Read the full judgment text of CACV 177/2017 on BabelCite. This Court of Appeal judgment was delivered on 20 April 2018 before Cheung JA, Yuen JA, Kwan JA.
Probate – will – 2008 Will – 2002 Will – due execution – testamentary capacity – knowledge and approval – Banks v Goodfellow three-limb test – elderly testator aged 92 residing in care home with dementia – estate exceeding HK$1 billion – testator had two sons (both solicitors), a daughter residing abroad, and six grandchildren – 2002 Will left entire estate to six grandchildren in equal shares – 2008 Will prepared by firm Tso Au Yim & Yeung on instructions from one son (William), left entire estate to two sons and two grandsons in equal shares, omitting female descendants – signature consisted of single Chinese character '區' made with son's hand supporting or guiding – whether forgery – assisted versus guided signature – line of demarcation unclear per expert evidence – whether attesting solicitors' failure to follow 'golden rule' in Kenward v Adams or BMA/Law Society checklist undermines capacity finding – whether trial judge must expressly address all three limbs of Banks v Goodfellow capacity test or whether they can be implicit – appellate restraint in re-evaluating findings of fact – preference for direct evidence of attesting solicitors over expert handwriting opinion – expert medical evidence on dementia – DSM IV TR diagnostic criteria – signs and symptoms explicable by other causes such as old age, frailty, and surgical history – Hawes v Burgess and Ashkettle v Gwinnett on weight to be given to solicitor's view of capacity – solicitor's view must be based on proper assessment and accurate information – freedom of testamentary disposition – solicitor's role in preparation and execution of will for elderly and infirm testator – recommended checklist of enquiries by solicitor – appeal allowed, 2008 Will set aside, 2002 Will pronounced in solemn form, William's counterclaim dismissed – costs orders nisi – plaintiffs entitled to 50% of appeal costs and two-thirds of costs below with certificate for two counsel – practice of unsolicited post-hearing submissions by letter deprecated
Legal issues: Due execution of the 2008 Will · Testamentary capacity under Banks v Goodfellow – all three limbs
Outcome: Plaintiffs' appeal allowed; 2008 Will set aside; William's counterclaim dismissed; 2002 Will pronounced in solemn form
Cited by 3 cases · Cites 2 cases