AU WING LUN (區穎麟) also known as AU WING LUN WILLIAM (區穎麟) v. CHOY PO CHUN, AU CHADWICK

FAMV No.47 of 2018

[2018] HKCFA 61

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 47 OF 2018 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 177 OF 2017)

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REASONS FOR DETERMINATION

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Mr Justice Ribeiro PJ:

1.  At the hearing, we dismissed this application for leave to appeal for reasons which we now provide.

The competing wills

2.  On 7 July 2009, Au Kong Tim (“the Deceased”) died at the age of 93 after a long period of infirmity, leaving an estate worth in excess of HK$1 billion.  Contested probate proceedings ensued.  It was common ground that in 2002, the Deceased had made a valid will (“the 2002 Will”) in which he left the whole of his residuary estate to his six grandchildren[1] in equal shares.   The Deceased’s son William Au Wing Lun (“William”) sought, however, to propound a will purportedly made by the Deceased on 5 September 2008 (“the 2008 Will”) revoking the 2002 Will and leaving his entire estate to William and William’s son Wilson; and to William’s brother Anthony Au Yuk Lun (“Anthony”) and his son Chadwick, in equal shares (leaving out the four granddaughters).  Contesting the 2008 Will were Choy Po Chun (“Po Chun”), Anthony’s wife and Chadwick, Anthony’s son just mentioned.  They sought to propound the 2002 Will. 

The issues

3.  The parties joined issue as to whether the Deceased had duly executed the 2008 Will; whether he had testamentary capacity to do so; and whether he knew and approved of its contents at the time of its execution.  Chow J[2] held that William had discharged his burden of proof in respect of all three questions and pronounced in favour of the 2008 Will.  The Court of Appeal[3] unanimously allowed the appeal, holding that on the evidence, William could not be held to have discharged that burden and pronounced in favour of the 2002 Will instead.  William now seeks leave to appeal against the Court of Appeal’s decision.

4.  The focus of the dispute is on the Deceased’s testamentary capacity (and concomitantly his knowledge and approval of its contents) at the time of executing the 2008 Will. Due execution is no longer an issue.  It is common ground that the approach to determining testamentary capacity is classically laid down in Banks v Goodfellow,[4] as requiring an inquiry into whether the testator understood the nature of the act of making a will and its effects; whether he understood the extent of the property of which he was disposing; and whether he was able to comprehend and appreciate the claims to which he ought to give effect.

The evidence and findings

5.  The evidence and findings principally bearing on the testamentary capacity issue may be summarised as follows.

6.  William (himself a solicitor) was the moving spirit behind the preparation of the 2008 Will.  He instructed Messrs Tso Au Yim & Yeung, solicitors, for that purpose.  Yeung Wai Chung, Victor (“Yeung”), a partner in the firm and Lau Wah Shun, Edwin (“Lau”) then a trainee solicitor under Yeung’s supervision, were instructed to prepare the will and to attest to its execution by the Deceased on 5 September 2008.  Yeung and Lau gave evidence at the trial.  No other family member was made aware of the 2008 Will prior to the Deceased’s death.[5]

7.  Po Chun also gave evidence which was accepted by the Judge.  She testified that there had been a significant deterioration in the Deceased’s mental state over the three years preceding his death, recounting instances of his losing his way and being found wandering in the street by the police; his repetitive purchases of identical articles; incoherence in his speech; and so forth.[6] William’s evidence which, as the Court of Appeal pointed out,[7] tended to go in the opposite direction as to the Deceased’s ability to communicate with others, was also accepted by the Judge.[8]

8.  Additionally, medical histories and records relating to the Deceased, especially after he had sustained injuries in a series of falls, were also in evidence.  These recorded, among other things, a CT brain scan showing cerebral atrophy and diagnosis of a chronic subdural haematoma requiring emergency burr hole drainage.  There were repeated diagnoses of dementia with certain medical assessments holding that he was mentally unfit for making a statement; but also instances where he was recorded to have been alert and conscious, with an ability to follow simple commands and to make verbal responses.  Expert psychiatric evidence was given by Dr Tsang Fan Kwong for Po Chun and Chadwick and by Dr Kieran Singer for William, neither of whom had examined the Deceased while he was alive.

9.  The Judge took all the evidence into consideration and concluded that the Deceased had not been suffering from dementia or, if he was suffering from that condition, that it was of a mild or moderate severity so as not to prevent William from discharging his burden of proving testamentary capacity.[9]  In reaching that conclusion it is however clear that the Judge regarded the evidence of Yeung and Lau as crucial.  His Lordship stated:

“The evidence which most strongly supports William’s case that the Deceased was of testamentary capacity at the time of the execution of the 2008 Will comes from the circumstances in which that will came to be executed by the Deceased, as described by Mr Yeung and Mr Lau. I have already summarised their evidence above when considering the issue of due execution and I shall not repeat the same here. The Deceased’s interaction with Mr Yeung and Mr Lau on 5 September 2008 shows, in my view, that the Deceased understood and appreciated what he was doing on that occasion. I consider it to be significant that the Deceased indicated to Mr Yeung that he did not understand the contents of the 2008 Will after it had been read over and explained to him for the first time, but indicated to Mr Yeung that he understood the contents thereof after the second reading over and explanation by Mr Yeung. This shows that the Deceased could differentiate between ‘understanding’ and ‘not understanding’ the contents of the 2008 Will, and express himself accordingly. I give weight to the evidence of Mr Yeung and Mr Lau on the issue of testamentary capacity notwithstanding Mr Hingorani’s criticisms of their evidence mentioned in paragraph 40 above.”[10]

10.  The criticisms referred to in the last sentence involved the admitted failure by Yeung and Lau to follow well-established guidelines as to the steps which should be taken and inquiries that should be made in approaching the Banks v Goodfellow questions in cases where significant issues regarding testamentary capacity exist.  The guidelines in question are to be found, first, in a checklist set out in “Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers” published by the British Medical Association and the Law Society designed to ascertain whether the Deceased was capable of “understanding the nature of the act and its effects”, “understanding the extent of the property being disposed of” and “able to comprehend and appreciate the claims to which a person making a will ought to give effect”.  Secondly, Yeung and Lau failed to follow “the golden rule” referred to by Templeman J in Kenward v Adams,[11] 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.  None of this was done in the present case.

The Court of Appeal’s decision

11.  Given the crucial importance which the Judge assigned to the evidence of the solicitors acting as attesting witnesses, the Court of Appeal regarded their failure to undertake the abovementioned inquiries designed to verify the three aspects of testamentary capacity required by Banks v Goodfellow, as leaving a serious gap in the evidence which fundamentally undermined the Judge’s conclusion that such capacity had been proved, notwithstanding his finding that the Deceased had either not been suffering from dementia or suffering from dementia of a mild or moderate severity.  While the Court of Appeal was prepared to accept that, on the evidence given by Yeung and Lau, the Judge could properly find that the Deceased was capable of understanding the nature of the act of making the 2008 Will and its effects, it was not satisfied that any basis existed for finding that the latter two criteria (concerning the Deceased’s understanding of the extent of the property being disposed of and his ability to comprehend and appreciate the claims to which he ought to give effect) had been met.[12]

12.  As Kwan JA put it:

“It does not appear to me that an inference could properly be drawn from the evidence of Mr Yeung and Mr Lau that the deceased was able to understand and did understand the matters relating to the other two criteria, for it was accepted that Mr Yeung and Mr Lau had failed to follow the checklist in ‘Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers’ or the ‘golden rule’. ... In their interaction with the deceased, Mr Yeung and Mr Lau had plainly not directed their minds to ascertain if the deceased was capable of understanding the extent of the property he was disposing of, or if the deceased was able to comprehend and appreciate the claims to which he ought to give effect in his will. No questions were asked by Mr Yeung or Mr Lau if the deceased had any other living close relative apart from the four named beneficiaries in the will, the size of the deceased’s estate or the nature of his assets, whether there was an earlier will and if so the reason for making a new will.”[13]

13.  The Court of Appeal did not fall into the error of treating the checklist and “golden rule” as rules of law to be strictly adhered to.  This was acknowledge by Kwan JA.[14]  And in his judgment which helpfully lists inquiries which solicitors asked to attest execution of the will of a testator who is old and infirm should prudently make (alongside following the checklist and the “golden rule”), Cheung JA stressed that such inquiries are “subject to the circumstances of each case”; that “the extent of the inquiry will depend on the circumstances of the case” and that “it is accepted that the golden rule does not lay down the law and merely contains prudent guidance for solicitors”.[15]

14.  Cheung JA took the view that the present case “cried out loudly for more detailed enquiry to be conducted by the solicitor” and that since this had not been properly done, “reliance by the Judge on the execution of the will by the testator before the solicitor and his trainee was ... misplaced.”[16]

15.  It will therefore be evident that the Court of Appeal’s decision to reverse the Judge was a fact-specific decision based on an analysis of the available evidence, the inferences that could properly be drawn on the basis of such evidence and a conclusion as to whether the Judge could soundly conclude that William had discharged his burden of proving the Deceased’s testamentary capacity at the time of executing the 2008 Will.

The application for leave to appeal

16.  William seeks leave to appeal submitting that the following questions arise as questions of law of great general or public importance which ought to be submitted to the Court for decision, namely:

“(1) Whether a testator should be determined to possess testamentary capacity in the absence of evidence or a finding of fact of mental disease or disorder, based on such capacity presumed to arise, and arising: (i) when an experienced lawyer is instructed to prepare a will which appears rational, and has formed the opinion from a meeting(s) and reading over or explaining a will to a testator that he understands what he is doing; and/or (ii) from the presumption that all adults have capacity, until the contrary is established?

(2) Whether and to what extent, it is necessary in law, for a Court determining whether a testator has testamentary capacity to make express findings on each of the 3 criteria for testamentary capacity in Banks v Goodfellow (1870) LR 5 QB 549 (at 565) separately and specifically?

(3) When there is evidence or a finding of fact that a testator is capable of understanding the nature of the act of making a will and its effects, whether and under what circumstances can: (i) ability to comprehend and appreciate the claims to which he ought to give effect, and (ii) capability of understanding the extent of the property being disposed, be established and/or inferred, with particular emphasis on the inquisitorial character of probate proceedings?

(4) What is the proper role and responsibility of a lawyer when preparing and attesting a will for a testator, and what are the implications on a will’s validity if: (i) specific questions for a “capacity assessment” are not asked and/or (ii) arrangements are not made for a medical practitioner to satisfy himself of the testator’s capacity and understanding?

17.  We do not accept that these questions raise issues of law of great general or public importance.  The legal requirements of proving testamentary capacity and the proper approach to satisfying those requirements mentioned above are well known and not in dispute.  The proposed questions are tailored to the fact-specific circumstances of the present case and are aimed at permitting the applicant to challenge the decision of the Court of Appeal overturning the Judge’s finding that William had discharged his burden of proving testamentary capacity on the part of the Deceased.  As we have seen, the Court of Appeal’s decision was grounded on the insufficiency of the available evidence to justify such a conclusion. We therefore see no basis for granting leave to appeal on the “questions of law” ground.

18.  Nor do we see any foundation for the grant of leave to appeal on the “or otherwise” basis.  The Court of Appeal was entitled to find that the present case was one crying out for a detailed and careful inquiry into the Deceased’s testamentary capacity and his knowledge and approval of the contents of the 2008 Will he was asked to execute.  This was not a case where the Deceased himself gave instructions to the solicitors for drawing up the will.  Those instructions came from William, who was a party who stood to gain a quarter of the estate by being made a beneficiary.  The instructions were given and the will prepared and executed without the knowledge or participation of the other members of the family.  The solicitors had never met the Deceased prior to the day when he executed the will on 5 September 2008 in hospital. 

19.  The Judge recounts Yeung’s evidence as to how attestation of the will proceeded as follows:

“[Yeung] spent about 5 to 8 minutes reading out and explaining the contents of the will and its legal effects to the Deceased. After that, he asked the Deceased whether he understood and comprehended the contents of the will. The Deceased said that he did not understand. William then leaned over and raised his voice to try to explain the contents of the will, but was stopped by him. He reminded William not to interfere with his client (ie the Deceased). William kept silent upon his advice. He then asked the Deceased whether he should read out and explain the contents of the will again in a louder voice. The Deceased replied that he wished the contents of the will to be read out and explained to him again. He proceeded to do so, slowly and with a raised voice. The whole process took another 10 to 15 minutes. He then asked the Deceased whether he understood and comprehended the contents of the will and its legal effects. This time, the Deceased clearly replied to him that he understood ...”[17]

“He then told the Deceased that if the contents of the will were in accordance with his intention and instructions, he and Mr Lau would be required to attest to his execution of the will in order to give it legal effect. He placed the will and a pen on the foldable table of the wheelchair (on which the Deceased was sitting) and pointed out to the Deceased the place where he should sign. The Deceased tried to raise his right hand, but had difficulty in doing so, which was noticed by him and Mr Lau. He asked the Deceased whether he would require someone to assist him to sign the will, to which the Deceased replied that he needed assistance. Mr Yeung then suggested to the Deceased that William could support and assist him in signing the will. The Deceased agreed with his suggestion. William then lifted the Deceased’s right hand onto the foldable table, placed the pen into his grip and support the back of his right hand during the signing of the will by the Deceased. After the Deceased had signed the will, he and Mr Lau signed as witnesses. He told the Deceased that he would take the will for sealing and return it to William for custody. The Deceased agreed to such arrangement.”[18]

20.  That evidence evidently represents the full extent of the interaction between the Yeung and Lau with the Deceased, lasting for perhaps half an hour, on the single occasion that they met.  It is perhaps significant that it took two readings, the second lasting 10 to 15 minutes to read out and explain a simple, two-page will. Nevertheless, the Court of Appeal was prepared to accept that the Judge was justified on the basis of the evidence of Yeung and Lau to find that the Deceased understood the nature of the act of making a will and its effects.  But given the absence of any meaningful inquiries by the attesting solicitors, it was fully entitled to conclude that serious gaps in the evidence existed in relation to key testamentary capacity issues falling outside the immediate act of signing the document.  No inquiries were made which might have thrown light on whether the Deceased understood what property he was disposing of, and on whether he appreciated that the 2008 Will was excluding certain persons, such as the granddaughters named as beneficiaries in the 2002 Will, who might be regarded as having a claim.  It is not reasonably arguable that the Court of Appeal was wrong to hold that on the available evidence, the Judge had no proper basis for inferring that those aspects of testamentary capacity had sufficiently been explored and proved.

21.  For the aforesaid reasons, the application for leave was dismissed with costs.