs commenced the present action seeking a revocation of the grant on the ground that the November Will was executed by the Deceased without the requisite testamentary capacity, or knowledge and approval of the contents thereof, and for an order that the Plaintiffs or such other fit and proper persons be authorized to apply for a grant of letters of administration of the Estate of the Deceased.

66.  By their Amended Defence and Counterclaim dated 23 May 2017, the Defendants seek probate of the November Will, alternatively the July Will, in solemn form and, in the further alternative, an order that Chi Lam or such other fit and proper person be granted letters of administration of the Estate of the Deceased.

67.  At the trial, the following witnesses were called to give oral evidence:-

(1) on the Plaintiffs’ side: (i) Kin Wing, (ii) Lai Har, and (iii) Professor Felice Lieh Mak (expert witness); and

(2) on the Defendants’ side: (i) Madam Deng, (ii) Chi Lam, (iii) Dr Hsu, (iv) Mr Tang, (v) Mr Lai, and (vi) Dr Chen Char-Nie (expert witness).

THE DECEASED HAD TESTAMENTARY CAPACITY AT THE TIME OF EXECUTION OF THE NOVEMBER WILL

(i)   Applicable principles

68.  In a recent judgment given in Choi Po Chun v Au Wing Lun, HCA 7/2010 (4 July 2017), at paragraphs 44 to 47, I set out various principles for determining whether a testator had testamentary capacity to make a will.  In particular, the following principles were stated:-

(1) The four criteria for testamentary capacity in the classic statement by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565 have been endorsed by the Court of Appeal in Chiu Man Fu v Chiu Chung Kwan Ying, CACV 40/2012 (18 June 2013), at paragraph 52, and are well established –

“It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural 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.”

(2) The question of whether a testator had testamentary capacity should be treated as a “practical question” which does not depend solely on scientific or legal definition, and is a question of degree to be solved on the facts and circumstances of each case.  The criteria in Banks v Goodfellow are not matters that are directly medical questions, but are matters for commonsense judicial judgment on the basis of the whole of the evidence (see Boughton v Knight (1873) LR 3 P&D 64 at 67, Sir J Hannen, and Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197).

(3) The fact that a person was suffering from dementia, or had partial unsoundness of mind, does not necessarily mean that he did not have testamentary capacity to make a will (see Chiu Man Fu v Chiu Chung Kwan Ying, HCAP 9/2005 (31 January 2012), at paragraph 133 per Poon J (as he then was); Chan Chun Pui and Pang Woon Kam v Feng Cuixian, HCAP 13/2007 (24 July 2009), at paragraphs 121-124 and 146 per Recorder A Ho SC.)

(4) The fact that the dispositions in a will are rational is an important factor or indicator of testamentary capacity.  So also is the fact that a will is prepared by an independent and experienced solicitor, is executed by the testator after the solicitor has read through and explained its provisions to the testator, and the solicitor is satisfied that the testator is capable of understanding, and understands, the will (see Banks v Goodfellow, supra, at 558 and 565-566; Hoff v Atherton [2004] EWCA Civ 1554, at paragraph 44 per Peter Gibson LJ).

(5) The following words of caution stated by Mummery LJ in Burgess v Hawes [2013] EWCA Civ 74 are, I consider, worth repeating in this judgment:-

“57 That said, it is, in my opinion, a very strong thing for the judge to find that the Deceased was not mentally capable of making the 2007 Will, when it had been prepared by an experienced and independent solicitor following a meeting with her; when it was executed by her after the solicitor had read through it and explained it; and when the solicitor considered that she was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational.

60 My concern is that the courts should not too readily upset, on the grounds of lack of mental capacity, a will that has been drafted by an experienced independent lawyer. If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity. The court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testatrix, and particularly in circumstances when that expert accepts that the testatrix understood that she was making a will and also understood the extent of her property.”

(ii)   Facts and matters showing testamentary capacity

69.  The following facts and matters support the view that the Deceased had testamentary capacity at the time of execution of the November Will.

70.  First, the Deceased had a detailed conversation with Mr Lai in March 2011 in the course of which a wide range of topics relating to the making of a will were discussed.  According to Mr Lai, whose evidence I accept, the Deceased spoke logically and relevantly, and was able to hold a discussion with him with proper and sensible follow-up questions and inquiries.  The evidence of Mr Lai supports the view that the Deceased had a clear mind, understood the nature and effect of a will, and was aware of the persons or classes of persons whom he ought to consider when deciding on the dispositions in his will.

71.  Second, the dispositions in the November Will are rational.  I consider that the Deceased could rationally decide to:-

(1) “disinherit” the members of the 2^nd Family (with the exception of Kin Wing) who had all emigrated from Hong Kong and had not taken care of the Deceased for many years;

(2) distinguish Kin Wing from the rest of the 2^nd Family in view of the fact he remained in Hong Kong and, it is not in dispute, visited and took care of the Deceased; and

(3) give 1 share of the proceeds of sale of Shops A and B to Chi Lam’s daughter (Paeonia), and 1 extra share to Chi Lam, for the reasons given by Chi Lam, whose evidence on these matters I accept to be truthful.

72.  Third, immediately prior to the execution of the November Will, Dr Hsu found, after examining the Deceased, that he “was fully conscious, mentally alert and sound and able to make decisions”, and noted or observed that the Deceased “could tell his name, age, address and was well oriented as to time and place”.

73.  Fourth, at the meeting with Mr Tang in the office of PWKL for the execution of the November Will, Mr Tang found the Deceased to be alert, in a very good mood and coherent in telling him about his children and family.  Also, the Deceased either nodded or said he understood when the nature and effect of the will was being explained to him.  Mr Tang had no doubt that the Deceased understood the legal effect of his conduct on that day and the signing of the November Will.

74.  Fifth, after the execution of the November Will, the Deceased instructed Chi Lam to write out his reasons for “disinheriting” the members of the 2^nd Family with the exception of Kin Wing, and signed the November Explanatory Note to confirm the same.  The reasons given by the Deceased in the November Explanatory Note seem to me to be rational ones.

75.  Sixth, during the period from the end of 2010 to his demise in September 2012, the Deceased executed many legal documents (including a number of conveyances, a tenancy agreement, a deed of severance, two statutory declarations and a power of attorney) at different law firms.  Apparently, none of the handling solicitors or clerks considered the Deceased to lack mental capacity to enter into the relevant transactions.  Although the mental capacity required to make a will may be higher than that required for the other transactions (see Boughton v Knight (1873) LR 3 P&D 64, at 71-72; Re Beaney [1978] 1 WLR 770, at 774E-F), the fact that no one apparently questioned the Deceased’s mental capacity to enter into those transactions is still relevant to the question of whether he had the requisite testamentary capacity to make the November Will.

76.  Seventh, according to Madam Deng, who had been living with the Deceased for over 20 years prior to this death and whose evidence I accept, the Deceased had a clear and normal mind during the long period of their co-habitation, and he fully understood his decisions at the time of the making of the November Will.  Madam Deng came to the latter view as a result of, inter alia, (i) the Deceased’s expression of worry that the members of the 2^nd Family might not be satisfied with his dispositions in the November Will, and (ii) the Deceased’s understanding of the need for the medical examination by Dr Hsu, namely, to prove his mental capacity for making a will (see paragraphs 10 and 11 of Madam Deng’s 1^st witness statement).

77.  Lastly, I take into account the contents of the November Will, which seems to me to be relatively straight forward, consisting of only 2 pages with 6 simple clauses.

78.  The principal matter relied upon by the Plaintiffs to show lack of testamentary capacity on the part of the Deceased is based on the allegation that he could not recognise Lai Har and Lai Wah as his daughters at the meeting in Shenzhen in November 2011. However, as earlier mentioned, I reject Kin Wing and Lai Har’s evidence that the Deceased could not recognise Lai Har and Lai Wah in the hotel room and the restaurant, and accept Madam Deng and Chi Lam’s evidence to the contrary.

79.  Mr Miu also relies upon the so-called “Golden Rule” referred to by Templeman J (as he then was) in Kenward v Adams (1975) The Times 29 November 1975, namely, that when a solicitor draws up a will for an aged or seriously ill testator, it should be witnessed or approved by a medical practitioner who ought to record his examination of the testator and his findings, and that an earlier will should be examined and any proposed alterations should be discussed with the testator.  The Deceased was examined by a medical practitioner (Dr Hsu) prior to the execution of the November Will, although it is right to note that Dr Hsu was not a psychiatrist.  It does not appear that there was any discussion between Mr Tang and the Deceased regarding the earlier will (ie, the July Will), or the proposed alterations to be made by the November Will.  These are matters which I should bear in mind when considering the question of whether the Deceased had testamentary capacity to make the November Will, and also the question of whether he knew and approved the contents thereof when he executed it on 8 November 2011.

(iii)   Expert Evidence

80.  At the trial, the Plaintiffs called Professor Mak, and the Defendants called Dr Chen, to give expert evidence on the mental capacity of the Deceased to execute, inter alia, the November Will.  There is no issue about their expert status. Neither expert had the chance to examine the Deceased during his lifetime, and both have to rely on the existing materials and medical records to form their respective opinions. 

81.  Professor Mak’s evidence, in summary, is as follows:-

(1) The Deceased was apparently normal in terms of both his motor and cognitive functions prior to October 2010.

(2) In October 2010, the Deceased was admitted to North District Hospital, and was diagnosed with pneumonia, fast atrial fibrillation and congestive heart failure.  With atrial fibrillation, the heart cannot pump efficiently, causing the blood to be stagnant in the chambers of the heart, which in turn leads (or may lead) to the formation of clots. These clots may be pumped to the brain causing a silent infarct. On this occasion, the Deceased might have developed a silent infarct which caused impairment of cognitive functions.

(3) On 14 November 2010, the Deceased was admitted to Queen Elizabeth Hospital for lower lobe pneumonia. He was observed to be dependent in activities of daily life.  There were episodes of confusion and incontinence of urine.  The Deceased’s son also reported that the Deceased had impairment of memory since his admission to North District Hospital.

(4) On his admission to Kowloon Hospital on 19 November 2010, the Deceased was noted to be incontinent of urine and had to wear incontinent pads.  There was also disorientation as to place, time and person.

(5) CT scan of the Deceased’s brain carried out on 29 November 2010 at Queen Elizabeth Hospital showed lacunar infarcts and ischaemic changes.

(6) The MMSEs taken by the Deceased (summarised in paragraph 61 above) were administered when he was mentally alert.  The MMSE results were unlikely to have been affected by delirium, physical distress or discomfort, or medications.  They showed consistent impairment in the cognitive domains, including (i) learning and memory, (ii) calculation and complex attention, (iii) orientation as to dates and places, and (iv) visual construction skill.

(7) The cognitive deficits did not occur exclusively in the context of delirium despite the diagnosis of dementia superimposed by delirium/subdelirium by the psychiatrist (Dr Tang) of Kowloon Hospital.  Indeed, Professor Mak is of the view that the Deceased’s symptoms as noted by Dr Tang during the examination on 26 November 2010 (namely, memory impairment, disorientation, not being able to tell the properties that he owned, and not understanding the dispositions he made in a will that he had written) were more likely to be the result of dementia rather than delirium.  Professor Mak considers that there were no symptoms of, and there was no medical condition that might have caused, delirium.  She expresses the same views in respect of Dr Tang’s diagnosis and conclusion in respect of the examination on 3 December 2010.

(8) The Deceased was suffering from vascular dementia. The degree of dementia was moderate.

(9) On the question of the Deceased’s testamentary capacity to make the November Will –

(a) In view of his impaired recent memory and executive functions, the Deceased would not have been able to understand the information relevant to the nature and effect of the act of making a will.  The Deceased would not have been able to retain any information given to him, or use or weigh such information as part of his decision-making process.

(b) In view of his disorientation as to dates and places, the Deceased would not have understood the extent of the properties that he was disposing of under the will.

(c) In view of the Deceased’s impairment in recent memory, complex attention, simple calculation and executive functions, he would not have been able to comprehend and appreciate the claims to which he ought to give effect, much less being able to apportion the proceeds from the sale of the properties.

(d) The disorder of the mind might cause the Deceased to dispose of his properties in a way that he would not have done had he been mentally sound.

82.  On the other hand, Dr Chen’s evidence, in summary, is as follows:-

(1) The medical records suggest that after 2009 the Deceased had multiple medical disorders and frequent hospitalisations.  The causes for his multiple admissions to hospitals include infection (upper respiratory tract infection, E Coli septicaemia, urinary tract infections, etc), cardio-pulmonary disorders (chest pain, congestive heart failure, pulmonary oedema, ischaemic heart disease, acute coronary syndrome, atrial fibrillation, hyperlipidaemia, etc), gout with painful toes, renal disorders (actual renal failure), metabolic disorders (diabetes mellitus, cholangitis attacks, fluid and electrolyte imbalance, etc), and endocrine disorders (subclinical hypothyroidism).  Most of these were unstable medical conditions.

(2) Dr Chen agrees with Dr Tang’s diagnosis of subclinical delirium or delirium which was made during the Deceased’s long hospitalization from mid-October to December 2010 in Queen Elizabeth Hospital and Kowloon Hospital.  That diagnosis was made by Dr Tang for the purpose of assessing the Deceased’s mental capacity to make a will.

(3) It is possible that the first 5 MMSEs were carried out while the Deceased was in a state of repeated delirium, which explained why he was put on physical restraint and there were manifestations of disorientation and attention problems.  When the successive delirium cleared off, his attention problems recovered.

(4) It was likely that the repeated low MMSE scores and the delirious state might have prompted Dr Tang to make a diagnosis of dementia (being one possible condition, or risk factor, which could have caused delirium).

(5) The first 5 MMSE results indicated that the Deceased’s mental capacity was deteriorating, but the last one (carried out in April 2012) indicated that he was at the lowest point of a normal person with up to 2 years of primary education.  Dr Chen places significant weight on the fact that on 5 April 2012 the Deceased scored poorly in the MMSE (11/30), but 7 to 8 days later his score improved substantially (20/30).  Dr Chen also noted that the last MMSE was carried out 2 days after the Deceased’s fever had subsided.  According to Dr Chen, such a significant improvement can never happen in a patient with dementia, whether it is senile or vascular dementia.  The former normally runs a clinical course with steady decline, and the latter with a stepwise decline.

(6) Since dementia is a clinical disorder with progressive deterioration, it is unlikely that the Deceased could be suffering from dementia before the execution of the November Will and recovering from it 5 months later. 

(7) A clinical report of the Deceased prepared by an occupational therapist of Kowloon Hospital (Tiffany Chau, who also conducted the 6^th MMSE) on the same date (13 April 2012) showed that the Deceased was alert, able to follow complex commands, had relevant and coherent speech, oriented as to place and person, although not to time, and had a fair memory.  The Deceased was also assessed on his “Functional Independence Measure” on 13 April 2012, and the results showed that he was fully independent on feeding, grooming, comprehending conversation, emotional expression, social interaction, and dressing himself on upper parts of his body.  The above reflected the Deceased’s state when he was not in delirium.

(8) During his multiple hospitalisations, he might have seen psychiatrists, neurologists or geriatric physicians, but he had never been treated for dementia.

(9) Bearing in mind the matters mentioned above as well as the observations of Dr Hsu (who examined the Deceased immediately prior to his execution of the November Will), and Mr Tang and the clerk (who attended to the Deceased’s execution of the November Will), Dr Chen believes that the Deceased had testamentary capacity to make the November Will.

83.  Both Professor Mak and Dr Chen use the DSM-5 as the diagnostic criteria for dementia.  One of the relevant criteria is that the cognitive deficits shown by the patient do not occur exclusively in the context of a delirium (in other words, the patient must be in clear consciousness at the material time).

84.  I prefer the evidence of Dr Chen to that of Professor Mak.  One major difficulty that I have with Professor Mak’s opinion that the Deceased was suffering from dementia is that she has not been able to give any satisfactory explanation for the Deceased’s substantially improved MMSE score on 13 April 2012 when compared to the earlier MMSE scores, it being common ground that a person suffering from dementia would show progressively deteriorating mental functions.  As remarked by Professor Mak in her report dated 16 March 2016 (at paragraph 9.11), “Once he suffered from dementia there was no going back to clear thinking and normal mental functions because the effects of dementia are irreversible and the course is downhill”.  Mr Miu was driven to argue that one should ignore the last MMSE score because it was an exceptional result standing out from the rest. However, there is nothing to suggest that the last MMSE was conducted improperly or incompetently, or the results were wrongly recorded, or the Deceased achieved the passing score of 20/30 by chance or luck.  I do not consider that one can simply brush aside the MMSE score achieved by the Deceased on 13 April 2012.  I also consider Dr Chen’s other reasoning for coming to the conclusion that the Deceased was not suffering from dementia (as summarised in paragraph 82 above) to be convincing.

85.  In all, I find, on the balance of probabilities, that the Deceased was not suffering from dementia at the time of execution of the November Will.

(iv)   The Deceased’s testamentary capacity

86.  The issue that I have to determine is not whether the Deceased was suffering from dementia, but whether he had testamentary capacity to make the November Will.  If the Deceased was not suffering from dementia at the time of execution of the November Will, there would be no basis to say that he had no testamentary capacity.  In this regard, I note that there is no suggestion that the Deceased was still suffering from delirium at the time of his execution of the November Will.  On the contrary, the Deceased’s behaviour or conduct on 8 November 2011 suggests that he was not suffering from delirium on that date.

87.  On the other hand, as observed by Cheung JA in Choy Po Chun v Au Wing Lun [2012] 2 HKLRD 148, at paragraph 35, “[e]ven if, on the face of the evidence, it is shown that the deceased had dementia, the crux of the matter must be about the severity of his dementia and the extent to which the dementia affected his testamentary capacity at the time when he executed the [relevant] will.”

88.  Even if the Deceased was suffering from dementia at the time of execution of the November Will (the severity of which, on Professor Mak’s evidence, would be “moderate”), in view of the matters stated in paragraphs 70 to 79 above, I am satisfied that the Defendants have discharged the burden that the Deceased was of testamentary capacity at the time of execution of the November Will.

THE DECEASED KNEW AND APPROVED THE CONTENTS OF THE NOVEMBER WILL AT THE TIME OF EXECUTION

89.  Mr Miu argues that the second rule in Barry v Butlin is triggered in the present case so that, as explained by Ribeiro PJ in paragraphs 206 to 211 of his judgment in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387, the Defendants are required to prove affirmatively knowledge and approval of the contents of the November Will on the part of the Deceased in order to satisfy the court that it represented the wishes of the Deceased.

90.  I accept Chi Lam’s evidence that his role in relation to the preparation and execution of the November Will was basically one of acting upon the Deceased’s instructions.  I have some reservation as to whether the second rule in Barry v Butlin should be regarded as having application in such circumstances.  I shall assume, however, in the Plaintiffs’ favour that the second rule in Barry v Butlin is triggered in the present case.  In such a situation, knowledge and approval cannot be presumed merely upon proof of due execution and testamentary capacity, and the proponent of the will is required to adduce affirmative evidence that the testator did indeed know and approve the contents of the will.  Also, the court ought to be vigilant and jealous in examining the evidence when considering the issue of knowledge and approval.  This having been said, the cogency of the evidence required to satisfy the court that the testator knew and approved the contents of the will must depend on the circumstances which bring into application the second rule in Barry v Butlin.  In any event, the proponent is not required to dispel any circumstances which might be said to be suspicious in relation to the will propounded (see Nina Kung,at paragraph 218 per Ribeiro PJ).

91.  Generally speaking, the fact that a will was prepared by a solicitor and was, on the face of it, properly executed by a testator in front of the solicitor and his clerk after having been read over the contents thereof by the solicitor provides strong evidence of the testator’s knowledge and approval of the contents of the will: see Gill v Woodall [2010] Ch 380 per Lord Neuberger MR:-

“14. Knowing and approving of the contents of one's will is traditional language for saying that the will ‘represented [one's] testamentary intentions’ see per Chadwick LJ in Fuller v Strum [2002] 1 WLR 1097, para 59. The proposition that Mrs Gill knew and approved of the contents of the will appears, at first sight, very hard indeed to resist. As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testatrix, raises a very strong presumption that it represents the testatrix's intentions at the relevant time, namely the moment she executes the will.

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

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

This view was effectively repeated and followed by Hill J in Gregson v Taylor [1917] P 256, 261, whose approach was referred to with approval by Latey J in In re Morris, decd [1971] P 62, 77f -78b. Hill J said that ‘when it is proved that a will has been read over to or by a capable testator, and he then executes it’, the ‘grave and strong presumption’ of knowledge and approval ‘can be rebutted only by the clearest evidence’. This approach was adopted in this court in Fuller v Strum [2002] 1 WLR 1097, para 33 and in Perrins v Holland [2011] Ch 270, para 28.”

92.  In the present case, the November Will was prepared by a firm of solicitors and was executed by the Deceased in front of Mr Tang and a clerk of the law firm after its contents had been read over and explained to him by Mr Tang.  Mr Miu makes a strong point that Mr Tang ought to have asked the Deceased non-leading questions to elicit his knowledge and approval of the contents of the November Will (see Buckenham v Dickinson [2000] WTLR 1083, at 1095-1098).  I accept that Mr Tang should have asked the Deceased non-leading questions.  This is a relevant consideration which I should take into account when determining the issue of knowledge and approval.  However, I do not understand it to be a rule of law that a failure to ask non-leading questions by the solicitor must necessarily be fatal to the validity of the will.

93.  Taking into account all the circumstances in the present case, including in particular the matters referred to in paragraphs 70 to 79 above, I am satisfied that the Defendants have discharged the burden of proving affirmatively that the Deceased knew and approved the contents of the November Will at the time of his execution of the same.

94.  In all, I find that the Deceased executed the November Will with (i) the requisite testamentary capacity, and (ii) knowledge and approval of its contents.  Having reached this conclusion, it is not necessary for me to consider the validity of the July Will, or the choice of administrator(s).

DISPOSITION

95.  For the foregoing reasons, I dismiss the Plaintiffs’ action against the Defendants and, in relation to the Defendants’ counterclaim, pronounce in solemn form for the force and validity of the November Will.  I also order the Plaintiffs to pay the Defendants’ costs of the action (including the counterclaim), to be taxed if not agreed.

96.  Lastly, it remains for me to thank counsel for the assistance that they have rendered to the court in this action.