Tao Shen Jong v. Yung Sau Lan Shirley

HCAP 10/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 10 OF 2010

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D E C I S I O N

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1.This is an application by the plaintiff for variation of a costs order nisi I made in the judgment dated 21 March 2014. The order provided for no order as to costs.

2.The action was brought by the plaintiff for pronouncement of probate in solemn form for the will of his late father Tao Hiu Ming, deceased (“Mr Tao”) dated 8 November 2007 (“the Will”).

3.The action was opposed by the defendant, the surviving wife of the deceased.  The plaintiff was born in an earlier marriage of Mr Tao. The defendant did not accept that Mr Tao had made the Will.  She wanted the plaintiff to prove it in solemn form.

The legal principle on costs

4.The defendant relied on and had given notice to the plaintiff pursuant to O 62 r 6(1)(c) of the Rules of the High Court.  The rule provides:

“(1) Notwithstanding anything in this Order or in section 52A of the Ordinance-

(c) unless the Court is of opinion that there was no reasonable ground for opposing the will, no order shall be made for the costs of the other side to be paid by the party opposing a will in a probate action who has given notice with his defence to the party setting up the will that he merely insists upon the will being proved in solemn form of law and only intends to cross-examine the witnesses produced in support of the will.”

5.Ribeiro PJ also dealt with the discretion in awarding costs in contested probate proceedings in Nina Kung v Wang Din Shin (No.2) (2006) 9 HKCFAR 800 at §§10 to 12.  The learned Judge said in §12:

“12. Accordingly, the general rule where opposition to a will is unsuccessful is that costs follow the event. However, if the case can be shown to fall into one or other of the two exceptions, the order is, in the first category (where the litigation is caused by the conduct of the testator or the residual beneficiary) for the costs to come out of the estate; and in the second category (where circumstances lead reasonably to an investigation of the will’s validity) for there to be no order as to costs. …” (emphasis added)

6.The learned Judge also emphasised in §19 of the judgment the duty of the opponent to make proper inquiries before undertaking the proceedings:

“19. There is a further qualification to the operation of the two exceptions. It has been held that in judging whether the party opposing the will comes within either exception, the court ‘must look at the facts and view them as they were presented to the unsuccessful party’. However, it must be understood that this does not justify an ill-considered and precipitous decision to litigate in opposition to a will. The courts have emphasised that ‘the opponents must have taken all proper steps to inform themselves as to the facts of the case’ before undertaking the proceedings if they are to take themselves out of the general rule of costs following the event.”

The costs order nisi and the application to vary

7.After the trial, I gave judgment to the plaintiff, but I made the order nisi that there be no order as to costs.  I was of the view that the defendant did have some reasonable grounds to contest the action. I in particular said that in the light of the long and loving relationship between the defendant and Mr Tao (since the summer of 1989 until 16 June 2009 when Mr Tao passed away), the absolute disinheritance of the defendant in the Will made on 8 November 2007 was already a good reason for the defendant to enquire if the Will was properly made.  I further said that I held this view despite the defendant had withdrawn US$4.4 million in July 2007 from a bank account jointly held by her and Mr Tao and her institution of divorce proceedings against Mr Tao in the US in August 2007 followed by Hong Kong divorce proceedings in October 2007.

8.The plaintiff applied for variation of the costs order nisi on the ground that the defendant had no reasonable ground to oppose the Will.

The background

9.The background facts of the case have been set out in my judgment and are recapitulated in the submissions of Mr Jat, SC, leading counsel for the plaintiff as follows:

(1) The plaintiff and Tony Tao were the sons of the Mr Tao by his marriage with Madam Chen in 1977.

(2) Mr Tao met the defendant in 1975.  They began cohabiting in 1989.  Mr Tao and Madam Chen divorced in 1994.  Mr Tao and the defendant married in 1995.  The plaintiff joined Mr Tao and the defendant in 1997.  They then lived as a family.

(3) Mr Tao was diagnosed with brain tumour in October 2006.  The plaintiff suspended his studies to live with Mr Tao in Los Angeles.  The relationship between the plaintiff and defendant turned antagonistic.

(4) On 20 November 2006, Mr Tao made a will bequeathing: (i) US$1 million to Tony Tao; (ii) about US$6 million in a bank account, the life interests in the matrimonial homes in Hong Kong and Los Angeles and all the vehicles to the defendant; and (iii) the residuary (bulk) estate to the plaintiff (“the First Will”).  The defendant knew the contents of the First Will.

(5) Mr Tao had a surgery on 21 November 2006.  His conditions improved, but his relationship with the defendant worsened.

(6) In July 2007, the defendant withdrew US$4.4 million from a joint bank account she had with Mr Tao (“Joint Bank Account”).  He stopped paying her the monthly allowance.

(7) On 21 August 2007, the defendant commenced divorce proceedings against Mr Tao and moved out of the matrimonial home in Wilshire, Los Angeles.  Mr Tao was shocked by this.

(8) The plaintiff later contacted Ms C, a US attorney, to advise Mr Tao on estate planning.  She introduced Mr Norman, who had experience in international estate planning, to advise Mr Tao. 

(9) Another Will was drafted by Ms Wu of Fairbairn for Mr Tao.

(10) On 14 September 2007, Ms Wu and Mr Terence Luk had a half-hour long distance telephone conference with Mr Tao.  Ms Wu considered that Mr Tao had the requisite testamentary capacity when he gave instructions for the making of the Will.

(11) On 26 October 2007, Mr Tao through his US attorneys demanded the defendant to return the US$4.4 million that she had withdrawn from the Joint Bank Account in July 2007.

(12) On 6 November 2007, Mr Tao had a medical consultation with Dr Armin Mirhadi, who confirmed that Mr Tao was alert and oriented, and was able to answer questions appropriately.

(13) Mr Tao executed the Will on 8 November 2007 and Ms C and Mr Lin attested the execution.  Mr Norman was also present. 

(14)  Under the Will: (i) the plaintiff was appointed the sole executor and trustee of the Will; (ii) Mr Tao bequeathed US$1 million to Tony; (iii) Mr Tao bequeathed his residuary estate to the plaintiff alone; and (iv) Mr Tao expressly provided that nobody related to him by blood or otherwise, including the defendant, should dispute the validity of the Will.

(15) On 13 November 2007, Mr Tao underwent a one hour neuropsychological assessment with Dr Po H Lu of UCLA to evaluate his global mental status.  He scored 90/100 indicating intact global cognitive abilities.

(16) On 14 November 2007, Mr Tao had a consultation with Dr Keith Black who, while reported growth of new tumour, confirmed that Mr Tao was awake, alert, oriented, and ambulated without difficulty.  Dr Black also provided a letter of opinion dated 17 March 2011 confirming Mr Tao’s testamentary capacity at the time of making the Will.

(17) Mr Tao passed away in Hong Kong on 16 June 2009. On 17 July 2009, the defendant entered a caveat in respect of Mr Tao’s estate contesting that Mr Tao did not make the Will.

The plaintiff’s grounds of this application

10.Mr Jat advanced four grounds for the plaintiff as follows:

(1)  The defendant knew full well that the so-called “long and loving relationship” no longer existed at the time of execution of the Will, as a result there was no room for her to complain about her disinheritance;

(2)  even if the so-called “long and loving relationship” existed, the defendant knew full well that there were sound reasons why Mr Tao would disinherit her;

(3)  the defendant’s conduct positively affirmed the validity of the Will; and

(4)  the defendant had due notice of the cogent, objective and independent evidence supporting Mr Tao’s testamentary capacity before trial.

Breakdown of long and loving relationship?

11.I have accepted the evidence of Mr Yao, a close family friend and witness called by the defendant that the previous relationship between the defendant and Mr Tao was almost perfect.  Mr Jat referred to my findings in §§28 and 29 of the judgment that the relationship between the defendant and Mr Tao had begun to deteriorate since the discovery of Mr Tao’s illness in October 2006. After Mr Tao had made the First Will, their relationship changed from bad to worse. But I have also found in these paragraphs that the defendant was still looking after Mr Tao very carefully despite the shouting and scolding by Mr Tao and that Mr Tao knew that he had treated the defendant badly and was apologetic about that.

12.Mr Jat also referred to the First Will by which Mr Tao had given the bulk of his assets to the plaintiff instead of the defendant. But I think the defendant was still well provided for in the First Will.  She was given the moneys in two bank accounts which totalled no less than US$6 million, the life interests in the Hong Kong and Los Angeles matrimonial homes and all the vehicles.  That was very much different from the absolute disinheritance of her in the Will.

13.Mr Jat then referred to the institution of divorce proceedings by the defendant in the US and her moving out from the Los Angeles matrimonial home in August 2007.  Mr Tao was shocked by these.  She then instituted divorce proceedings in Hong Kong in October 2007.

14.Mr Jat submitted that the defendant in doing all these was trying to get a share of Mr Tao’s estate through divorce, otherwise she would get very little under the First Will.  But I do not recall the defendant’s motive in instituting the divorce proceedings and removal from the Los Angeles matrimonial home had been canvassed at the trial.  In any case, I have not made any such finding against the defendant.  I would also not want to make any guess on the defendant’s motive.

15.I also repeat the evidence of Madam Yuan Kung, a close family friend and a witness for the defendant that she had been told by the defendant that the defendant wanted a divorce as Mr Tao did not treat the defendant as his wife anymore given their previous good relationship and the way she had cared about him.  The defendant also felt that the plaintiff had suddenly taken Mr Tao away from her.  I have accepted this evidence.

16.Mr Jat then referred to the evidence of Ms C and Ms Wu, Mr Tao’s lawyers in making the Will.  They said in evidence that Mr Tao had told them that he was hurt and disappointed by the divorce proceedings.  But there is nothing to suggest that his reaction to the divorce proceedings as relayed by he himself to Ms C and Ms Wu had been conveyed and was known to the defendant before the commencement of this action.

17.On the contrary, I have recorded in §30 of the judgment the evidence of Mr Yao that Mr Tao had asked Mr Yao to salvage his relationship with the defendant and to remedy whatever that had caused the defendant to leave. Mr Yao also said in §23 of his witness statement that Mr Tao was still in love with the defendant.  There was also an occasion when Mr Yao saw Mr Tao sleeping on the floor and not on the bed.  He told Mr Yao that the emptiness of the bed reminded him of the defendant.  He also told Mr Yao that the plaintiff was very manipulative.

18.Mr Yao also mentioned that the defendant had given terms for reunion but he thought that the plaintiff was the obstacle for the reunion.

19.Ms Kung also said in §24 of her witness statement that Mr Tao had called her several times and blamed her for not helping him to persuade the defendant to return home. 

20.Since Mr Yao and Ms Kung were close family friends and witnesses for the defendant, they must have told the defendant how Mr Tao had felt for her and that Mr Tao had wanted her to go home. 

21.Mr Jat further referred to the battle of maintenance pending suit and the defendant’s application for ouster and non-molestation order against Mr Tao.  But these happened in January 2008 when Mr Tao had come back to Hong Kong and two months after Mr Tao’s execution of the Will.  I do not think these later events can reflect how Mr Tao might have felt for the defendant and the state of their relationship might have been on about 8 November 2007 as perceived and felt by the defendant. 

22.I also note that the defendant’s application on 15 January 2008 for the ouster and non-molestation order was based on her allegation that Mr Tao had threatened her safety to demand her return to the Hong Kong matrimonial home and live there together with the plaintiff.  The defendant refused to do so.

23.Furthermore, despite these legal battles, when the parties attended their first appointment of divorce proceedings on 7 March 2008 before H H Judge Melloy, the defendant through her counsel requested for a meeting with Mr Tao because she wanted to make amends with Mr Tao and see if they could have a sensible discussion on the progress of the divorce proceedings.  However, Mr Tao’s solicitor replied without even taking instructions from Mr Tao that it was impossible to exclude the plaintiff from any discussion between the defendant and Mr Tao. 

24.All these show that the relationship between the defendant and Mr Tao as perceived and felt by the defendant was not as bad as Mr Jat had submitted.  The plaintiff appeared to be the main cause that had prevented their reconciliation and reunion.

25.Mr Jat also submitted that the defendant already owned significant assets in her own right and was well provided for and it was not unreasonable for Mr Tao to have disinherited her.  I do not find this submission of merit as there was no evidence of change of the defendant’s financial position from the making of the First Will to the making of the Will.  Despite her wealth, Mr Tao still gave her millions of US dollars, life interests in the matrimonial homes and the vehicles under the First Will.  I disagree with Mr Jat on this ground at least up to the time of commencement of this action.

The defendant knew that she would be absolutely disinherited?

26.Mr Jat submitted that the defendant knew at the time of Mr Tao’s execution of the Will that she would be absolutely disinherited.  He referred to two matters in support of this submission.  The first is because the defendant had withdrawn US$4.4 million from the Joint Account in July 2007 and she knew that Mr Tao had asked for its return through lawyers on 26 October 2007.  The Will was then executed on 8 November 2007.  The second is the defendant’s application for maintenance pending suit in January 2008.  Mr Tao opposed that strenuously.

27.Mr Jat further referred to section 15 of the Wills Ordinance, Cap 30 which provided in sub-section (1)(b) that after a testator has made a will, his marriage is dissolved, then any devise or bequest to the former spouse shall lapse except insofar as a contrary intention appears in the Will. Hence, when the defendant commenced divorce proceedings in August and October 2007, she, having been properly advised by her divorce lawyers, would know that she was disinheriting herself by her divorce proceedings.

28.I think this 3rd point is misconceived.  The issue is whether the defendant should have known prior to contesting this action that Mr Tao had on about 8 November 2007 disinherited her in the Will, not whether she was disinheriting herself in the First Will by her divorce proceedings.

29.Regarding whether she should have known that she had been disinherited on about 8 November 2007, I would refer to the evidence of Mr Yao and Ms Kung which showed that Mr Tao was still trying to reunite with the defendant after the withdrawal of the money and the commencement of the divorce proceedings and such should have been known to the defendant.  I therefore disagree with Mr Jat also on this ground at least up to the commencement of this action.

The defendant’s conduct affirmed the validity of the Will?

30.Mr Jat referred to the defendant’s application under section 4 of the Inheritance (Provision for Family and Dependants) Ordinance, Cap 481 and submitted that the defendant in making this application was acknowledging and proceeding on the basis that the Will was valid.  But this submission has been shown by Mr Wong, SC leading counsel for the defendant to be factually incorrect.

The defendant had due notice of the plaintiff’s strong case on Mr Tao’s testamentary capacity?

31.Mr Jat referred to the evidence given by Dr Po H Lu, Dr Black and the lawyers responsible for the drafting and execution of the Will.  But these were only available to the defendant in the course of this action.

The defendant’s interlocutory applications and calling evidence

32.Mr Jat also attacked the defendant that she in applying for medical evidence in the action was fishing for evidence for a case of lack of capacity. However, the application was initially dismissed not on the ground of relevance, but on possession.  The evidence was later agreed to be disclosed by the administrators pending suit.  Such evidence was also prima facie relevant.

33.Mr Jat also attacked the defendant for having called evidence by witnesses who were not aware of the circumstances of the execution of the Will.  But as pointed out by Mr Wong, such evidence is important and useful in that it supplied the important background information and revealed the long and loving relationship between the defendant and Mr Tao.  Such evidence also showed that Mr Tao was still yearning for the defendant after her commencement of the divorce proceedings.

34.Mr Jat also attacked the defendant for having opposed the plaintiff’s application for Ms C’s evidence to be given by video link.  However, my decision dated 14 November 2013 showed that it was for the plaintiff to establish the need for Ms C’s evidence to be given by video link.  My costs order for that application also showed that the opposition was by no means unreasonable and that the manner in which the plaintiff made the application was unsatisfactory.

35.I therefore do not think that the plaintiff can rely on these matters to support this application.

Decision on whether it was reasonable for the defendant to contest this action at its commencement

36.In the light of my analyses above, I am of the view that it was reasonable for the defendant to have contested this action at the beginning and require the validity of the Will to be proved.

The evidence available to the defendant up to and before the commencement of the trial

37.The plaintiff provided a witness statement of Ms Wu and statutory declarations of Ms C and Mr Frank Lin.  They were called as witnesses. The plaintiff also adduced a statutory declaration of Mr William K Norman who was not called.  The plaintiff also produced a joint declaration of attorneys made by Ms C, Mr Lin and Mr Norman.  Furthermore, there were available to the defendant in the action a medical consultation report of Mr Tao by Dr Armin Mirhadi on 6 November 2007, a diagnosis report of Mr Tao on 13 November 2007 by Dr Black, an opinion by Dr Black dated 17 March 2011 on Mr Tao’s testamentary capacity and a global mental status evaluation by Dr Po H Lu on Mr Tao on 13 November 2007.  I deal with them briefly below.

The declaration of attorneys

38.Ms C, Mr Lin and Mr Norman were attorneys practising in Los Angeles.  Ms C and Mr Lin attested the execution of the Will by Mr Tao on 8 November 2007.  Mr Norman was present throughout the occasion but did not sign the Will as a witness as two attesting witnesses were sufficient.

39.The three of them then signed a joint declaration of attorneys on 13 and 14 November 2007.  The declaration said that Mr Norman had met Mr Tao on a previous occasion as a consultant to some international estate planning and income tax issues.  The declaration then referred to a meeting of Ms C, Mr Lin, Mr Norman and Mr Tao on 8 November 2007 at about 2:55 pm.  It was for Mr Tao to execute the Will.  In the meeting, Mr Tao reviewed the Chinese translation of the Will paragraph by paragraph.  Prior to execution, Ms C asked him a series of questions and translated them and his answers into English for Mr Norman who did not understand Chinese.  These questions elicited the following from Mr Tao.

40.Mr Tao confirmed his wish for the plaintiff to be the executor and residuary beneficiary after a gift of cash was made to his other son Tao Shen Yang.  Mr Tao asked for clarification to make sure that the plaintiff was named the executor.  He also specifically confirmed that the defendant, with whom there was a pending divorce action, was not a beneficiary of his estate.  He said he intentionally did not provide for the defendant because she had filed for divorce and had treated him very poorly.

41.Mr Tao also confirmed his understanding that he was signing his will and that his will directed the disposition of his assets upon his death.  He further confirmed that he was not signing the Will under duress and was doing so of his own free will.

42.Mr Lin then read aloud the Chinese translation of the Will and Mr Tao was able to assist Mr Lin with the pronouncement of certain Chinese words. 

43.Mr Tao then executed the Will and Ms C and Mr Lin attested his execution.

44.Based on their personal observations, the three attorneys were of the opinion that Mr Tao had testamentary capacity to execute the Will within the meaning of the California Probate Code.

45.Section 6100.5(a) of the California Probate Code provided that:

“(a) An individual is not mentally competent to make a will if at the time of making the will either of the following is true:

(1) The individual does not have sufficient mental capacity to be able to

(A) understand the nature of the testamentary act,

(B) understand and recollect the nature and situation of the individual's property, or

(C) remember and understand the individual's relations to living descendants, spouse, and parents, and those whose interests are affected by the will.”

The statutory declarations of the US attorneys

46.Ms C also made a statutory declaration on 19 November 2009 which was used as her evidence in chief.  She recounted her first encounter with Mr Tao for advising him on estate planning.  She later had two more meetings with Mr Tao. Mr Norman, who was experienced in international estate planning, was also present in these two meetings.  Ms C was of the view that Mr Tao was very alert and fully capable of expressing himself, understanding the matters for which he sought advice and gave proper instructions.  She did not notice that he was suffering from brain cancer.

47.At some stage, Mr Tao wanted to make a will.  The drafting was done by Ms Dorina Wu, a solicitor of Fairbairn, Catley, Low & Kong. Ms C did the liaison between Mr Tao and Ms Wu and arranged for the execution of the Will by Mr Tao in Los Angeles.

48.Ms C received from Ms Wu the first draft of the Will by e-mail on 7 October 2007.  Ms C suggested a few amendments.  She received the revised draft by e-mail on 6 November 2007 and by courier.  She then arranged for Mr Tao to execute it on 8 November 2007. 

49.Ms C then referred to the meeting on 8 November 2007. After Mr Tao had arrived at her office, she also asked Mr Lin to join her as she wanted a second attorney to attest the execution of the Will and Mr Lin was fluent in Putonghua and English.

50.The rest of her declaration is more or less the same as the attorneys’ joint declaration.  The difference is that without any elicitation by questions from Ms C, Mr Tao himself in the course of his review of the Chinese translation of the Will asked the attorneys to clarify and confirm that the Will recorded his wish for the plaintiff to be the sole executor and residuary beneficiary after a cash gift to his other son.  Mr Tao also specifically raised and asked the attorneys to confirm that the defendant, with whom there was a pending divorce action, was not and not intended to be a beneficiary.  Mr Tao also said he had intentionally not provided for the defendant because she had initiated a divorce against him and had treated him very badly.  He also directed the amendment of his address which was done by Ms C.

51.Mr Lin also made a statutory declaration on 25 January 2010.  He only dealt with the meeting on 8 November 2007 in which Mr Tao executed the Will.  The contents of his declaration are more or less the same as those in Ms C’s statutory declaration.  He also said he had never met Mr Tao prior to the meeting.  He also recalled that Mr Tao was alert.  However, Ms C told him that Mr Tao had some health issues.  The three attorneys then decided that he should read aloud the Will before execution of the same to ensure that Mr Tao understood it completely.  He then read aloud the Chinese translation.  There were certain words that he did not know how to pronounce and Mr Tao assisted him with those words. Mr Tao then executed the Will.

52.Mr Norman’s statutory declaration dated 18 December 2009 was tendered as hearsay evidence as he was not called as a witness.  The contents of the declaration are also limited to the meeting on 8 November and are more or less the same as Ms C’s statutory declaration.  He also said that prior to the meeting on 8 November 2007, he had met Mr Tao on at least two previous occasions and advised Mr Tao on international estate planning and income tax issues.  He further said that Mr Tao was very engaged in the process on 8 November.  However, since Mr Tao had some health issues, the attorneys decided that Mr Lin should read aloud the Will to Mr Tao before its execution by Mr Tao.  It appeared to him that Mr Tao had assisted Mr Lin on the pronunciation of certain words.

Witness statement of Ms Dorina Wu

53.Ms Wu signed her witness statement on 26 October 2010.  She was a solicitor with Fairbairn, Catley, Low and Kong.  She said her partner Mr Terence Luk asked her in September 2007 to draft a will for Mr Tao who was then in the US.  She received written instructions from Mr Tao in Chinese.  She and Mr Luk then had a telephone conference with Mr Tao on about 14 November 2007 in which Mr Tao gave them detailed instructions on the contents of the Will. 

54.Although they knew that Mr Tao had some health problems, they were of the view that Mr Tao was fully capable of understanding the nature of a testamentary act and giving instructions on his testamentary wishes and dispositions. He was very alert and lucid.  He gave instructions with clarity.  They had no doubt that he had the requisite testamentary capacity when he gave instructions on his will.

55.Ms Wu then prepared a draft will on the basis of the written and oral instructions and arranged for it to be translated into Chinese. She e-mailed the draft and translation to Ms C on about 8 October 2007 for Mr Tao’s review and execution.

56.Ms C told her afterwards to make several amendments to the draft.  She revised the draft and sent it with Chinese translation by e-mail and courier on 6 November 2007 to Ms C.  This was the version that Mr Tao executed on 8 November 2007.

57.In sending the draft to Ms C, Ms Wu also advised Ms C the procedure for executing a will.  Since she was aware that Mr Tao had some health problems, she followed her usual practice and recommended that Mr Tao’s medical doctor should be present to confirm that Mr Tao was of good mental and physical condition.

58.She in particular said that clause 9 of the Will was drafted and incorporated therein upon Mr Tao’s express instructions.  Clause 9 reads:

“9. I hereby declare that no one either related to me by blood or any otherwise including but not limited to my wife, YUNG SAU LAN SHIRLEY (榮秀蘭), holder of Hong Kong Identity Card No.E379698(5) and my other children not mentioned in this my Will shall dispute this my Will or institute any action or other proceedings in which the validity of this my Will or any codicil hereto is sought to be impeached or call into question the ability of the sole executor, my son, the said TAO SHEN JONG.”

Medical and global mental status evaluation reports

59.In addition to the statutory declarations and witness statement, there were also disclosed in the action several reports of medical consultation and mental status evaluation of Mr Tao.  One report is on a consultation by Mr Tao of Dr Armin Mirhadi on 6 November 2007.  Dr Mirhadi confirmed in the report that Mr Tao was alert, oriented and able to answer questions appropriately.

60.There was another medical report by Dr Keith Black of Cedars-Sinai Medical Centre on a consultation on 14 November 2007.  The report recorded more growth of new tumour in several areas of Mr Tao’s brain.  Dr Black’s physical examination of Mr Tao however showed that Mr Tao was awake, alert and oriented.  Mr Tao also followed commands appropriately and ambulated without difficulty.

61.Dr Black also gave a letter of opinion dated 17 March 2011 certifying that in November 2007, Mr Tao had the relevant testamentary capacity and the ability to:

(1)   understand the nature of a testamentary act;

(2)   understand and recollect the nature and situation of his property; and

(3)   remember and understand his relations to living descendants, spouse, and parents, and those whose interests are affected by his will.

62.Finally, there is a report of a global mental status evaluation conducted by Dr Po H Lu on 13 November 2007 on Mr Tao.  Dr Lu’s conclusion on a gross estimate of Mr Tao’s global cognitive abilities was as follows:

“In summary, assessment of Mr Tao’s global mental status did not reveal any notable cognitive deficits as he performed within normal limits across the abilities assessed by the CASI including attention, orientation, short-term memory, long-term memory, language abilities, visual construction, verbal (category) fluency, abstraction, and judgment. …”

The legal principles on the burden of proof

63.The task of the plaintiff is to prove on a balance of probabilities that:

(a)  there was due execution of the Will by Mr Tao;

(b)  Mr Tao was of testamentary capacity; and,

(c)  Mr Tao knew and approved of the contents of the Will.

64.I also refer to my quote in the judgment of §60 of Hawkes v Burgess [2013] EWCA Civ 74 where Mummery J said:

“My concern is that the courts should not too readily upset, on the grounds of lack of mental capacity, a will that has been drafted by an experienced independent lawyer. If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity.” (emphasis added)

65.I also refer to my quote in the judgment of §§14 to 15 of Gill v Woodall and Ors [2011] Ch 380 for the approach to consider a will prepared and read over by a solicitor to a testator.  Lord Neuberger MR said at §§14 to 16:

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

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

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

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

Analyses

66.I have held above that it was reasonable for the defendant to have contested this action at the beginning and require the plaintiff to prove the validly of the Will.

67.The next question is, in the light of the above legal principles, whether it was reasonable for the defendant to persist in the contest after the three statutory declarations of the US attorneys, their joint declaration, the witness statement of Ms Dorina Wu, Dr Armin Mirhadi’s medical consultation report, Dr Black’s medical consultation report and letter of opinion and Dr Lu’s evaluation report were available to the defendant. 

68.Mr Wong referred to the oral evidence of the witnesses. He in particular referred to a third meeting between Ms C and Mr Tao which Ms C had not mentioned in her statutory declaration for the joint declaration.

69.Ms C referred to the 3rd meeting in oral evidence in which Mr Tao had told her more incidents with details on why he wanted to disinherit the defendant. 

70.There are also three conflicts between the oral evidence of Ms C and her statutory declaration on the one hand and the joint declaration of attorneys on the other.  They are (i) whether the meeting on 8 November for execution of the Will was fixed after Ms C had received the second draft of the Will from Ms Wu on 6 November or was it fixed before that, (ii) whether Mr Tao had of his own volition raised the two issues of making the plaintiff the sole executor and residuary beneficiary and not providing for the defendant or were they elicited by Ms C’s questioning; and (iii) whether Mr Norman had met Mr Tao once or twice before 8 November.

71.Mr Wong also referred to the telephone conference that Ms Wu and Mr Luk had with Mr Tao in which Mr Tao gave oral instructions to them.  Ms Wu supplied more details on this conference in her oral evidence. 

72.Mr Wong submitted that it was after hearing the totality of evidence (§5.11 of submissions) and in reliance of the oral evidence of Ms C and Ms Wu (§5.34 of submissions) that the court was satisfied that the plaintiff had discharged the burden of proof and expelled the suspicious circumstances.

73.Regarding Ms C’s 3rd meeting with Mr Tao, it took place before and not on 8 November 2007.  Mr Wong made a mistake on this in his submissions.  Though this meeting and what was exchanged between Ms C and Mr Tao were only disclosed in Ms C’s oral evidence, the plaintiff’s case was not adversely affected.  I also do not think the defendant was prejudiced by the late disclosure of this meeting in Ms C’s oral evidence.  In fact, the plaintiff’s case was strengthened by the disclosure of the meeting as Mr Tao had told Ms C more details of why he wanted to disinherit the defendant.

74.Regarding the three conflicts between the oral evidence of Ms C and her statutory declaration on the one hand and the attorneys’ joint declaration on the other, I have in the judgment resolved them in favour of Ms C’s oral evidence and statutory declaration.  However, even if the evidence in the attorneys’ joint declaration should be preferred, the plaintiff’s case would not be significantly different. If the joint declaration should be read as a whole, the conflicts would not appear to be serious.  Furthermore, reading the joint declaration as a whole, even if the two issues of making the plaintiff the sole executor and residuary beneficiary and disinheritance of the defendant were elicited by Ms C from Mr Tao, that would still not create doubt of whether they were the wishes of Mr Tao.  Hence, these conflicts did not cast doubt on the plaintiff’s case.

75.Regarding the additional details Ms Wu gave of the telephone conference that she and Mr Luk had with Mr Tao, they likewise strengthened the plaintiff’s case in proving Mr Tao’s testamentary capacity and knowledge and approval of the Will.

76.I also note that there are other additional details that came out only in the oral evidence of the witnesses.  One example is the cause for execution of the Will on 8 November 2007 and not sometime in October 2007.  Ms C in oral evidence explained that it was because of her going away to Beijing on business that delayed the execution of the Will.  This and the other minor matters which were not mentioned in the statutory declarations and witness statement however also did not cause any change to the plaintiff’s case and did not prejudice the defendant.

77.Regarding Mr Wong’s submissions that I only found that the plaintiff had discharged the burden of proof and expelled the suspicious circumstances after having heard the totality of the evidence and in reliance on the oral evidence of Ms C and Ms Wu, I would say that my judgment given after the trial is of course based on the totality of evidence including the oral evidence of all witnesses.  However, the question here is whether it was reasonable for the defendant to have pursued the matter to the end of the trial or she should have desisted earlier on.

78.Having considered the contents of the three statutory declarations of the US attorneys, their joint declaration, the witness statement of Ms Wu, the consultation report of Dr Mirhadi, the consultation report and letter of opinion of Dr Black and Dr Lu’s evaluation report, I am of the view that the plaintiff had already proved on a balance of probability that (a) there was due execution of the Will by Mr Tao; (b) Mr Tao was of testamentary capacity; and (c) Mr Tao knew and approved of the contents of the Will. 

79.I in particular consider the report of Dr Mirhadi, the report and opinion of Dr Black and the report of Dr Lu as convincing proof of Mr Tao’s testamentary capacity. 

80.I also consider the witness statement of Ms Wu on her taking of instructions from Mr Tao and the declarations of the US attorneys on the execution of the Will by Mr Tao as convincing proof of Mr Tao’s knowledge and approval of the contents of the Will.  This is so despite the use of some legalese in the draft Chinese will or instructions for a will given by Mr Tao to Ms Wu.

81.I also do not think the additional matters revealed in the oral evidence of the plaintiff’s witnesses can justify retrospectively the defendant’s persistence in going through the trial as these matters only strengthened the plaintiff’s case which was already good enough before the commencement of the trial.

82.I therefore consider that the defendant should only contest the action up to the expiry of a reasonable period after the above evidence had been made available to her.  Her persistence in opposing the Will thereafter was unreasonable.  The reasonable period is for her to seek advice from her leading counsel, counsel and solicitors.  In the light of the gravity of the questions, I consider the reasonable period to be one month.  If the gap between the availability of the last piece of such evidence and the commencement of the trial should be less than a month, then the reasonable period should be up to the eve of the commencement of the trial as a view on whether to contest the trial should have been formed by then.

Decision

83.In the premises, I vary the costs order nisi to no order as to costs up to the expiry of one month from the availability to the defendant of the three statutory declarations of the US attorneys, their joint declaration, the witness statement of Ms Wu, the consultation report of Dr Mirhadi, the consultation report and letter of opinion of Dr Black and Dr Lu’s evaluation report.  If the time gap between the availability of the last piece of such evidence and the commencement of the trial should be less than one month, then there be no order as to costs up to and including the day before the commencement of the trial.  I further order that the defendant should pay the plaintiff’s costs thereafter to be taxed with certificate for two counsel.

The defendant’s indemnity for the costs of the administrators pending suit

84.The plaintiff also seeks an order that the defendant should pay the estate of Mr Tao the costs for appointing the administrators pending suit and the additional costs of administration as caused by the litigation.  The plaintiff also seeks the administration costs incurred by the defendant’s conduct in delaying the action unnecessarily and obstructing the work of the administrators.

85.The defendant did not really object to paying the costs for appointment of the administrators pending suit and the additional administration costs incurred by the action.  When I pointed out to Mr Wong that my order would not go beyond this, Mr Wong did not labour on his opposition anymore.

86.Regarding delay, the plaintiff cited the defendant’s application for discovery of Mr Tao’s medical records, the filing of witness statements of the defence witnesses and the defendant’s opposition to the plaintiff’s application for Ms C’s evidence to be given by video link.  I have already dealt with these matters above.  I do not think these matters can justify any extra costs of administration to be paid by the defendant to Mr Tao’s estate. 

87.Regarding the allegations that the defendant had obstructed the work of the administrators pending suit and caused unnecessary costs for them, such matters have not been canvassed at the trial and I cannot form any view on them.  I therefore would not order the defendant to bear such costs in this application.  The administrators will have to pursue the defendant for these costs elsewhere.

88.In the premises, I order that the defendant should also pay the estate of Mr Tao the costs incurred for the appointment of the administrators pending suit and the additional costs of administration as caused by the action but not for any delay allegedly caused by the defendant in the conduct of this action or any obstruction by her to the work of the administrators pending suit.

Costs of this application

89.The plaintiff has succeeded only partially in varying the costs order nisi.  Regarding the administration costs of the estate of Mr Tao, the plaintiff did not succeed on the contested portions.  On the whole, I would order the defendant to pay the plaintiff 70% of the costs of this application to be taxed with certificate for two counsel.

Mr Jat Sew Tong, SC and Mr Victor Dawes, instructed by Clifford Chance, for the plaintiff

Mr Wong Yan Lung, SC and Mr Law Man Chung, instructed by Chaine, Chow & Barbara Hung, for the defendant