Cheung Ki Wing v. Cheung Lai Yee
Read the full judgment text of HCAP 26/2015 on BabelCite. This High Court CFI judgment was delivered on 22 August 2019.
1. The plaintiff and the defendant are two of seven siblings and the Deceased was their mother. This action is essentially over the validity of a will allegedly executed by the Deceased.
Cited by 2 cases · Cites 6 cases
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HCAP 26/2015 [2019] HKCFI 2086 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PROBATE ACTION NO 26 OF 2015 ____________
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____________ Before: Hon B Chu J in Court Dates of Hearing: 21, 22, 25 and 26 March 2019 Date of Judgment: 22 August 2019 _______________________ J U D G M E N T _______________________ Introduction 1.The plaintiff and the defendant are two of seven siblings and the Deceased was their mother. This action is essentially over the validity of a will allegedly executed by the Deceased. Background 2.The Deceased (“Mother”) was born in Guangdong Province in Mainland China in 1929. According to P, she was educated up to the 1st term of Primary 5 in Hong Kong and could read Chinese newspapers, but according to D, Mother only received one to two years of primary education and was poor in her ability in reading or writing Chinese. What was not disputed was that Mother did not speak or understand any English, whether in writing or otherwise. 3.It was not clear when Mother married the father of P and D (“Father”). A total of 7 children were born out of their marriage and they are:
4.What was not disputed was that Mother had worked as a dishwasher until her retirement in 1978. 5.On 23 August 1972, she purchased a flat in a building called Oceanic Mansion on King’s Road Hong Kong (“Property”) in her sole name at a consideration of HK$98,280 with a mortgage loan from the Far East Bank Limited. The Property is approximately 600 square feet. According to D, Mother had paid about HK$20,000 odd as down payment and the remaining HK$60,000 odd was paid by Mother by way of 60 monthly instalments, with her own wages and also what D and her sisters had paid her every month from their wages. 6.According to the record at the Land Registry, the Property was reassigned to Mother on 12 January 1978[1], which meant by that date, the mortgage must have been paid off by Mother. 7.According to D, the Property was rented out by Mother to various people from her village since about 1973 to earn extra income. In 2003, Mother renovated the Property and since then it had not been rented out. 8.The family was originally living in a village in So Kon Po and later on all the children moved out, leaving Cheung Siu Hung, who has suffered mental illness since when he was young. Father, Mother and Siu Hung continued to live in the village until about middle of 2001 when they were allocated a public housing unit in Oi Yuk House, Oi Tung Estate, Shau Kei Wan, Hong Kong (“Oi Tung Estate Unit”) by the Hong Kong Housing Department. 9.Since June 2008, Mother had allowed P and his wife to reside in the Property and later their two daughters, whereas Mother and Father continued to reside in the Oi Tung Estate Unit together with Cheung Siu Hung. According to D, the three of them were dependent on CSSA and/or disability allowance from the Government, and some contributions from each of the other children. 10.It would appear that on 20 November 1995, Mother, and Father and two of their children, namely Wing Yee and Ki Yung, had jointly acquired an apartment of building area of 127 square metres in Zengcheng (增 城) in Guangdong in the sum of RMB 113,315[2]. According to D, and pending her investigation, Mother could have other properties in the Mainland. According to P, Father also had an apartment in Zengcheng. 11.According to D, in about mid June 2014, that Father first fell ill with a fever. Various hospital receipts produced by P during the trial[3] showed that Father was hospitalised at the Pamela Youde Eastern Hospital for 3 days from 12-15 July 2014 and later from 24-26 July 2014 and then from 28 July 2014 until 24 August 2014, and then from 1-15 September and from 2 to 4 October 2014. It was common ground that when Father first went to the hospital in July 2014, he went in for investigation and tests in relation to his fever, and that Father was only diagnosed with stage 4 of lymph node cancer sometime after 25 August 2014 or in early September 2014 and that his condition deteriorated rapidly afterwards. 12.Mother made a will on 29 July 2014 (“Will”) at the office of a firm of solicitors Messrs Yip, Tse & Tang (“YTT”), which was witnessed by a solicitor Mr Lau Chi Chung (“Mr Lau”) then working at YTT and a clerk Mr Wong Siu Ming (“Mr Wong”). I will set out the circumstances of Mother making the Will later in this judgment. 13.According to D, towards the last stage of Father’s life, he had insisted on returning home, and Mother had to look after both Father and also Siu Hung and Mother was exhausted and under stress. 14.It can be seen from the above medical receipts that Father was discharged from hospital on 4 October 2014. Father later died at home on 30 October 2014 aged 89. 15.After Father passed away, notwithstanding that Mother did not wish to be separated from Siu Hung, as Mother was not able to care for Siu Hung on her own, D and her husband and also Ki Yung and his wife jointly arranged for Siu Hung to be admitted into a hostel in Sheung Shui on 6 December 2014 where he has since been. 16.Father died intestate and his estate consisted of cash at bank of HK$ 158,980.67. Mother was the one who applied, with the help of D, for the letters of administration of his estate and Mother was subsequently granted the same on 19 January 2015. It can be seen in Mother’s Dah Sing Bank savings passbook that a sum of HK$158, 983.97 (from Father’s estate) was transferred into Mother’s said account on 13 February 2015[4]. 17.About a month later, on 19 March 2015, Mother had a cardiac arrest at home on 19 March 2015 and was sent to the Accident and Emergency Department of Pamela Youde Nethersole Eastern Hospital. On 23 March 2015, Mother died in the hospital at the age of 86. Her cause of death was acute pulmonary edema. 18.Mother remained residing in the Oi Tung Estate Unit alone until her death. She was survived by the 7 children mentioned earlier and also 10 grandchildren (4 grandsons and 6 granddaughters). 19.P was the only executor appointed by Mother in the Will and P was the sole beneficiary of the Property under the Will. The Will only disposed of the Property and none other of the assets of Mother’s estate in Hong Kong. The Property formed the major part of the Mother’s estate. Apart from the Property, Mother had only left insignificant amount of cash at bank (as seen below) and various items of personal jewellery/chattels of unknown value (“Residual Estate”). Prior to her death, Mother did not tell the other of P’s siblings about the Will. 20.After Mother’s death, D applied for the letters of administration in relation to Mother’s estate. The letters of administration were subsequently granted to her on 21 May 2015 under HCAG 006379/2015 (“LA”). According to the schedule of assets and liabilities dated 12 May 2015 attached to the LA, the Mother’s estate in Hong Kong consisted of only the following:
21.It was D’s allegation that Mother had various items of personal chattels which were originally placed in a deposit box held in Mother’s sole name at the Causeway Bay Branch of Hang Seng Bank, but with Cheung Lai Ping named as Mother’s attorney (“Original Box”). It turned out that in about August 2008, P took Mother to Hang Seng Bank to open another safe deposit box in his sole name (or in joint names of Mother and P with survivorship arrangement)[5] (“New Box”) and all the contents in the Old Box were then transferred in the New Box. P, through his solicitors’ letter of 13 July 2017, had provided 4 coloured photographs of what he said to be all Mother’s valuable jewellery/chattels[6]. 22.According to P, in June 2015, he instructed Mr Lau to apply for grant of probate and Mr Lau then found out on 21 May 2015, the LA had been granted to D. P issued the writ herein on 17 September 2015 to seek the following relief :
23.A “Notice of Action to Non-Parties” was filed on 21 June 2017 and was served on the other 5 siblings excluding P and D, including Cheung Siu Hung, who was initially served care of D, said to be his guardian but this was denied by D. In the end, Cheung Siu Hung was served at the hostel where he was staying care of the contact person at the hostel. 24.None of the 5 siblings had entered any acknowledgment of service, but there was a letter dated 2 July 2017 sent by Cheung Ki Yung to P’s and D’s respective solicitors indicating he did not wish to join as a party and that he had read all D’s documents and supported D’s case[7]. On 4 July 2017 there was a letter sent by Cheung Wing Yee, Cheung Lai Ping and Cheung Ki Chung to P’s and D’s respective solicitors indicating that they did not wish to join as parties and they had all read D’s documents and they all supported D’s case[8]. 25.On 8 January 2019, Cheung Siu Hung, by way of a next friend, had issued an originating summons under the Inheritance (Family Provision) Ordinance, Cap 481 in the Family Court against P, D, and his other siblings (FCMP 5 of 2019) seeking various relief including the following:
26.This Court was informed at the trial that the above proceedings had been adjourned sine die with liberty to restore pending this judgment. 27.Counsel Mr Jacky Lam appeared for P at the present trial, and Counsel Ms Christine Yu appeared for D. P’s pleaded case 28.It was P’s pleaded case that the Will was valid at the time of Mother’s death and she did not die wholly intestate and that the Property was gifted to P by Mother by the Will. As to Mother’s Residual Estate, all the siblings including P and D would be entitled to share equally. It was further P’s pleaded case that D did not notify P about her application for the LA and that D knew that Mother had left a will and did not die intestate in relation to the Property and that D had failed to make a diligent search for any will made by Mother before her application for the LA, and that the LA is liable to be revoked. D’s pleaded case 29.D did not put forward any positive case of her own but did not admit that the Will was duly executed by Mother in accordance with the provisions of the Wills Ordinance, Cap 30 or that at the time of execution of the Will, Mother was of testamentary capacity or knew and approved of the contents of the Will, and D insisted on the Will being proved in solemn form. It was further D’s pleaded defence, amongst other things, that after Mother’s death she had tried to contact P through her brother Cheung Ki Yung and her sister Cheung Wing Yee and that P refused to communicate with her, and she had also made a thorough and diligent search among Mother’s belongings at the Oi Tung Estate Unit and found no wills. It was her case that she had notified all siblings except P and Cheung Siu Hong about her application for the LA and the grant afterwards, and that she did not ask P whether he was in possession of any will made by Mother as P had refused to communicate with her. The agreed list of issues 30.There was an agreed list of issues filed on 28 February 2019 and the issues were:
31.Before considering the above issues, to put the disputed issues in context, I will first of all consider the following :
The witnesses 32.P had provided two witness statements and had attended trial for cross examination. P had called Mr Lau to give evidence, and Mr Lau had submitted a witness statement and further attended trial and was cross examined at length. 33.D had also provided two witness statements and she had attended trial for cross examination. She had not called any other of her siblings to give evidence on her behalf. 34.No other siblings had attended trial to give evidence. Mother’s relationship with her family Mother’s relationship with Father 35.D had said in her 1st witness statement the relationship between Father and Mother was not a harmonious one and that they often had quarrels as Mother was of a suspicious character and that Father had told D that he found it difficult to tolerate Mother’s temper and he could only have peace when Mother went to the park. It was D’s case that Mother would not have heeded Father’s advice to make a will due to their poor relationship. 36.On the other hand, P’s evidence in his 2nd witness statement was that both Father and Mother had maintained a cordial relationship with him and his family. When asked during the trial by Ms Yu, P had said that the relationship between Father and Mother was a cordial one and had agreed with Ms Yu when it was put to him whether that their relationship was a loving one (好恩愛). 37.P’s evidence during the trial was also that during the period July to September 2004 when Father was in hospital, Mother would visit him every 2 or 3 evenings when P took her there, and sometimes Mother would go alone to visit Father in the mornings. There was no sufficient evidence to contradict what P had said. 38.Even if Father and Mother were not incompatible and often had squabbles and that Mother was often cursing Father to die earlier, as alleged by D, the fact was that they were together for a long time and they had raised 7 children together. Further, D’s own evidence indicated that Father had insisted on being discharged from hospital and to spend his last days at home and although according to D, he had complained about Mother not giving him water to drink due to his incontinence, Mother did look after him singlehandedly until his death as there was no sufficient evidence that any of their children was staying with them or helping Mother to care for Father. Having considered all the evidence, I find no sufficient evidence that the relationship between Father and Mother was anything other than a cordial or close one. Mother’s relationship with Siu Hung 39.As set out earlier, Father and Mother had 3 daughters and 4 sons, and Cheung Siu Hung was the oldest of their 4 sons. Siu Hung was said to have suffered from mental problems since he was about 20 years old and according to D, he was not able to work or to look after himself, and that he had got into trouble in the past from time to time and was arrested by the Police. 40.Siu Hung was said to be financially supported by Father and Mother but as D’s evidence was that she had helped Mother to apply for Disability Allowance from the Government for Siu Hung, it would appear that Siu Hung was/is receiving such disability allowance. Anyway, it was not disputed by P that Mother was “fond of” (好錫) Siu Hung and had cared for him throughout. It was also not disputed that D had assisted Mother in caring for Siu Hung. When asked whether P had assisted as well, P replied he did but accepted that it was not as often as D and P had explained this was because D did not have to work whereas he had to. Mother’s relationship with P 41.P is the 2nd of the 4 sons, and is the oldest of the 3 younger sons. 42.P said he was educated up to Form 5 level and understands English. He had worked in the insurance field for 40 years before retirement and is now working as a gardener. He is married to Madam Lo Choi Ming who had also worked in the insurance field. They have two daughters Cheung Yuen Ling and Cheung Yuen Lam. The elder daughter is now about 30 years old and she started working as a computer programmer in about 2010, whereas the younger daughter is now about 28 years old and she started working as an accounts clerk in about 2011. 43.P emigrated to New Zealand in 1966 and between end of 1997 and early 1998, he moved back to Hong Kong and in 1998, he had bought a flat in Tai Koo Shing as his family’s residence. Then, it seems during the economic downturn in 2003, P became employed and sold his Tai Koo Shing flat for half of its purchase price. He and his family decided to return to reside in New Zealand at end of 2004. Thereafter, they had visited Hong Kong at end of 2005 and end of 2006. On each occasion, they were allowed by Mother to stay in the Property for over a month. In May 2008, P said he decided to move back to Hong Kong with his wife as they were not able to adapt to life in New Zealand. Their daughters later followed. P said Mother allowed them to reside in the Property rent free and Mother never said it was only for “temporary stay”, as alleged by D. As seen later, it was P’s evidence during the trial that in 2003, Mother already had the intention for P and his family to reside in the Property. 44.As said earlier, P’s evidence was that Father and Mother had maintained a cordial relationship with him and his family. P said, otherwise, they would not have allowed him to reside in the Property rent free since 2008, and Mother would not have allowed P to safe-keep her valuable items for her in his safe deposit box. P also pointed out that his parents did not allow anyone else to live in the Property during those years between 2004-2008 after the Property was renovated apart from a two month period for D and her family to stay there while D’s home was being renovated and Mother had immediately allowed him and his family move in when they moved back from New Zealand. 45.According to a letter dated 13 July 2017 from P’s solicitors to D’s solicitors, P disclosed that Mother had asked him to safe-keep her valuable items in her Original Box mentioned earlier in the New Box on 11 August 2008[9]. It would thus appear that not long after P’s move back to Hong Kong, Mother had not only allowed him and his family to reside in the Property, but also entrusted him with handling her personal valuable items without telling her two daughters, namely Cheung Lai Ping who was Mother’s attorney for the Original Box, and Cheung Wing Yee who had held a set of the keys to the Original Box. 46.D had made a number of allegations in her witness statements in relation to Mother’s complaints towards P, including the following:
47.D seemed to have also made an allegation in a letter from her to YTT about one occasion when Mother refused to let P throw away her items in the Property, she was slapped and her head had hit the wall[11]. This alleged assault was not mentioned by D in either of her witness statements, nor was P cross examined about it. 48.Some of the complaints which D alleged Mother had made against P were said to have taken place as early as 2009, and some of these complaints were serious allegations. There was however no evidence that Mother had ever suggested that D or her sisters or Ki Yung should help her evict P and his family from the Property and further there was no evidence that D had upon hearing Mother’s complaints taken any steps to protect Mother or her interest in the Property or to help Mother to regain her possession of the Property. 49.P had mentioned during the trial that he had frequent telephone communications with Mother before his move back in 2008 and that he had spoken about his life in New Zealand and that Mother knew that he was not able to adjust to living in New Zealand. P had also said in his witness statement that he and his family had dinner frequently with his parents, and after Father passed away, they had continued to have dinner frequently with Mother. Further, he and his wife had visited Mother frequently to help her bathe and to help with Mother’s housework when she was living alone at the Oi Tung Estate Flat[12]. P’s evidence in this respect was not challenged during the trial. Further, according to Mother’s death certificate[13], P was the one present at Mother’s death. 50.As said earlier, it was P’s evidence that Mother had entrusted him with her valuable items in the Original Box and in August 2008, all the contents thereof were transferred to the New Box. Mother was about 80 in 2008. She must have gone personally with P to Hang Seng Bank to close the Original Box and to move her items to the New Box. There was no evidence that she had not done this of her own free will. There was no evidence that Mother had told D or her other daughters or Ki Yung about this. 51.Having considered all the evidence, I accept P’s evidence that Father and Mother had maintained a cordial relationship with him and his family and that Mother had entrusted P with her affairs after his move back from New Zealand. Mother’s relationship with her other children 52.Cheung Wing Yee is the oldest of the 3 daughters, followed by D, and then Cheung Lai Ping. 53.Cheung Wing Yee is married to Mr Armido F Noronha (who has also been referred to as Mr Law) and they have two sons, the elder son Alvin is about 41 years old and the 2nd son Daniel is about 36 years old. 54.D is married to Mr Lee Pui Yiu and has two sons, aged about 35 and 28 years old respectively. 55.Cheung Lai Ping is married to Mr Ng Hay Mo and they have two daughters aged about 31 and 27 years old respectively. Mr Ng apparently had a stroke in 2012 and was paralysed and Lai Ping had to look after him. Lai Ping was later diagnosed with dementia in June 2014, which appeared to be just shortly before Father became ill. 56.Cheung Ki Chung was said to be working as a hair dresser and he has a 17 year old son. It would appear that after Mother died, he has been using the Oi Tung Estate Unit as his address[14]. 57.Cheung Ki Yung is the youngest son. He was said to be often working in Mainland China. He is married to Madam Tam Yee Lan and they have a 20 year old daughter. 58.According to D, of Mother’s children, the 3 daughters and Ki Yung were close to Mother. It was also D’s evidence that Mother was good to each of her children and when she bought anything, each would have a share including her grandchildren, and that whenever Ki Yung was in Hong Kong, he and his sisters and Mother would get together for tea or dinner, or to play mah-jong. D had said there was less contact with Ki Chung and they were less close as Ki Chung was very busy. 59.According to D, she was very close to Mother and that she would talk to Mother every few days and would have tea with her and Wing Yee and that she had often gone to Mother’s home to visit her. At weekends or holidays, she would have tea or dinner with Mother together with Wing Yee, Ki Yung and his wife and Lai Ping (before she started to have dementia). It would appear from D’s evidence that she, Wing Yee, and Ki Yung would meet Mother every week or every other week. 60.D had also said she would often help Mother to handle her daily affairs and, in particular, matters concerning Siu Hung. Also, she would help Mother write to her younger sister who lives in Canada, and she was the one who helped Mother apply for Disability Allowance for Siu Hung, or to take Siu Hung to the hospital for psychiatric treatment and/or to bail out Siu Hung when he into trouble with the law. 61.It was not disputed by P that D had helped Mother in looking after Siu Hung. 62.It was not disputed that the title deeds of the Property had always been held by Wing Yee. Wing Yee was also the keeper of the keys to Mother’s Original Box and Lai Ping was Mother’s attorney for the Original Box. 63.P was born in March 1959. D had said when Mother bought the Property in 1972, P was only 13 years old, and in 1977 when Mother paid off the mortgage loan, P was only 18 years old. D’s evidence was that it was she and her sisters who had helped Mother in paying off the mortgage. It was not clear whether Father had contributed or not. In any event, in 1972 when Mother bought the Property, Wing Yee was 22, D was 18 and Lai Ping was only 16. In 1977 when Mother paid it off, Wing Yee was 27, D was 23, and Lai Ping was 21. In light of their then ages, if there was any financial assistance to the Mother from the daughters at the time, it would seem more likely to have come mainly from Wing Yee who would have started to work earlier than the others. 64.The fact was the three daughters are older than the three younger sons and in my view, it would have been natural for the Mother to entrust her daughters with handling her affairs, at least prior to P moved back in 2008. 65.There was no sufficient evidence to contradict D’s evidence that her sisters and Ki Yung were close to Mother. In fact, P himself had admitted during the trial that D had a good relationship with Mother and D often had tea with Mother. I accept D’s evidence in this regard and find she was close to Mother. I also accept that there was no sufficient evidence to show that Mother had shown any favouritism towards any of their children. Mother’s intention in relation to the Property during her lifetime 66.At the trial, P had said that the Property was rented out between 1977 to 2000 but it was left vacant between 2000 to 2003 and that this was because previously there were tenants who failed to pay rent, Mother decided not to rent out the Property any more. P had said Mother spent about HK$100,000 on renovating the Property in 2003. 67.It was not disputed by D that the Property was left vacant between 2000 to 2003 but D said this was because Mother and Father were moving to the Oi Tung Estate Unit which had to be renovated, and therefore Mother had no time to deal with the Property. 68.It was D’s evidence that after renovating the Property in 2003/2004, Mother decided not to rent it out as she had intended to use it as her “渡假屋” (a holiday home) or a place for family gathering and that during a gathering after renovation, Mother had told D, Wing Yee, Lai Ping and Ki Yung that anytime if they wanted to play mah-jong or needed a place to stay temporarily, they could use the Property. It was D’s evidence that Mother had also kept a lot of her personal items in the Property, and that there were two double beds, one bunk bed, one wardrobe, one set of sofa, a wood dining table with 4 chairs, a refrigerator, a gas stove and cooking utensils, one television and one low cabinet, and also Mother’ winter coats, blankets and daily clothes[15]. 69.D had also said that Mother did not want to rent out the Property as she had sufficient money and that Mother had always wanted to move there herself. 70.It was P’s evidence during the trial, that the Property was not rented out as all along, it was Mother’s intention already in 2003 to let him and his family live there, as she knew his insurance business was not doing well at the time (“2003 Intention”). However, after renovation, he and his family decided to move to New Zealand. Between 2004 to 2008, Mother did not rent out the Property or allow anyone else to live there as she had intended that anytime when P returned, he and his family could live there. P claimed that all his siblings knew of Mother’s 2003 Intention and that Mother had told him that in those years when he was in New Zealand, her other children had from time to time urged her to sell the Property and to divide the money, but Mother all along did not wish to sell and she had expressed to the others that the Property was for him and his family to reside when they returned. 71.On the other hand, D’s evidence in her 1st witness statement was that in about May 2008 when P and his wife moved back, Mother agreed to allow them to reside only temporarily in the Property until they found new premises[16]. 72.D had also said in July 2008, as her home had to be renovated, Mother had also allowed her and her family to move to the Property to live temporarily rent free for about two months until September 2008. She said she had paid for electricity and management fees for the two months she and her family lived there, and that after she and her family moved out, P and his family continued to live there. However, P said that Mother had asked him to allow D and her family to stay in the Property for two months, to which he agreed. 73.Anyway, D’s pleaded case was that P and his family had occupied the Property under “a licence” granted by Mother since 2008 until the revocation of the said licence upon Mother’s death on 23 March 2015[17]. (“Licence Arrangement”). Under cross examination, D had said there was no written agreement of a licence between Mother and P and that it was oral and Mother had allowed P to live there until her death and that upon her death, P had to hand over the Property. When D was cross examined as to when Mother mentioned the Licence Arrangement, D said she could not recall. 74.D’s above pleaded case was however different from D’s evidence in her 1st witness statement[18] when D said Mother had told her that one day when she passed away, the Property and all her assets would be shared equally amongst her 7 children (“Inheritance Arrangement”)[19]. 75.When D was asked during the trial how often she and her siblings would discuss with her parents over the Property, D had replied that they would not raise the subject at all with Mother as it would be sensitive to discuss with Mother how she would deal with the Property after her death. However, D’s such evidence was not consistent with her own evidence in her 1st witness statement when she had described a dinner in August 2014, attended by D, Mother, Ki Yung and his wife at Tao Heung Restaurant in the Oi Tung Estate, Shaukiwan (“August 2014 Dinner”) in which the D and Ki Yung had clearly raised the matter of the Property with Mother. 76.When cross-examined about the inconsistency, D had tried to explain that it was prior to the August 2014 Dinner that she and her siblings had not raised the matter of the Property and that they only raised this with Mother at the August 2014 Dinner as Mother had told them that P was often having tea with her and also Mother was then 85 years old. 77.What D had said in her witness statement was that at the August 2014 Dinner Ki Yung had reminded Mother to be careful and not to sign any document blindly and Mother had responded: (1) that she would not, and that the Property was only for P and his family to live there temporarily until Ki Wing’s 2 daughters were married, and (2) when that happened, Mother would then take back the Property and would allow Wing Yee’s younger son (Daniel Noronha) to manage the Property, meaning for him to arrange for renting out, and (3) thirdly, Mother had sworn to them that she would not transfer the Property to P, and (4) fourthly, she would not make a will giving the Property to P (“DN Arrangement”)[20]. 78.Anyway, I find D’s evidence confusing and inconsistent as to what she said Mother’s intentions had been in relation to the Property during Mother’s lifetime or after Mother’s death. I will consider again D’s 3 versions of what she said were Mother’s arrangements in relation to the Property after Mother’s death later in this judgment. 79.It was also D’s evidence that as time went by, Mother was not happy with P refusing to move out and that Mother had complained to D that P had thrown out Mother’s belongings in the Property without Mother’s consent. According to D, Mother had voiced her complaints to not only P, but also to Wing Yee and Ki Yung. 80.P agreed that between 2003 to 2008, Mother had put her own belongings there and that P said he only threw those belongings out after her death. P denied that he had thrown out any of Mother’s things before she died, as D had alleged. 81.During the trial, P had said that after renovation of the Property in 2003, Mother had initially considered adding his name to the Property but due to the costs involved, and also that the title deeds were all along kept by his eldest sister Cheung Wing Yee, Mother ultimately decided not to carry out the adding of his name, and that said she could do it by will. However, when cross examined by Ms Yu as to whether P’s evidence was that Mother was thinking of making a will in 2003, P clarified that Mother did not mention a will in 2003 and that the first time of making a will by Mother was raised by Father when they were visiting Father in hospital. 82.As said, P’s case was that his siblings had asked Mother to sell the Property between 2004 and 2008 when he was still in New Zealand, but Mother refused as the Property was intended for him and his family to live in upon their return. 83.D had not denied that she and/or her sisters and/or Ki Yung had asked Mother to sell the Property. 84.Anyway, some of P’s evidence given during the trial was never mentioned in his witness statements, in particular what he said about Mother wanting to add his name to the Property in 2003. On the other hand, as set out earlier, there were inconsistencies in D’s evidence and different versions of D said was Mother’s intention regarding the Property after her death. I find neither of them was an entirely reliable witness. Neither of them had called any other siblings or any one else to give evidence on his/her behalf. 85.Having considered all the evidence, notwithstanding what D maintained and the various complaints made by Mother to her how P had treated or mal-treated Mother, the fact was that prior to 2008, P and his family had stayed in the Property every time when they returned to Hong Kong and after P moved back to Hong Kong in May 2008, he and his wife and later his daughters had been residing in the Property uninterruptedly and free of rent, which was a period of some 5 years and 10 months when Mother died. 86.D was vague as to how often prior to May 2008, Mother, or Father, or any of D’s siblings had used the Property regularly as a “holiday home”, or had gone to play mah-jong in the Property or had held any family gathering there. Even if Mother did use it as a holiday home and even though the Mother had kept her own belongings there and had kept the Property furnished, there was no evidence from D that Mother herself had ever lived or stayed overnight in the Property. 87.It was possible that Mother’s intentions regarding the Property could have changed over the years, but as mentioned earlier, there was no sufficient evidence that Mother had ever taken any steps to evict P and his family, or to demand rent from P. Nor was there any evidence that Mother had asked D or others to help her to evict P notwithstanding all those complaints alleged by D set out earlier. As also mentioned earlier, there was also no evidence that D or Ki Yung or their other siblings had ever suggested to Mother or had taken steps to help Mother to evict P and his family and to rent out the Property. 88.Since D and Ki Yung had broached the matter of the Property with Mother during the August 2014 Dinner, there was no reason as to why D and Ki Yung could not have themselves suggested to Mother or to accompany Mother to a solicitors’ firm to formally make a will and/or to put her wishes into writing. 89.Having weighed up all the evidence and the different versions given by P and D, I prefer P’s evidence and find it more probable than not that Mother’s intention after renovation of the Property in 2003 was all along to allow P and his family to reside in the Property rent free whenever they returned and in particular after they moved into the Property in May/June 2008 and that her intention had remained the same in July when the Will was executed by her. Further, in any event, P’s daughters were not yet married when Mother passed away, the DN Arrangement would not have come into effect. I will consider the 3 Arrangements alleged by D later in this judgment. Circumstances in which Mother came to make the Will 90.It was P’s evidence in his witness statement that Father and Mother had a consensus to leave the Property to him after Mother passed away. P’s evidence in his 1st witness statement was that in July 2014, Father told Mother that she should make a will and Father had asked P to help Mother find a lawyer to make a will as soon as possible and that Mother was also desirous to make a will and that her intention was to leave the Property to P and that she would leave her other assets to be divided among all the children. It was further P’s evidence that Mother had said that her will should deal with the Property only and there was no need to include her other assets in the will, and that she had authorised P to find a lawyer. 91.During the trial, it was P’s evidence that one day when he visited Father at the hospital in about mid July 2014, Father and Mother were discussing making a will, and that Mother told him that she knew a firm of solicitors called YTT who could prepare a will in Chinese and P then checked and found that YTT had an office in North Point which was near to Oi Tung Estate where Mother was living and he therefore contacted YTT on behalf of Mother. This part of P’s evidence was not mentioned in his witness statements. 92.D challenged P’s evidence as being inherently implausible because[21]:
93.It was further submitted by Ms Yu that P’s evidence about Mother’s 2003 Intention was problematic in that[22]:
94.The reason proffered by P as to why Mother would leave him the Property was that she knew of his economic situation and that he had nowhere to live when he came back from New Zealand, and that all the others had already bought his/her flat. P had produced copies of registration records at Land Registry[23] during the trial to show that 4 of them Wing Yee, D, Lai Ping, Ki Yung had purchased their respective properties, except Siu Hung and also Ki Chung. Further, I note that Siu Hung was/is always entitled to Government allowances and care, and Ki Chung now appears to be residing at the Oi Tung Estate Unit which would indicate that he has occupation rights thereto. Further, Father was also entitled to Government housing and allowance. I do not find that the reason proffered by P was inherently implausible. 95.The timing of making the Will coincided with Father being ill and although it was not yet confirmed that Father had terminal cancer in July 2014, Father was then 89 and he had a fever and was not well for some time (according to D since June 2014) and as set out earlier, he was in and out of hospital since about 12 July 2014. That Father, as well as Mother, should be thinking of wills or how to deal with their assets after death was not inherently implausible. As Father had no landed property and no apparent valuable assets in Hong Kong apart from a small amount of cash, and in fact was not well, it was not inherently implausible that Father did not find it necessary to make a will himself and only told Mother to make a will regarding the Property. 96.Even though there were two versions of how the matter of Mother making a will came up, in both his two versions P maintained it was in Father’s presence and that Father had told Mother to make a will and this was in July 2014. I do not find there was sufficient evidence to contradict this part of his evidence, which I am prepared to accept. How the Will was prepared and executed Documentary evidence 97.The contemporaneous documents obtained from YTT were the following:
98.As for whether there were any other documents in the file of YTT, it was pointed out by Mr Lam that it was never represented by P that the 6 items of documents were all the contemporaneous documents YTT had in their file. It was D’s former solicitors who wrote to YTT to seek those documents which would be relevant to the issue of “the circumstances upon which the Will was drafted, prepared and executed, listing 4 categories of documents. It transpired from Mr Lau’s evidence during the trial, that there should also have been at least a copy of Mother’s HKID card and a copy of the land search record in YTT’s file, but Mr Lau had said other documents were not provided as they did not fall within the 4 categories of documents sought by D’s former solicitors. Anyway, D had never requested for the entire client file of Mother’s be produced by YTT. The Will 99.The Will was typed in traditional Chinese characters. Mother’s residential address was stated to be the address of the Property. 100.The Will essentially stated that:
101.There was an attestation paragraph in the Will indicating that its contents were read out and explained to Mother in Cantonese dialect by Mr Lau and that Mother confirmed she understood the contents of the Will and that the contents were prepared according to her wishes by signing the Will personally in the presence of Mr Lau and Mr Wong. P’s evidence as to preparation and execution of the Will 102.As mentioned earlier, there were two versions of P’s evidence as to how the matter of Mother making a will came up and I have accepted it was Father who told Mother to make a will. P’s evidence in his witness statement was that asked P to help Mother to find a lawyer. In P’s 2nd witness statement, he had also said “… it was natural for Mother to ask [P] to tell the lawyer [he] found for her what she wanted so that she did not have to do it herself”[30], which meant that it was P who found the lawyer for Mother. 103.During the trial, when cross-examined, P’s evidence was that after Father told Mother to make a will and asked P to help Mother to find a lawyer, on 20 July 2014 that Mother told him that she learnt from her conversations with her neighbours that a firm of solicitors called YTT could prepare a will in Chinese, and it was Mother who told him to contact YTT. P said he then checked online and found that YTT had an office in North Point, and he then went to YTT’s North Point office on 28 July 2014 and saw Mr Wong. P then informed Mr Wong of Mother’s instructions. P’s evidence during the trial was that it was Mother who specified that she wished to go to the YTT’s North Point office. 104.What P said above during the trial was never mentioned in his witness statements. Anyway whether the suggestion to go to YTT came from Mother or P, it was not disputed that P was the one who first contacted YTT North Point office and met with Mr Wong. 105.P had further said during the trial he was planning to go with Mother to YTT’s office on 28 July 2014 but on that day, Mother complained of pain in her legs and she gave him her HKID card and asked P to go to YTT’s office himself. 106.What was clear was that it was P who gave all those instructions in the Instructions Form to Mr Wong in relation to the preparation of the Will. The address of Mother was the address of the Property and next to “Remarks” in the Instructions Form, it was written “only property to [P]” and “11 am on Wed sign will”. This would have been Wednesday 30 July 2014, as 28 July 2014 was a Monday. As seen in the invoice and receipts, the agreed costs were HK$1,500 and whether the money came from Mother or not, it was P who had paid HK$500 in cash to YTT on 28 July 2014. The Draft Will was prepared on the basis that Mother was to sign on 30 July 2014. The signing by Mother was subsequently brought forward to 29 July 2014. 107.P was asked during the trial about whether he was the one who had told Mr Wong Mother’s address was at the Property, P said it was not and that he only gave Mr Wong a copy of the Rates Demand for the Property to show Mr Wong the address of the Property, and it was Mr Wong who had misunderstood and had put down the address of the Property as the residential address of Mother. P had also said Mother had told him to use the address of the Property as her correspondence address. It was also P’s evidence that Mother did not wish his other siblings to know about her making a will. 108.Anyway, it was P’s evidence in his 1st witness statement that on 29 July 2014, he and his wife and Mother attended YTT’s office for the execution of Mother’s will. The Will was signed by Mother personally and her signature was witnessed by Mr Lau and Mr Wong, and that P’s evidence was that he and his wife were not present in the conference room when Mother signed the Will. P thus left it to Mr Lau to explain the circumstances in which Mother executed the Will. Mr Lau’s evidence 109.Mr Lau was qualified as a solicitor in 2002 and had worked for a firm SK Wong & Lee until 2004 when he joined a firm Mike So, Joseph Law & Co before joining YTT in 2009. He was working as an assistant solicitor at YTT at the time of the preparation and execution of the Will and he was the only solicitor in the YTT North Point office at the time. The others were clerks and secretaries. Mr Lau said he left YTT in May 2018. 110.Mr Lau had explained between 2002 to 2009, he would prepare wills for clients in about 3 to 4 cases a year but after joining YTT, there would be about 8 to 10 will cases a month and sometimes more. He had explained the “modus operandi” he would adopt in the case of a simple will, which was set out in Part B of Annex 1 of P’s Closing Submissions (“Modus Operandi”). Briefly, upon obtaining initial instructions and before the subsequent meeting with the testator for the approval of the draft will and the signing of the will, Mr Lau would essentially carry out 3 steps: (i) conduct the relevant land search (where the will he was asked to prepare concerned the disposition of property); (ii) ask his colleague (in the present case, Mr Wong) to prepare the draft will based on the Instructions Form; and (iii) prepare the relevant Confirmation Form. Once these steps were done, he would then invite the testator to come to YTT’s office to review the draft and sign it. 111.It was Mr Lau’s evidence that when a testator arrived at YTT’s office, Mr Lau would ask his colleague (in this case, Mr Wong) to provide a copy of a draft will to the testator first, and he would rely on his colleague to ask the testator whether any amendment was necessary and Mr Wong would report to Mr Lau on any amendments. Once it was confirmed that no further changes were necessary, Mr Lau would then meet with the testator in person alone (without Mr Wong being present) and that he would present the testator with the final draft of the will and the Confirmation Form and explain the same to the testator. 112.Mr Lau had also said that in his meeting with the testator (before explaining the contents of the draft will and the Confirmation Form), he would ask him/her some basic questions to see whether the testator could understand the questions and to give answers to the questions, and such questions would include asking the testator his/her name, whether he/she understood what he/she was doing there at YTT that day, asking the testator his/her HKID card number, asking him/her the time of the day and having a normal dialogue with the testator. Upon being assured that the testator had the ability to proceed with the matter of signing the will, he would then proceed to explain the will to him/her. 113.When the will did not deal with all the assets of the testator, he would advise the testator the residual estate would be shared by the beneficiaries equally and that after explaining the will, he would then proceed to explain the Confirmation Form but only those paragraphs pre-marked with “X”. If it appeared to Mr Lau that other children of the testator would be excluded from the will, he would advise the testator that they would not receive anything under the will. 114.If the replies of the testator were satisfactory, and the testator confirmed that he/she approved and understood the will, he would then ask his colleague (in the present case, Mr Wong) to return to the room as a witness to the signing. 115.If the testator was elderly, he would follow the same Modus Operandi but would explain the matters more slowly and thoroughly. He had also said he would not be able to determine at preliminary instruction-taking stage (ie telephone enquiry) whether the testator needed a medical expert present to verify his/her testamentary capacity, and this would only be considered by Mr Lau during his face-to-face meeting with the testator. He would consider a medical expert when the testator voluntarily provided his/her own medical history and such history showed that an expert ought to be present at the signing of the will, and that Mr Lau would not ask the testator for such information if such information was not volunteered by the testator to him. 116.It was Mr Lau’s evidence that there would be no other forms for recording instructions from clients/testators, apart from the Instructions Form and the Confirmation Form, and that for a standard or simple will, there would be no other records or attendance records/notes. He confirmed that there were no attendance notes/records kept by him but had maintained that he would obviously have asked questions of the testator to be satisfied that the testator understood what he/she was doing. 117.Mr Lau confirmed that one of the signatures of the witnesses on the Will to Mother’s signature was his signature and the other one was Mr Wong’s signature and that Mother signed in their presence and they all signed in the presence of each other. Mr Lau confirmed Mr Wong was a clerk of YTT and at the time of the preparation of the Will he was working at the YTT North Point office and that it would be Mr Wong who obtained initial instructions from P for the making of a will using the Instructions Form. He said Mr Wong was later transferred out of the YTT North Point office and had left YTT before Mr Lau left the firm. Mr Lau said he had lost contact with Mr Wong. 118.Mr Lau had also explained that probably prior to 28 July 2014, P would have telephoned him and had mentioned about how the will was to be drafted but he could not recall what P had told him but it would have been based on what P told him that a fee of HK$1,500 was quoted and an appointment was made for Mother to attend the office. 119.Mr Lau confirmed that on 28 July 2014, it was Mr Wong who saw P and that Mr Lau had no recollection of meeting P on that day. He confirmed that on 28 July 2014, Mother did not attend YTT office and that neither he nor Mr Wong had sought written instructions from Mother direct on that day. Mr Lau also accepted that there was no record of Mother’s HKID card number or telephone number in the Instructions Form, nor was there any record about Mother’s education level, or her language ability, or her mental capacity or her financial situation, or her family members or dependants, or her relationship with the executor / trustee / beneficiary. Mr Lau further accepted that had Mr Wong obtained such information, he would have written down in the Instructions Form. 120.Mr Lau confirmed that it was only on the day of execution that he met Mother, and that he had seen her alone and had asked her the normal questions as part of his Modus Operandi to be satisfied that Mother understood what he/she was doing before explaining and confirming with her the contents of the Will and the Confirmation Form before execution. It was Mr Lau’s evidence that the questions he would have asked of Mother would be her name and some questions including whether she knew why she was there at YTT’s office before proceeding to explain the contents of the Will and the Confirmation Form. 121.Mr Lau insisted that he/YTT had conducted a search in the Land Registry online in relation to the Property, and that the address of the Property would follow that in the Land Registry search record, and that was also why he would know that Mother was the sole registered owner of the Property and that the Property was not a Government housing property and not subject to any alienation restriction, which was why there were no “X”s put against items (5) and (6) of the Confirmation Form. It was further Mr Lau’s evidence as only the English address of the Property was on the registration record of the Land Registry, thus only the English address was used in the Will. 122.Mr Lau was cross examined whether the 6 items of contemporaneous documents set out earlier provided by him/YTT were all the documents in the YTT file concerning the making of the Will for Mother, since those documents did not include a copy of Mother’s HKID card or a copy of the land search record. Mr Lau maintained there should be a copy of Mother’s HKID card and a copy of the land search record in the file, as he had checked Mother’s HKID card and the address of the Property on the land search record before he met Mother for execution, and he said he was aware of Mother being over 85 years of age at the time and he was also aware of her relationship with P. 123.Mr Lau admitted that he had no knowledge of Mother’s background at all apart from verifying her HKID card and the address of the Property on the day of execution. He confirmed that on 29 July 2014, P and his wife and Mother came to YTT North Point office and they were met by Mr Wong in the conference room. Mr Lau confirmed that he was not present when Mr Wong explained the Will to Mother in the conference room and he did not hear personally Mr Wong asking Mother whether she had any amendments to make to the Will. 124.Mr Lau said it was after Mr Wong asked Mother whether she had any amendments that he entered the conference room and he was there for at least 30 minutes but he did not keep a record. Mr Lau confirmed his evidence in his witness statement that he had explained the following to Mother :
125.When asked about her spouse, Mr Lau said he had thought her spouse had passed away although he could not recall what she had said. He confirmed that Mother did not tell him whether she had other assets and that he only mentioned to her that if she had other assets, these would be distributed in accordance with the Intestates Estates Ordinance and distributed among her children in equal shares. 126.Mr Lau also admitted that he did not ask Mother how many children she had or whether there were dependants but had explained to her what was stated in the Confirmation Form, that if there were dependants, they would be entitled to seek financial provision from the estate. 127.The Confirmation Form would have been given to Mother to sign before her execution of the Will. Mr Lau admitted that all the “X”s as appeared in the Confirmation were typed in by computer and typed before Mother went to the YTT Office to execute the Will. Mr Lau had explained that when he entered into the conference room, it was only him and Mother there. He first explained the Will to Mother and then explained the items with an “X” in the Confirmation Form, and then Mother would have first signed the Confirmation Form first, and afterwards, Mr Lau arranged for Mr Wong to enter the conference room and Mother executed the Will in the presence of him and Mr Wong who then signed in the presence of each other and in the presence of the Mother. 128.D’s solicitors had sent a letter to Mr Lau and also Mr Wong respectively on 14 March 2016 referring to the case of Larke v Nugus (2000) WTLR 1033and asking Mr Lau and Mr Wong for answers to a series of 19 questions[31]. On 19 April 2016, Mr Lau replied to D’s solicitors that he was under no obligation to provide them with the information and documents requested and merely confirmed that he was one of the witnesses and that he had duly explained the contents of the Will to Mother before she executed it[32]. In Mr Wong’s reply, he stated he was one of the witnesses but was not involved much in the execution of the Will[33]. 129.Mr Lau had explained that he did not dispute the legal principles set out in Larke v Nugus but he took the view that the executor and beneficiary of the Will was P and that Mr Lau had no duty to provide information/documents to other persons requesting for information and that there were no circumstances of suspicion attending the execution and making of the will. 130.Mr Lau admitted that the case took place in July 2014 and that when he made his witness statement in February 2017, he had set out his Modus Operandi in a will case and in attending execution of a will, and he had said he had tried his best to recollect what happened in the present case and although he could not recall the exact details of conversation with Mother in relation to the explanation and execution of the Will, the contemporaneous documents had reminded him what had happened and he recalled that those events in relation to the execution as set out by him in his witness statement did happen. Issue 1- Whether the Will was duly executed 131.As submitted by Ms Yu, on the issue of formal validity, the propounder is required to prove that the will was signed by the testator (or by some other person in his presence and by his direction) and that the statutory requirements for the formal validity of wills set out in section 5(1) of the Wills Ordinance, Cap 30 have been complied with. 132.Section 5 of the Wills Ordinance provides that :
133.As held in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387[34]:
134.As seen in Chow Siu Po v Wong Ming Fung [2004] 1 HKC 10[35] and Phipson on Evidence (19 Ed)[36], the Court would normally require evidence from at least one attesting witness, as witness of the Court, to prove the due execution of the will. 135.Ms Yu further cited paragraph 4-019 of Theobold on Wills (18 Ed) that an attestation clause facilitates acceptance of due execution, and whilst it raises a presumption that the will was duly executed, it is not by itself conclusive[37]. However, paragraph 4-019 goes on to describe that a formal attestation clause in a will regular in form raises a strong presumption and a strong presumption can only be rebutted by cogent and reliable evidence that the will was not duly executed. In this respect, Mr Lam had referred to Re Groffman [1969] 1 WLR 733 where the testimony of certain witnesses, found credible, demonstrated that the attestation clause was contradicted by what had likely happened[38]. 136.Ms Yu had attacked Mr Lau’s memory, credibility and competence. I accept that Mr Lau’s memory may be faded, in particular his recollection that Mother had no spouse was not correct as Father was still alive at the time and Mother did have a spouse. As seen later below, Mr Lau did not follow the “Golden Rule”, nor did he follow the guidelines set out by Cheung JA in Re Estate of Au Kong Tim (Wills: Validity) [2018] 2 HKLRD 864 CACV 177/2017 20.04.18 or make all the enquiries set therein, nor did he follow the “Checklist” referred to later. As he had kept no attendance notes, there were no records of whether he had indeed followed the Modus Operandi described by him. 137.Having said all this, there was no evidence that Mr Lau had any relationship with P or Mother whether before or after the execution of the Will. Mr Lau had never met P before this case nor had they maintained contact afterwards. By 2014, he had had some 12 years of practice and even though he did not specialize in will/probate cases, he had had experience in preparing and drawing wills for clients and attending execution thereof. 138.Having considered all the evidence, I find there was no sufficient evidence to contradict Mr Lau’s evidence that he had explained to Mother those items in the Confirmation Form marked “X” and the contents of the Will, in the absence of P and his wife, and prior to calling Mr Wong to enter the conference room, or that Mother had signed the Will in the presence of Mr Lau and Mr Wong, who then signed as witnesses in the presence of each other and in the presence of Mother. I accept Mr Lau’s evidence in this regard, even though Mr Wong was not called. 139.As mentioned earlier, in April 2016, both Mr Lau and Mr Wong had written letters in response to D’s former solicitors’ letter. Although they did not provide any substantive responses to questions and information as requested by D at the time, Mr Wong had stated in his reply that he was a witness to the Will. Mr Wong had also stated that he had very little involvement in the matter of execution other than being a witness. 140.In my view, there was no sufficient evidence raised by D to challenge the presumption of due execution. In any event, having considered all the evidence, it is my finding that the Will was duly signed by Mother and it appears that Mother had intended by her signature to give effect to the Will. I find that Mother had signed in the presence of Mr Lau and Mr Wong who were present at the same time, and Mr Lau and Mr Wong had each attested and signed the Will in the presence of each other and in the presence of Mother and that all the formal requirements under section 5 of the Wills Ordinance had been satisfied. I am satisfied that there was due execution of the Will. Issue 2: Whether Mother had testamentary capacity 141.In Chiu Man Fu v Chiu Chung Kwan Ying unrep CACV 40/2012, 18.06.13, Kwan JA, as she then was, had referred to the classic statement of Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565 laying down four criteria for testamentary capacity, and which she had numbered for ease of reference[39]:
142.The (3) and (4) referred to above had also been referred to as one limb. As seen in Re Estate of Au Kong Tim, Kwan JA, as she then was, had agreed with Chow J below, that there were essentially three limbs and the relevant questions to ask about testamentary capacity were[40]:
143.In Re Estate of Au Kong Tim, Kwan J had also cited with approval[41] the following which was said by Christopher Pymong QC in Ashkettle v Gwinnett [2013] EWHC 2125 (Ch) :-
144.Cheung JA had also laid down guidelines (“Guidelines”) in Re Estate of Au Kong Tim:
145.On the evidence, Mr Lau can only be described as a general legal practitioner, rather than a specialist in any particular area of the law. As said earlier, Mr Lau had not followed the “Checklist” referred to in Chapter 6.7 of “Assessment of Mental Capacity – A Practical Guide for Doctors and Lawyers” issued by the British Medical Association and the Law Society in England, Fourth Edition (“Checklist”). It was also clear that he had not followed the “Golden Rule”, nor had Mr Lau made all those enquiries set out in the Guidelines of Cheung JA in the Re Estate of Au Kong Tim case (the Judgment was in 2018). 146.Mr Lau was referred by Ms Yu to the “Commentary” to paragraph 5.05 of the Hong Kong Solicitors’ Guide to Professional Conduct which states as follows :
147.In response to the questions as to what he had understood to be “to obtain enough information” referred in above, Mr Lau had said was to obtain information as to whether Mother could give them instructions to deal with the Property. Further, in response as to what he understood to be “client’s circumstances”, he had said whether Mother was capable of dealing with the matter. 148.Mr Lau was also referred to paragraph 5.06 of the Guide, which states as follows:
149.When asked about the above, Mr Lau said it was Mr Wong who saw P on 28 July 2014 and not him but he did see Mother personally and alone on 29 July 2014 prior to execution of the Will to confirm that Mother had wished to make a will and that he had personally explained to Mother the contents of the Will and also of the Confirmation Form. I have earlier accepted Mr Lau’s this part of his evidence in relation to due execution of the Will. 150.Having said the above, although Mother was elderly, there was no evidence that she was seriously ill or had any mental incapacity at all at the time of the execution of the Will as seen from D’s own case and evidence set out below. Further, as accepted by Cheung JA in Re Estate of Au Kong Tim, the “Golden Rule” does not lay down the law and merely contains prudent guidance for solicitors and non-compliance does not demonstrate the invalidity of a will, and that its purpose is to assist in the avoidance of disputes, or at least in the minimisation of their scope[44]. 151.D’s own evidence was :
152.In answer to P’s request for further and better particulars as to D’s allegation of Mother’s “state of confusion”, D’s answer however was “a description of what [D] said to [P] on that occasion has been sufficiently set out in paragraph 5A(4)(vii) of the Amended Defence”[49]. Thus, D merely referred to her pleaded case and no further and better particulars were provided by D. 153.As said earlier, D had raised no positive case, nor had she produced any medical evidence as to Mother’s testamentary capacity, or Mother’s mental state at the time of execution of the Will. 154.The cause of Mother’s death was “acute pulmonary edema”. P had produced two medical reports from the Pamela Youde Nethersole Eastern Hospital. The 1st one dated 7 September 2016 indicated that Mother had history of diabetes mellitus, hypertension and dyslipdaemia and she complained of increasing ankle edema for few days and increasing shortness of breath in 1 hour and she was found to have cardiac arrest at home at 23:37 on 19 March 2015[50]. The 2nd report dated 21 September 2016 indicated that Mother was pulseless and cardiac monitor showed flattened line on arrival on 19 March 2015 at the A&E Department[51]. 155.According to D’s own evidence in her 1st witness statement, Mother had leg problems for some time[52]. Further, according to D, it seemed that Mother had always suffered from a lack of focus or concentration[53]. 156.In any event, any queries raised by D in relation to Mother’s mental state would seem to be inconsistent with D’s own evidence including the following:
157.In light of D’s own above evidence, although Mother was 85 years of age in 2014, and even if Mother had suffered from a lack of focus/concentration as alleged by D, I find that there was no sufficient evidence that Mother had any mental incapacity or any mental problems at all at the time of her execution of the Will. 158.In particular, D’s own evidence about what Mother had said during the August 2014 Dinner, including that Mother had told D and others that she would not sign any document and would not make a will, would indicate that Mother was capable of understanding the nature of the act of making the Will and its effects. I find the answer to the 1st of the 3 Questions is “yes”. 159.Item (4) of the Confirmation Form stated that:
160.As mentioned earlier, I have accepted Mr Lau’s evidence that he had explained the Confirmation Form to the Mother. There was an “X” marked next to Item (4) which meant that Mother had been explained that the Will would not cover all her assets and that for those assets which had not been dealt with under the Will, such would be distributed in accordance with the Intestates Estates Ordinance, Cap 73 after her death. Mother had signed on the Confirmation Form indicating her understanding of the items with “X”, which were explained to her. 161.As said earlier, Mr Lau’s evidence was also that he had suggested to Mother whether she would like to deal with the rest of her estate in the Will but Mother’s answer was in the negative. There was no sufficient evidence to contradict Mr Lau’s evidence. In light of my earlier finding that there was no sufficient evidence that Mother was suffering from any mental incapacity or mental problems at the time of execution of the Will, I am satisfied that Mother was capable of understanding the extent of the property of which she was disposing under the Will, in that she was only dealing with the Property. I find the answer to the 2nd of the 3 Questions is “yes”. 162.Item (3) of the Confirmation Form had referred to Mother’s “dependants” and had stated that any of her dependants, even though they were not named as “beneficiaries” in the Will, would have a chance to make an application for financial provision from her estate pursuant to Inheritance (Provision for Family and Dependants) Ordinance, Cap 481. Again, Mother was explained the contents of the Confirmation Form by Mr Lau, and Mother had signified her understanding by signing thereon. I find that there was no sufficient evidence of any disorder of Mother’s mind which had poisoned her affections, perverted her sense of right, or prevented the exercise of her natural faculties. I thus find Mother was able to comprehend and appreciate the claims to which she ought to give effect, and that the answer to the 3rd of the 3 Questions is “yes”. 163.In view of all the above, it is my finding that Mother did have the requisite testamentary capacity at the time of her execution of the Will. Issue 3 - Whether Mother knew and approved of the contents of the Will 164.As submitted by Ms Yu, the issue of testamentary capacity and the issue of knowledge and approval are conceptually distinct and she had referred this Court to what Lord Neuberger MR then sitting in the English Court of Appeal had explained in Gill v Woodall [2011] Ch 380 (summarised in Theobald on Wills (18th edn)[58]), that in considering knowledge and approval, the correct (or more preferable) approach for the Court is to ask a single question of whether the testator understood what was in the will when she signed it; and what its effect would be, and considered that question in the light of all the available evidence and the inferences to be drawn from that evidence. 165.Ms Yu also referred to what was explained by the learned authors of the Tristram and Coote’s Probate Practice (31st ed)[59], the mere fact that the will has been read over to a testator is not conclusive evidence that he or she knew and approved of the contents of it, and it remains necessary for the court to consider all the relevant evidence available in order to determine whether the burden of proof has been discharged. 166.As also stated in Nina Kung v Wong Din Shin[60], on the issue of knowledge and approval, where there are circumstances such as to arouse or excite the suspicion of the court, affirmative evidence of knowledge and approval of the contents of the will be required. Ms Yu further referred to Williams on Wills (Volume 1) (10th edn)[61] and submitted whether circumstances are such as to arouse the suspicion of the court is a question of fact in each case, and should not be reduced to some tick-box exercise, it being important that the suspiciousness or otherwise of the features identified as arousing suspicion is judged in the light of the full background of the relationships between the parties. 167.The Court was also referred to the “second rule” of Barry v Butlin [1838] 2 Moo PCC 480 where the underlying principle 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 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. 168.In Re Estate of Yip Keung, HCAP 15/2004, unrep, 9.12.07, A Cheung J, as he then was, had this to say:
169.Mr Lam had submitted that the second rule in Barry and Butlin was not engaged in the present case in that P was not “instrumental” in the preparation/execution of the Will, based on :
170.On the other hand, Ms Yu had submitted that there were some 12 circumstances taken alone or cumulatively which should arouse or excite “grave suspicion” of the Court. 171.Although P was not the one who drew up the Will, which was prepared by YTT, it was P who gave those instructions in the Instructions Form to deal with only the Property and P was the sole beneficiary of the Property, and I am of the view that this would be a circumstance that would arouse the suspicion of the Court and that the second rule in Barry v Butlin would be engaged. 172.As for the 12 suspicious circumstances set out by Ms Yu, they were[62]:
173.In relation to the circumstances in items (1) to (3) above, P’s evidence was that Mother had the habit of reading newspapers every day and she did not have any problem reading and understanding local Chinese newspapers prior to her cardiac arrest and that she had studied up to Primary 5 in Hong Kong. On the other hand, D had said Mother only received one to two years of primary education and was poor in her ability in reading or writing Chinese. 174.As for item (4), there was no sufficient evidence that Mother had needed to use any hearing aid, and according to P, she could read without glasses. Even if Mother had needed glasses, it would have been normal for a 85 year old woman to need at least reading glasses. Anyway, items (1) to (4) would not of themselves arouse any suspicion of the Court. 175.As for items (5), and (6) as mentioned earlier, the two medical reports produced by P indicated that at the time of the cardiac arrest, Mother was not seriously ill, and I have found that there was no sufficient evidence that she had any mental incapacity or other mental problems, and there was no medical evidence produced by D to show otherwise. Items (5) and (6) would not of themselves arouse suspicion. 176.In relation to item (8), the wrongly stated residential address would not of itself arouse suspicion. 177.In relation to item (7) and items (9) to (12), as Mr Lam had submitted even if the second rule was engaged, there were really only two “suspicious” circumstances which could be said to arouse the Court’s suspicion, namely (i) what Mother’s intention was during the material times (particularly between 2003 and 2014) in relation to the handling of the Property before and after her death; and (ii) the apparent discrepancies on the face of the Will. I agree. 178.As I have said, even though P was not the one who drew up or prepared the Will it was P who gave those instructions in the Instructions Form to YTT to deal with only the Property and P was the sole beneficiary of the Property. The ultimate aim of the second rule is to ensure that Mother did know and approve of the contents of the Will and the question was whether it was Mother’s intention to give the Property solely to P. 179.As said earlier, there were 3 versions of D’s evidence on Mother’s intentions in relation to the Property after her death, namely the Licence Arrangement, the Inheritance Arrangement and the DN Arrangement. 180.In relation to the Licence Arrangement, as pointed out by Mr Lam, D had put forward no evidence to explain when the licence was granted all she had said was that P was only allowed to temporarily reside there and that she had also said this would not mean to reside there for long term. As mentioned earlier, D could not even recall when Mother first mentioned the Licence Arrangement. I do not find there was sufficient evidence that there was the Licence Arrangement as pleaded by D. 181.As for the DN Agreement, according to D, this was mentioned during the August 2014 Dinner. D had also said that P had complained to Mother sometime in early August 2014 that if she did not let P and his family reside in the Property, they would have to sleep on the street. Further during the August 2014 Afternoon Tea, Mother purportedly mentioned again the DN Arrangement to P and his wife and that they had not given any response. In fact, D was not present at the August 2014 Afternoon Tea and she had not called Wing Yee who was present to give evidence. Then, according to D, in the late 2014, Mother had said to D that she had already told P and his wife about the DN Arrangement and P’s wife was very unhappy and asked Mother what happened if her two daughters did not have a place to stay, but Mother said she had replied they should make their own arrangements. However, even on D’s own evidence in relation to the DN Arrangement, P’s daughters could reside in the Property until their respective marriage. 182.Anyway, what D alleged Mother had said, namely P complaining of having to sleep on the street if he and his family were not allowed to reside in the Property and/or P’s wife complaining to Mother that P’s two daughters had no place to stay, did not seem to make sense, since by August 2014, Mother had already executed the Will and both P and Mother were fully aware of it. P and his wife would have known by August 2014 that the Property would eventually be P’s under the Will and that there was little or no reason why P or his wife should complain about them or their daughters having no place to stay. As the Mother had already executed the Will, and as I have found earlier that she had no mental incapacity or mental issues at that time, there was also no reason why Mother would want to mention the DN Arrangement to D. This in fact will accord with P’s evidence, that Mother did not wish her other children to know about the Will. Further, as pointed out by Mr Lam, D never mentioned the DN Arrangement in her letter of 21 July 2015 to YTT[63]. 183.Having considered all the evidence, I do not find there was sufficient evidence of there being a DN Arrangement. 184.As for the Inheritance Arrangement, this was never pleaded. Although it was D’s evidence at one stage that Mother had intended the Inheritance Arrangement to take effect after her death, on D’s evidence, this arrangement would appear later to have been superseded, or modified by the DN Arrangement referred to by D. 185.Having considered all the above, I find P’s evidence on the three alleged arrangements inconsistent and were without sufficient evidential basis. 186.As for the discrepancies on the face of the Will, there were 3 areas identified by Mr Lam as follows:
187.As said earlier, P’s explanation as to (1) was that this appeared to be a misunderstanding/mistake by Mr Wong that Mother’s residential address was that of the Property as P had given him a copy of the Rates Demand for the Property and that it was possible that Mr Wong never asked P for Mother’s address and had assumed it to be that of the Property. This was a plausible explanation. Further, Mr Lau did say during the trial that he recalled having read the opening line of the Will to Mother and that she did not tell him that she was not actually living in the Property. That Mother did not correct her residential address in the Will would not necessarily mean that Mother did not apply her mind to the contents of the Will. As said earlier, P’s evidence was that Mother had told him to use the address of the Property as her correspondence address. 188.As for (2), as said earlier, Mr Lau had said he used the English address according to the registration record at the Land Registry, and that he would have explained the contents of the Will to Mother in punti, following his Modus Operandi. Mother only had one landed property in Hong Kong, namely the Property, and I accept that it would be highly unlikely that Mother would be confused about which property Clause 4 of the Will was referring to. 189.As for (3), this Court had asked P why he did not follow Mother’s intention to include a provision in the Will to state that the other assets were to be divided equally amongst all 7 children. P had replied that (i) because Mother had instructed P to tell the lawyer to deal with only the Property under the Will and (ii) P had also said he did mention to Mr Wong that Mother had other assets than the Property and that Mr Wong told him the Residual Estate would be divided equally between the 7 children and it should not be included. It was also P’s evidence that he never saw Mr Wong write down the instructions in the Instructions Form, and that he only saw a copy of the Instructions Form in the course of this action. P’s above evidence was corroborated by Mr Lau’s evidence that he recalled suggesting to Mother to deal with the other assets in the Will but Mother said there was no need. Thus, it was never Mother’s intention for P to ask YTT to include in the Will a provision to deal with her other assets than the Property. 190.Ms Yu had also invited this Court to draw an adverse inference against P as Mr Wong was not called. Mr Wong could not have been called as he had left YTT before Mr Lau and Mr Lau had also said that Mr Wong was transferred out of YTT’s North Point office before Mr Lau left in around June 2018 and that Mr Lau had lost contact with Mr Wong. 191.P was never asked by Ms Yu as to why he did not call Mr Wong or whether Mr Wong was contactable or in Hong Kong. Mr Wong had also claimed little involvement in the execution of the Will notwithstanding he was the first point of contact as he was the one who recorded the instructions in the Instructions Form, but Mr Wong was not present when Mr Lau as Mr Law was the one who had explained to Mother the contents of the Will and the Confirmation Form, and further such explanation was in the absence of Mr Wong, or P or his wife. 192.As for the absence of the other siblings, as said earlier, D had not called any other of their siblings or their spouses or their children to give evidence and her behalf. 193.As mentioned by P, there were two properties in the Zengchang, one was in the sole name of Father and the other one was the one with Father, Mother, Wing Yee and Ki Yung each holding 25% interest. As Father died intestate, according to Hong Kong intestacy law, Mother would have been entitled to 50% interest in Father’s estate. Although the Mainland law is not clear, it would seem very likely that Mother would have inherited an interest in Father’s properties, namely Mother would have inherited an interest in Father’s assets in both Mainland and in Hong Kong. What Mother inherited from Father would form part of Mother’s Residual Estate and be distributed in accordance with the Intestates Estates Ordinance at least for those assets in Hong Kong. Having said this, it would seem that most of the cash in Hong Kong had been withdrawn by Mother and given to D. 194.In any event, although the Mother bequeathed the Property only to P with nothing for Father or any other of her children, particularly Siu Hung, having considered all the evidence, I am satisfied that, on the balance of probabilities, that Mother knew and approved of the contents of the Will. Conclusion 195.In light of all above said, I am prepared to pronounce and decree for the force and validity of the Will in solemn form. Issue 4 - Whether the LA ought to be revoked 196.It was accepted by Ms Yu, if this Court were to be prepared to pronounce the Will proved in solemn form, then the LA ought to be revoked. I so order. 197.I will grant P the letters of administration of the entirety of Mother’s estate with the Will annexed. This would be the effect of vesting Mother’s entire estate, including Mother’s interest in the “intestate” Residual Estate to P. Costs 198.First of all, I accept D’s evidence that notwithstanding D had through Ki Yung and Wing Yee to try to contact P after Mother’s death to ask P to clarify whether Mother had left a will, he had failed to get in touch with his siblings. 199.Further, I am of the view that, whether D had made attempts to contact P or not, and even though P had mentioned to D the day before Mother’s death that Father had told P to take Mother to make a will, P should have voluntarily disclosed the existence and/or sent a copy of the Will to all the beneficiaries of Mother’s estate as soon as practicable after Mother’s death, since he was the executor appointed under the Will. P knew full well that the Will only dealt with the Property and not the entirety of Mother’s estate and that the Will was in his possession. As there was no evidence that Mother had kept a copy of the Will herself, I accept that D would not have been able to find a copy among Mother’s belongings in the Oi Tung Estate Unit and that she had made a diligent search for it there. 200.I also find that in light of there being discrepancies on the face of the Will and further the Will covered only the Property, D was reasonable in investigating the validity of the Will. 201.Having considered all the circumstances of the present case, I have come to the view that there should be no order as to costs of and incidental to these proceedings, including all reserved costs.
Mr Jacky Lam, instructed by Or & Lau, for the plaintiff Ms Christine Yu, instructed by Robertsons, for the defendant [1] C:210-212 [2] C:192-195 [3] Exhibit P4 [4] Exhibit P-3 [5] See C:233 [6] C:246-251 [7] C:243 [8] C:245 [9] See C: 246-247 [10] Para 30(3), C:133 [11] C:219 [12] See para 4, B:140 [13] C:162 [14] See last sentence of letter dated 21 July 2015 from D to YTT, C:219 [15] C:134 [16] See para 28, B:132 [17] See para 5A (4) (ii) of D’s Amended Defence [18] See para 33, B:134 [19] See also Annex 2, P’s Closing Submissions [20] At para 34, B:134-135, see also Annex 2 of P’s Closing Submissions [21] See para 14, D’s Closing Submissions [22] See para 15, Ds’ Closing Submissions [23] Exhibit P5 [24] C:154-155 [25] C:156 [26] C:157 [27] C:158 [28] C:159-160 [29] C:161 [30] See para 8, B:141 [31] C:226-229 [32] C:230 [33] C:231 [34] At paras 175 [35] At paras 5,7 and 16 [36] Pp 1430-1435 [37] At pp 78, 82-83 at paras 4-008 and 4-009 [38] At 736H-738B [39] At para 52 [40] At para 45 [41] At para 59 [42] At para 43 [43] At paras 2.3-2.6 [44] At para 2.7 [45] See para 5A(4)(vi) and (vii), A:34, D’s Amended Defence [46] Para 9, B:129 [47] Para 34, B:134 [48] Para 41, B:136 [49] See Answer 3(b), A:45 [50] C:163 [51] C:164 [52] See para 14, B:130 [53] See para 8, B:129 [54] See para 34, B:135 [55] See para 35, B:135 [56] Para 36, B:135 [57] C:201 [58] At 3-017, pg 62 [59] At 34.61, pp 844-845 [60] At 204-218, p 448 [61] At 5.2, p 65 [62] See paras 34-35(1) – (12) [63] C:218-2019 | ||||||||||||||||||
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