Read the full judgment text of CACV 49/2018 on BabelCite. This Court of Appeal judgment was delivered on 11 July 2019 before Lam VP, Yuen JA, Au JA.
Probate – will validity – testamentary capacity – knowledge and approval – appeal – the Deceased had three families and executed a will on 8 November 2011 disinheriting most of the second family – whether the trial judge erred in finding the Deceased did not suffer from dementia at the time of execution of the November 2011 Will – whether the trial judge erred in finding the Deceased had testamentary capacity – whether the trial judge erred in finding the Defendants proved knowledge and approval – the contemporaneous hospital records referred to dementia only as a 'possible diagnosis' for purposes of alerting others, not as definitive diagnoses by doctors treating the Deceased for dementia – the unexplained marked improvement in the Deceased's MMSE score from 11/30 on 5 April 2012 to 20/30 on 13 April 2012 fatally undermined the Plaintiffs' expert's theory of dementia, given that dementia is irreversible – the holistic approach to assessing testamentary capacity, considering all the evidence and not just medical evidence, was correct in law – the attesting solicitor's shortcomings in following good practice endorsed in Re Estate of Au Kong Tim (Wills: Validity) did not prevent a finding of testamentary capacity if there was sufficient evidential basis to infer all four criteria in Banks v Goodfellow were satisfied – the second limb of the test (understanding extent of property) was supported by the Will dealing with assets item by item and the Deceased's awareness of the South Horizons Property transfer – the third limb (comprehending claims) was supported by the explanatory notes signed by the Deceased – under the second rule in Barry v Butlin, the proponent of a will bears the burden to adduce affirmative evidence of knowledge and approval, but is not required to dispel all suspicious circumstances – the one-stage test in Gill v Woodall asks whether the testator understood what was in the will and its effect, considered in light of all available evidence – given the Deceased gave detailed instructions, signed explanatory notes, and had the will explained to him clause by clause, the affirmative evidence of knowledge and approval was established – appeal dismissed – plaintiffs to pay costs of the appeal with certificate for two counsel.
Legal issues: Whether the Deceased suffered from dementia at the time of execution of the Will · Whether the Deceased had testamentary capacity to execute the Will · Whether the Deceased knew and approved the contents of the Will
Outcome: Appeal dismissed; the Will was pronounced in solemn form as valid and the trial judge's findings on dementia, testamentary capacity, and knowledge and approval were upheld
Cited by 15 cases · Cites 8 cases