Ho Sik Cheung v. Cheng Yin Ping Eliza
Read the full judgment text of HCAP 18/2016 on BabelCite. This Court of First Instance judgment was delivered on 7 September 2020 before Deputy High Court Judge Leung.
Probate – will propounded in solemn form – whether 1999 Will should be pronounced as last will of testator – testamentary capacity – knowledge and approval of contents – undue influence – whether 1998 Will procured by undue influence of eldest son and his wife over testator – res judicata – whether earlier judgment on related transaction bars challenge to 1998 Will – admissibility of late-disclosed attendance notes of solicitor – Banks v Goodfellow criteria for testamentary capacity – testator's instruction taken in confidence by solicitor – testator's contemporaneous psychiatric evidence indicating no significant cognitive impairment – expert evidence preferred from psychiatrist who examined testator shortly after will execution – natural and probable consequence of disinheriting beneficiaries who had perpetrated misfeasance – earlier judgment finding undue influence on 1998 Will binds parties to that action – executor to account for prior administration of estate – 2015 Grant revoked – nisi costs order against unsuccessful defendant.
Legal issues: Validity of the 1999 Will · Whether the 1998 Will was vitiated by undue influence · Whether res judicata bars the claim regarding the 1998 Will · Admissibility of late-discovered attendance notes
Outcome: The 1999 Will is pronounced in solemn form as the last will of the Deceased. The 1998 Will is declared invalid and liable to be revoked. The 2015 Grant to Cheng is revoked. Nisi order for costs against Cheng, to become absolute in 14 days unless varied.
Cites 10 cases
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HCAP 18/2016 [2020] HKCFI 2295 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PROBATE ACTION NO 18 OF 2016 ____________
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____________ Before: Deputy High Court Judge Leung in Court Dates of Hearing: 9, 10, 11, 15, 17 April and 18 June 2019 Date of Judgment: 7 September 2020 ______________ JUDGMENT ______________ 1.Ho Yung Hon, deceased (“the Deceased”) passed away in 2007. The defendant (“Cheng”), wife of the Deceased’s eldest son, obtained grant of probate in respect of a will of the Deceased made in 1998. The plaintiff (“Sik Cheung”), the youngest son of the Deceased, brought this action against Cheng on the ground that the 1998 will should be, and has been, revoked, and that the last will of the Deceased made in 1999 should be propounded. Background 2.The Deceased and his wife, also deceased, had the following children:
3.Kam Cheung had four children, two sons and two daughters, born out of his first marriage which ended in divorce in 1985. Kam Cheung married Cheng in 1987, and three sons were born out of this second marriage. 4.The Deceased’s wife passed away in December 1996. 5.The Deceased passed away on 29 April 2007 at the age of 96. 6.The bulk of the Deceased’s estate comprises four lots of land in Demarcation District 189 Shatin, New territories (or Tin Sum Village). Typical village type houses were erected on these lots, which have become Nos 25A[1], 65[2], 110[3] and 238[4] respectively of the village. Various family members have resided, and some are still residing, at these houses. 7.Discovery of a series of events concerning the Deceased and his properties since the passing of his wife in 1996 has brought about clashes and litigations within the family up to 2002. Details of these events will be referred to below. Suffice to say as introduction that the Deceased and his other children eventually manage to stand together against Kam Cheung and Cheng who were considered to be the culprits behind the misfeasance. 8.In 2015, the children (other than Kam Cheung) instructed solicitors[5] to apply for the grant of probate in respect of the last will of the Deceased dated 12 November 1999 (“the 1999 Will”). Only upon that did they discover that grant had already been applied for and obtained by Cheng in respect of the previous will of the Deceased dated 19 October 1998 (“the 1998 Will”). Apparently, Cheng applied on 8 September 2015 as the executrix appointed under the 1998 Will. On 15 September 2015, probate was granted to her (Grant No HCAG 012884/2015) (“the 2015 Grant”). 9.On 23 September 2016, Sik Cheung, as the executor named in the 1999 Will, commenced the present action against Cheng for propounding the 1999 Will and thereby revoking the 1998 Will and the 2015 Grant. Alternatively, Sik Cheung contends that the 1998 Will, and thus the 2015 Grant, should be revoked on the ground that the execution of the will was procured by the undue influence or fraud of Kam Cheung and Cheng over the Deceased, so that the Deceased did not know or approve of its contents and legal effect. 10.The 1999 Will, if propounded, would by its terms suffice to revoke the Deceased’s previous testamentary scripts, including the 1998 Will. I can therefore understand why the contention of undue influence tainting the making of the 1998 Will is put forward as an alternative case of Sik Cheung. However, the reality of the matter, as will be seen from the discussion below, is that the allegations in connection of the undue influence and the 1998 Will form a material part of the circumstances surrounding the making of the 1999 Will. Hence the need to consider and to make necessary findings of such relevant circumstances in any event. 11.In defence, Cheng challenges the Deceased’s testamentary capacity at the time of the execution of the 1999 Will. She too raises undue influence but allegedly exerted by Sik Cheung on the Deceased that brought about this last will of the Deceased. Propounding a will 12.Mr Vaughan, appearing for Sik Cheung, correctly summarises the applicable principles. A person who propounds a will has the burden to satisfy the court that it is the will of the deceased by evidence, which should establish on the balance of probabilities that:
See Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387, at §§171-173. 13.A testator must have animus testandi (ie a testamentary intention) to make a valid will. It follows that the wish to effect the will upon the death of the testator must be entirely the result of his or her volition, and that he or she must know and approve of the contents of his own will. A testator lacks animus testandi if he makes his will as the result of fraud or undue influence. The burden of proof in this regard falls on the party who opposes the validity of the will: see Nina Kung (above) at §178. 14.Often-cited in the context of testamentary capacity is the explanation by Kwan JA in Chiu Man Fu v Chiu Chung Kwan Ying CACV 40/2012 (18 June 2013) (at §52):
15.Whether a testator is mentally competent under the above test may depend on the level of the complexity of a will: In the Estate of Park [1953] P 112, 136. The testator must be able to discern and judge all the circumstances relevant to the making of his will, and the testamentary capacity of a testator must be measured in relation to the facts and subject matter of each particular case. 16.As to the role of a solicitor in the preparation and execution of a will, the Court of Appeal has laid down useful guidelines in Re Estate of Au Kong Tim (No 3) [2018] 2 HKLRD 864. Undue influence 17.In the present context, influence is undue if the will is not the offspring of the testator’s own volition but the record of someone else’s: see Hall v Hall (1865-69) LR 1 P & D 481. In Li Chi Loy v Li Lai Lan Candice [2008] 5 HKLRD 74, Poon J (as he then was) explained (at §83):
The case of Sik Cheung (and his siblings) 18.Sik Cheung, Man Tai and Cho Tai gave evidence of the history of the family and the past disputes. Essentially, the Deceased was an indigenous villager with not much education. Amongst his siblings, Sik Cheung had the fortune of attaining tertiary education and the competence of becoming a surveyor working for the Government. The family lived together until the children moved out of the family residence after their respective marriages, except for Cho Tai who is not married. 19.In the1980s, the Deceased, Kam Cheung and Sik Cheung, being the indigenous male descendants, were respectively granted lots of land in the Village. The Deceased was granted No 1657, where he caused to be built the house now known as No 238 mentioned above. Ping Tai, Kwan Tai and Mei Tai funded the build. 20.By succession, the Deceased also owned Lots Nos 1263, 1693 and 1294 in the Village. He caused to be built on these lots houses which have become Nos 25A, 110 and 65 respectively mentioned above. Since 1988, the Deceased and his wife as well as Cho Tai had resided on the 2/F of No 110, and let out the other two floors for rental income. 21.According to Sik Cheung, the relationship between Kam Cheung and the Deceased was not all along harmonious. As he understands, Kam Cheung has sold his original lot in the Village back in the 1980s due to need of money. In 1970s to 1980s, Kam Cheung had various business ventures that eventually failed one after the other. Instead of supporting his parents financially, Kam Cheung was used to making frequent demands for financial assistance from the parents and siblings. 22.After his divorce from his first wife, Kam Cheung did not support his divorced wife and their four children. Because of his good relationship with them, the Deceased allowed her and his grandchildren to move into No 65. 23.A few years after Kam Cheung married Cheng, both of them were adjudged bankrupt in about 1991. Not without reluctance, the Deceased helped by accommodating Kam Cheung and his family in No 25A in 1994. 24.Notwithstanding the strain on the family relationship accrued from Kam Cheung’s situation, the family had so far managed to maintain reasonable harmony. That however changed after the mother passed away in December 1996. 25.The Deceased was much upset about the passing of his wife. He was over 80 years old then. During a family gathering in February 1997[6], the Deceased expressed his wish to dispose of his properties upon his death as follows:
26.This later evolved into the preparation of a will in the same year. Kwan Tai and Ping Tai’s husband accompanied the Deceased to the solicitors’ office[7], where the Deceased executed his will on 16 December 1997 (“the 1997 Will”). Kwan Tai was named the executrix. The terms of the 1997 Will reflected adjustment of the Deceased’s express intention mentioned above, namely:
27.At the same time, the Deceased executed documentation appointing the three daughters as his attorney essentially to handle all the matters in connection with No 238. 28.Since the passing of her mother, Cho Tai, who is not married and had been living with the Deceased at No 110, had played a major role in taking care of the Deceased. However, quarrels between them over trivial matters at home became more often, which at one point drove Cho Tai to decide to live apart. Meanwhile, Kam Cheung and Cheng were seen getting closer to the Deceased than before. Following the moving out of Cho Tai, arrangement was also made amongst the family members to take care of the meals of the Deceased. In 1998, Kam Cheung and Cheng also sent a domestic helper to stay with the Deceased at his house. 29.At the beginning, the other children detected nothing sinister about the conduct of Kam Cheung and Cheng concerning the Deceased. However, Sik Cheung and his siblings later came to realise what they considered to have been the manoeuvre of Kam Cheung and Cheng over the affairs and assets of the Deceased behind the back of the other siblings. The following events were referred to:
30.At one point in 1999, the Deceased apparently began to feel uneasy about what had happened, and had approached Man Tai and Sik Cheung for assistance. With theother children’s assistance and legal advice, the Deceased eventually regained control over HCA 8246/1999 against his three daughters mentioned above, and managed to bring an end to that by agreeing to a declaration to the effect that he held No 238 on trust for the three daughters. That would be in line with the history and the consistent intention of the Deceased in respect of that property as mentioned above. 31.The Deceased also commenced action against Kam Cheung (as the 1st defendant) and Cheng (as the 2nd defendant) to set aside the conveyance of No 110 mentioned above on the ground of, amongst others, undue influence (HCA 15909/1999). Kam Cheung and Cheng resisted the claim. After trial, Hon Waung J delivered his judgment on 9 May 2002 (“the 2002 Judgment”). In the absence of appeal, the judgment became final. The 2002 Judgment 32.The significance of the 2002 Judgment lies not only in its outcome that was favourable to the Deceased, but also in the findings of fact in respect of very much the same factual background of the present action mentioned above. Mr Vaughan fairly acknowledges that this court is not bound by that judgment. That said, the parties to that judgment are bound by the findings of fact in respect of the factual dispute in that case. Whilst this court must make its own findings of fact for determining the present case, neither party may for the purpose of the present action attempt to re-open and to advance any factual allegations that contradict the findings in respect of the same factual dispute in the 2002 Judgment that binds them: see Kan Wai Chung v Hau Wun Fai & Ors, CACV 43/2012 (7 February 2013). Any attempt by the parties to that judgment to re-open any of these factual issues in the present case will amount to a collateral attack on the findings in that judgment. 33.On the above note, it is only prudent for this court to set out below the findings of the learned judge in the 2002 Judgment:
34.The learned judge’s findings explained in §§27-28 and §§39-42 are of particular relevance to the present action. Indeed, Mr Vaughan highlights the same in his submissions. Whilst the subject matter of dispute in the 2002 Judgment was the conveyance of No 110, the learned judge, in my respectful view, was right in considering the conveyance and the making of the 1998 Will not in isolation but as part and parcel of what Kam Cheung and Cheng engineered to dispose of the Deceased’s properties for their benefit at the material time. The findings of the learned judge in respect of the circumstances surrounding the making of the 1998 Will could not be brushed aside as mere obiter as far as the parties to the judgment are concerned. This court’s assessment 35.Now this court heard the witnesses. I find that Sik Cheung and his siblings gave truthful evidence, notwithstanding uncertainties or lack of precision in some minor details. Whilst one may say that the contest at the end concerns their self-interests, I detect no sense of greed among them other than their genuine wish to prevent the distortion of intention of the Deceased which Cheng attempts to do by maintaining the 1998 Will in the circumstances. 36.The circumstances leading to the execution of the 1998 Will and the 1999 conveyance mentioned above, as well as the terms of the 1998 Will, clearly manifest the steer of hers and Kam Cheung’s to channel nearly all the assets of the Deceased to them, be it with a view to benefiting their then still under-aged sons or not. That happened when it was not that the Deceased had no intention of providing for Kam Cheung. The 1997 Will spoke for itself. Such intention of the Deceased to provide for Kam Cheung of course lasted until he, according to Sik Cheung, changed his mind upon discovering the misdeeds of Kam Cheung and Cheng in 1999. 37.The Deceased passed away in 2007. Sik Cheung and his siblings did not apply for probate in respect of the 1999 Will until 2015. It was suggested to them during cross examination that they held back because of their awareness of the lack of testamentary capacity of the Deceased and thus the integrity of the 1999 Will. However, it is unclear what they could have realistically achieved regarding that by the delay. In any event, explanation was given by Sik Cheung and his sisters, and I find that to be believable. In my judgment, that is in any event immaterial to the adjudication of the major dispute in the present case. What is important is that it was upon his application for grant in 2015 did Sik Cheung and his siblings came to realise that Cheng has already applied for and obtained probate in respect of the 1998 Will earlier in the same year. I have no doubt that Cheng did that behind their back. She must be in denial or disregard of the adverse findings of the court in the 2002 Judgment against her in respect of the 1998 Will. She chose to apply for grant by herself. 38.In her evidence, Cheng claimed ignorance about the adverse findings against her in respect of the making of the 1998 Will in the 2002 Judgment. She even alleged that she came to realise such findings only during cross examination in trial. To effectively suggest that her legal representatives, previous and current, did not explain to her the 2002 Judgment, and that her current legal representatives managed to plead her case in respect of the 1998 Will in the present action without her instruction in this respect, Cheng is utterly unbelievable and her evidence in this respect must be rejected. 39.All matters considered, I have all the reasons, on the basis of the evidence before this court, to come to the same conclusion on the facts in this respect as that of the learned judge in the 2002 Judgment set out above. I find that the 1998 Will came to existence in circumstances where there was actual undue influence exerted by Kam Cheung and Cheng on the Deceased between 1998 and 1999 prior to the making of the will. On that ground, the 1998 Will was liable to be revoked. Circumstances surrounding the making of the 1999 Will 40.Whether or not the 1998 Will is liable to be revoked on the ground of undue influence, it remains the burden of Sik Cheung to formally prove the 1999 Will. As mentioned, it became Cheng’s turn to allege undue influence of Sik Cheung (and his siblings) that tainted the 1999 Will. It becomes her burden to substantiate such allegation. 41.As mentioned, Sik Cheung and his siblings first came to learn from the Deceased in mid-1999 about the matters affecting the latter’s assets that were engineered by Kam Cheung and Cheng. After further discovery, Sik Cheung and his siblings assisted the Deceased in taking steps to salvage the Deceased’s position. 42.Regarding No 238, the Deceased signed a declaration in June 1999 acknowledging the beneficial interest of the three daughters in the property, which was consistent with his declared intention so far. It should be noted that the declaration was expressly worded to “再確認”, or re-confirm, the position. 43.Report had been made to the police regarding No 110. In June 1999, the police took a statement from the Deceased[11]. The statement recorded the Deceased’s complaint to the police that the property was cheated out of him by Kam Cheung and Cheng by the conveyance of the property to Cheng on trust for their three sons. 44.Meanwhile, legal advice was also obtained. According to Sik Cheung, they came to know Mr Kevin Ng (“Ng”) of Kevin Ng & Co through a friend who then worked as a court interpreter (Mr Yeung) in early September 1999. 45.With Ng’s assistance, the Deceased first managed to regain control over HCA 8246/1999 and to bring it to an end by consenting to a declaration by the court in October 1999[12] in favour of his three daughters regarding the beneficial interest in No 238 in line with his consistent intention declared so far. 46.Ng also act for the Deceased in commencing HCA 15909/1999 against Kam Cheung and Cheng to set aside the conveyance of No 110. Kam Cheung and Cheng took the stance of resisting the Deceased’s claim. This must be known to the Deceased then. 47.It was amidst these steps taken by the Deceased in 1999 to target what he considered to have been the misfeasance of Kam Cheung and Cheng that he also caused the 1999 Will to be prepared. According to Sik Cheung, one or two weeks after the Deceased had formed the idea of making a new will, they went to meet Ng. The intention of the Deceased has to be assessed in these circumstances prevailing then. Intention as per the 1999 Will 48.Under the 1999 Will, Sik Cheung is the executor, and there are the following bequests:
49.Consistent with the declared intention of the Deceased, legal title to No 238 will upon his death go to Mei Tai, Kwan Tai and Ping Tai, who have beneficial interest in the property as always acknowledged by him during his lifetime. The bequest of No 110 also reflects what was always the declared intention of the Deceased, but for the 1998 Will. Nos 65 will go to the two sons of Kam Cheung from his first marriage. The precise dispositions aside, the nature of this bequest to provide for the family of Kam Cheung’s first marriage and for landed properties to be inherited by the sons born out of that marriage is consistent with the declared intention of the Deceased so far. The other real property, known to be No 25A, will effectively go to Sik Cheung, and the residuary estate of the Deceased would be distributed amongst Sik Cheung and his siblings. 50.One may say that Sik Cheung stands to benefit from the re-distribution of the estate as compared to before. One may say this is a notable feature of the 1999 Will. Much was indeed said about that at the trial on behalf of Cheng. However, the equally, if not more, notable feature of the 1999 Will is the removal of the family of Kam Cheung and Cheng as beneficiaries. Despite queries raised on Cheng’s behalf at the trial, I do not find any intention of the Deceased to do so to be inherently improbable. On the contrary, I would go so far as finding that any intention of the Deceased to make a fresh will, and to make it his point, to disinherit the family of Kam Cheung and Cheng would only be consistent with the circumstances prevailing at the material time as mentioned above. 51.Regarding how the Deceased came to make the 1999 Will containing these terms, much is said about the evidence of Sik Cheung and his two elder sisters during cross-examination. All evidence considered, including the criticism laid against them in respect of general and specific credibility, I accept that, minor uncertainties aside, they all tried to tell the truth. Importantly, even assuming that it was any of them who brought up the subject of making a new will to the Deceased, which I do not find actually happened, that per se would still have been miles away from the requisite nature of exertion of coercion or undue influence by them on the Deceased that would render the making of the 1999 Will anything short of that of his own free will: see Hall v Hall (1865-69) LR 1 P&D 481; Re Edwards [2007] EWHC 1119; Li Chi Loy (above) at §83. 52.Mr Chan (appearing with Mr Lun) for Cheng cited Re Estate of Yip Keung, HCAP 15/2004 (19 December 2007) in support of his submission that the court should jealously and vigilantly examine the evidence in support of the 1999 Will. In that case, A Cheung J (as he then was) actually found[13] that though the plaintiff was not the one who wrote or prepared the will, he was involved in making the necessary introduction of the draftsman of the will to his father. He was present when the draftsman took instructions from the father. He supplied information to the draftsman for the preparation of the will, and he alone stood to benefit under the will. The will drawn up in such circumstances, the court found, would only excite the suspicion of the court, and hence the need to examine the evidence in support of such a will vigilantly and jealously. Actually, the learned judge in HCA 15909/1999 adopted a similarly vigilant approach towards the evidence in support of the 1998 Will. He found that the 1998 Will was extraordinarily in favour of Kam Cheung and Cheng through their sons, and that it was prepared under their domination and engineering. 53.In the present case, I accept Sik Cheung’s evidence that he took no part in giving instruction to Ng in the preparation and execution of the 1999 Will. Both Sik Cheung, his sisters and Ng confirmed in evidence that the children accompanied the Deceased to Ng’s firm on both occasions, but instruction in respect of the new will was taken by Ng in confidence from the Deceased without the presence of Sik Cheung or his sisters. Nor was any of them present in the room when the 1999 Will was executed before Ng and the other witness. There is no evidential basis for finding that Sik Cheung and his sisters either devised or were consulted by Ng on the terms of the 1999 Will. Whether or not any of them somehow became aware of some of the terms of the will before or after the will was executed points neither here nor there, insofar as whether the Deceased expressed his own free will to Ng at the material time. 54.Ng produced his attendance notes in respect of the meetings with the Deceased on 2 September 1999 and 12 November 1999 respectively. The former was formally disclosed on 21 January 2019, two days prior to the pre-trial review. For that, the plaintiff took out his summons dated 21 January 2019, supported by the affirmation of Ng. The summons was adjourned to be dealt with at the trial, apparently to enable Cheng to file evidence in opposition. No such affirmation in opposition has been filed. 55.The principles regarding late discovery of documents in the case Hong Lok School Limited v Chow Sai Yiu, HCA 17139/1999 & HCA 19001/1999 (7 July 2003) are referred to. The attendance note contained the record of the meeting between the Deceased and Ng. No doubt the note is relevant. With their maker giving evidence at the trial in any event, Cheng would have the opportunity to cross examine him on both sets of notes. No irreparable prejudice would be occasioned to Cheng by the late discovery. No contrary evidence of prejudice was adduced by Cheng. I rule that the note may and should be adduced. 56.In view of the challenge against the authenticity of both sets of attendance notes, which was maintained at the trial, the originals of the two sets of attendance notes were formally produced by Ng in the witness stand[14]. Ng was cross examined specifically on the notes. All evidence considered, I have no doubt about the authenticity of these notes. Nor do I doubt that they contain a fair record of what transpired during those two meetings between Ng and the Deceased. 57.Consistent with his declared view about the dishonesty of Kam Cheung and Cheng towards him by then, the attendance notes recorded the Deceased’s instruction that the family of Kam Cheung and Cheng should inherit no part of his estate. Hence the re-distribution of his estate amongst the other children and the two grandsons from Kam Cheung’s first marriage. That, I find, was what drove the Deceased to decide to make this new will. 58.The evidence of Sik Cheung and his two elder sisters impresses me that the former is not a greedy person. I do not find that Sik Cheung has been motivated by greed in his involvement in this saga between his father and his eldest son. The apparent favouring of Sik Cheung in the re-distribution of the estate under the 1999 Will is also not overwhelming, when considered together with the other bequests. The dominant feature of the 1999 Will, which is consistent with the circumstances surrounding the Deceased then, was to disinherit the family of Kam Cheung and Cheng. The benefit to Sik Cheung from the re-distribution, I find, was consequential and does not excite suspicion in the circumstances. Whether the Deceased had the necessary mental capacity 59.The question then is whether the Deceased in fact had the mental capacity of forming and conveying the testamentary intention mentioned above as well as knew and approved of the terms of the 1999 Will that embodies such intention. The criteria set out in the case of Chiu Man Fu (above) refer. The prudence of Ng in the course of taking instruction from the Deceased and preparing the 1999 Will was questioned in court. 60.First, and legitimately, reference is made to how Ng satisfied himself in fulfilment of his duty as the handling solicitor that the Deceased had the mental capacity of forming and conveying the testamentary intention as well as knowing and approving of the terms of the 1999 Will. 61.During his cross examination, Ng was directed to the so-called “golden rule” in Kenward v Adam (1975) The Times, 29 November 1975. Briefly, in the case of a testator who is of advance age or frail health, the solicitor instructed to prepare his will would be expected to satisfy himself as to the capacity and understanding of the testator on the basis of medical evidence. Ng accepted that he was not aware of such rule at the material time. That said, I do not understand that to be a rule which, if not followed, would lead to the conclusion that the will is invalid. The rationale which counts is that the handling solicitors must form his view on the basis of proper assessment and information, of which medical evidence in respect of the testator’s condition and capacity is normally the most reliable type. 62.As mentioned, Ng was instructed in the latter half of 1999 to advise and act for the Deceased, which eventually brought about the end of HCA 8246/1999, commenced in his name against his daughters, and also brought about the Deceased’s commencement of HCA 15909/1999 against Kam Cheung and Cheng. It was amidst these steps of the Deceased that Ng was also instructed to prepare the new will of the Deceased. Ng confirmed that he managed to obtain instruction from the Deceased in respect of all these matters by then. Further, the terms of the 1999 Will were not complex. Ng explained that the Deceased managed to give him clear instruction as to his intended disinheritance of Kam Cheung and his family as well as his bequests during the 40-minute meeting in September 1999. It was not that Ng had no basis for forming an informed assessment of the capacity of the Deceased to give instruction by then. 63.It is legitimate to note the fact that the Deceased acted by Sik Cheung as his next friend in HCA 15909/1999. However, that had yet to be the state of affairs when the action was commenced in 1999. By mid-2000, the parties in that action had also exchanged witness statements. Then the Deceased had a stroke in August 2000. The issue of the capacity of the Deceased arose. The appointment of next friend to continue that action took place in September 2001. 64.In view of the circumstances surrounding the relevant time and personally known to Ng since he had been acting for the Deceased, I would not find fault on the part of Ng in not seeking medical assessment of the Deceased in September 1999 before satisfying himself that the Deceased was then capable of giving and understanding his own instruction. Whether the psychiatric expert evidence now adduced for the purpose of this trial serves to cast different light on this subject will be discussed below. 65.The query as to the whether the Deceased knew and approved of the terms and effect of the 1999 Will is also raised with reference to what are said to be oddities amongst the terms of the will. The alleged oddities appear in clause 3 of the 1999 Will, which says:
66.The alleged oddities are as follows:
I would also add that the English name of Cheng (which should be Yin Ping instead of Ying Ping) was misspelt. It was also factually incorrect to describe Cheng as the cohabitee of Kam Cheung. 67.In my view, none of the above alleged oddities is significant. 68.First, none of these persons was present or had their identity card details made available for the purpose of preparing the Will. Nor were such information obtainable from the 1997 Will. I would not be surprised that these persons were not consulted for the purpose of making a will which was to disinherit them. As to the description of Cheng, Ng explained that that was the Deceased’s own choice. Importantly, notwithstanding the query about the identity card details and spelling of the names, there is no issue as to identity. 69.Second, the reference to “any other siblings” of Kam Cheung for the purpose of the expressed intention to disinherit was inconsistent with the bequests in favour of precisely the siblings of Kam Cheung under the rest of the 1999 Will. Reference to “any other siblings” of Cheng for this purpose also makes no sense, as the siblings of Cheng or their entitlement to the estate of the Deceased never entered the picture of this family dispute at all whatsoever. Indeed, they are oddities. However, these oddities, in my judgment, do not serve to cast doubt on the capacity of the Deceased in expressing his true intention or understanding the terms in this respect. 70.In this respect, Mr Vaughan submits that when there appears to be inconsistency in the will, the court will construe the will with the endeavor to give effect to the true intention of the testator. It should be the express intention to be ascertained from the entire will. See Mardulyn v Lee Yee Hung [1993] 2 HKLR 267. This must be right. In Tan Cheng Gay & Ors v Tan Choo Suan & Anor (2015) 18 HKCFAR 430, Ribeiro PJ explained that:
71.Clause 3 of the 1999 Will no doubt conveys the express intention of the Deceased to disinherit the family of Kam Cheung and Cheng. The reference at the same time to “any other siblings” of Kam Cheung and Cheng for the same purpose however is so odd and out of place that it could not have been intended. The clause, as it is and as a whole, admits of no other fair construction or understanding that meets common sense either. That said, there is no need in the circumstances of this case to speculate what might have been intended to be put there instead of the reference to “any other siblings” of Kam Cheung and Cheng for the purpose of this clause. Such reference hardly creates ambiguity or doubt in the express intention of the Deceased at all, and must only be ignored in the fair construction of the intention of the Deceased manifested by this clause. The medical expert evidence 72.Now turning to the medical evidence. As mentioned, Ng was questioned on the basis, amongst other things, that no arrangement was made for the medical assessment of the Deceased’s mental condition for the purpose of preparing the 1999 Will in September to November 1999. 73.The children of the Deceased took the Deceased to consult psychiatrist Dr Chan Chung Mau (“Dr Chan”) on 3 and 6 December 1999, which was about 3 weeks after the execution of the 1999 Will. The Deceased suffered a minor stroke (cerebro-vascular accident) in September 2000. After his discharge from the hospital, the children took the Deceased to see Dr Chan again on 22 September 2000. 74.Dr Law Wun Tong (“Dr Law”), psychiatrist, was engaged to see the Deceased only once in April 2001 and for the purpose of assessing his ability to attend court proceedings in HCA 15909/1999. That resulted in the subsequent appointment of Sik Cheung to act as the next friend of the Deceased in 2001 in continuing the proceedings in HCA 15909/1999 as mentioned above. 75.Neither Dr Chan nor Dr Law was specifically engaged, when they respectively saw and examined the Deceased, to assess the Deceased’s testamentary capacity. Obviously they had no further chance of examining the Deceased for such purpose. What Dr Chan was instructed on behalf of Sik Cheung and Dr Law was instructed on behalf of Cheng to provide was their expert opinion on the likely mental and testamentary capacity of the Deceased as of the relevant time, ie when he gave instruction in September 1999 and executed the 1999 Will in November 1999. Dr Chan and Dr Law produced their expert reports dated 9 January 2017 and 17 July 2017 respectively. The two produced their joint report dated 26 August 2017. On 8 January 2018, Dr Law produced his own further report. 76.The Deceased was first brought to consult Dr Chan in December 1999 for reported impaired memory and paranoid ideas. Mental examination then revealed that the Deceased was oriented to time, place and person. He had no abnormal appearance or behaviour. He was fully conscious and aware of the surroundings. His mood was neutral. He remembered correctly his address and the name of his daughter who accompanied him to the clinic. He complained that his eldest son had cheated him and got his three properties (which has been proven in HCA 15909/1999 and in the present case to be fact instead of paranoid ideas). Dr Chan gave his tentative diagnosis that the Deceased suffered from paranoid disorder and suspected early dementia. Drugs were prescribed. The condition of the Deceased was reported to have ups and downs depending on his intake of medicine. After his discharge from the hospital due to his stroke, the Deceased was taken to see Dr Chan in September 2000. Examination then revealed that the Deceased had no abnormal appearance or behaviour. Nor was there abnormality in perception such as delusion or hallucination. He was still orientated to day of week and could give his address correctly. There was no paranoid symptom. 77.Dr Chanset out in his report the questions that need to be asked for assessing the testamentary capacity of a person. He fairly acknowledged that such assessment was not, and could not be, carried out. However, judging from these findings upon actual mental examination that were proximate to the time of the making of the 1999 Will, Dr Chan observed that the Deceased’s cognitive functions were not significantly impaired, and his paranoid symptoms had no relation to his ability to make a will. 78.The only time Dr Law saw the Deceased was in April 2001, which was more than a year after the making of the 1999 Will and the medical examinations of the Deceased by Dr Chan in December 1999. As revealed by the medical records, the condition of the Deceased had deteriorated by then. There was also his stroke in August 2000. When the Deceased was seen by the psychiatrist in the public hospital in October 2000, he was still aware of his lawsuit against Kam Cheung over the conveyance of his property, but he could name only 4 out of his 7 children. His MMSE score was 22/30. When he was seen by Dr Law in April 2001, he still appeared to be aware of the ongoing litigation then, but he was disoriented in time, place and person. His memory and concentration were significantly impaired. His MMSE score had dropped to 15/30. Pursuant to his brief then, Dr Law assessed accordingly and gave his opinion that the Deceased was unable to follow court procedures due to the significant cognitive function impairment then. Dr Law also referred to the records of the subsequent medical examination of the Deceased in July 2001 and April 2006, which revealed further decline in the Deceased’s cognitive function. 79.Dr Law was equally fair in acknowledging the difficulty in giving an opinion on the testamentary capacity of the Deceased at the relevant time, when he did not have the opportunity to administer the capacity-specific assessment. He referred to the information available from (i) the Deceased’s consultation with Dr Chan in December 1999; (ii) the Deceased’s admission to the hospital for stroke in August 2000; and (iii) the Deceased’s consultation of the government psychiatrist in October 2000. With such information, Dr Law inferred that the Deceased suffered from cognitive function impairment as well as some paranoid features around the time when he made the 1999 Will. 80.In their joint report, both experts elaborated what led to their opinion as per their previous reports, while reiterating the significance of the specific questions that need to be asked of a person for the purpose of assessing that person’s testamentary capacity. Both of them did not have the opportunity to do that. 81.After the joint report, Dr Law was instructed on behalf of Cheng to give his further report. What he felt able to add in terms of conclusion was that it cannot be ruled out that the Deceased’s capacity was impaired by his cognitive function impairment and paranoid delusion. 82.The experts gave evidence in court. Reference was made to certain public hospital record, which somehow reported the insidious onset of mental change of the Deceased years prior to 2000. However, Dr Chan did not find inconsistency between the symptoms so recorded and his diagnosis of the condition of the Deceased upon his examination of the Deceased in December 1999. Dr Law fairly acknowledged the possible impact of the stroke in August 2000 on the MMSE score when he was examined in October 2000. He also did not disagree that dementia does not necessarily mean the lack of testamentary capacity. As mentioned, both experts reiterated that assessment of testamentary capacity really requires the administering the relevant questioning of the testator, which they had no chance of doing. In terms of eliciting instruction from the Deceased as to his testamentary intention, Ng was in fact the only one who was ever able to hear the Deceased personally. 83.The circumstances are such that the psychiatric experts simply tried to do their best, when asked upon to give an opinion on the likely testamentary capacity of the Deceased at the time when the 1999 Will was made. In the absence of the capacity-specific assessment, both had to rely on their observation and diagnosis upon their respective examination of the Deceased. In real terms, Dr Chan had the clear advantage in terms of timing and thus relevance and reliability of his examination and diagnosis. Relatively, it becomes less fair to require Dr Law to give his opinion on the basis of his examination of the Deceased more than a year later when the condition of the Deceased had evidently worsened. Dr Law’s reports give such impression of the circumstantial limitation that he was faced with, and the learned doctor’s restraint in expressing his opinion. 84.All evidence and expert opinion considered, I prefer to place due weight on the observations and opinion of Dr Chan in respect of the mental condition and capacity of the Deceased, and thus his testamentary capacity, at the relevant time, namely when the instruction was given and the 1999 Will was executed in September and November 1999 respectively. I am satisfied as a matter of fact that the Deceased possessed such capacity at the time. Res judicata 85.It is contended on behalf of Cheng that Sik Cheung is estopped from pursuing his claim in respect of the 1998 Will because of the principle of res judicata, the res being the issue of the validity of the 1998 Will in HCA 15909/1999. It is argued that Sik Cheung should not be permitted to proceed with such claim when he could have sought determination and relief in respect of the same in HCA 15909/1999. 86.I agree with Mr Vaughan that the argument is misconceived. In HCA 15909/1999, the Deceased claimed to set aside the conveyance of No 110 to Cheng. Whilst the circumstances surrounding the conveyance inevitably overlapped with the making of the 1998 Will, and thus the necessary findings of fact for the purpose of determining that action, there was no issue of any person seeking as an interested party to nullify the 1998 Will. Nor could there be such person, when the Deceased was still alive. Instead of himself seeking to revoke the 1998 Will, which would have made no sense, it would be up to the Deceased to take steps during his lifetime to revoke the 1998 Will. That he did by making the 1999 Will. Conclusion 87.All matters and evidence considered, including those discussed above, I come to the judgment that the Deceased gave instruction as well as knew and approved of the terms of the 1999 Will at the relevant time. By virtue of its clause 1, all previous wills and codicils were revoked and the 1999 Will is the last will of the Deceased. To leave no doubt, I also find that the 1998 Will was vitiated by reason of the undue influence exerted by Kam Cheung and Cheng, and therefore invalid and liable to be revoked. Order and costs 88.In respect of the summons taken out by Sik Cheung in respect of the attendance note of Ng, I grant leave as sought. 89.I make the following orders:
90.Costs should follow the event. Cheng applied for probate, notwithstanding the findings of her undue influence in respect of the 1998 Will against her in the 2002 Judgment. She resisted the claim in the present action to declare the invalidity of that will on the same factual basis, which this court now finds against her. The circumstances cause me to wonder if costs against her on a higher basis is warranted. That said, it remains the burden of Sik Cheung in any event to prove the 1999 Will, which is also his primary case, in this action. At this stage, I am minded to just make a nisi order that Cheng shall pay the costs of Sik Cheung in this action, including any costs reserved, to be taxed, if not agreed. In the absence of application within 14 days to vary, the nisi costs order shall become absolute without further order of the court.
Mr Joseph Vaughan, instructed by S K Lam, Alfred Chan & Co for the Plaintiff Mr Kenneth C L Chan, Mr Edward Lun instructed by Hon & Co for the Defendant [1] Lot No 1263. [2] Lot No 1294. [3] Lot No 1693. [4] Lot No 1657. [5] Solicitors now acting for Sik Cheung in the present action. [6] Mei Tai was not present then. [7] Boris Lui & Co. [8] Tony Kan & Co. [9] Which Cheng claims to be the Deceased’s gift. [10] The latter two’s husbands were also joined as defendants. [11] Apparently it was another relative of the Deceased who accompanied him at the time the statement was taken by the police. [12] Which was re-amended and re-filed in March 2000. [13] At §70 of the judgment. [14] Exhibits P1 and P2 respectively. | ||||||||||||||||
Cases cited in this judgment