IP WAI HUNG v. YIP MAN CHIU AND OTHERS

HCAP 15/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 15 OF 2004

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J U D G M E N T

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Introduction

1.  This is a very unfortunate case.  The late Yip Keung (“the deceased”) had a principal wife, Madam Yam and a concubine, Madam Ho.  He and Madam Yam had 5 children, namely the five defendants.  On the other hand, Madam Ho, whom the defendants prefer to refer to as a “mistress” of their father, has only borne him 1 child, namely the plaintiff.  The plaintiff is younger than the 1^st to 4^th defendants, but older than the 5^th  defendant.

2.  Apart from the two ladies, the deceased also had a, or, another, mistress, namely Madam Wang, who has borne him two children, namely Yip Wai Man and Yip Yuen Ming.

3.  In issue is a will, purportedly made by the deceased on 16 January 1999, when he was 85 years old.  In the will, he left everything after his death to the plaintiff.  Nothing, not a single share in his estate, was left to his other children (or Madam Ho and Madam Wang, Madam Yam having died in 1985).  The will was prepared “informally” by a barrister friend of the plaintiff, namely Ms Anita Ma, who was and is a practising member of the Bar.  She took instructions from the deceased in a lunch meeting at a Chinese dim-sum restaurant – the deceased was accompanied by no one other than the plaintiff.  The will was executed slightly less than one month afterwards by the deceased in the presence of Ms Ma and a Mr Liu in a small café at a shopping mall in Whampoa Garden.  Mr Liu was and is an old friend of the plaintiff – he described the plaintiff as his “buddy” （“ 死黨”）in the witness box.

4.  Two years after the will was made, the deceased went into a coma whilst undergoing some examination at St Teresa’s Hospital.  It was due to a stroke.  He never recovered from it and passed away on 30 August 2003.

5.  The plaintiff, who has also been named the sole executor in the will, now propounds the will in solemn form.  He is opposed by the defendants, who put him to strict proof of the due execution of the will, as well as the testamentary capacity of the deceased and his knowledge and approval of the contents of the will.  Madam Wang and her two children are apparently not so interested in the estate of the deceased.  The daughter has indicated that she does not wish to contest the proceedings.  The son, who has had some confrontations with the plaintiff ever since the hospitalisation of the deceased, has at an early stage indicated that he would reserve his position, but eventually he has chosen not to take part in these proceedings. 

6.  The plaintiff accepts that as the propounder of the will, he bears the burden of proof on these issues.  Furthermore, he accepts, through Mr Albert Yau, his counsel, that as he has been instrumental in the making of the will by the deceased, under which he is the sole executor and beneficiary, the case falls within the so-called second rule in Barry v Butlin (1838) 2 Moo PC 480.  The consequence is that he is not entitled to pray in aid the presumption of due execution of the will which normally carries with it proof of knowledge and approval of the contents of that will.  Rather, he is obliged to prove affirmatively that the deceased knew and approved of the contents of the will.  In discharging that burden, Mr Yau is prepared to accept, he has to dispel “suspicions” which the circumstances surrounding the making of the will or the contents thereof may raise.  Counsel states that the greater the “suspicions”, the heavier the burden on him as the propounder to dispel them.  I have more to say about the relevant legal requirements in the later part of this judgment.

7.  Although, formally, the plaintiff has to overcome three issues, namely due execution, testamentary capacity and knowledge and approval, in the circumstances of the present case, the only real or live issue is knowledge and approval.  There is no allegation of forgery or fraud relating to the execution of the will.  The plaintiff has caused the two attesting witnesses, Ms Ma and Mr Liu, to give evidence.  It has been common ground by the time of final submission that due execution of the will is not really in issue.

8.  As to testamentary capacity, it is the defendants’ own pleaded case that to the best of their knowledge, “the deceased did not suffer from any mental disease.  However, he was suffering from heart disease and hypertension and he could not walk steadily or speak fluently” (para 23 of the defence).  There is no medical evidence to suggest that the deceased was at any material time prior to his coma suffering from any mental or other condition that would undermine or otherwise affect his mental faculties.  It is common ground that the deceased was a highly intelligent person.  He was an astute, experienced and indeed successful businessman.  He was a meticulous person and kept a good record of information pertaining to his financial investments (in foreign currencies and stocks) and to his personal matters, such as his blood pressure which was measured daily and the telephone numbers of his many friends and acquaintances.  Apart from some instances of being “forgetful”, his physical and mental conditions are described to have been good.  Indeed according to the 1^st defendant (paragraph 5 of his witness statement dated 18 July 2005),

“

5.

In the 1990s, my father suffered from high blood pressure and heart disease.  However, his condition was not life-threatening.  Compared with those persons at his age, his health was quite excellent.  He was health conscious and took ginseng drinks and other healthy food regularly.  His mind was clear all the times and he was active in investing foreign currencies and securities.  I never asked him how he would arrange his estate after his death because he was in relatively good health and we had complete faith upon him that he would make sensible arrangements when necessary.  Further, my father was confident that he would go on living for a long period of time. …”

9.  In fact, by the time of final submission, Mr Nelson Miu, appearing for the defendants, only focused his submission on knowledge and approval and on whether the plaintiff had successfully dispelled all “suspicions” regarding the making of the will.  Quite apparently, testamentary capacity was no longer in issue.

10.  On the question of knowledge and approval, the defendants through counsel have raised various points of “suspicion” against the will.  Although not all of them have been pleaded in the defence, Mr Yau has, in my view, very fairly, taken no objection to their being relied on during final submission.  To be fair to the defendants, these points have been raised or at least touched on in the witness statements that they have served prior to trial.  There is no question of any real prejudice or surprise here.

11.  The defendants have not raised any issue of fraud, collusion or undue influence. 

The deceased and his families

12.  In order to understand the real issues between the parties, it is necessary to give a more detailed account of the background facts, the events leading to the making of the will, and what has happened thereafter. 

13.  The deceased was born in 1914 on the Mainland, where he married Madam Yam in the 1940s.  The couple came to Hong Kong in 1946.  The 1^st to 4^th defendants were born in 1946, 1947, 1950 and 1952 respectively. 

14.  In 1954, the deceased took Madam Ho as his concubine (or mistress) and started maintaining two separate households.  In 1957, the plaintiff was born.  In 1959, the 5^th defendant was born.

15.  The deceased must have started his relationship with Madam Wang by the early 1960s, because their eldest daughter (Yip Yuen Ming) was born in 1961 whereas the younger son was born in 1966.  However, unlike the case of Madam Ho and the plaintiff, who were known to Madam Yam and her children since the 1950s, the existence of Madam Wang and her two children were not confirmed until January 2001 when the deceased was admitted to St Teresa’s Hospital, shortly after which he fell into a coma.

16.  The deceased was a self-made man.  After he came to Hong Kong, he started a small business selling ginseng and other Chinese herbs under the name of Pui Chun Tong （培春堂）.  Also, he engaged in a very small scale business in manufacturing light bulbs.  It is said that the deceased came to know Madam Ho whilst she was working for him in Pui Chun Tong.  In any event, the light bulb business began to flourish and local factories were set up.  There are conflicting accounts in the evidence as to the respective contributions of Madam Yam and more importantly, Madam Ho, to the success of the light bulb business.  Anyhow, it was a family business and the children of the deceased from both households apparently helped out in the business.  This is particularly so, according to the evidence of the 1^st defendant, in the case of the 1^st and 2^nd defendants, the two elder sons of the deceased.  In the case of the 1^st defendant, whilst he had to work full-time in an outside job, he spent the evenings as well as Saturdays and Sundays to help his father in the light bulb business.  He and his brother helped his father to branch out to trading in light bulbs – exporting light bulbs made on the Mainland to foreign countries.  The 1^st defendant claimed in evidence that he was instrumental in finding foreign buyers because of his proficiency in the English language – his father did not know English at all.

17.  In 1979, the 1^st and 2^nd defendants formed a company called Yao Sheng Enterprises Limited, which traded in light bulbs with overseas buyers.  The 1^st defendant said that this was a business separate from his father’s light bulb business.  Nonetheless, he said the business of the limited company became prosperous in the 1980s and his father’s original business integrated gradually into the limited company’s business. 

18.  The 2^nd defendant and his family emigrated to Canada in 1984.  It was at that time, according to the 1^st defendant, that the deceased asked the 1^st defendant to quit his outside job to work full-time in the “family business” – by that the 1^st defendant meant, he said in the box, the business of the limited company.  The gist of the 1^st defendant’s evidence was that the business of the limited company had been good in the 1980s but it began to go downhill in the 1990s.  In any event, the deceased kept a small room in the premises of the limited company and he spent an hour or two there everyday to meet his friends and acquaintances.  He was not involved in the business decisions of the limited company but he occasionally drew money from the company’s account as his living expenses, the 1^st defendant said in evidence.  Of course, as already described, even after his retirement, the deceased was very active in investing in foreign currencies as well as local stocks.

19.  There have been various properties purchased throughout the years – some in the sole name of the deceased, some in the joint names of the deceased and his family members and still some others in the names of family members only.  Again there are conflicting accounts as to whether these properties, insofar as they were not purchased in the sole name of the deceased, were nonetheless purchased wholly or partially with monies contributed by the deceased or his businesses.  The documentary evidence available is quite inconclusive.  Amongst the properties involved, there were two residential flats in Lai Chi Kok Road which were bought in the name of Madam Yam or that of her children.  The relevant transactions took place in the 1970s.  The 1^st defendant resided in one of the flats until a flat in Beverly Villas was purchased in 1981.  However, it is common ground that a ground floor residential property with a rear garden/backyard situated at Prince Edward Road West, which the deceased purchased in his own name in 1976 for $250,000.00, has been regarded by the deceased as the “ancestral home”.  According to the evidence, the deceased, Madam Yam and their children (with the exception of the 1^st  defendant who had got married) all lived there for a period of time in the 1970s.  This remained to be the case until a flat in Beverly Villas in Kowloon Tong was purchased in the names of the defendants in 1981 whereupon the family moved over to live there.  They lived there until 1985 when Madam Yam passed away.  After that, the deceased moved back to live at the Prince Edward Road property together with the 1^st defendant and his family, the 1^st defendant testified in Court.  By then, all other children of the deceased with Madam Yam had got married.

20.  I have been saying that the deceased resided at the Prince Edward Road property as well as Beverly Villas with Madam Ho and their children.  But to be more precise, the deceased only stayed with them several days a week.  Apparently he spent the rest of the week residing with Madam Ho or, quite unknown to the two households at the time, with Madam Wang. 

21.  Thus in the case of Madam Ho and the plaintiff, they used to reside at a top floor flat in Tam Kung Road, which was purchased in the sole name of Madam Ho.  One of the deceased’s light bulb factories operated from the rooftop of the building.  That property and another property in Fung Yi Street (which was purchased in the joint names of the deceased and Madam Ho) were subsequently mortgaged to a bank to secure credit facilities in favour of a business run by the deceased.  There is also another property located at Presidential Commercial Centre at Nathan Road.  It was purchased by the deceased in his own name back in 1986 but was transferred to the joint names of the deceased and Madam Ho purportedly for the sum of $500,000.00.  In 1986/1987, a residential flat in Whampoa Garden was purchased in the name of the plaintiff for $737,564.00.  The plaintiff claimed in evidence that the purchase was financed by a mortgage and the deceased did not make any contribution to its purchase.  In any event, the plaintiff said in evidence that after the passing away of Madam Yam, the deceased moved over to live with him and his mother in Tam Kung Road and since 1987 in Whampoa Garden.  But he had to accept that in fact the deceased only spent several nights per week in the Whampoa flat, as he still maintained his room and belongings in the Prince Edward Road property.  Moreover, in various documents, the deceased had respectively used the Prince Edward Road property as well as the Whampoa Garden flat as his residential addresses.

22.  Nonetheless, the plaintiff claimed in evidence that he and his mother, as well as his wife, were responsible for living together with and taking care of the deceased after the death of Madam Yam until his coma in 2001.

23.  Relatively little is known about Madam Wang and her household.  It is known that Madam Wang and Yip Wai Man, her younger son, purchased jointly a residential flat in Tanner Garden in North Point in 1993.

24.  Still on properties, the deceased once purchased two residential flats in Sunshine City in the joint names of the deceased and respectively, the 5^th defendant and the 4^th defendant in 1992 and 1993 for investment purposes.  He contributed to part of the purchase monies.  One of the flats was sold in 1999 to cut loss due to the collapse of the property market, whilst the other flat, ie the one in joint names with the 5^th defendant, is still owned by the 5^th defendant (as she could not find a buyer to sell the property).

25.  The deceased managed to accumulate a significant amount of wealth by the time of his death.  According to the estate duty papers, his assets comprised mainly fixed deposits in various foreign currencies, local stocks and the Prince Edward Road property; the total value, as of the date of death, was assessed at over $29 million.  But that does not give a complete picture of his wealth.  This is because soon after he went into a coma at St Teresa’s Hospital in January 2001, a dispute arose between the plaintiff (together with the defendants) on the one side and Yip Wai Man, Madam Wang’s son, on the other side.  According to the evidence, the plaintiff wanted to transfer his father to a public hospital for treatment in view of the potentially huge medical bills if the deceased should continue to stay at St Teresa’s for a prolonged period of time, and he did not want to be responsible for the expenses.  On the other hand, Yip Wai Man took the view that his father was sufficiently well off to afford the treatment at a private hospital.  This led to Yip Wai Man applying to court for an order under the Mental Health Ordinance for authority to make use of the deceased’s bank deposits to pay for the hospital bills.  It is noteworthy that Yip Wai Man was prepared to give a personal undertaking to the bank for the release of monies to pay for the medical bills in the meantime pending the outcome of court proceedings – he undertook to repay the bank the monies so released should the proceedings not result in any favourable court order.  In any event, by the time the deceased passed away in 2003, over $7 million had been expended on medical expenses.  In other words, the assets of the deceased, as of the time he went into a coma, was in the region of $36 million.  There is, however, no accurate estimation on his wealth as at the time of the alleged making of the will in January 1999.  But judging from the available evidence and the nature of his assets, the value as of January 1999 must have been over $30 million.  This estimation does not take into account the redevelopment value of the Prince Edward Road property.

26.  Before I move on to deal with the events leading to the making of the alleged will, a few words should be said about the deceased’s personality and character.  It is common ground that the deceased was a successful businessman.  Shrewd and hardworking, he was a confident and decisive man.  He was a man of strong and independent character.  He possessed a clear mind before he lapsed into a coma in January 2001.  He was greatly respected by his children in his way of thinking and his way of organising his life and things around him.  His children rarely questioned his decisions.  See paragraph 2 of the plaintiff’s supplemental witness statement dated 20 July 2006.  In the words of the 5^th defendant, her father was the head of the family and he was a strong person.  He was very authoritative in the family.  He was not explicit about his affection towards his family members.  He was a reserved person and was strict with his children.  Nevertheless, he loved each of his children and indeed his many grandchildren.  See paragraphs 3 to 5 of the 5^th defendant’s witness statement.  Very similar descriptions have been given by all witnesses at trial.

27.  The plaintiff and the defendants all have respectable jobs and responsibilities in the society.  The plaintiff is an associate professor and teaches at the Department of Industrial and Systems Engineering of the Hong Kong Polytechnic University.  He is married and has two grown up children.  His wife of over 20 years is a registered nurse by training and a ward manager attached to the Child and Adolescent Psychiatric Centre at Kwai Chung Hospital.  Both have given evidence at trial.

28.  As for the defendants, the 1^st and 2^nd defendants are established businessmen.  The 1^st defendant has given evidence at trial whilst the 2^nd defendant has not.  Their wives have given evidence at trial.  The wife of 1^st defendant is apparently a housewife, whereas the wife of the 2^nd defendant used to be a schoolteacher.  The 3^rd defendant is a businessman and spends most of his time on the Mainland.  There is evidence that when the deceased visited the Mainland, which he did rather frequently towards the last few years of his life before he fell into a coma, he would stay with or keep in contact with the 3^rd defendant.  The 3^rd defendant has not given evidence at trial.

29.  The 4^th defendant has not given evidence at trial, so it is not right to refer to her witness statement.  There is no dispute, however, that she has a respectable job.  The 5^th defendant, who has given evidence at trial, has excelled in her academic studies.  According to her evidence, which is not challenged, the deceased was very proud of her academic achievements and their relationship was close.  She has been working as a division head in the Hong Kong Monetary Authority.  She is married with two sons.

30.  Very little is known about the two adult children of Madam Wang. 

Events leading to the making of the will

31.  Turning to the events leading to the making of the will, according to the plaintiff, there was an occasion in late 1998 when the deceased was having dinner at home in Whampoa Garden with the plaintiff.  At that time, Madam Ho was ill and the deceased mentioned to the plaintiff that he would like to leave “something” to him so that after his death, the plaintiff could look after his mother (who was then almost 70).  There was, on that occasion, no mention of making a will.  The plaintiff’s wife also gave similar evidence but there were two differences.  First, she said that the occasion happened after the sudden death of his father on Christmas day in 1998.  Secondly, she said that what the deceased said was that he would leave “everything” to the plaintiff after his death so that he could look after Madam Ho.

32.  In any event, according to the plaintiff, after that first occasion, the deceased mentioned to him on a later occasion that he wanted to make a will and he wanted to know more about it.  The term used by the deceased for a will was “平安紙” rather than “遺囑”.  And the deceased asked the plaintiff if he had any lawyer friends whom he could talk to.  The deceased added that he had some friends who had died without making a will, thus causing all sorts of trouble to their family members.  He wanted to receive advice on the making of a will.

33.  The plaintiff and Anita Ma were friends.  They had known each other since 1994 through a joint university fund raising function – both of them having graduated from universities in the United Kingdom.  According to their respective evidence, in 1997 Anita Ma had wanted to buy a property.  Because the property market was then at its height and purchasers were chosen by lot as demand greatly exceeded supply.  She wanted to form a limited company to have an extra bid in the lot (apart from using her own name).  With the assistance of the plaintiff, she formed a company and invited the plaintiff to be a nominal director and shareholder.  Her intention was that if the company was selected to be the purchaser, the plaintiff would assign the share back to her and she alone would be responsible for buying the property in the name of the company.  However, the plan never went into action even though the company was duly formed, following the property market crash in late 1997/1998.  The company never did business and has since been deregistered.

34.  According to their evidence, they were just normal friends and tennis partners.  There was no other relationship between them.  

35.  The plaintiff had no lawyer friends other than Ms Ma.  He duly asked Ms Ma for assistance.  Initially Ms Ma was reluctant to help because preparation of a will is essentially the work of a solicitor.  She told the plaintiff so but was eventually persuaded to meet with the deceased to provide some friendly advice to an elderly person.

The 1^st meeting – advice given and instructions taken

36.  The three of them, namely the deceased, the plaintiff and Ms Ma met in a dim-sum restaurant in Hunghom for lunch on 19 December 1999.  On that occasion, according to Ms Ma, after initial introduction, there were some causal chats between the deceased and Ms Ma.  In the course of it, the deceased mentioned to her that he had two wives (namely Madam Yam and Madam Ho), and the plaintiff’s mother was a concubine.  Ms Ma told the deceased that if he wanted to make a will he could get a solicitor to help him.  But the deceased replied that he only wanted to receive some preliminary advice as to the making of a will as some of his friends had died without making one, thus causing all sorts of problem to their family members.  He felt more convenient or less inhibited speaking to his son’s lawyer friend, Ms Ma observed.  The deceased asked Ms Ma to explain to him what a will was.  Ms Ma told him that a will distributes one’s estate after one’s death.  She explained to him that how one’s assets were to be dealt with before death was one’s own choice.  She also told him that a will must be made in accordance with formal requirements.  Even if a will was made, it could be changed subsequently before death.  Moreover, whether the dispositions in a will could take effect after death would depend on whether the relevant assets were still available at the time of death to meet the dispositions in the will.  Ms Ma said in the box that she had used the terms “平安紙” and “遺囑” interchangeably and had explained to the deceased that they both mean the same thing.  Ms Ma said the deceased told him that after the death of his principal wife, he had moved over to Whampoa Garden and had been living there with the plaintiff and his mother for over 10 odd years.  He did not mention whether he had kept seeing the children of the principal wife or not.  And the decease mentioned he had a property in Prince Edward Road West, which he treated as an ancestral home.  He did not want to sell the property.  He wanted the plaintiff to keep it.

37.  Ms Ma also said in evidence that apart from mentioning the Prince Edward Road property, the deceased also told her rather modestly (per Ms Ma’s impression) that he did not have too much money as he had retired for a long time but there was still some money left.  He also told Ms Ma that he had some shares.  He wanted to leave the rest of his assets (besides the Prince Edward Road Property) to the plaintiff as well.  

38.  Ms Ma said in evidence that she was not surprised by the deceased’s intention to leave everything to the plaintiff.  She said she had specifically raised with the deceased the difference between making a will and not making one in the deceased’s situation.  She told him that without a will, Madam Ho (as concubine) would get one-third of his estate and the rest would be divided equally amongst all his children.  If a will was made, distribution would be in accordance with the provisions in the will.  Ms Ma said she had not asked the deceased why he did not wish to leave anything to his other children.

39.  Ms Ma added that the deceased had told her that the plaintiff’s family had been very good to him.  When he was ill, they would take him to see doctors.  He also told Ms Ma that he liked the Prince Edward Road property very much.  He wanted to leave the property to the plaintiff to keep.  He wished the plaintiff to make good use of his estate and to maintain his mother (Madam Ho).  He did not want the plaintiff to sell the property.

40.  In answer to the deceased’s query, Ms Ma also explained briefly to him about estate duty.

41.  Ms Ma also told the deceased that if he was really serious in making a will, it would be better for him to see a solicitor.  However, the deceased replied that he could trust her for preparing a will for him and there really was no need for him to see another lawyer.  He mentioned that the plaintiff and his wife were always busy at work and he did not want to give them too much bother.  He also said that he would from time to time stay on the Mainland for short periods of time.  Ms Ma said she felt that since she was a friend of the plaintiff and the deceased was so trusting in her professional ability, she eventually agreed to help.

42.  Ms Ma told the deceased that two persons would be required to witness the execution of the will and none of them could be a beneficiary under the will.  She told him it would be better if at least one of them knew both English and Chinese and Ms Ma offered herself to be a witness.  Before they parted, Ms Ma took down the full English names and the identity card numbers of both the deceased and the plaintiff, as well as the deceased’s address.  They agreed at the end of the lunch meeting that they would meet again in a few weeks time for the execution of the will.

The 2^nd meeting – execution of the will

43.  The second meeting took place on 16 January 1999, Saturday. It was arranged by Ms Ma after she had prepared the will, using a precedent she found in her chambers for drafting the will.  It was the first time and indeed the only occasion that she drafted a will.  It was the plaintiff who chose the venue, a small café in a shopping mall in Whampoa Garden.  Ms Ma said in evidence that she did not mind travelling to Hunghom on a Saturday to meet the deceased for the making of his will.  She was happy to do so as a favour to an elderly person.  It had never occurred to her to ask the deceased to come over to her chambers in Central to make the will.  By that time, the plaintiff had already suggested Mr Liu, his former schoolmate and old friend, to be the other witness.  Particulars of the Prince Edward Road property had already been faxed by the plaintiff to Ms Ma for the preparation of the will.  Moreover, Ms Ma had already ascertained from the plaintiff over the telephone that the deceased did have safe deposit boxes.  All these were mentioned in the will. 

44.  The will prepared by Ms Ma was in a rather long form, even though the instructions were simply to leave everything to the plaintiff.  Ms Ma said this was “her style” – (presumably) to be specific and detailed in drafting documents.  The will had eight clauses.  Clause 1 appointed the plaintiff to be the executor and trustee of the will.  Clause 2 contained a definition of the expression “my trustee”.  Clause 3 declared that the testator was domiciled in Hong Kong and the will was to be construed in accordance with the laws of Hong Kong.  Clause 4 devised the Prince Edward Road West property to the plaintiff.  A mistake was made in setting out the share that the deceased had in the land and building in question.  Significantly, the clause did not contain any restriction on the plaintiff, as beneficiary, in disposing of the property after the death of the deceased.  When asked, Ms Ma said there was no special reason why she did not provide for such a restriction in the clause.  She elaborated that during the first meeting, when the deceased mentioned that he did not want the Prince Edward Road property to be sold, the plaintiff assured to the deceased that he would not do it.  She therefore felt that the plaintiff was not going to sell the property and she did not include any restriction in clause 4.

45.  Clause 5 gave the contents deposited in all deposit boxes to the plaintiff.  Clause 6 gave all the stocks and shares to the plaintiff.  Clause 7 gave the credit balances in all bank accounts to the plaintiff.  Clause 8 left the entire residuary estate to the plaintiff.

46.  Ms Ma mis-spelt the English surname of the deceased as “Ip” on the backsheet of the will.  She also wrote the Chinese name of the deceased as “強” rather than “强”.

47.  Ms Ma said she prepared two copies of the will and brought them along to the small café in Hunghom to meet the deceased.  According to Ms Ma as well as Mr Liu, the plaintiff left either before Ms Ma arrived or shortly afterwards upon Ms Ma’s request.  The plaintiff, like Ms Ma, also said that she was asked by Ms Ma to leave.  Although Ms Ma did not explain why, the plaintiff said he could understand why she made the request.  Ms Ma said she simply told the plaintiff that he should leave as they had formal business to attend to.

48.  The witnesses described that they were seated in a quiet corner and there were not too many customers in the café.  Although what they discussed could be overheard, apparently none of them was concerned by that.  There were minor discrepancies between Ms Ma’s evidence and Mr Liu’s evidence as to who sat where and who ordered drinks first.  But by and large, their evidence was the same substantially on what happened at the small café.  Ms Ma was in-charge and she told Mr Liu in the presence of the deceased that the deceased was going to make a will, leaving everything after his death to the plaintiff, and Mr Liu was going to witness the execution of the will by the deceased.  She asked Mr Liu to read over the will and particularly to check his name and identity card number set out in the will.  Mr Liu said he quickly went over the will and thereafter Ms Ma started to interpret and explain the will to the deceased line-by-line.  She emphasised to the deceased that if he had any problems he could ask her and if he did not agree to any provision he should say so.  Throughout, the deceased appeared to well understand what was going on and the interpretation of the contents of the will.  Ms Ma then asked the deceased whether he understood.  He said “yes”.  She asked him if he had any question.  He answered “no”.  She asked him if he wanted to make any change or correction.  “No” was the answer.  She asked him if he could confirm the contents of the will to be his wishes.  He said “yes”.  Ms Ma then gave him a ball-pen to execute the will.  She and Mr Liu then signed on the will as attesting witnesses and Ms Ma also signed it as the person who had interpreted the will to the deceased.  The deceased and the two attesting witnesses also signed at the bottom of pages 1 and 2 of the will.  After that, Ms Ma gave the will to the deceased and told him to keep it safely.  She also torn the spare will in the deceased’s presence.  Mr Liu said that after witnessing the execution of the will, he felt relieved and was no longer paying any further attention to what was happening.  He did not mention the tearing of the spare will in the café in his evidence. 

49.  Ms Ma explained that though she knew that as a matter of law there was no requirement for an attesting witness to be aware of the contents of the will, she wanted to have another person to be present and know what really was going on.  That was why she revealed the contents of the will to Mr Liu and let Mr Liu read the will himself before it was interpreted to the deceased.  She said the deceased raised no objection to that course.

50.  Ms Ma said in evidence that when clause 4 was explained to the deceased, he did not raise any objection.  On the other hand, the plaintiff agreed in cross-examination that clause 4, which did not restrict the disposal of the Prince Edward Road property by him, was (in that sense) different from what his father had told Ms Ma during the first meeting about his not wanting the property to be sold after his death.

51.  Ms Ma said in evidence that on both occasions when they met, the deceased appeared to be in relatively good health, given his age.  He was fully alert and he completely understood what was going on.  He clearly indicated his agreement to the contents of the will before he signed it.  Mr Liu also said in evidence that according to his observation, the deceased could follow what Ms Ma told him and he understood the nature of the document he was about to execute.  He appeared to him to be in good health. 

Post-execution events

52.  The will was kept by the deceased in a safe-deposit box he jointly opened with Madam Ho.  It was taken out by the plaintiff about a week after the deceased fell into a coma.  Thereafter it was kept by the plaintiff.  Its existence was only revealed by him to his siblings one day after the deceased passed away.

53.  It is also noteworthy that the plaintiff’s wife was kept wholly in the dark about the making of the will.  She was not aware of the existence of the will until after the death of the deceased.  She, however, maintained that she had a very good matrimonial relationship with her husband. 

54.  According to the evidence, the plaintiff continued to live normally as before after January 1999, although in the evidence of the 1^st defendant it was said that since late 2000, the deceased’s health deteriorated rapidly – he could not walk steadily or speak fluently; his response was slow and he was forgetful.  He apparently had a fall sometime in early January 2001.  It is not exactly clear whether there had been an even earlier fall whilst he was on the Mainland.  He was taken to see a Dr Chow by Madam Wang.  On 12 January 2001, he was feeling unwell again.  The plaintiff and his wife took the deceased to see Dr Chow again and upon the recommendation of Dr Chow and another doctor (Dr Kan), the deceased was admitted to St Teresa’s Hospital for further investigation.  He suffered a cerebral stroke and lapsed into a coma shortly thereafter.

55.  The deceased was active in his investment in foreign currencies and stocks.  According to the plaintiff, he kept track of the financial news in the newspapers and he liked placing fixed deposits in foreign currencies with different maturity periods.  He recorded both his foreign currency transactions and his share transactions in a notebook.  He was a frequent visitor to the local banks where he managed all the money transfers, deposits and settlements by himself.  He managed his wealth in the way he wanted.

56.  All witnesses agreed that in the last few years of his life, the deceased travelled to the Mainland frequently.  It was suggested that he had some girlfriends on the Mainland.  But that could not be verified, although there is some documentary evidence of his having at least two “adopted daughters”（義女）on the Mainland – who appear to be young ladies according to some photographs produced at trial.  He travelled between Hong Kong and the Mainland by himself.  According to the evidence, he was indeed spending more and more time on the Mainland than in Whampoa Garden towards the end.

57.  There is also evidence from the defendants’ side that according to what the deceased had told the various witnesses, the deceased was not particularly fond of the plaintiff or his family.  He had complained that the plaintiff’s family, including the maid there, had not been respectful to him.  See, for instance, paragraph 7 of the 5^th defendant’s witness statement which she adopted as evidence at trial.  See also paragraph 6 of Diana Wong (wife of the 2^nd defendant)’s witness statement which she also adopted as evidence-in-chief at trial.  But no particulars of these complaints can be given, and to be fair, Mr Miu, appearing for the defendants, did not really rely on these very vague complaints in his final submission to challenge the will.

58.  The plaintiff has alleged that Yip Wai Man, the son of Madam Wang, took away a sum of $3.3 million, being a fixed deposit, from a bank account of the deceased after he lapsed into a coma.  This has proven to be a careless and wrong allegation.  It has emerged at trial that in fact the amount has been used to pay for the deceased’s medical expenses.

59.  On the other hand, the plaintiff accepted in cross-examination that a sum of $2.4 million was withdrawn from a bank account opened in the joint names of the deceased and Madam Ho, shortly after the deceased fell into a coma.  In the estate duty papers, a gift of $1.2 million (ie 50%) was said to have been made by the deceased to Madam Ho to account for the withdrawal, although by the time of withdrawal, the deceased was in no position to make the gift.  According to the documentary evidence, various sums of share dividends have been paid into the same bank account and they have all been withdrawn from the account.  They total over $200,000.00. 

The law

60.  It is necessary to dwell on the law first before approaching the evidence with a view to making relevant findings of fact.

61.  Due execution of the will requires no elaboration in the present case.  There is no suggestion that the will is wanting in formality in any aspect. 

62.  So far as testamentary capacity is concerned, the classic statement has been given by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549, 576:

“

It is essential … that a testator shall understand the nature of his 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 his mind had been sound, would not have been made.”

63.  Again, on the facts of the present case, the law on testamentary capacity needs no further elaboration.

64.  Turning to knowledge and approval, the general position has been explained by Williams, Mortimer & Sunnucks, Executors, Administrators and Probate (18^th ed) para 13-21 in the following terms:

“	A party who puts forward a document as being the true last will of the deceased must establish that the testator knew and approved of its contents at the time when he executed it.  The testator’s knowledge and approval of the contents of the will are part of the burden of proof assumed by everyone who propounds a testamentary document.
	In ordinary circumstances the burden of proof is discharged by proof of testamentary capacity and of due execution, from which knowledge and approval by the testator of the contents of his will are assumed. …”

65.  However, that only applies to “ordinary circumstances”.  Amongst the not-so-ordinary circumstances in which affirmative proof of knowledge and approval must be given are those which “excite the vigilance and suspicion of the court”.  They are circumstances that trigger the operation of the second rule in Barry v Butlin, supra.

66.  The second rule in Barry v Butlin has been examined in many English cases since it was first propounded by Parke B back in 1838.  Significantly, the rule has been examined and explained by our Court of Final Appeal in Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387.  In that case which attracted not only intense local but also international interest, the real issue was the due execution of the alleged will propounded by the widow.  The father of the deceased, in opposing the will, alleged various “suspicious circumstances” surrounding the making of the will and contended, amongst other things, that the second rule in Barry v Butlin required the widow to dispel all these suspicious circumstances before the court would pronounce in favour of the will.  It must be noted that in that case, neither knowledge and approval, nor indeed testamentary capacity, was in issue.  What was in issue was due execution.  Nonetheless, the father of the deceased argued, and the trial judge as well as the majority of the Court of Appeal accepted, that the second rule in Barry v Butlin applied generally to the propounder of a will even though the real issue was one of due execution, rather than knowledge and approval.

67.  It was in that particular context that the Court of Final Appeal found it necessary to examine and explain the second rule in Barry v Butlin in some detail.  Given the importance of the rule in the present case, it is quite necessary to quote extensively from the relevant part of the judgment of Ribeiro PJ in that case at pages 448 to 454.  In paras 204 to 209, his Lordship explained the second rule in Barry v Butlin as follows:

“	204.	… In Barry v Butlin (1838) 2 Moo PC 480, Parke B set out two rules which have since repeatedly been referred to:
		“	These rules are two; the first that the onus probandi lies in every case upon the party propounding a Will; and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable Testator.
			The second is, that if a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased”. (at pp.482-483)
			…
	206.	As noted above, the person propounding the will has the burden of proving due execution, testamentary capacity and the testator’s knowledge and approval of the will’s contents.  It is, and was at the time Barry v Butlin (1838) 2 Moo PC 480 was decided, well-established that proof of the first two conditions generally meant that knowledge and approval would be rebuttably presumed without the need to adduce affirmative evidence thereof.  Thus, in Cleare & Another v Cleare (1865-1869) LR 1 PD 655, Lord Penzance stated:
		“	That the testator did know and approve of the contents of the alleged will is therefore part of the burthen of proof assumed by everyone who propounds it as a will.  This burthen is satisfied, prima facie, in the case of a competent testator by proving that he executed it.  But if those who oppose it succeed by a cross-examination of the witnesses, or otherwise, in meeting this prima facie case, the party propounding must satisfy the tribunal affirmatively that the testator did really know and approve of the contents of the will in question before it can be admitted to probate.”  (at p.657)
	207.	This was also Parke B’s starting-point in Barry v Butlin (1838) 2 Moo PC 480:
		“	In all cases the onus is imposed on the party propounding a Will, it is in general discharged by proof of capacity, and the fact of execution, from which the knowledge of and assent to the contents of the instrument are assumed ...” (at p.484)
	208.	The particular circumstance introduced in Barry v Butlin (1838) 2 Moo PC 480 involved the fact that “a party writes or prepares a Will, under which he takes a benefit”.  The second rule states that such circumstance ought generally to excite the suspicion of the court, so that knowledge and approval is no longer presumed.  Instead, the court demands affirmative evidence which it subjects to a “vigilant and jealous” examination, refusing to pronounce in favour of the will unless satisfied that it expresses the true will of the deceased.  That this is the effect of the second rule had been made clear by Parke B in Baker v Batt (1838) 2 Moo PC 319, a few months before his Lordship delivered judgment in Barry v Butlin:
		“	There is also another principle upon which the Court below has acted, and which has long prevailed in the Ecclesiastical Courts, which is this, – that if the person benefited by a Will, himself writes or procures it to be written, the Will is not void, as it would have been by the Civil Law; but the circumstance forms a just ground of suspicion, and calls upon the Court to be vigilant and jealous, and requires clear and satisfactory proof that the instrument contains the real intention of the Testator.”  (at p.321)
	209.	It is therefore important to note that Parke B was not seeking to create a general rule imposing a burden on the proponent “to dispel suspicious circumstances surrounding a will”.  His Lordship was careful, in Barry v Butlin (1838) 2 Moo PC 480 itself, to stress that the second rule was concerned with proof of knowledge and approval, that it did not automatically apply and that it did not displace the usual rules concerning the burden of proof.  Continuing from the passage cited above, his Lordship stated:
		“	... it cannot be that the simple fact of the party who prepared the Will being himself a Legatee, is in every case, and under all circumstances, to create a contrary presumption, and to call upon the Court to pronounce against the Will, unless additional evidence is produced to prove the knowledge of its contents by the deceased.  A single instance, of not unfrequent occurrence, will test the truth of this proposition.  A man of acknowledged competence and habits of business, worth ₤100,000, leaves the bulk of his property to his family, and a Legacy of ₤50 to his confidential attorney, who prepared the Will: would this fact throw the burthen of proof of actual cognizance by the Testator, of the contents of the Will, on the party propounding it, so that if such proof were not supplied, the Will would be pronounced against?  The answer is obvious, it would not.  All that can be truly said is, that if a person, whether attorney or not, prepares a Will with a Legacy to himself, it is, at most, a suspicious circumstance, of more or less weight, according to the facts of each particular case; in some of no weight at all, as in the case suggested, varying according to circumstances; for instance, the quantum of the Legacy, and the proportion it bears to the property disposed of, and numerous other contingencies; but in no case amounting to more than a circumstance of suspicion, demanding the vigilant care and circumspection of the Court in investigating the case, and calling upon it not to grant probate without full and entire satisfaction that the instrument did express the real intentions of the deceased.” (at pp. 484-485)”

68.  Ribeiro PJ then explained the subsequent application and explanation of the second rule in other cases:

“	210.	This approach has been adopted in many cases.  In some of these, the need for the court to be persuaded by the proponent that the will expresses the deceased’s true testamentary wishes became referred to as the need to prove “the righteousness of the transaction”.  For instance, in Fulton & Another v Andrew & Others (1874-1875) LR 7 HL 448, Lord Hatherley stated:
		“	... there is a farther onus upon those who take for their own benefit, after having been instrumental in preparing or obtaining a will.  They have thrown upon them the onus of shewing the righteousness of the transaction.” (at p.472)
	211.	One should not be misled by such terminology into attributing a wider ambit to the second rule than was intended.  A modern authority helpfully summarising the position is Fuller v Strum [2002] 1 WLR 1097 (CA).
		(a)		Having referred to the doctrine of “the righteousness of the transaction” as a salutary one, Peter Gibson LJ continued in the following terms:
				“	But “the righteousness of the transaction” is perhaps an unfortunate term, suggestive as it is that some moral judgment by the court is required.  What is involved is simply the satisfaction of the test of knowledge and approval, but the court insists that, given that suspicion, it must be the more clearly shown that the deceased knew and approved the contents of the will so that the suspicion is dispelled.  Suspicion may be aroused in varying degrees, depending on the circumstances, and what is needed to dispel the suspicion will vary accordingly.  In the ordinary probate case knowledge and approval are established by the propounder of the will proving the testamentary capacity of the deceased and the due execution of the will, from which the court will infer that knowledge and approval.  But in a case where the circumstances are such as to arouse the suspicion of the court the propounder must prove affirmatively that knowledge and approval so as to satisfy the court that the will represents the wishes of the deceased.  All the relevant circumstances will be scrutinised by the court which will be ‘vigilant and jealous’ in examining the evidence in support of the will: Barry v Butlin (1838) 2 Moo PC 480 at p.483 per Parke B.” (at p.1107)
		(b)		Chadwick LJ stressed the continued applicability of the usual rules on the burden and civil standard of proof and the need to understand references to removing suspicions in that light:
				“	... there is no basis for an approach that requires, in all cases, that a person propounding a will which he has prepared, and under which he takes a benefit, must satisfy the court by evidence which excludes all doubt – or by evidence which excludes all reasonable doubt (the standard of proof required in criminal proceedings) – that the testator knew and approved the contents of the will.  The standard of proof required in probate proceedings (as in other non-criminal proceedings) is satisfaction on the preponderance (or balance) of probability.  But the circumstances of the particular case may raise in the mind of the court a suspicion that the testator did not know and approve the contents of the document which he has executed which is so grave that, as Viscount Simonds observed in Wintle v Nye [1959] 1 WLR 284, at p.291, it can hardly be removed.” (at p.1121)
		(c)		Longmore LJ put the point simply as follows:
				“	The vigilance and jealousy of the court is directed to being satisfied that the testator did know and approve the contents of his will; no less but also no more.” (at p.1123)”

69.  His Lordship then discussed and explained the important case of Tyrrell v Painton [1894] P 151:

“	213.	The erroneous notion that the second rule is authority for a general requirement that the proponent of a will “dispel all suspicious circumstances surrounding the will” is traceable to a misunderstanding of a passage in the judgment of Lindley LJ in Tyrrell v Painton & Another [1894] P 151 at p.157, which states as follows:
		“	The rule in Barry v Butlin (1838) 2 Moo PC 480, Fulton & Another v Andrew & Others (1874-1875) LR 7 HL 448, and Brown v Fisher 63 LT 465, is not, in my opinion, confined to the single case in which a will is prepared by or on the instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will.”
	214.	An appreciation of the facts of that case is important.  The testatrix’s cousin sought to propound what was unquestionably her will.  Two defendants, including one J Painton, sought to propound a will made two days later which was said to have revoked the former will, giving the bulk of the estate to J Painton and making one of his sons sole executor.  This latter will was in the handwriting of Thomas Painton, another of J Painton’s sons.  It was he who had persuaded the testatrix to sign it and he who, along with a friend of his, purported to witness the will.
	215.	Thomas did not take anything under the will, having been an attesting witness, but his father took nearly all the property it disposed of.  It was in this context that Lindley LJ stated that the relevant rule in Barry v Butlin (1838) 2 Moo PC 480 was not confined to cases where the person who obtained the will was also the person who benefited under it.
	216.	Accordingly, what the English Court of Appeal decided in Tyrrell v Painton & Another [1894] P 151 case was that where evidence (not narrowly confined to evidence of direct benefit to the very person obtaining the will) existed raising the issue whether the testatrix knew and approved the will’s contents, the person propounding the will had to adduce affirmative evidence of such knowledge and approval sufficient to “remove the suspicion” and therefore to discharge his persuasive burden of proving the will.  The judge was criticised for treating the sole issue as one of fraud, upon which the testatrix’s cousin bore the burden, without considering whether J Painton had discharged his prior burden of establishing the requisite knowledge and approval on the testatrix’s part.
		(a)		Thus, the context of the passage in Lindley LJ’s judgment cited above was as follows.  His Lordship stated:
				“	The circumstances under which it was executed are so strange and suspicious that I am in the greatest doubt whether she knew the effect of the document she was signing.” (at p.156)
				And after considering the evidence, he asked rhetorically:
				“	Can any one doubt that Mrs Bye did not know what she was doing when she executed this said will?” (at p.156)
				His criticism of the judge for failing to call for affirmative evidence of knowledge and approval was put as follows:
				“	He seems to have thought that he had only to address himself to the question of fraud – whether the will had been obtained by fraud; that the burden of proving that lay on the plaintiff, and that he had not discharged himself of that burden.  Now, in my opinion, this will of the 9th was executed under such suspicious circumstances that he ought to have said, “Do the defendants affirmatively establish to my satisfaction that the testatrix knew what she was doing when she executed this will?” ” (at p.156)
		(b)		AL Smith LJ similarly noted that the judge had not dealt with the prior issue, commenting that the positive evidence of knowledge and approval – given by Thomas Painton and his friend – were nowhere sufficient to enable his father to discharge his burden (at p.158). Davey LJ was in complete agreement (at p.160).
	217.	This view of the confined effect of Tyrrell v Painton & Another [1894] P 151 case corresponds to the view taken by Scarman J in Re Estate of Fuld, decd (No 3) [1968] P 675 and in Fuller v Strum [2002] 1 WLR 1097 cited above.  In Re Fuld, for the purposes of determining a conflicts of law point, Scarman J held that the rule in Barry v Butlin (1838) 2 Moo PC 480 is evidential in character, which follows from the fact that it displaces the usual presumption of knowledge and approval and activates the burden on the proponent of the will affirmatively to prove such knowledge and approval (at p.698).  The Tyrrell v Painton & Another case was cited in the context of counsel seeking to distinguish Barry v Butlin on the ground that there was no evidence that his client, a Dr Tarnesby, had drawn the relevant codicil which named him as a beneficiary.  Scarman J pointed to Tyrrell v Painton & Another as showing that the rule was not confined to cases involving direct benefit to the very person who had drawn up or obtained the will (at p.712).
	218.	It follows that properly understood, Tyrrell v Painton & Another [1894] P 151 extends the second rule only to the extent of embracing the situation where the person who had drawn up the will was someone other than the person who took under it, but where the two were closely related or associated with each other.  In such cases the proponent of the will was equally required to dispel that suspicious circumstance by adducing affirmative evidence that the testator did indeed know and approve the contents of the will.  The case is not authority for any broader rule, far less authority for requiring the person propounding the will to dispel any circumstances which might be said to be suspicious in relation to the will propounded.”

70.  Unlike Nina Kung, this case is indeed concerned with knowledge and approval.  The second rule in Barry v Butlin is directly applicable.  Indeed Mr Yau, on behalf of the plaintiff, has conceded so much.  Although the plaintiff was not the one who wrote or prepared the will, he was involved in making the necessary introduction of the draftsman of the will (ie Ms Ma) to his father.  He was present when Ms Ma took instructions from the deceased.  He supplied information to Ms Ma for her preparation of the will and he alone stood to benefit under the will.  Accordingly, Mr Yau accepts that the will was drawn up in circumstances which ought generally to excite the suspicion of the court and it calls upon it to be vigilant and jealous in examining the evidence in support of the will.  However, having accepted that, counsel submits, and I think quite rightly, that the degree of vigilance and jealousy to be exercised should commensurate with the gravity of the circumstances which excite the suspicion.

71.  Before I move on to deal with the facts, it is necessary to observe that the whole point of the second rule in Barry v Butlin, when properly understood, is to ensure that the testator did know and approve of the contents of the will.  That is the ultimate aim.  The rule is a rule of evidence and indeed a rule of good common sense.  It is a particular application of the so-called Re H principle (based on what Lord Nicholls has said in relation to the civil standard of proof in Re H [1996] AC 563, 586-587), as Chadwick LJ has explained in Fuller v Strum [2002] 1 WLR 1097, 1120-1121 (para 70).  All circumstances that are relevant to the issue of knowledge and approval must be examined with vigilance and jealousy.  But the standard of proof remains the civil standard, rather than proof beyond reasonable doubt.

72.  It is important to remember that what brings the second rule in Barry v Butlin into operation must be circumstances attending, or at least relevant to, the preparation and execution of the will itself: Re R, deceased [1951] P 10, 17.  However, once the suspicion of the court is aroused, the court would look at the entire evidence with the appropriate degree of vigilance and jealousy, in order to determine whether, on the balance of probabilities, the testator did know and approve of the contents of the will.  The entire evidence must, by definition, include matters and circumstances not attending, or even relevant to, the preparation and execution of the will itself.  Sometimes, those extraneous matters and circumstances are also referred to as “suspicions” or “suspicious” circumstances.  Indeed, in the present case, counsel on both sides have used those expressions rather liberally.  I have no objection to the usage of such expressions so long as it is remembered that the “triggering” circumstances are those attending, or at least relevant to, the preparation and execution of the will itself.

73.  Once such triggering circumstances are present and the court’s suspicion as to whether the testator really knew and approved of the contents of the will is aroused, the court must examine the entire circumstances of the case.  Some of these circumstances may give rise to “suspicions” in the very general sense of the word regarding whether the testator did know and approve of the contents of the will.  But whether they do have such an effect or not, it is really a question of weight to be attached to all the relevant circumstances in determining where the balance of probabilities lies in terms of the issue of knowledge and approval. 

74.  One must not be misled by the requirement that the court’s “suspicion” be dispelled into thinking that unless each and every relevant or “suspicious” circumstance has been satisfactorily explained, a will can never be successfully propounded, or more particularly, the court can never be satisfied that the testator has known and approved of the contents of the will.  To do so would be to forget the ultimate aim of the exercise, namely to find out whether the testator really knew and approved of the contents of the will.  Relevant or “suspicious” circumstances are pointers.  They are not the end in themselves.  For the court’s ultimate task is to see whether the court’s “suspicion” can be removed, ie the suspicion that the testator did not really know or approve of the contents of the will.  Its task is not to see to it that each and every “suspicious” circumstance surrounding the making of the will is satisfactorily explained, even though the two are to some extent, depending on the facts of each case, inter-related.  One can easily imagine situations where because of the paucity of the evidence available or otherwise because very little is known about a testator, the court simply does not understand why a testator chose to dispose of his estate in the way set out in his will, yet there is the clearest evidence that he knew and approved of the contents.  In those cases, the court’s duty is to pronounce in favour of the will.

75.  Furthermore, one must not forget the general principle in probate cases that a testator is quite entitled to be moved by capricious, frivolous, mean or even bad motives in making his will.

76.  Thus in a case where (let us assume) the second rule in Barry v Butlin applies, and where the contents of the will appear, on the face of it, to be irrational (such as disinheriting all but one children in the will for no apparent reasons), that fact (whether one calls it a “suspicious” circumstance or not) must be a circumstance adding to the court’s suspicion that the testator did not know or approve of the will, which the propounder of the will needs to grapple with – even though disinheriting the other children does not by itself triggers the operation of the second rule in Barry v Butlin.  But it does not follow, in my view, that unless the propounder can provide a satisfactory explanation for the apparently irrational contents of the will, he can never successfully propound the will, or establish that the testator has known and approved of the contents of the will.

77.  For as I say, the ultimate aim is to find out whether the testator knew and approved of the contents of the will.  And as Williams has pointed out (at para 13-03):

“

The law does not call for a perfectly balanced mind, nor is a will to be pronounced against merely because the testator was moved by capricious, frivolous, mean or even bad motives.  A testator may disinherit his children to gratify his spite or benefit charity to gratify his pride but the court must nevertheless uphold his will.”

78.  In other words, if the entire evidence is such that the court can be satisfied, on the balance of probabilities, with the testator’s knowledge and approval of the contents of the will, despite the fact that there is, on the evidence, no satisfactory explanation for disinheriting the other children, the court should still pronounce for the will, although why the testator wanted to disinherit all his children but one would remain forever a mystery.  That said, it must be emphasised that in balancing the probabilities, one must give appropriate and indeed sufficient weight to the fact that on the evidence one cannot find any satisfactory explanation for the testator’s apparent intention to disinherit all but one of his children in his will.  And all evidence must be scrutinised with vigilance and jealousy.

79.  But my point here is that everything depends on the balance of probabilities.  And the focus of attention must always be and remain the testator’s knowledge and approval, rather than the dispelling of “suspicious circumstances” as an aim in itself.

80.  Since the ultimate issue is knowledge and approval, evidence of the deceased giving instructions for his will, or of the will being read over to him or by him is, by nature, the most important evidence.  This is so, needless to say, in a case where the second rule in Barry v Butlin does not apply, as Williams has pointed out in para 13-22.  But even in a case where the rule does apply, such species of evidence still remains the most satisfactory evidence to establish the deceased’s knowledge and approval.  Thus in Barry v Butlin, Parke B said (at page 485):

“

Nor can it be necessary that in all cases, even if the testator’s capacity is doubtful, the precise species of evidence of the deceased’s knowledge of the will is to be in the shape of instructions for or reading over the instrument.  They form, no doubt, the most satisfactory, but they are not the only satisfactory description of proof by which the cognisance of the contents of the will may be brought home to the deceased.  The court would naturally look for such evidence, in some cases it might be impossible to establish a will without it, but it has no right in every case to require it.”

81.  To be complete, it must be pointed out, as Williams has reminded us in para 13-27, that conversely, the mere fact that instructions were given for the will and that the will was read over to the testator may not be enough to remove the suspicion.  It all depends on the facts.

82.  The above discussion, it will be appreciated, assumes significance when I turn to deal with the facts of the present case and make the appropriate findings.

Discussion on Ms Ma’s evidence

83.  In the present case, one does have the evidence of the two attesting witnesses.  In addition, Ms Ma also plays the role of the one who took instructions from the deceased and prepared the will according to those instructions, as well as the one who interpreted and explained the contents of the will to the deceased.  Her evidence necessarily assumes great importance.

84.  Ms Ma has given her evidence in a very straightforward manner.  Her evidence has been firm and it has not been shaken under cross-examination.  I have firmly borne in mind the need to be vigilant and jealous in scrutinising the evidence.  I have also not lost sight of the fact that Ms Ma is an experienced counsel, with an established practice in both civil and criminal law.  Her evidence and demeanour in the witness box must be viewed against that background.  She is no stranger in courts and must have had come across many good witnesses as well as bad ones in the box in her professional life.  Her demeanour must be assessed in light of such experience.

85.  Turning to the contents of her evidence, I have already observed that there have been very minor discrepancies in the account given by her and that given by others.  It is noteworthy that despite counsel’s diligence, all Mr Miu has been able to point out during final submission, in terms of discrepancies, is no more than four minor matters.  First, seating (inside the café).  Ms Ma said that all three of them (Ms Ma, Mr Liu and the deceased) sat on the same side of a table.  According to Mr Liu, they occupied different sides of the table, in a U-shape.  Secondly, Ms Ma said that she told the plaintiff to leave after she had arrived (the plaintiff said the same in his evidence).  But Mr Liu said that when Ms Ma arrived, the plaintiff had already gone.  Thirdly, Ms Ma said that the deceased and the plaintiff had already ordered drinks when she arrived, which was a good half hour after the appointed time.  Mr Liu said that they only started to order drinks after Ms Ma arrived.  Fourthly, Ms Ma said that she torn up the unused/extra copy of the draft will after the will was executed, in the presence of the deceased and Mr Liu.  This was not corroborated by Mr Liu, counsel has submitted, even though he was specifically asked as to what happened after the execution of the will and before they settled the bill and left.

86.  Mr Miu accepted, quite fairly, in final submission that these were very minor discrepancies.  Considering that Ms Ma and Mr Liu were being asked to recall events that took place almost nine years ago, one would simply expect such minor discrepancies on details to arise.

87.  Ms Ma accepted that in the will prepared by her, there was no restriction on the disposal of the Prince Edward Road property after the death of the deceased.  She accepted that the deceased had specifically mentioned his intention not to sell the property during the first meeting.  She explained that when this was mentioned, the plaintiff orally assured his father that he would not sell the property.  She also pointed out that at the café meeting, after she had interpreted clause 4 of the will to the deceased, the deceased did not raise any objection but indicated his understanding and agreement to the clause.  Ms Ma said she therefore felt that there was no problem with clause 4 or with the omission of any restriction about disposal of the property in the will.

88.  I bear this matter seriously in mind.  It could indicate, as Mr Miu has submitted, that, at the very least, the deceased did not know what was going on.  Either he did not really understand that in the will itself there was no restriction against disposing of the property after his death (therefore he did not raise any objection to it), or he did not actually agree to the lack of such a restriction but somehow that did not result in any amendment to the provisions in the will.  Either way, he did not, put at the lowest, know or approve of clause 4 of the will.  Taking a step further, Mr Miu submits that this matter begs fundamentally the question of whether the deceased actually knew and approved of the rest of the contents of the will, despite what Ms Ma has claimed to have happened in the café.

89.  On the other hand, one could understand Ms Ma’s evidence this way: What the deceased said (ie that he did not want the property to be sold after his death) was a reason he gave for leaving the property to the plaintiff as somebody whom he could trust for not selling the property after his death, rather than a request or instructions to Ms Ma to include provisions in the will against disposal of the property; and that was how Ms Ma perceived the position as well. 

90.  There has been suggestion that Ms Ma’s relationship with the plaintiff is or was more than mere friends.  It has been pointed out that back in 1997, the two of them were fellow directors and shareholders in a limited company.  I have already described their respective evidence.  I have also borne in mind Mr Miu’s point that because of some rules introduced by the authorities on pre-sale of flats in uncompleted buildings, it was not possible for a change of director or shareholder before the completion of the sale and purchase of property.  And a director/shareholder would normally be required by a bank to act as guarantee of the mortgage if the purchase was to be financed by one.  All this, according to Mr Miu, casts doubt on whether the plaintiff was merely meant to be a nominal director/shareholder to facilitate Ms Ma in the buying of a property in the name of the company.  But the furthest Mr Miu is prepared to go is that the two actually engaged in property speculation activities together.

91.  I have carefully considered the respective answers given by Ms Ma and the plaintiff.  I tend to accept Ms Ma’s evidence that she was not aware of the new rules about change of director/shareholder when she invited the plaintiff to be her nominal director/shareholder.  Moreover, the undeniable fact is that the company in question had never carried on any trading or business.  Furthermore, apart from that company, there is really no evidence of any further dealings between the two.  Both have stood unshaken in cross-examination regarding any special relationship between them.

92.  As I said, I tend to accept Ms Ma’s explanation. 

93.  It must be remembered that there is no positive allegation of anything special between Ms Ma and the plaintiff.  Certainly, there is no allegation of fraud, collusion or conspiracy.  Indeed Mr Miu has not suggested any reason or motive for Ms Ma not to tell the truth (and the whole truth) in the box.

94.   I am aware of certain exchanges between the Bar and the Bench recorded in the law report of Tyrrell v Painton, supra, discussed by the Court of Final Appeal in Nina Kung.  Those remarks were to the effect that the court need not conclude that the two attesting witnesses were guilty of an indictable conspiracy before it could reject their testimonies and strike down the will in question.  The burden of proof was on the propounder to establish knowledge and approval.  But first, the facts in that case were most peculiar.  Indeed, Lindley LJ said (at p 157) that the circumstances under which the will was prepared and signed were such as to cause the “gravest suspicions”.  And the doubt which they raised was not removed by the evidence of the two attesting witnesses and his Lordship said he “should go further if it were necessary” (p 157).  That I take to mean that his Lordship was prepared to make a positive finding against the two attesting witnesses’ evidence if it were necessary to do so.  There were certainly quite obvious possible motives for the attesting witnesses not to tell the truth in that case.

95.  Mr Miu submits that there was no sufficient reason for the deceased to make a will at that moment in time.  He points to the evidence in particular that the deceased, being a traditional Chinese male, did not like mentioning the word “death” (死) or to contemplate death.  That may be so, but I do not see why it would be an out of character thing for the deceased to do to make a will, particularly given his age, his complicated family background and the fact that he was in fact a very intelligent and practical person.  Indeed, it has been said in evidence that the deceased gave as his reasons for wanting to make a will that he wanted to provide for the plaintiff so that he could look after Madam Ho, and that he had some friends who had died intestate, thus causing problems to their family members.

96.  Mr Miu criticises the venues of the two meetings between Ms Ma and the deceased as being inappropriate places to receive instructions or to execute a will.

97.  Ms Ma has given very clear evidence on this.  She essentially said that she did not mind going over to Hunghom to meet an elderly person.  After all, she was there to do her friend and her friend’s elderly father a favour.  I do not find having a casual meeting with the deceased at a Chinese dim-sum restaurant a very strange thing to happen.

98.  As for the second meeting for the execution of the will, I do see Mr Miu’s point.  However, the café was very near to the Whampoa Garden flat and both Ms Ma and Mr Liu have said that the café was in fact rather quiet and there were not too many customers.  Although their conversations could be overheard by others, the deceased did not seem to mind.  According to the plaintiff’s and Mr Liu’s evidence, the café was very near to where the deceased was living at the time.  It was a convenient choice.  Ms Ma also said that she did not mind going over to Whampoa Garden again to do an elderly person a favour.  It did not occur to her that she should ask the deceased to execute his will in her chambers.  Given that she was really helping a friend rather than performing a professional job, that was not a surprising answer.

99.  Mr Miu submits that the choice of language of the will is surprising.  In particular, he points out that the deceased did not read English and there has been evidence to the effect that the deceased generally preferred signing documents, particularly important legal documents, in Chinese.  There was an occasion, according to the 5th defendant and a solicitors’ clerk, who has been called to give evidence, when the deceased refused to sign two powers of attorney prepared by a firm of solicitors to enable the 4th and 5th defendants to sell their respective Sunshine City properties jointly owned with the deceased.  The deceased said he did not want to sign documents prepared in English, even though they were prepared by lawyers.

100.  There is indeed documentary evidence before the Court which comprises legal or formal documents prepared in English, which were signed by the deceased.  Conveyancing documents are one such class of documents.

101.  The example given relating to the Sunshine City properties is not, in my view, a very typical or good example.  From the evidence given, my own impression is that the deceased simply did not want to sell the two properties, which he somehow regarded as means to maintain regular contacts with his two daughters; money seems to have been of secondary importance to him.  That could explain why he was reluctant to sign the powers of attorney to enable the daughters to sell the properties.

102.  Furthermore, Ms Ma has explained in evidence that so far as preparing a will is concerned, she was only prepared to draft one in English, even though a will can be written in either English or Chinese.  This is hardly surprising given that many lawyers, whether counsel or solicitors, still prefer to use English rather than Chinese in preparing documents, whether now or back in 1998/1999.  In fact, if the deceased had gone to a solicitors’ firm for the preparation of a will, the chances are that the will would have been prepared in English.  In fact, the solicitors’ clerk called by the defendants to give evidence said so specifically in the witness box.

103.  I also bear in mind Mr Yau’s point that if the deceased was really intending to leave everything after death to the plaintiff, he would be quite content to simply leave it to the plaintiff and his lawyer friend to ensure that the will, written in English, would properly reflect his wishes.  There really was nothing which he needed to guard against.

104.  Mr Miu says that there has been an unreasonable or unusual gap of four weeks between the first and second meetings.  He questions why Ms Ma needed to take so long to prepare a will, particularly when she was preparing a will for an elderly person who was in the habit of travelling frequently to the Mainland.

105.  Ms Ma has given clear evidence in this regard.  She has explained that she needed to find the time to prepare the will.  After all, one must remember that Ms Ma is not a solicitor and she needed to find precedents for the preparation of the will.  One must also remember that the first meeting took place shortly before Christmas.  Furthermore, on the evidence, there was no suggestion by either the deceased or the plaintiff to Ms Ma that the matter was an urgent one.

106.  Mr Miu has also pointed out that in fact, according to the telephone book of the deceased, the deceased must have known some solicitors personally.  There was no reason for him to ask the plaintiff for introduction of a lawyer friend to obtain advice or to prepare a will for him.

107.  One obvious advantage of getting the necessary services from Ms Ma was that they were obtained for free.  Moreover, Mr Yau’s point is also a valid one in relation to the present complaint: As the deceased was intending to leave everything in favour of the plaintiff, it was simply natural for him to ask the plaintiff if he knew any lawyer friend who could prepare the necessary will for the deceased to execute to leave his estate to the plaintiff.

108.  It is true that the deceased said that he did not want to trouble the plaintiff and his wife, who were busy, to accompany him to make a will at a solicitors’ office, as a reason for insisting to invite Ms Ma to help him prepare a will.  But it must be remembered that that was said in the course of Ms Ma suggesting that the deceased could turn to a solicitor for the actual preparation of the will.  What the deceased said to Ms Ma may or may not have been his true reason.  What is equally probable is that the deceased, who was a very experienced and successful person with a strong character, was simply trying to persuade Ms Ma to provide her (free) services to him.

109.  I do bear in mind that the deceased may well have known some solicitors, and he did have the ability to travel to Central or wherever the solicitors’ firms were located to make a will, without the company of the plaintiff or his wife.  After all, he was used to travelling to the Mainland quite frequently on his own.

110.  The important thing here is that Ms Ma was simply relating to the Court in her evidence what the deceased had told her.  I believe she was telling the truth.

111.  Mr Miu has vaguely complained that the custody of the will after it was executed is itself a “suspicious” circumstance.  I am not sure what he meant.  According to Ms Ma, the will was given to the deceased to keep after its execution.  It was not given to the plaintiff.  Nor was it kept by Ms Ma.  I find nothing in Ms Ma’s giving the will to the deceased to keep.  According to the plaintiff, the will was kept by the deceased in a bank safe-deposit box opened in the joint names of the deceased and Madam Ho.  I do not find this arrangement strange.  After all, the deceased was leaving everything to Madam Ho’s son so that he could look after her after his death.  I do not see why he should not deposit the will in that particular safe-deposit box.  It would have been strange if he were to keep the will in a safe-deposit box that could be accessed by the defendants’ side or by Madam Wang or her children.

112.  I have already touched on the fact that according to Ms Ma, she torn up the extra copy of the will at the end of the café meeting.  There is nothing strange about that, although Mr Liu did not mention it in his evidence.  But to be fair to Mr Liu, nobody specifically asked him whether he recalled Ms Ma tearing up the will at the end of the meeting.  Moreover, according to Mr Liu, he felt relieved after the execution of the will; he began to look around and did not pay any further attention to what was happening.  It would therefore not be surprising if he did not notice the tearing up of the will by Ms Ma.

Discussion on Mr Liu’s evidence

113.  At this juncture, it is convenient to turn to the evidence of Mr Liu.  In my view, Mr Liu’s evidence is also of great importance, because he witnessed, according to his own evidence, not only the execution of the will but the prior interpretation of the will to the deceased by Ms Ma.  According to him, Ms Ma informed him in the presence of the deceased that under the will the execution of which he was about to attest as witness, the deceased was going to leave everything to the plaintiff.  He was then shown the will and actually read it quickly before it was interpreted, line-by-line, by Ms Ma to the deceased.  Ms Ma paused frequently to ask the deceased if he understood and agreed to the contents that had been interpreted, and everytime the deceased indicated his understanding and agreement.  In essence, Mr Liu’s evidence is that the deceased fully understood the contents of the will and agreed to execute it.  Both before and after the making of the will, Mr Liu had the chance of chatting with the deceased, who was, according to his observation, in full control of his mental faculties.  To him, the deceased was his normal self.

114.  The demeanour of Mr Liu in the witness box is impeccable.  He was natural and sincere in the box and gave his evidence in a very straightforward manner.  His answers were spontaneous and to the point.  He impressed me as an honest and credible witness. 

115.  I have fully borne in mind his relationship to the plaintiff.  He frankly admitted in Court that he considered the plaintiff his “buddy”, although he did not know whether the plaintiff regarded him in the same way.  He admitted in Court that he also knew Ms Ma through the introduction of the plaintiff, and he had previously consulted Ms Ma on some legal matters personally.  He confirmed that he was not aware of any special relationship between the plaintiff and Ms Ma.

116.  There is no suggestion whatsoever that Mr Liu has anything to gain by not telling the truth in the witness box.

117.  Mr Liu’s family carries on business in the light bulb trade.  He and his father have known the deceased and his children for many, many years.  He himself attended the same primary school and secondary school with the plaintiff, before he went to the States to continue his tertiary education.

118.  I have not forgotten the general possibility of Mr Liu not telling the truth in Court so as to help his old friend.  But having put everything on the scales, I am quite satisfied that Mr Liu has been a very honest and credible witness at trial.

119.  I have seriously considered the evidence of both Ms Ma and Mr Liu that Ms Ma in fact revealed the contents of the will to Mr Liu without first obtaining the deceased’s consent.  This might sound strange given the evidence suggests that the deceased was used to keeping things to himself (infra).  But then it must be remembered that when it comes to making a will, the deceased was, as it were, very much in the hands of Ms Ma, who was in charge of the whole process in the café.  And Ms Ma has given evidence on why she wanted Mr Liu to be fully informed of what was going on.

Discussion on the Prince Edward Road property

120.  I now deal with several general points, which are material points by themselves, as well as points which I have also fully borne in mind in assessing the credibility of Ms Ma and Mr Liu (and others) as witnesses.

121.  First, the Prince Edward Road property.  I have already mentioned this earlier on.  There are a number of points relating to this property.  First, it was mentioned as a reason for the deceased making a will and leaving it (as well as the rest of the estate) to the plaintiff.  From the evidence heard, I have no doubt that the deceased did not want to sell the property.  He regarded it as an ancestral home.  To that extent, Ms Ma’s evidence has been fully corroborated.

122.  Mr Miu’s point here is that that being the case, it was surprising that in the will (clause 4), there was no restriction on disposal.  I have already dealt with this point rather fully earlier on.  I have come to the conclusion that the deceased was fully aware at the café meeting that the will did not contain any express restriction on disposal of the property.  Yet he indicated his agreement and approval of the will clearly to Ms Ma in the presence of Mr Liu.  One could only speculate on the true reason.  But speaking in terms of scrutinising the evidence vigilantly and jealously, I do not find this aspect of the case unexplainable.  One possible reason, and indeed a probable one, is that the deceased simply trusted the plaintiff for following his wishes after his death.  After all, the deceased was quite used to strict obedience from his children.  In any event, according to the plaintiff’s case, the deceased was leaving everything to him to manage after his death with an express wish that the plaintiff would use the estate to take good care of his aging mother.  This point about leaving the property to the plaintiff without any restriction is really part of the general point about leaving everything to the plaintiff, which I will presently turn to.

123.  Secondly, a point made against the plaintiff is that it was indeed very odd for the deceased to leave the ancestral home to the plaintiff when it was throughout the defendants’ side which had been using the Prince Edward Road property as their residence and a place for family gathering.  Indeed, the 1^st defendant and his family were (and are still) residing in that property.  How odd it was to leave the property to the plaintiff, whose relationship with the defendants could at most be described as average, when from any perspective, the property was to be used as the ancestral home by the defendants’ side.

124.  I do find force in the argument.  I do not pretend that I have discovered a perfect answer from the evidence in relation to it.  There is indeed evidence that the deceased was rather upset by the 1^st defendant’s attempt to persuade him to sell the property to developers for a very hefty price at the height of the property market back in 1997.  I am quite prepared to accept the evidence of the plaintiff’s wife to that effect.  But taken at the highest, that would still be quite insufficient to fully explain why the deceased wanted to leave the property to the plaintiff, instead of leaving it to the 1^st defendant with an express restriction against disposal.  Or the deceased could have left the property to all the defendants jointly with a similar restriction.  One could also imagine his adding further instructions in his will to the defendants not to sell the property because it was their ancestral home.  None of this has happened.

125.  As I said, I acknowledge fully the force of the argument.

126.  But the important thing is that it is not a conclusive argument against the will, and Mr Miu, very fairly, has not pushed his argument that far.

Discussion on disinheriting all others

127.  An even more general and material point made against the plaintiff and the will is that all the children and grandchildren of the deceased, with the exception of the plaintiff, have been disinherited under the will for no immediately apparent reason.  A lot of time has been expended at trial on whether the deceased had made sufficient provisions to all the disinherited children during his lifetime.

128.  In my view, quite apart from the fact that there is simply insufficient evidence before the Court to make any findings on many of the matters in dispute, it is quite unnecessary to go into all these factual disputes save to this limited extent: For the 1^st and 2^nd defendants, I do not believe the 1^st defendant’s assertion that Yao Sheng Enterprises Limited was not a limited company which succeeded to the deceased’s very successful light bulb business.  Evidently, the 1^st defendant sought to downplay the relationship between the limited company’s business and the prior business of the deceased in light bulb manufacturing or trading.  I think his witness statement betrayed the true position relating to the deceased’s light bulb business and the limited company’s business by referring to both as the “family business”.

129.  In my view, he and the 2^nd defendant owed much of their success (at least during the 1980s and early 1990s) in the business of the limited company to the prior unincorporated light bulb business of the deceased.

130.  Nonetheless, I do not find that such provision, by itself, was sufficient to explain the disinheriting of the 1^st and 2nd defendants (or their children) in the will.  As Mr Miu has very attractively submitted, need or prior provision is only one of the many considerations which would normally be taken into account by a testator in deciding what provisions should be included in his will.  For, in my view, the respective relationships between the deceased and the 1^st and 2nd defendants were good, their love and affection towards each other were mutual, and apart from the 1^st defendant’s wanting to sell the ancestral home to the dislike of the deceased, there existed, in the evidence available, no special circumstances between the father and sons to fully explain the deceased’s disinheriting them in the will.  Here I have in mind the fact that not even a token bequest has been included in the will in favour of either son.  This is quite surprising in view of the fact that in fact the 1^st defendant is the eldest son of the deceased.  Nor, I should add, is there any explanation given in the will itself or any other documents or letters to explain the absence of provision.

131.  A similar point can be made in relation to the daughters.  I accept the general point that the deceased had purchased properties in Sunshine City in joint names with the daughters.  But, when compared with the size of the deceased’s estate, the deceased’s shares of contribution towards the purchases were really very small.  They do not explain, on the evidence available, his disinheriting the two daughters.  Particularly, in the case of the 5^th defendant, she has been the favourite child/daughter of the deceased.  She has excelled in her academic studies, and the deceased has felt very proud of her.  According to the evidence, which I accept, she has maintained a very good relationship with the deceased, save for a question mark regarding whether the deceased liked her suggestion about selling the Sunshine City property to cut loss.  Even if the deceased really disliked that suggestion, in my view, that was by itself quite insufficient to explain his not leaving even a token legacy in favour of the 5^th defendant in the will.

132.  Very little is known about the position of the 3^rd defendant, who has not given evidence at trial.  But on a very general level, on the evidence available, I do not find sufficient evidence to explain why not even a nominal provision was made in the will in favour of the 3^rd defendant.

133.  On such a general level, similar observations can be made in relation to the grandchildren on the defendants’ side, whom the deceased was very fond of, or, for that matter, Madam Wang, who has attended to the deceased with great devotion during his long period of hospitalization, and her two children.  In relation to her two children, I must, however, bear in mind that the daughter has indicated that she does not wish to contest the proceedings, whereas the son, although he has reserved his position to be joined at a later stage, has never actually applied to be joined as a party to contest the will, despite animosity between him and the plaintiff.

134.  On the other hand, the defendants have made great efforts to demonstrate at trial that Madam Ho made no or little contribution towards the businesses of the deceased to justify her son getting the entire share of the estate under the will.  Likewise, efforts have been expended by the defendants on showing that their mother, Madam Yam, played a significant role in the deceased’s building up his businesses, particularly in the earlier years when Madam Yam’s health was good.  Again, leaving aside the fact that the evidence available is quite insufficient to allow the Court to make any meaningful findings, I do not find all this to be helpful for this simple reason: regardless of what contributions the two women had made whether to the businesses or to maintaining the households, including the raising of the children of the deceased, they do not provide sufficient reasons to explain why the deceased should have decided to leave everything to the plaintiff (ie Madam Ho’s side), or put the other way round, to disinherit all defendants without leaving them even with a token legacy.

135.  In short, whether taken individually or collectively, all these matters do not, on the evidence available, provide a sufficient explanation for the provisions made in the will, ie leaving everything to the plaintiff.

136.  Needless to say, these are very material considerations by themselves regarding whether the will truly represents the last wishes of the deceased.  Furthermore, given the contents of Ms Ma’s and indeed Mr Liu’s evidence, these matters could very well affect the question of whether their evidence should be believed at all, for they both said, in substance, that the deceased did want to leave everything after his death to the plaintiff.  Needless to say, the evidence of the plaintiff and his wife is likewise affected.

137.  These are very serious and material matters to bear in mind in the weighing scales.

Discussion on some general points

138.  Before I come to my conclusion, I should also mention some other general points.

139.  I do share Mr Miu’s surprise that the plaintiff did not reveal the making of the will in his favour to his wife at all.  I find it rather strange.  That is a general point which I do seriously bear in mind.

140.  Further, I find the behaviour of the plaintiff after the deceased had fallen into a coma rather questionable.  I have already mentioned the withdrawal of $2.4 million from the bank account held in the joint names of the deceased and Madam Ho one week after the deceased fell into a coma.  Half of the money withdrawn was somehow treated as a gift by the deceased to Madam Ho in the estate duty papers; the gift was allegedly made at a time when the deceased was in no capacity to make it.  There were further sums withdrawn from the joint bank account afterwards (ie share dividends amounting to $200,000 odd).

141.  I have also mentioned the very careless and untrue allegation made by the plaintiff against Yip Wai Man for wrongful withdrawal of a sum of $3.3 million from another bank account opened in the name of the deceased.

142.  Furthermore, according to the evidence, the plaintiff and his mother did open the safe-deposit box opened in the joint names of the deceased and Madam Ho one week after the deceased fell into a coma.  He said he wanted to look at the contents of the safe-deposit box.  He said he found the will and whilst he returned everything to the safe-deposit box, he kept the will.

143.  The 1^st defendant has also given evidence regarding how the plaintiff had been reluctant to inform him about the existence of the will and how vaguely he had described its contents when its existence was revealed.  Evidence from the defendants’ side has also questioned why the deceased did not reveal the existence of the will earlier (ie prior to the death of the deceased) when there were disputes regarding whether the deceased should be transferred to a public hospital for long-term treatment.  Likewise, they have questioned why the plaintiff did not make known the existence of the will on the day the deceased died when he was having a hot argument with the hospital and Yip Wai Man about collecting the body of the deceased.

144.  In short, I have borne in mind the behaviour of the plaintiff from the time after the will was made up to the death of the deceased and thereafter.  The plaintiff could have behaved differently or better and certainly they are matters that I should bear in mind in considering his evidence, which I approach with great vigilance and jealousy.  Nonetheless, these are not matters that go directly or immediately to the question of knowledge and approval, but rather credibility generally.  Nonetheless, I have taken them on board fully.

145.  There are also, as mentioned earlier, very vague allegations, which the witnesses from the defendants’ side have related to the Court, and which the deceased allegedly made against the plaintiff personally or in respect of the treatment he had received from the plaintiff’s family.  Mr Miu submits that in fact the plaintiff and indeed Madam Ho had not been that good to the deceased.  But the undeniable fact is that they had been living with the deceased (even though the deceased did not stay at Whampoa Garden every night) for a very long period of time, no doubt taking care of his daily needs.

146.  I have borne all this in mind.  And in so far as they affect the credibility of Ms Ma and Mr Liu as witnesses, I have also taken them into account in deciding whether I should accept their respective evidence.

147.  So far as the evidence of the plaintiff is concerned, he did give his answers, whether during examination-in-chief or cross-examination, in a satisfactory and acceptable manner.  The answers were by and large spontaneous, and there were no obvious occasions when he appeared to avoid difficult questions.  Likewise, demeanour-wise, his wife gave satisfactory evidence in the box.  It is true that there are discrepancies in their respective evidence on what the deceased had told the plaintiff on the occasion when Madam Ho was not feeling well.  In short, according to the plaintiff, the deceased had told him that he would leave “something” to him to look after Madam Ho.  According to the wife, the deceased said that he would leave “everything” to him – at least that was her impression.  I do not view this as a real discrepancy.  Nor do I consider it an attempt by a faithful wife to improve on the evidence given by her husband.  Rather, after very careful consideration, I have come to the conclusion that they were genuine discrepancies in recollection.  After all, the couple were trying to recall events that happened nine years ago.  Mr Miu says that the wife’s timing of the incident in question was wrong.  She has said that this incident took place after the sudden death of her father on Christmas day in 1998.  Again, after very careful consideration, I have come to the conclusion that this was an innocent discrepancy, most probably due to a lapse of memory.

148.  I have borne in mind all this, particularly in terms of whether, given the plaintiff’s personality and character, he did gain the trust and favour of the deceased to such an extent that the deceased would have wanted to leave everything to him after his death, and also in terms of whether he was a credible witness regarding what he had described as the events leading to the deceased making a will in his favour.

149.  Again, I have to say that on the totality of the evidence available, I do not find sufficient explanation for the deceased’s leaving everything to the plaintiff, to the exclusion of all his siblings.  I am unable to find, and indeed there is no such suggestion by Mr Yau on behalf of his client, that the plaintiff was the deceased’s favourite child.  And even if he were, I would still have thought that there would be insufficient explanation for the deceased’s leaving everything to him to the exclusion of his siblings.  And indeed to be fair to the plaintiff and Mr Yau, they have never suggested so as part of the plaintiff’s case. 

150.  I am satisfied that all the family members and children had to different extents received benefits and contributions from the deceased in various ways.  To that extent, each and all of them could be said to have received provision from the deceased.  However, my point is that regardless of the disputes between the parties regarding the exact extents of such contributions and benefits, they simply cannot explain, on the basis of the existing evidence, the deceased’s decision to leave everything to the plaintiff to the exclusion of his siblings, with whom I have no doubt the deceased maintained generally good relationships up to the very end of his life.  Mr Miu has invited the Court to look at several possible reasons why a testator of a sound mind may decide to give his entire estate to one particular person, namely (1) gratitude towards the object, (2) love or affection towards the object, (3) love, care and attention from the object, (4) need and (5) hatred of other possible beneficiaries.  I wish to say expressly that I have borne in mind the relevant submissions of Mr Miu in paragraphs 42 to 77 of his written final submission (together with the associated oral arguments).  Suffice it to say, I find insufficient reasons, on the evidence before the Court, to fully explain why the deceased should have wanted to leave everything after his death to the plaintiff, to the exclusion of all his other children. 

151.  One other general point which is also of significant force is this: according to the evidence of the plaintiff and Ms Ma, the deceased said that he had some friends who had died without leaving a will, thereby causing difficulties amongst their family members after they passed away.  That was said apparently as a reason for the deceased wanting to make a will.  However, as has been pointed out by the 1^st defendant whilst giving evidence in the box, the will that the deceased (supposedly) made as a result not only failed to achieve that purpose, but it did exactly the opposite.  Its contents gave rise to a total breakdown in relationship between the plaintiff’s side and the defendants’ and resulted in this bitter litigation.  As a very intelligent person, the 1^st defendant pointed out, the deceased must have been able to foresee that the contents of the will (if indeed they represented his wishes) would give rise to disagreements and arguments amongst the siblings and the different families.  This would be wholly contradictory to the most tactful way the deceased used to maintain harmony amongst his different families during his lifetime.  In the past 40 years, the 1^st defendant pointed out, the deceased had tried his best in showing fairness to the three separate families.  It was unlikely that he would wish to upset the balance by executing such a will.  If he wanted to give his assets to the plaintiff, he could have transferred at least part of the assets to him starting from 1999.  By doing so, he could have avoided a lot of uncertainties and suspicions amongst his children.

152.  I can see the force of the point.  The will has managed to, quite unfortunately, defeat the very purpose that the deceased (allegedly) wanted to make a will in the first place.

153.  Mr Miu has also said that the plaintiff has made a wrong assertion that after the death of Madam Yam, the deceased had moved over to live in Whampoa Garden.  In fact, the deceased still maintained his residence in Prince Edward Road.  Similarly, Mr Miu questioned whether the deceased would have told Ms Ma that he had moved over to live in Whampoa Garden and had been living with the plaintiff and Madam Ho for ten odd years during the first meeting.

154.  I agree that the plaintiff may have exaggerated the situation.  I accept that throughout, the deceased maintained his room in Prince Edward Road and stayed there from time to time.  On the other hand, I believe what the deceased told Ms Ma was merely a generalised statement.  I see no reason why the deceased needed to be very precise on where he stayed at night.  I find it natural enough that after the death of the principal wife, the deceased should have wanted to spend more time with Madam Ho at her place.  Whether one calls it “moving over” is really a matter of choice of language.

Further discussion and findings of fact

155.  In short, I have a very peculiar situation here.  On the one hand, I do have two attesting witnesses whose evidence I accept.  For after very careful and indeed anxious consideration, and after assessing not only their evidence by themselves but also the evidence of all other witnesses together with the documentary evidence and surrounding circumstances with great vigilance and jealousy, I have come to the firm conclusion that both Ms Ma and Mr Liu have told the truth in Court.  Their evidence is truthful and I believe it.  I find that what had happened in the two meetings at the Chinese restaurant and café respectively was as they have related to the Court.  I have already explained that there were minor factual discrepancies, which were merely innocent lapses of memory.

156.  More importantly, Ms Ma did not simply play the role of an attesting witness.  As described, she was the one who took instructions directly from the deceased and turned those instructions into the will.  She also interpreted, line-by-line, the English will to the deceased, before the deceased was asked to execute it.

157.  Furthermore, on the evidence before me, there is simply no or quite insufficient evidence to suggest that the deceased did not possess a sound mind at all material times.  Although the burden is squarely on the plaintiff to establish testamentary capacity, I am of the firm view that he has discharged the formal burden with ease.  The entire evidence indicates that the deceased was fully in possession of his mental faculties whether before, during or after the making of the will.  In fact, even the defendants’ side has pleaded that the deceased “did not suffer from any mental decease” (paragraph 23 of the defence).  Although there has been mentioned of the deceased being “forgetful” on occasions, I do not think anybody has seriously suggested that he could not remember his children or his assets.  Indeed the defendants’ case is that up to the very end, the deceased had maintained a very good relationship with all the defendants and their family members.  Likewise, there is no dispute that up to the very end, the deceased was a very active and meticulous investor in foreign currencies and stocks, and he was precise with his financial matters, including working out and recording on the cheque stubs the bank account balances whenever he wrote out cheques.

158.  I have borne in mind the defendants’ point that the contents of the will are “irrational”.  I do not think that that matter, which I will further discuss, is sufficient, whether by itself or when considered together with all the rest of the circumstances, is sufficient to cast any doubt on the deceased’s testamentary capacity at the material time.  Nor has that been suggested by Mr Miu at trial.

159.  In short, testamentary capacity has been more than sufficiently established in the present case. 

160.  Marrying that fact with my acceptance of the very clear evidence of Ms Ma and Mr Liu, one is driven to the conclusion that the deceased knew quite exactly what he was doing, ie leaving everything after his death to the plaintiff under the will.  That was indeed the substance of the evidence of Ms Ma and Mr Liu, which I accept.

161.  Yet on the other hand, and that is why I say I am faced with a highly unusual situation here, I cannot find, on the evidence available, sufficient explanation for the deceased’s leaving everything to the plaintiff, to the exclusion of all his other children (or their family members).  Indeed, the plaintiff has not really attempted to justify the dispositions in his favour to the exclusion of all others.  On the materials before me, he simply cannot.

162.  I am not saying that unless there should be fair or equal distribution of the estate between all the children of the deceased, the will could not be explained.  I am not here dealing with a borderline case.  Rather I have a will here which leaves nothing to all the children of the deceased, except the plaintiff, who is given everything.  On the evidence, I can find no known explanation for that.

163.  However, I must emphasise several matters.  First, I have been qualifying my preceding discussion by reference to the existing evidence before the Court.  There may or may not be other relevant matters not known to the Court, or even to the parties themselves. 

164.  Secondly, when I say I cannot find any known explanation for the dispositions in the will, I speak in terms of findings that I can make on the balance of probabilities, rather than possibilities that one can speculate about.  In other words, on the existing evidence, there are possible explanations for what the deceased has done.  However, none of these possibilities is, in my view, so probable that I can make a finding based on it.  Given that the plaintiff bears the burden of proof, the result is that he fails to prove any sufficient explanation for the dispositions one finds in the will.

165.  What should be the result?  I will not repeat my discussion on the relevant principles in an earlier section of this judgment.  All I need say is that one must remember that ultimately the aim here is to find out whether the deceased really knew and approved of the contents of the will.  Given my acceptance of Ms Ma’s and Mr Liu’s evidence, which has been assessed by the Court with great vigilance and jealousy (and not only their evidence, but all available evidence as well), I think the answer must be clear.  The testator did know and approve of the will. 

166.  As to the other “doubts” or “suspicions” and things that cannot be explained, one can only say that they are not by themselves sufficient to tilt the balance in favour of the defendants.  This is not such a case that the suspicion of the Court is so great that it can never been removed.  As I say, there are possible explanations for the deceased leaving everything to the plaintiff.  My point is just that those possibilities are not so strong that I can make findings based on them.  It must be remembered that according to the facts, it is quite impossible to fully read the deceased’s mind, even by his own children.  After all, on the evidence, the deceased has been a very decisive person, keeping his affairs and decisions to himself.  He would only reveal his private affairs to others, including his children, if and when he liked and then only to an extent determined by him.  He was an authoritative person, used to be respected and obeyed by all his children, and his decisions were never questioned.  It may well be that he has never foreseen that the dispositions he had ordained in his will would be questioned by his own children at all after his death.  After all, two children that he had with Madam Wang did not, at the end of the day, challenge the will.  So it is not a case where nobody, except the plaintiff, could accept his will.  The Court does not know why these two particular children do not challenge the will.  There may well be matters not known to the Court.  Of course, from the Court’s objective assessment of the situation, based on the available evidence, the Court could not find a sufficient explanation for the dispositions in the will.  It does not necessarily mean, however, that the deceased’s assessment of the position was the same as that of the Court’s. 

167.  The deceased was highly mobile and could travel to the Mainland frequently on his own, probably to spend time with his girlfriends there (as per the defendants’ suggestion).  He certainly maintained a very substantial part of his life private and personal to himself, which his children were not privy to.  The fact that nobody on the two sides actually knew of the existence of Madam Wang and her two children with the deceased until the very day the deceased was admitted to St Theresa’s Hospital demonstrates the extent to which the deceased used to keep his affairs privy to himself, to the exclusion of the plaintiff, the defendants and the families.  The deceased was a man of his own mind, and I believe that that remained so up to the very end before he fell into a coma.  He was not used to revealing his personal matters to others, including those close to him, unless he wanted to, and still less was he used to explain his actions and decisions if he did not want to.  Rather, he was used to absolute obedience from his families and children.  Maybe he expected that the children would continue to do so after he had passed away. 

168.  Or maybe the deceased has thought that he would live a very long life and by the time of his eventual death, the size of his estate would not be as substantial as it was when he actually died in 2003. 

169.  Of course, if the deceased had included provisions in the will to explain his dispositions, it would have helped.  But on the other hand, he was not a person who was used to explain his decisions to his children and family members.  The fact that he kept the making and the contents of the will secret was understandable, given its contents, and given his character in general.

170.  After all, the law is not so presumptuous that unless the court can understand and find a rational basis for the dispositions made in a will by a testator, the will will never be admitted to probate.  As I said, the law recognises that a testator is entitled to be moved by capricious, frivolous, mean or even bad motives.  A testator may disinherit his children to gratify his spite or benefit charity to gratify his pride but the court must nevertheless uphold his will.  A fortiori, where the testator had good reasons of his own for the contents of his will which were simply not fully known to the court.

171.  Although where a case falls within the second rule in Barry and Butlin, the court must act with vigilance and jealousy, there is a limit to what the court can or should do.  Where the evidence is clear on knowledge and approval, where the attesting witnesses’ evidence is truthful and is accepted, and where the person who took instructions from the deceased and prepared the will for him to execute has given clear and firm evidence which is accepted by the court, the court cannot strike down the will simply because it does not understand why the testator has made the dispositions in the will.  The court’s job is to make sure that the will represents his true wishes.  The court has no right or jurisdiction to reject a testator’s will simply because it does not understand the testator’s rationale or agree with the way he has wanted his estate to be disposed of after his death.  To a limited extent, the Legislature has stepped in to modify the general position by enacting the Inheritance (Provision for Family and Dependants) Ordinance (Cap 481).  But then that is another story.

172.  As I say, I do acknowledge that there are cases where the suspicion of the court that the testator did not know or approve of the contents of the will may be so strong that it cannot be removed by any evidence.  The case referred to by Mr Miu, namely Tyrrell v Painton, supra, may be classified as one of those cases.  But the facts in that case are quite different from the present one.  And one can think of other examples, real or hypothetical, without much difficulty, that would fall within that category of cases.

173.  However, I am of the view that this case does not belong to that category of cases.  It is simply one of those cases where the Court, and even the parties themselves, do not know sufficiently about the testator to understand his dispositions made in the will.  As regards knowledge and approval, which is the real issue here, I have no doubt.  The plaintiff has established his case more than sufficiently, on the balance of probabilities, even bearing firmly in mind the second rule in Barry v Butlin.

174.  Mr Miu has referred me also to Re Begley [1939] 1 IR 479 and Sharp v Adam [2006] EWCA Civ 449.  He has also made references to Fuller v Strum, supra.  I must say that all these cases turn on their peculiar facts.  In particular, in Re Begley, the court was not sure whether the jury had accepted the evidence given by a witness that he had read over to the deceased the will and that that reading had taken place in such a way as to convey to the mind of the testator a due appreciation of the contents and the effect of the residual clause in question in that case (page 493).

175.  In Sharp v Adam, the court has accepted that a testator may make a valid will disinheriting his children out of capricious, frivolous, mean or even bad motives, and it is not the function of the court to substitute its own view of what the testator should have done.  But the court has gone on to point out that it does not follow that the court should not look for a justification for the change in the will or enquire why the testator in that case disinherited his daughters.  An irrational, unjust and unfair will must be upheld, the court has noted, if the testator had the capacity to make a rational, just and fair one, but it could not be upheld if he did not.  It follows that the court must enquire why a testator has disinherited his children where there is a possibility that it is due to disease of the mind.  The inquiry, the court has emphasised, must be directed to the testator’s soundness of mind (based on the facts of that case), and not to general questions of perceived morality (para 79).  Of course, in this case, as I have said, testamentary capacity or disease of the mind is not in issue. 

176.  And in Fuller v Strum, as described, the court has pointed out that the burden of proof on the propounder of a will which was made under circumstances that fell within the second rule in Barry v Butlin remains the civil burden.  And on the facts of that case, the suspicion aroused was successfully dispelled.

177.  In accepting the evidence of Ms Ma and Mr Liu, as I have mentioned, I have borne in mind all the relevant circumstances of the case, including those general matters not directly pertaining to their evidence.  In other words, I have borne in mind all the points made against the plaintiff’s case, whether they go directly to the evidence given by the two witnesses or to matters generally pertaining to the testator’s life, before deciding to accept the two witnesses’ evidence.  This approach, I believe, is a more stringent approach to an attesting witness’ evidence than that which was apparently adopted by the Court of Final Appeal in Nina Kung, supra.  In that case, the Court apparently dealt with the question of whether to accept the attesting witness’ evidence first, before dealing with the general circumstances of the case which were said to give rise to “suspicions”: see the Court’s “discriminating approach” to the copious evidence adduced in that case at para 249 of Ribeiro PJ’s judgment, and the two-stage approach to (1) matters pertaining to the attesting witness’ account (paras 250-318) and (2) the general “suspicious circumstances” (paras 371 to 391).

Outcome

178.  In those circumstances, I must find for the will and decree probate of the will in solemn form. 

179.  As regards costs, the plaintiff does not need a costs order in his favour because as a successful executor in propounding the will, he gets his costs from the estate as costs of obtaining probate: see Williams, supra, at para 40-49.  However, I would make an order nisi that the costs of the defendants be paid out of the estate, to be taxed on a common fund basis if not agreed.  My provisional view is that the defendants have not stepped across the line in putting the plaintiff to strict proof of the will.  The case, prima facie, falls within the first exception to the general rule that costs should follow the event.  See Nina Kung v Wang Din Shin (No 2) (2006) 9 HKCFAR 800, 807-810.

180.  I wish to say, before I conclude this judgment, that I can imagine the huge disappointment and feelings of hurt or even anger that the defendants must have experienced.  This is a very unfortunate case.  The defendants have fought a good fight, even though they have lost at the end of the day.  I hope the Court’s sharing of their view that on the evidence available, one cannot find a sufficient explanation for the dispositions made in the will would go some way towards soothing their hurt feelings.

181.  Lastly, I thank counsel on both sides for their assistance in this difficult case.