Tso Wai Moon and Others v. Chu Sau Ling
Read the full judgment text of HCAP 18/2014 on BabelCite. This High Court CFI judgment was delivered on 5 December 2019.
1. In the present action, the plaintiffs sought to propound a will dated 2012 of Madam Chu Kwai Kee, deceased (“the Deceased”) and to revoke the grant of probate to the defendant on the basis of another will of the Deceased dated 1995. When the trial began, the defendant conceded and consented to the relief claimed by the plaintiffs if the court was satisfied with the plaintiff’s proof of the later will in solemn form. A consent summons was signed by the parties for such purpose. The plaintiffs
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HCAP 18/2014 [2019] HKCFI 2901 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PROBATE ACTION NO 18 OF 2014 ____________
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____________ Before: Deputy High Court Judge Leung in Court Date of Hearing and Judgment: 19 February 2019 Date of Reasons for Judgment: 5 December 2019 ___________________________ REASONS FOR JUDGMENT ___________________________ 1.In the present action, the plaintiffs sought to propound a will dated 2012 of Madam Chu Kwai Kee, deceased (“the Deceased”) and to revoke the grant of probate to the defendant on the basis of another will of the Deceased dated 1995. When the trial began, the defendant conceded and consented to the relief claimed by the plaintiffs if the court was satisfied with the plaintiff’s proof of the later will in solemn form. A consent summons was signed by the parties for such purpose. The plaintiffs formally adduced their evidence. This court was satisfied that their case was proved. An order in terms of the draft order submitted was made. I now give my reasons. Background 2.The Deceased was born on 1 May 1926. Her parents passed away in 1979 and 2008 respectively. 3.The Deceased had been married twice during her lifetime. The marriages ended up in divorce in 1966 and 1998 respectively. No child was born out of the marriages, but there is evidence of the adoption of a baby daughter decades ago. 4.The Deceased had 6 siblings. Amongst them, the Deceased was the second eldest and the defendant (“Sau Ling”) is the youngest. When she passed away, the Deceased was survived by 3 siblings, namely, Chu Kwai Hung, Chu Tak Kam (“Tak Kam”) and Sau Ling, and their children. 5.The 1st plaintiff (“Tso”) is the younger sister of Tak Kam’s wife. In other words, Tak Kam is her brother-in-law. Through such relationship, Tso came to know the Deceased. The 2nd plaintiff (“Man Wai”) and the 3rd plaintiff (“Man Miu”) are the children of Tak Kam, and thus nephew and niece of the Deceased. 6.In 1997, Sau Ling’s family, including herself and her 2 children, moved to live with the Deceased at the latter’s residence at Electric Road, Hong Kong (“the Property”). 7.In 2008, the Deceased purchased another property at King’s Road, Hong Kong (“the North Point Property”) in the joint names of her and Sau Ling. Sau Ling’s family have since moved to the North Point Property. 8.Since the passing of her mother in 2008, the Deceased had lived alone at the Property. 9.The Deceased passed away on 19 July 2013 at the age of 87. 10.In August 2013, Tak Kam and Tso instructed Adrian Yeung & Cheng, solicitors (“AYC”) to apply for the grant of probate of the estate of the Deceased on the basis of a will prepared by AYC and signed by the Deceased on 10 October 2012 (“the 2012 Will”), but only to be told that in September 2013, Sau Ling had already applied for grant on the basis of another will of the Deceased dated 1995. Probate was granted to Sau Ling on 8 October 2013 (HCAG 011324/2013). 11.The will relied on by Sau Ling was dated 27 November 1995 (“the 1995 Will”) whereby the Deceased appointed Sau Ling as the sole executrix and the sole beneficiary. 12.On 7 November 2013, Sau Ling transferred the Property to herself by way of assent. 13.By letter dated 27 January 2014, AYC informed the then solicitors for Sau Ling of the 2012 Will, which expressly revoked all the previous will and testamentary documents of the Deceased. Under the 2012 Will, Tso was appointed as the executrix, and the Property was devised to Man Wai and Man Miu in equal shares. 14.The plaintiffs say that the 2012 Will was the last will of the Deceased. Sau Ling disputed that on the ground that the Deceased did not possess the requisite knowledge and approval at the time of executing the 2012 Will, and therefore the 1995 Will remained the last will and testament of the Deceased. 15.Correspondence between the parties’ solicitors ensued. Specifically, Sau Ling raised the following grounds:
16.The present action was commenced on 8 July 2014. Issues 17.The major dispute raised by Sau Ling are:
The principles 18.To prove a will in solemn form, the plaintiff has the burden of satisfying the court on the balance of probabilities that the will in question is the last will of the deceased. That includes: (i) the will was duly executed by the deceased; (ii) the deceased was of testamentary capacity at the time of execution of the will; and (iii) the deceased knew and approved of the contents of the will: see Nina Kung v Wong Ding Shin (2005) 8 HKCFAR 387 at §§172-173. 19.There was no dispute as to the signing of the 2012 Will. Nor was there issue as to the mental capacity of the Deceased when signing the 2012 Will. Only question (iii) in the preceding paragraph was in issue. 20.A testator cannot be said to know and approve the contents of the will unless he is able to and does understand what he is doing and its effect: see Hoff v Atherton [2005] WTLR 99 at §62. That the will has been read over to the deceased or by the deceased is weighty evidence in establishing knowledge and approval: see Cheung Wai Lan v Kwok Chung Chee, CACV 128/2014 (15 April 2015) at §47. 21.As to proof of knowledge and approval of the contents of the will by the testator, the approach is to:
22.Reference was made[1] to what is known as the second rule in Barry v Butlin (1838) 2 Moo PC 480 at 482-483, Fulton v Andrew (1875) LR 7 HL 448 at 472 and Tyrell v Painton [1894] P 151 at 157. 23.The second rule in Barry v Butlin was (at 482-483):
24.In Fulton v Andrew (at 472), it was said that there is a farther onus on those who take for their own benefit, after having been instrumental in preparing or obtaining a will, and such onus is to show the righteousness of the transaction. 25.In Tyrrell v Painton, it was said (at 157) that the second rule in Barry v Butlin is not confined to cases where a will is prepared by or on the instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the court. Where such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document. 26.However, the Court of Final Appeal in Nina Kung (at §210) warned against being misled by the terminology in Fulton v Andrew into attributing a wider ambit to the second rule in Barry v Butlin than was intended. They also (at §213) warned against elevating what was said in Tyrrell v Painton to suggest that the second rule in Barry v Butlin amounted to a general requirement to dispel all suspicious circumstances surrounding the will. 27.As explained by the final court in Nina Kung, the second rule in Barry v Butlin did not create a general requirement that the proponent of a will dispel all suspicious circumstances surrounding the will, but only where the circumstances mentioned under the second rule exist and therefore the court in such circumstances ought generally to be excited. 28.With the above principles in mind, one may say that this court ought to be excited by the fact that the plaintiffs in the present case were admittedly involved in arranging the preparation of the 2012 Will, whereby they were named as respectively the executrix and beneficiaries (of the Property). Alert to that, this court proceeded to consider all the evidence in determining whether the Deceased knew and approved the content of the 2012 Will. Whether the Deceased knew and approved the content of the 2012 Will 29.Apart from the documents and video recording, Tso, Man Wai and Man Miu testified and adopted the content of their statements as evidence. So did the representatives of AYC, who was responsible for the drafting and execution of the 2012 Will, namely, Chan, Tong and Lam. 30.Tso gave evidence in respect of how she came to know the Deceased. As mentioned, Tso is the younger sister of the wife of Tak Kam, the Deceased’s brother. She therefore came to know the Deceased. She was then about 15 years old and the Deceased was in her late 30s. Tso remembered that the Deceased was with her then husband doing business in Vietnam and was not often in Hong Kong. 31.Tso and the Deceased became more acquainted with each other after the birth of the Deceased’s nephew, Man Wai, in mid-1960s. Their friendship continued to develop. According to Tso, the Deceased would also address her as “六姨” (or the 6th aunt) as how Man Wai and Man Miu do. Since mid-2000s, the Deceased and Tso would often get together to play mahjong. At about the same time, Ah Bo, Tso’s god-sister, came to know the Deceased. They had kept contact with the Deceased since the Deceased’s mother passed away in 2008. 32.Tso praised the Deceased as a person who took care of her siblings, and for that Tso respected her very much. Amongst other details, Tso gave an account of what the Deceased had divulged to her about the financial assistance that the Deceased and Tak Kam had provided to assist Sau Ling and her husband’s business at one point. It was against such background that at one stage, the Deceased invited Sau Ling’s family to move to reside with her at the Property. However, domestic relationship amongst the family members under the same roof was less than harmonious. For that, the Deceased had every now and then expressed dismay. On occasions, the Deceased was also heard complaining about Sau Ling for not showing enough concern about her or gratitude. 33.In view of the stance of Sau Ling now, I think the above suffices as the backdrop of this matter without having to set out in details other incidents involving Sau Ling that Tso had learned from the Deceased and covered in her statement. 34.After the passing of the Deceased’s mother in 2008, Sau Ling, whose family used to reside with the Deceased at the Property, also moved out to another property newly purchased by the Deceased, namely the North Point Property. Since then, the Deceased started to reside alone, with a foreign domestic helper, at the Property. 35.However, the Deceased often invited Tso, Man Miu and Ah Bo to visit her and to play mahjong and have meals. Man Wai would also visit the Deceased, though he would not join the mahjong game. The frequency was up to 2 to 3 times a week as well as the public holidays when the domestic helper of the Deceased was on leave. 36.According to the plaintiffs, the Deceased had not mentioned to them that she had made any will before 2012. However, the Deceased had mentioned to Tso her intention that her family members should get something from her as her token. According to her, the North Point Property that Sau Ling’s family is residing at would be hers. The Deceased was therefore minded to leave the Property to Man Wai and Man Miu. 37.In about September 2012, the Deceased also asked Tso to keep the title deeds of the Property for her. 38.During their visit (Tso, Man Miu and Ah Bo) to the Deceased on 7 October 2012, the Deceased again raised the subject of leaving the Property to Man Wai and Man Miu. She asked Ah Bo to draft a script documenting such intention. At the Deceased’s request, Man Miu obtained Man Wai’s identity card number on the telephone. With the information, and in accordance with the Deceased’s expressed wish, Ah Bo then came up with the following script (“the 1st Script”):
39.Both Tso and Man Miu testified that the Deceased was alert enough to point out to Ah Bo in the course of her drafting the correct Chinese name of Electric Road. The idea of the Deceased then was to write out a script herself with Ah Bo’s script as reference. 40.Indeed, subsequent to the 1st Script, the Deceased tried to come up with another script by her own hand. Slowly she came up with the following script (“the 2nd Script”):
41.What was apparent from the above scripts was the Deceased’s focus on firstly, the Property out of her assets, and secondly, her intention to devise it to her nephew and niece for love and affection. The process of the Deceased drafting the 2nd Script was recorded on video by Tso and Man Miu. Whilst there was already the 1st Script, the video recording shows that the Deceased came up with the 2nd Script all by herself and the wordings were all hers, including the addition of reference to her love and affection for her nephew and niece. 42.The 2nd Script might not appear fluent. It was also unfinished. According to Tso and Man Miu, and as shown in the video, the Deceased was quite slow in drafting the 2nd Script. She eventually adjourned the drafting process and the party proceeded to play mahjong. None of the two handwritten scripts was signed. The Deceased kept both scripts. 43.According to Tso, the Deceased came to visit her on the following day. The Deceased brought up the subject of her bequest of the Property to Man Wai and Man Miu. It was the Deceased who suggested that this should perhaps be done by lawyer. Upon her confirmation, Tso, in the presence of Ah Bo and the Deceased, telephoned Mr Chan Wai Sing (“Chan”), a consultant of AYC. According to Chan, Tso has been his client for many years. 44.Through Tso as the intermediary on the telephone with Chan, the Deceased gave instruction for the preparation of a will for the bequest of the Property to Man Wai and Man Miu. Chan recalled overhearing on the telephone how Tso relayed to the Deceased the questions that he asked Tso. It was arranged that Chan would prepare the draft will, and, at the request of the Deceased, he would send representative to come to meet with the Deceased when the draft was ready. After the telephone conversation, the Deceased gave Tso the 1st Script so that the latter could send the same by fax to Chan to confirm the Deceased’s instruction. 45.Pausing here, one may question the comprehensiveness of the instructions taken from the Deceased in the manner described above. However, the evidence shows that by then, the Deceased was at all times only concerned about bequeathing the Property to Man Wai and Man Miu. That was the primary and single goal of the Deceased. The will, as drafted and set out below, also showed that. 46.On 9 October 2012, Chan had his secretary to follow up with Tso on the telephone, and asked for the particulars of the parties to be named in the will being drafted. Tso acted accordingly, after collecting such details and copies of the identity cards from the Deceased, Man Wai and Man Miu together with those of hers. Later that day, arrangement was made for AYC’s representatives to come to meet with the Deceased on the following day, 10 October 2012. The Deceased asked Tso to inform Man Miu and Man Wai to come as well. 47.On 10 October 2012, Mr Tong Wing Hee Tony (“Tong”), solicitor, and Miss Lam Choi Yan (“Lam”), then trainee solicitor, of AYC came to meet with the Deceased at the Property as appointed. The plaintiffs and Ah Bo were present[2]. They all gave evidence in respect of how the 2012 Will came to be signed. 48.After introduction, Tong and Lam sat with the Deceased. Tong checked the Deceased’s identity card. Tong then started to explain the draft will to the Deceased. The will was drafted in Chinese and was a simple one. It contained the following provisions:
49.Pausing here, the evidence did not suggest that the 1995 Will was either known by the plaintiffs or raised by the Deceased by then. Otherwise, there would have been no reason why the same was not expressly referred to, when the standard clause for revoking all previous testamentary script and confirming that this was the last will and testament of the Deceased was incorporated as clause (1). 50.In the course of Tong’s explanation of the content of the draft will, the Deceased apparently took issue as to clause (3) above. The Deceased reiterated her intention of giving the Property to Man Wai and Man Miu, and Tso as trustee should have no power to sell it. Tong explained further the effect of the provision, but the Deceased insisted on her view. That caused Tong to consult Chan of AYC on the telephone. Tong made clear to the Deceased that depending on any amendment, they might have to fix another meeting to complete the signing of the will. 51.After consultation with Chan on the telephone, Tong explained to the Deceased that clause (3) could be deleted, but that would leave no provision for the trustee to pay her debts and expenses upon her death. Expressing that she had no debts and did not expect to have any debts, the Deceased confirmed her instruction to delete that provision from the draft will. 52.Clause (3) of the will was therefore deleted and the paragraph numbering was adjusted accordingly. The amendments were engrossed with the initials of the Deceased, Tong and Lam. The Deceased signed the will, and Tong and Lam signed as witnesses. Hence the 2012 Will in its present form. Tong telephoned Chan and reported the completion of the formality. He returned to AYC with the 2012 Will for its sealing. The sealed will was collected by Tso on 15 October 2016. 53.The process of the explanation and the eventual signing of the 2012 Will mentioned above was recorded on video taken by Ah Bo and Man Miu. All the conversation and gesture on the part of the Deceased should impress no one that she had less than a clear intention of devising the Property to Man Wai and Man Miu. Nor should there be doubt about the Deceased’s understanding of the process and the content of the will. In particular, the Deceased’s reaction upon Tong’s explanation of clause (3) was spontaneous, and her objection to such clause was clear and unequivocal. The Deceased also explained to Tong her intention in some detail. Neither Man Wai nor Man Miu, albeit present, added any opinion in the process. 54.The plaintiffs added that the Deceased was quite delightful after completing the formality. At her request, various photographs were then taken of the party on that occasion, before they went out together to have meal. The photographs on their face suggested that. 55.Tso stated that according to the Deceased in late October 2012, the Deceased had informed Sau Ling of the executing of a new will for devising the Property to Man Miu and Man Wai. Towards the end of 2012, the Deceased also told Tso that some children of the Deceased’s siblings had likewise been informed of the same matter. Sau Ling was said to responded unhappily about the new will. 56.The Deceased fell ill in February 2013, and was hospitalized while the plaintiffs were in the Mainland. Despite discharge, the Deceased was admitted to the hospital again in late May 2013. 57.On 1 July 2013, Tso and Man Miu visited the Deceased at the hospital. In the course of the conversation, the Deceased expressed her feelings about Sau Ling and her concern about the negative feeling that developed in Sau Ling against Tak Kam as a result of the bequest of the Property to his children, Man Miu and Man Wai, by the 2012 Will. To remove misunderstanding and to make life easy for everyone (or in her words “好頭好尾，唔好有誤會”), the Deceased expressed her wish that Man Wai and Man Miu should still welcome Sau Ling and her son to visit the Property until they actually decided to sell it one day. In other words, even at that stage, the thought of Deceased about Sau Ling was premised on her bequest of the Property to Man Wai and Man Miu. 58.The conversation at the hospital on 1 July 2013 was recorded on video. It shows that the Deceased was quite weak at the time but dominated the conversation. Tso listened to the Deceased patiently by her bed, trying to console the Deceased from time to time. 59.On 19 July 2013, the Deceased passed away. 60.The plaintiffs also gave evidence that despite enquiry, Sau Ling withheld the fact that there was the 1995 Will. Tso and Tak Kam therefore proceeded to instruct AYC to apply for probate of the estate of the Deceased on the basis of the 2012 Will. As mentioned, it was only through AYC subsequently that they came to know the existence of the 1995 Will and that Sau Ling had already applied for probate by relying on that will. 61.All evidence considered[3], including the video recordings, I was impressed that the Deceased was a remarkable elderly. I was left with no doubt about the competence of the Deceased in expressing her intention that led to the 2012 Will. Her intention to bequeath the Property to her nephew and niece was a simple and straight forward one, about which she was firm and consistent throughout. She demonstrated the same intention even after the making of the 2012 Will and during her last days in the hospital. Partial intestacy 62.One issue raised by Sau Ling in support of her query about the 2012 Will was that the will contained no mention of the other assets of the Deceased. If partial intestacy arose, the alleged adopted daughter of the Deceased would be entitled to the residuary estate. This could not be the intention of the Deceased, as she and that alleged adopted daughter had been estranged for three decades. 63.The documentary evidence suggested that a Wong Nga Chung born in 1975 was registered as the Deceased’s adopted daughter. The plaintiffs also acknowledged having learned from the Deceased about her having taken care of and treated a baby as daughter, but the two had indeed been estranged for three decades. There was no evidence in respect of the whereabout of such a person. 64.Section 2(2) of the Intestates’ Estates Ordinance, Cap 73 provides:
65.Section 25 of the Adoption Ordinance (1987) provides:
66.Section 23A of the Adoption Ordinance Cap 290 was introduced after 2004, which restricts the arrangement of adoption:
67.Whether or not such a person mentioned above was in law or in fact an adopted daughter of the Deceased, or what might have happened to her, the video evidence shows that at the time when she was drafting the 2nd Script, the Deceased herself seemed to mention about that person and described her as already “取消” (or “cancelled”) because they had lost contact for decades. That reflected her intention insofar as such adopted daughter was concerned. 68.In view of the stance of Sau Ling now, this issue of the adopted daughter and her possible entitlement to the estate of the Deceased upon partial intestacy could not be taken any further. Nor could this in the circumstances cast doubt on the intention of the Deceased as set out in the 2012 Will. 69.Partial intestacy in respect of the Deceased’s assets not covered by the 2012 Will per se did not invalidate it. Nor did that cast doubt on the Deceased’s true intention as a matter of fact, when the evidence was clear in that the Deceased at all times single-mindedly intended to bequeath the Property to Man Wai and Man Miu without expressing much concern about any other assets that she might possess. The alleged failure of the 2012 Will to defeat any possible entitlement of the alleged adopted daughter of the Deceased by avoiding partial intestacy, even if true, could not favour the adopting of the 1995 Will. The simple reason was that the 1995 Will would defeat the unequivocal and primary intention of the Deceased to bequeath the Property to Man Wai and Man Miu. I was impressed that the intention of the Deceased was not to disinherit but to positively designate who should take her asset (or specifically, the Property). That was perfectly consistent with her generosity demonstrated in her conversation with Tso during her last days in the hospital. Others 70.The deletion of clause (3) of the draft will would mean there is no provision for the discharge of the debts and expenses of the Deceased upon her death. Again, that per se did not cast doubt on the true intention of the Deceased as a matter of fact, particularly when the effect of that was explained by solicitor to her prior to her repeated confirmation as mentioned above. Conclusion 71.In the circumstances, I found that the Deceased knew and approved the content of the 2012 Will as her last will and testament in respect of the disposition of the Property. It followed that the 1995 Will was accordingly revoked. 72.With the 2012 Will duly proved, I granted the order in terms as consented to by the parties.
Mr Andrew Mak, Miss Chantel Lin, instructed by Yip & Partners, for the Plaintiffs Mr Damian Wong, instructed by Chan, Lau & Wai, for the Defendant | ||||||||||||||||||||||||||||||||||||||||||||||||