Chen Yue Jia James v. Chen Maria

HCA 1284/2013
& HCAP 15/2013
(Consolidated)

[2020] HKCFI 2410

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1284 OF 2013

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 15 OF 2013

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JUDGMENT

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1.This is the consolidated probate action relating to the estate of the late Madam Wong Shou Chen, alias Wong Sau Chun (“Madam Wong”).

2.This action concerns several purported wills of Madam Wong who passed away on 13 May 2013.  The Plaintiff, Mr Chen Yue Jia James (“James”), is the step-grandson of Madam Wong, and the Defendant, Madam Chen Maria also known as Maria Chen Fang and Maria Fang (“Maria”), is the natural or adopted daughter of Madam Wong.

3.James claims to be the sole beneficiary, and in some cases executor as well, of Madam Wong’s estate under 5 English wills purportedly executed by Madam Wong between 1978 and 2004:

(i) the will executed in 1978 (the “1978 Will”);

(ii) the will executed in 1992 (the “1992 Will”);

(iii) the will executed in 1999 (the “1999 Will”);

(iv) the will executed in 2001 (the “2001 Will”); and

(v) the will executed in 2004 (the “2004 Will”).

4.James seeks to propound the Wills on alternative basis in descending order of recency.

5.Maria disputes James’ claims on different grounds:

(i) The 2004, 2001 and 1999 Wills were executed by Madam Wong at a time when she did not have testamentary capacity.

(ii) The 1992 Will was executed without Madam Wong’s knowledge and approval of its contents.  In the alternative, the 1992 Will was executed by Madam Wong under the undue influence of James.

(iii) The 1978 Will had been revoked.

PART 1: BACKGROUND

1.1     The Chen family

6.The wealth of the Chen family traces back to the late Mr Chen Zaomin (“Chen”), who was a successful businessman from Shanghai.  He started his enamel business in Shanghai in or about 1945, and moved his business to Hong Kong in or about 1948.

7.In 1929, Chen’s first wife, Madam Yau Chuen Fung, gave birth to Mr Chen Yet Sen Robert (“Robert”), his only son.

8.Madam Wong was born in Shanghai in 1917.  She came to Hong Kong in 1947 and had been living here ever since.

9.In 1947, Maria was born.  There is an issue as to whether Maria is the natural or adopted daughter of Madam Wong.

10.A few years later, in 1954, Chen and Madam Wong got married.

11.Robert married James’ mother, Madam Daisy Chen Li Jing Daisy (“Daisy”), in Hong Kong in 1959.

12.In 1961, James, Robert’s only son, was born.  James, as Madam Wong’s step-grandson, was not related by blood to Madam Wong.  According to a declaration made by Madam Wong in 1987, she had adopted Robert as her son through Chinese customary practices and her marriage to Chen (the “1987 Robert Adoption Declaration”).

13.In 1964, Robert accompanied his wife Daisy to Hong Kong to give birth to their daughter Madam Margaret Chen also known as Chen Sai Man (“Margaret”), and shortly thereafter returned to Africa.

1.2     1960s-70s

14.Soon after its establishment in Shanghai and Hong Kong, Chen’s business flourished quickly and was expanded firstly to Jakarta, Java, Indonesia, and further to Ghana and Sudan, Africa.  

15.There is an issue as to whether the relationship between Chen and Robert was in good terms in the 1960s.  Robert was put in charge of some of Chen’s businesses in Africa, and his family including James moved to live in Africa in around 1964.

16.In 1971, Maria married her first husband, Dr. Louis Chang (“Louis”).

17.By a written note dated 13 November 1972, Robert acknowledged receipt of US$250,000 from Chen and agreed to never give any comment in Chen’s business again.

18.In 1975, Robert wrote a letter to Madam Wong (the “1975 Letter”), stating that although he was still not trusted by Chen, he promised Madam Wong that he would take care of her and would invite her to live with his family when she grew older.  In the 1975 Letter, Robert said that he had received enough and would not claim any more from Chen’s estate.

19.In 1974, Robert and his family emigrated to the United States.

20.On 13 April 1978, Chen passed away.  In connection with the grant of Chen’s administration of estate, Madam Wong swore twice under oath in an affidavit made by her in 1979 (the “1979 Affidavit”)[1] that Maria was “begotten by [her] on the 28^th day of August 1947, at the time when [she] was cohabiting with [Chen]”.

21.Chen’s estate was divided amongst Robert, Madam Wong and Maria pursuant to a Succession Agreement dated 28 July 1978 (the “Succession Agreement”), under which Madam Wong took 50% of the estate, with the remainder divided between Robert and Maria (each of them was supposed to take 25%).  Eventually, Maria received all the assets in Guam as her supposed 25% entitlement and surrendered all her claims to the African assets in favour of Madam Wong.

22.On 5 September 1978, Madam Wong executed the 1978 Will, which purported to leave all her estate to Robert if he should survive her for one month, otherwise to James.  Mr. Lee Ching Ping (“Lee”), an accountant highly trusted by the Chen family, as well as Mr Robert Wang Wei Han of Messrs Robert WH Wang & Co (“RWC”), were named as executors and trustees of the will.

23.The original of the 1978 Will could no longer be found.  A copy of it shows that it bears the chop “cancelled – 6 October 1992”.

1.3     1980s

24.In 1981, Maria’s husband, Louis, passed away.

25.In August 1986, Maria moved with her children to California in the United States.  Maria claims that her relationship with Madam Wong was close by that time.

26.Sometime in 1987, Madam Wong signed a Deed of Confirmation and Trust in English whereby she declared, inter alia, that all cash assets and investments under her name or through companies in which shares were registered in her name be held by her on trust for the benefit of Robert and his wife Daisy (the “1987 Deed of Confirmation and Trust”).   In such document, Madam Wong also provided the background for the making of the Succession Agreement and confirmed that, apart from the distribution made to Maria under the Succession Agreement, Robert was entitled to the balance of Chen’s estate.

27.The 1987 Deed of Confirmation and Trust, witnessed by Madam Anna Wu (“Anna Wu”), who was a solicitor of RWC subsequently drew up and witnessed the 1992 Will, was undated and unstamped.  Madam Wong also executed the 1987 Robert Adoption Declaration, declaring that Robert was her son through Chinese customary practice and recognition and through her marriage to Chen, and that it was her wish to “formalise” this mother and son relationship through an adoption procedure to confirm her recognition of him as her son.

28.In 1990, James returned to live in Hong Kong.

29.In January 1992, Maria married her existing husband Mr Fang Kwei Son Joseph (“Joseph”).

1.4     Events surrounding the making of the 1992 Will

30.Since 1991, a series of documents came to be executed.

31.On 30 October 1991, Madam Wong signed a declaration purporting to clarify that Maria was not her natural daughter but was adopted by her and her husband into the family, and that she desired Robert to take care of her funeral arrangements (the “1991 Adoption Declaration”).

32.On 20 November 1991, Robert signed a declaration declaring his intention and commitment to make medical arrangements in the best interest of Madam Wong, and confirming that he would take care of her funeral arrangements (the “1991 Commitment Declaration”).

33.The two declarations were prepared by Anna Wu, who asked Lee to confirm the same with Madam Wong.

34.On 2 October 1992, Madam Wong purportedly entered into a sale and purchase agreement with Lasting Fortune Ltd (“Lasting Fortune”), a company incorporated on 23 June 1992 and owned by James and his sister Margaret, to sell Madam Wong’s half share interest in the property at Ground Floor, No 33 La Salle Road, Kowloon (the “La Salle Property”) to Lasting Fortune for HK$4,500,000.  The La Salle Property had been Madam Wong’s residential home since it was purchased in 1963.

35.The transaction was handled by RWC, acting on behalf of the Lasting Fortune, and the same firm prepared and witnessed the 1992 Will four days later.  It is common ground that Madam Wong had not received any of the sale proceeds.

36.Four days later on 6 October 1992, Madam Wong executed and signed: (i) the 1992 Will; (ii) an assignment in respect of the aforesaid sale of the La Salle Property; (iii) a document “stating and clarifying” that it was Chen’s wish that the family fortune be passed onto James (the “1992 Confirmation of Testamentary Intention”); and (iv) a declaration declaring that Maria was her adopted daughter (the “1992 Adoption Declaration”).

37.The 1992 Will was executed in English with an interpretation clause.  In this will, Robert and James were named as executors, and James was named as the beneficiary of Madam Wong’s estate with James’ children, Margaret, Margaret’s children and Robert as descending levels of substitute beneficiaries.

38.Shortly thereafter, Robert signed a declaration dated 19 November 1992 declaring his intention and commitment to make medical arrangements for Madam Wong and take care of her funeral arrangements after her death (the “1992 Commitment Declaration”).

1.5     Events surrounding the making of the 1999 Will

39.In late 1998, Anna Wu was going to retire from private practice. Through the introduction of the Huang brothers, Madam Wong engaged Mr John Ku (“John Ku”) of Messrs John Ho & Tsui (“JHT”) to be her solicitor.  Anna Wu eventually passed the original of the 1992 Will and other related documents to John Ku.

40.In 1999, there were then disputes between the family members about the control and disposal of certain assets of Madam Wong.

41.Madam Wong had a niece, Madam Mary Wong Holaday (“Mary”), who was born in 1951 in Hong Kong.  After her birth, Mary’s family moved to live in the Mainland.  Due to the then financial hardship in the Mainland, Mary’s parents wanted her to come to Hong Kong to have a better life.  To facilitate Mary to come to Hong Kong, Madam Wong adopted Mary as her daughter.  After arriving in Hong Kong, she stayed with Madam Wong who treated her as her own daughter.  Later, Mary received primary and secondary school education in Macau, and after that, Mary went to study in the United States.  She came back to work in Hong Kong for a short while and then returned to the United States for her postgraduate studies.  After finishing her studies, she remained to live there and started a career as a stockbroker.  She married in the United States in 1977 and has 2 children.

42.Madam Wong opened a bank account in Wells Fargo Bank (“Wells Fargo”) in the United States back in about 1981.  Madam Wong also executed a power of attorney (“POA”) in favour of Mary to operate the bank account (the “Wells Fargo Account”).  Madam Wong had paid money into the Wells Fargo Account from time to time.  According to Mary, Madam Wong told her that she could use the money in the account to support her and her children.  Over the years, Mary had not withdrawn any money from the Wells Fargo Account.

43.On 18 March 1999, Maria accompanied Madam Wong to visit the Well Fargo’s office in Hong Kong.  Apparently, Madam Wong executed another POA in favour of Maria to operate the Wells Fargo Account.  Mary was informed by Wells Fargo about the revocation of Mary’s POA, and Mary flew back to Hong Kong to find out what happened.

44.By reason of the dispute relating to the conflicting POAs, Wells Fargo issued interpleader proceedings in the United States in August 2000. After the institution of such proceedings, Madam Wong revoked all the previous POAs and the money in the Wells Fargo Account was transferred to Madam Wong’s own personal account.  That concluded the interpleader proceedings.  I will refer this whole incident as the “Wells Fargo Incident”.

45.In about May 1999, Maria accompanied Madam Wong to go to various banks and it was found out that various sums of money had been transferred to a trust managed by HSBC (the “HSBC Trust”).  James claims that the HSBC Trust was set up pursuant to the instruction of Madam Wong, but Maria alleges that Madam Wong had no recollection about the setting up of the HSBC Trust.

46.Maria arranged a meeting with the trust department of HSBC on 28 May 1999.  Maria requested for a copy of the trust document but her request was denied.

47.Another meeting with HSBC International Trustee Ltd (“HSBC Trustee”) was held on 31 May 1999 (the “2^nd HSBC Trust Meeting”).  Apart from the staff of HSBC Trustee, the meeting was attended by Madam Wong, a lawyer from Hampton, Winter & Glynn (“HWG”) who purportedly to act for Madam Wong, and John Ku.  Upon the advice of HWG, Maria and Joseph did not attend the meeting.  However, they placed an audio recorder in the handbag of Madam Wong.  I have listened to the audio recording of the 2^nd HSBC Trust Meeting (the “Audio Recording”) at the trial.

48.I will refer this as the “HSBC Trust Incident”.

49.In May 1999, Maria found out that over US$5 million had been transferred from Madam Wong’s account at Shanghai Commercial Bank (“SCB”) to her investment account in Smith Barney in New York.  By that time, Mary was working as a stockbroker at Smith Barney.  According to Mary, Madam Wong transferred the money to this account with a view to help her with her new job as a stockbroker in Smith Barney.  By that time, Mary was having a difficult time in the United States due to the mental condition of her husband.  On the other hand, Maria claims that Madam Wong had been manipulated by Mary to make such transfer. I will refer this as the “Smith Barney Incident”.

50.At about the same time, there was also dispute about the fixed deposit of over HK$ 9 million in Madam Wong’s account in Chekiang First Bank (“CKB”).  In June 1999, there was a transfer of US$1,161,711.32 from Madam Wong’s account in CKB to a joint account in the name of Madam Wong and Maria.  James claims that Madam Wong had been manipulated by Maria to make such transfer, whereas Maria alleges that Madam Wong agreed to do so out of her own free will.  I will refer this as the “CKB Incident”.

51.In June 1999, there was also the safe deposit box incident.  It was found that the safe deposit box of Madam Wong at HSBC (the “Safe Deposit Box”) had been emptied.  James’ case is that Maria took the properties inside without Madam Wong’s consent, whereas Maria says that she was moving the properties to another safe deposit box under Madam Wong’s instruction.  A report about the loss of properties in the Safe Deposit Box was made to the police.  I refer this incident as the “Safe Deposit Box Incident”.

52.On 14 July 1999, Madam Wong, then aged 82, executed the 1999 Will, again naming Robert and James as the executors and leaving her entire estate to James with the same substitute beneficiaries as stated in the 1992 Will.  The only difference with the 1992 Will is the change in the name of James, which corresponds to his change of name on 21 August 1995.

53.In September 1999, Maria found out that Madam Wong had moved out of the La Salle Property and stayed at the Metropole Hotel at Waterloo Road. In December 1999, Madam Wong moved to live at a penthouse duplex at the Regalia which was held under the name of Lasting Fortune (the “Regalia”).  Maria complains that the relocation was a manipulation on the part of James for Madam Wong to move out from the property in which Madam Wong had stayed for many years.  On the other hand, James says that the relocation was made at the initiation of Madam Wong herself.  As Maria had been putting pressure on her about the handling of her financial affairs, Madam Wong sought to keep her distance from Maria and so she moved out of the La Salle Property.  James also claims that the living environment at the Regalia was actually better which would be beneficial to the well-being of Madam Wong.  I refer such whole series of events as the “Relocation Incident”.

54.In 1999, Maria took Madam Wong for medical consultations by a number of doctors and psychologist: Dr Peter Wu (“Dr Wu), a neurologist, in March 1999, Dr Huang Chen Ya (“Dr Huang”), a neurologist, in May 1999, and Dr Timothy Law (“Dr Law”), a psychologist, in October 1999.

55.To complete the picture about the disputes relating to the handling of Madam Wong’s finances, John Ku claims that shortly before Madam Wong moved to the United States in 2005, he met Madam Wong in a social gathering, during which Madam Wong told him that she had been coerced by Maria to add the latter’s name as a joint account holder of Madam Wong’s account in Wing Hang Bank.  Again, Maria claims that Madam Wong did so out of her own free will.  I will refer this as the “WHB Incident”.

1.6     The 2001 and 2004 Wills

56.On 14 March 2001, Madam Wong, then aged 84, executed the 2001 Will.  The only difference with the 1999 Will is that Robert was removed as one of the executors, apparently because of the deterioration of his health condition.

57.On 29 November 2003, Robert passed away.

58.On 28 July 2004, Madam Wong, then aged 87, executed the 2004 Will. The only difference with the 2001 Will is that the reference to “Robert” in the substitutive gift clause was replaced with “Chen-Yet-Sen Family Foundation”.

59.In 2004, Maria arranged Madam Wong to attend medical consultations with Dr Chen Char-Nie and Dr Sylvia Chen.

1.7     Madam Wong’s stay in the United States from 2005-2013

60.On 11 May 2005, Maria and Joseph, without giving prior notification to James and other family members and friends, took Madam Wong to San Francisco in the United States.  James claims that Madam Wong had been abducted and the whole arrangement was made secretly.  On the other hand, Maria alleges that Madam Wong left on her own free will.

61.On 22 July 2005, Maria applied to be Madam Wong’s conservator in the United States.  As I understand it, the conservator is like a guardian and financial manager for the protected person in taking care of his or her welfare and financial matters.

62.On 31 August 2005, James retained Madam Debra J Dolch (“Debra Dolch”) as the case manager of Madam Wong. 

63.On 1 September 2005, James petitioned for appointment of temporary conservator for Madam Wong.  On 6 September 2005, the Superior Court of the State of California, County of San Francisco (“the Superior Court”) granted an order in favour of James directing Maria not to remove Madam Wong from jurisdiction.  On 16 September 2005, the order was continued with visitation access given to James and his family members.  After that, there were a few hearings about visitation access.

64.There were then various petitions for different persons to be appointed as the conservator for Madam Wong.  On 1 December 2005, the court decided to appoint Debra Dolch as the temporary conservator.  Debra Dolch’s formal appointment as conservator (the “Conservator”) was made on 12 January 2006.

65.The Conservator took the view that it would be in the best interest of Madam Wong for her to return to Hong Kong, which was opposed by Maria.  On 19 May 2006, the Superior Court made an order for Madam Wong to be returned to Hong Kong (the “Return Order”).

66.On 2 June 2006, Maria filed a motion for the court to reconsider the Return Order which was dismissed by the court on 10 July 2006.  On the same day, Maria lodged an appeal against the Return Order. On 30 November 2007, the Court of Appeal of the State of California dismissed the appeal.

67.On 9 January 2008, Maria filed petition for review with the Superior Court.  On 21 February 2008, Maria filed petition for, inter alia: (i) review of placement; and (ii) an order authorising the Conservator to fix the residence of Madam Wong in San Francisco.  On 6 May 2008, the Superior Court denied Maria’s petition.  On 23 May 2008, Maria filed another motion for the Superior Court to reconsider its order, which was again denied by the court on 25 June 2008.

68.The Relocation Order therefore became final. Unfortunately, it was considered by the Conservator that the then medical condition of Madam Wong was so poor that it was unsuitable for her to travel back to Hong Kong.

69.On 2 September 2010, Maria’s attorney petitioned for an order for the reimbursement of her legal costs for the appointment of conservator for Madam Wong, which was again dismissed by the Superior Court on 3 December 2010.

70.I will refer the whole series of proceedings in the United States as the “US Proceedings”.

71.Madam Wong died in the United States on 13 May 2013.

72.In June 2013, Maria petitioned in California for probate in respect of the estate of Madam Wong which was opposed by James.  The probate proceedings in the United States have been stayed pending the adjudication of his action.

PART 2: EVIDENCE AT THE TRIAL

73.James, Mary, Madam Ma Yuk Ping Phoebe (“Phoebe”), Anna Wu, John Ku, Madam Ho Ying Chu Anita (“Anita Ho”), Madam Tam Sau Lai (“Tam”) and Madam Yeung Pik Yuk (“Yeung”) are the factual witnesses for James’ case.  Maria, Joseph, Maria’s sister-in-law Madam Chan Fang Anson (“Anson”), Maria’s children Ms Chang Elizabeth (“Elizabeth”) and Mr Chang Derrick (“Derrick”), and Madam Wong’s friend Madam Chow Ching Wai (“Chow”) are the factual witnesses for Maria’s case.

74.On the medical expert evidence relating to the testamentary capacity of Madam Wong, Dr Wong Chung Kwong (“Dr Wong”) gives evidence in support of James’ case whilst Maria’s expert is Professor Felice Lieh Mak (“Professor Mak”).  They give their expert opinion on the mental condition of Madam Wong based on the available medical reports on her over a period of time.

2.1     Credibility of James’ evidence

75.James tells the court the background of his family.  So far as he knows, Chen met Madam Wong in Shanghai in about 1936.  In 1946, Chen moved to Hong Kong for better business opportunities and Madam Wong joined him in 1947.  They got married in 1954 after the death of Chen’s first wife.

76.After going to Africa in 1964, James would travel back to Hong Kong with his parents annually or bi-annually to visit Chen and Madam Wong.  In 1971, he went to the United Kingdom for schooling.  When his parents emigrated to the United States in 1974, he joined his parents and studied in the United States.

77.James came back to Hong Kong in 1990.  He then became involved in helping his family to manage their assets.  One of the companies he established is called Legacy Advisors Limited (“Legacy Advisors”), which is a single family office providing exclusive support to his family for asset management.

78.According to James, Madam Wong’s living arrangements had all along been handled by Robert with his help until Robert passed away in 2003.  After that, James was responsible for these matters because he was the eldest surviving male descendent of the family.

79.Madam Wong had a Filipino maid and a chauffeur Mr Fong Yik Nang (“Fong”) who looked after Madam Wong’s daily needs.  Madam Wong also had a good family friend, Madam Poon Wong Yuet Ying (“Poon”), who was her live-in companion.  Madam Wong had a circle of close friends and relatives living in Hong Kong and the Mainland.

80.James would visit her from time to time.

81.According to James, Madam Wong had a healthy lifestyle.  He did not find that she had any mental problem.  Neither was he told about such matter.  She was capable of understanding and overseeing her personal and financial affairs.

82.James claims that the family wealth was built up through the joint effort of both Chen and Robert.

83.Chen died intestate on 13 April 1978.  After that, there was a bitter family dispute between Madam Wong and Maria about the distribution of the family wealth.  Madam Wong eventually decided to settle with Maria which resulted in the making of the Succession Agreement.[2]

84.Madam Wong had all along been assisted by Robert, James and Lee to manage her financial affairs.  Lee used to work for Chen and Robert as the company accountant and so Madam Wong trusted him to manage her finances.  Lee passed away in 2012.

85.After James came back to Hong Kong in 1990, he also helped Madam Wong to manage her financial affairs.  On a quarterly basis, Madam Wong, Robert and Daisy would meet at the office of Legacy Advisors to discuss their financial matters.  At these meetings, each family member would be presented with a report of their financial status and Madam Wong was usually accompanied by Lee in these meetings.  According to James, Madam Wong showed no difficulty in understanding matters relating to her financial affairs and she would also be able to give clear instructions in these meetings.  In this regard, his evidence is collaborated by the evidence of Phoebe.  Madam Wong would also allow James to handle matters such as her bank accounts, payment of credit card bills and other expenses.

86.In 1978, James was studying in the United States and so he was not involved in the preparation of the 1978 Will.  He was unable to locate the 1978 Will.

87.According to James, his family is a traditional Chinese male-dominated family.  It was Chen’s wish to pass the family wealth to the male descendant’s branch of the family.  It was the intention of the Succession Agreement back in 1978 that Maria had already obtained her share in the family wealth and she was not entitled to claim more from the family estate.  All along, Madam Wong was prepared to honour the wish of Chen to pass her share in the family wealth to Robert and James.  In fact, Chen was very fond of James who was his only grandson carrying the family surname, and it was intended that he would be the ultimate beneficiary of the bulk of the family wealth.

88.The 1978 Will was executed about one month after the Succession Agreement.  According to James, the 1978 Will, and indeed all the other Wills, are consistent with such intention of Chen and Madam Wong.

89.After James came back to Hong Kong, he started to take care of the family matters, including looking after the welfare needs of Madam Wong.  As part of the estate planning exercise, Madam Wong executed the 1992 Will.  She also sold her half share interest in the La Salle Property to Lasting Fortune.  The consideration for the sale was $4.5 million but there was no payment of such money by Lasting Fortune.  According to James, Lasting Fortune was set up for the purpose of holding landed properties on behalf of the Chen’s family.  Madam Wong had been living in the La Salle Property from 1963 to 1999.

90.For the sake of clarity, Madam Wong also made clear her testamentary intention in the 1992 Confirmation of Testamentary Intention.

91.James also gives evidence as to how Madam Wong came to execute the 1999, 2001 and 2004 Wills.

92.Though without personal knowledge, it is James’ understanding that Maria was adopted by Madam Wong in Shanghai before she moved to Hong Kong in 1947.  In Robert’s biography published in 2003 or 2004, he described the circumstances of how Maria was adopted by Madam Wong. Furthermore, Madam Wong confirmed that Maria was her adopted daughter in the 1991 and 1992 Adoption Declarations.  Maria emigrated to the United States in 1986 and only returned to Hong Kong occasionally.

93.According to James, Madam Wong had warned him “to be careful of Maria”.  Madam Wong told him that “he was not her match”. Despite that Maria was a calculated person, Madam Wong tolerated her.  Madam Wong was a gracious lady.  She would try to avoid confrontations between family members.  She treasured harmony within the family and did not like the family to “lose face” in front of others.

94.On the other hand, Maria is an aggressive and calculated person who was keen to get a share of the family wealth.  In 1978, she fought with Madam Wong over the control of Chen’s estate after his death. Eventually, the parties settled the dispute which resulted in the execution of the Succession Agreement.  As Maria had already obtained her share of the family wealth, Madam Wong executed the 1987 Deed of Confirmation and Trust, confirming that all her assets were held by her on trust for Robert and Daisy.

95.Ever since the dispute in 1978, Madam Wong and Maria were not in good terms.  After the death of Louis in 1981, Maria begged for forgiveness from Madam Wong and they started to talk again.

96.James then tells the court his understanding of the various incidents, including the Safe Deposit Box Incident, the HSBC Trust Incident, the Wells Fargo Incident, the CKB Incident, the Smith Barney Incident and the WHB Incident.  According to James, Maria had been exerting great pressure on Madam Wong to allow her to handle Madam Wong’s financial matters, and she had been trying to cause Madam Wong to transfer her assets to some bank accounts and safe deposit box to which she had control.

97.He also tells the court his side of the events about the Relocation Incident. It was Madam Wong’s own wish to move to the Metropole Hotel to get away from Maria’s increasing pressure and manipulation.   Madam Wong actually enjoyed her stay in the Metropole Hotel as she had a close relationship with the staff and was well taken care of there.  However, Robert and James took the view that Madam Wong could not stay at a hotel forever.  In fact, the Regalia was bought specifically for Madam Wong to live in, as the general living environment there was much better than that of the La Salle Property.  Though the Regalia was a duplex, Madam Wong was staying on the lower floor without the need of using the staircase.  The decoration in the Regalia was done by professional designer catering for the specific needs of Madam Wong.

98.James remarried in 1999.  There is an issue as to why Madam Wong did not attend his wedding ceremony in Sydney.  James says that Madam Wong did not want to take long-haul flight and so he respected her wish.  Madam Wong attended the wedding banquet held in Hong Kong in the same year.  She also attended the birthday party of James’ son in 2000.  James also explains why Madam Wong did not attend Robert’s funeral in Shanghai in 2003.

99.James also tells the court how Madam Wong was abducted to the United States and how Maria had tried all desperate efforts in the US Proceedings to prevent Madam Wong from coming back to Hong Kong.  As a result, Madam Wong had to die in a place which was alien to her.

100.Having carefully considered his evidence, I find James to be a credible witness.  He is a mild and soft-spoken person.  He is a simple man who lacks the sophistication or ability to manipulate others.  He is not an aggressive or dominating person.

101.In fact, Madam Wong had already expressed her view, both in the 1978 Will and the 1987 Deed of Confirmation and Trust, that the male branch of the family would inherit her estate even before James came back to Hong Kong.  There is no evidence that James could have influenced Madam Wong’s decisions in the 1970s and 1980s.

102.To me, James is a simple person who just wanted to help Madam Wong to manage her finances after he came back to Hong Kong.  By that time, he should have known about the intention of Madam Wong in leaving her estate for the benefit of the male branch of the family, i.e. Robert’s branch, and hence he assisted Madam Wong to make various arrangements for estate planning purposes.

103.Though James was the main beneficiary, he respected Madam Wong’s wishes as to how to deal with her assets.  By 1999 the latest, James should have known that Madam Wong had transferred substantial sums of money to the bank or investment accounts to which Mary could have access.  Yet he had not interfered or questioned such conducts of the Madam Wong.  This is very much in contrast with the aggressive response of Maria when she learnt about the transfers.  In my judgment, James is the kind of person who would have respected the wishes of Madam Wong, in particular her decisions in the management of her own financial affairs.

104.That was also the attitude of Robert.  As James only came back to Hong Kong in 1990, Robert should have been by then in a more dominant position to express his view about the distribution of family wealth, and yet Robert did not seem to be concerned when Madam Wong executed the 1992 Will passing her entire estate to James, leaving him as a remote substitute beneficiary.  The evidence also shows that Robert was contributing much of his assets for charitable purposes.

105.According to James, Madam Wong had told him to watch out for Maria as she was a sophisticated person and he was of no match for her.  Having considered the evidence in this case, I can understand why Madam Wong said so.

106.Mr Wong, SC, counsel for Maria, attacks James as an evasive witness, as he always gives the answers of “I cannot comment on that” when he is confronted with some difficult questions.  I do not accept such criticism.  During cross-examination, James has been asked about various matters which he may not have any personal knowledge, such as the intentions of Madam Wong at various times.  Neither should he be able to explain all the conducts of Madam Wong over the years.  Further, he is only the step-grandson of Madam Wong and he only came back to Hong Kong in 1990.  Without knowing all the things happening in the family, he may have been more cautious in answering the questions.  The fact that he is careful in answering the questions does not mean that he is evasive.

107.There is also an issue as to whether Margaret was holding her shares in Lasting Fortune on trust for James.  James seems to give the answer that Margaret did have interest in Lasting Fortune whilst Phoebe suggests that Margaret was holding such interest on trust for James.

108.In my judgment, this “inconsistency” would not undermine the credibility of James’ evidence.  The distribution of family wealth between James and Margaret is very much a matter between themselves. There is no evidence that Margaret has any grievances over such matter.  Though Margaret is a female family member, there is no question that she comes from the male branch of the family, i.e. Robert’s branch as opposed to Maria’s branch.   I am therefore not surprised that Margaret might have some interest in Lasting Fortune.  In any event, the evidence suggests that it was James and not Margaret who was managing the family wealth, and so the exact arrangement between them relating to their interests in Lasting Fortune should not be a matter of concern in this case.

109.There is also some suggestion that James had been trying to manipulate Madam Wong in transferring her half share interest in the La Salle Property to Lasting Fortune which was controlled by him.  Mr Wong submits that the circumstances of the sale are suspicious and James reveals at the trial for the first time that the sale was in substance a gift.

110.As I see it, it is quite clear that the “sale” of the La Salle Property was made for estate planning purpose at a time when estate duty might be levied.  As the 1978 and 1992 Wills were made in favour of the male branch of the family, there was nothing unusual about such kind of arrangement with a view to avoid paying estate duty.  In this regard, gift and estate planning were the same thing.  James has also made it clear in his evidence that Lasting Fortune was established for the purpose of holding the landed properties of the Chen’s family.

111.Indeed, the allegation that the sale was not part of an ongoing estate planning exercise but some sort of scheme to deprive Madam Wong of her properties and living (without she knowing and consenting to it) is defeated squarely by the fact that Madam Wong continued to live in the La Salle Property after the transfer until 1999, and that Robert and James continued to take good care of Madam Wong with provision of credit cards and centralized and organized payment of expenses of Madam Wong, provision of full time carers, service of Lee and Fong, and bought the Regalia for her to live in.  From all the evidence, the sale of La Salle Property was part of an on-going estate planning and living planning exercise for Madam Wong which must have been made with her knowledge and consent.

112.For the above reasons, I accept James’ evidence as the truth.

2.2     Credibility of Mary’s evidence

113.I have already given the personal background of Mary in the earlier part of this Judgment and I do not want to repeat the same here.[3]

114.Mary gives similar evidence on the character of Madam Wong.  Though Madam Wong was not her mother by blood, she had a close relationship with Madam Wong as the latter treated her as her daughter and played an important role in her life from childhood.  Though Mary stayed in the United States most of time, they would see each other from time to time.  They communicated in their native dialect which is Shanghainese.

115.According to her communication with Madam Wong, she knew that Madam Wong had been well taken care of by Robert and James.  On the other hand, Madam Wong told her that Maria had always given her hard times. She was particularly furious when Maria fought with her about the distribution of the family wealth after the death of Chen.  Madam Wong told her that Maria had got more than her fair share from the Chen’s family.  After Louis passed away in 1981, they began talking again.

116.According to Mary, Maria had been treating her badly ever since childhood.  Maria has a “possessiveness, materialism and a dominating personality”.  Maria always bullied her when was young.  Because her childhood with Maria was so miserable, she wanted to get away from the family as soon as possible.  Madam Wong knew about the character of Maria and her mistreatment of Mary.  Madam Wong also told Mary that Maria was a greedy person who cared very much for money.

117.In 1999, Madam Wong told Mary that Maria had been putting pressure on her about her financial matters, and Maria’s bulling behaviour also caused Madam Wong to move away from the La Salle Property. According to Mary, Madam Wong was a “soft-hearted” person, and Maria took advantage of Madam Wong’s “kind nature”.

118.Mary also gives her account about the Wells Fargo Incident and the Smith Barney Incident.

119.Mary was surprised that Madam Wong flew to the United States in 2005.  According to her understanding, Madam Wong would not have left all her friends and family in Hong Kong and stayed in a place alien to her.  She tried to visit Madam Wong in the United States, but there were a lot of interferences by Maria.  Unlike her well condition in Hong Kong, she was surprised that Madam Wong’s condition was so poor when she saw Madam Wong during these visits.

120.I find Mary to be an impressive witness.  She is a straightforward person who is not afraid of speaking her mind.  She gives the court a detailed account of her miserable life after she came to Hong Kong.  She gives direct evidence without hiding her hatred against Maria.  Due to perhaps “sibling rivalry”, Maria had kept on telling Mary that she did not belong to the family.  By reason of Maria’s bullying behaviour, Mary just wanted to leave the family as soon as possible.  She eventually decided to study aboard.

121.Her childhood also makes Mary an independent person, both emotionally and financially.  The evidence shows that, except for her early years, Mary had not relied very much on the financial support of the Chen’s family throughout the years.  Mary even tried to finance her studies in the United States herself.  Madam Wong had transferred money to the Wells Fargo Account to which Mary could have access, but there is no evidence that Mary had used any money in such account over the years.  She had difficult times in the United States after her husband had some health issues, and Madam Wong just wanted to give her some money so that she could use it in case of needs.  Yet the evidence shows that Mary was not keen in using such money, otherwise there would not have been so much money in the Wells Fargo Account when Wells Fargo took out the interpleader proceedings.  Furthermore, the court documents show that it was Maria who was keen in getting the money in the Wells Fargo Account[4], rather Mary just left the matter to be decided by Madam Wong and she would be happy to comply with whatever intention of Madam Wong regarding the disposal of her money[5].  This was Mary’s response despite the promise given by Madam Wong to her that the money was for her own use.

122.I do not find that Mary had manipulated Madam Wong in making various payments to her, otherwise Mary could have used the money in the Wells Fargo Account, or she could have asked Madam Wong to transfer money to her own personal account rather than to the bank and investment accounts in the name of Madam Wong which was the case here. Obviously, it was because of her affection with Mary, whom Madam Wong had all along treated as her daughter, that Madam Wong wanted to help Mary both in terms of finances and her new job at Smith Barney as a stockbroker.

123.Mary’s evidence also helps to explain some of Madam Wong’s behaviour.  According to Mary, Madam Wong was a loving, gracious and soft and kind hearted person.  Further, being a wealthy conservative woman, Madam Wong was very concerned about the “face” of her family, and she did not want outsiders to know about any disputes within the family.  She also tried to avoid confrontations if possible.  Despite the pressure given by Maria about the handling of her financial affairs, Madam Wong did not cut off her contact with Maria, and she still tried very hard to maintain a harmonious relationship within the family.

124.Mr Wong asks me to approach Mary’s evidence with caution, in particular she had a deep sense of hatred against Mary.  Further, the evidence shows that Mary had been writing 3 affectionate letters to Maria between 1970 and 1972[6], and so their relationship could not have been not bad as described by Mary.  He also attacks Mary of using a Cantonese expression about something that should have been expressed by Madam Wong in Shanghainese.

125.In my judgment, these are only desperate attempts to discredit her evidence.  Mary’s frankness of her miserable childhood and her hatred against Maria only reinforces that she is a straightforward person with nothing to hide.  Living in a traditional Chinese family as some kind of adopted daughter, she had learnt to be nice to other “family member” even if she might not have liked that person.   Her explanation about the letters is genuine and convincing.  As Mary and Madam Wong both knew Shanghainese and Cantonese (though the spoken Cantonese of Madam Wong might not be that good), nothing can be made out against Mary for referring to certain expressions in some of the conversations which took place years ago.

126.Since Mary was an independent person who had not relied on the finances of the Chen’s family to support herself even in crisis, I find that Mary had a genuine relationship with Madam Wong.  Madam Wong was at ease in speaking her mind to Mary.  Madam Wong should have known about the undercurrents within the family and the characters of the different “children”, and so I accept what she told Mary are the truth.

127.Finally, there is no evidence to suggest that Mary will benefit financially from the outcome of the present proceedings.  She gets nothing from any of the Wills, and she has nothing to gain by testifying on behalf of James.  As I see it, the only reason why she agreed to testify is that she wants to tell the court the truth for the sake of her “mother”, who is obviously very special to her.  I accept her evidence as the truth without any reservation.

2.3     Credibility of the evidence of Phoebe

128.I also accept Phoebe to be a credible witness.

129.Phoebe has been working as an accountant in Legacy Advisors since 1996, assisting James to manage the wealth of the Chen’s family.

130.Phoebe had been involved in taking care of the financial matters of Madam Wong for some time.  In the quarterly meetings, she had considerable opportunities of meeting Madam Wong to discuss her financial matters.  She addressed Madam Wong as “Por Por”(婆婆), and they communicated in Cantonese.

131.Phoebe gives evidence on the following matters: the character of Madam Wong, her main carers, her general health condition and her relationship with Maria.  Phoebe also testifies on her understandings of the various incidents in 1999.  She has read the transcript of the 2^nd HSBC Trust Meeting and gives her comment on the “unusual” behaviour of Madam Wong at that meeting.

132.She witnessed the execution of the 2004 Will in the office of Legacy Advisors.

133.Phoebe’s evidence carries considerable weight in determining whether Madam Wong was suffering from any sickness impairing her ability to make decisions regarding her own financial matters.  Madam Wong usually attended the quarterly meetings with Lee who was a person she trusted. Phoebe would explain the financial positions to Madam Wong who would then give instructions to her regarding the handling of her finances, mostly through James or Lee.  Before Madam Wong left for the United States in 2005, she was mentally and physically healthy for her advanced age.  She also met Madam Wong on other social or family functions.

134.Mr Wong suggests that Phoebe’s evidence is of limited assistance as: (i) she only handled one bank account of Madam Wong at Citibank which was used for paying Madam Wong’s regular expenses; (ii) she knew about the HSBC Trust only because she handled the filing of the documents; (iii) she had little opportunity to meaningfully interact with Madam Wong on a one-to-one basis; and (iv) she knew nothing about Maria except through the grapevines.

135.I disagree.  Phoebe was present in the quarterly meetings with Madam Wong on a regular basis in the period from 1996 to 2005.  Serious matters concerning Madam Wong’s finances were discussed in these meetings.  Phoebe, being only a staff without any financial interest in the wealth of the Chen’s family, would have been in a good position to observe the health and mental conditions of Madam Wong over a considerable period of time.  Further, she also met Madam Wong on other social occasions.  Her evidence is therefore most relevant.

136.Phoebe is giving direct answers to all the questions put to her in a clear and clam manner.  Although she is working for James, I do not find her to be the kind of the person who would fabricate evidence to advance the interest of her employer.  She has no direct interest in the outcome of the proceedings, and I accept her evidence as the truth.

137.There is also no hint of exaggeration in her evidence about her knowledge of the HSBC Trust and Maria.  However, as her knowledge on these matters is limited or learnt through others, I will attach little weight on her evidence on these matters.  Further, since she has not listened to the Audio Recording of the 2^nd HSBC Trust Meeting, I will not give any weight to Phoebe’s comment about the behaviour of Madam Wong in that meeting.

2.4     Credibility of the evidence of Anna Wu, John Ku, Anita Ho, Tam and Yeung

138.Anna Wu, John Ku, Anita Ho, Tam and Yeung were the solicitors and staffs of the solicitors’ firms attesting the Wills and various other documents executed by Madam Wong throughout the years.  They give coherent and logical testimony on the instructions coming from Madam Wong, the drafting and explanations to Madam Wong of the respective Wills and the proper procedures of the execution thereof.  It is simply incredible to suggest that all the independent solicitors and the staffs of the solicitors’ firms involved in the preparation and execution of the 5 Wills spreading over 26 years from 1978 to 2004 are not giving credible evidence to the court.

139.Mr Wong has focused the attack on the credibility of the evidence of Anna Wu and John Ku.

140.Anna Wu had been the solicitor of Madam Wong from about 1978 to 1999. She attested the execution of the 1978 Will, though she was not involved in the preparation of such will.  She was involved in the taking of instructions and preparation of: (i) the 1987 Deed of Confirmation and Trust; (ii) the 1991 Adoption Declaration; (iii) the 1991 Commitment Declaration; (iii) the 1992 Will; (iv) the 1992 Confirmation of Testamentary Intention; and (v) the 1992 Adoption Declaration.  She was not present at the execution of the 1992 documents.  Her colleague Anita Ho was responsible for the proper execution of these documents.

141.Throughout the years, she communicated with Madam Wong in Cantonese, a dialect which Madam Wong was able to understand and speak.  However, since it was not her native dialect, Anna Wu would speak slowly and use simple sentences to ensure that Madam Wong understood.  Madam Wong was usually accompanied by Robert and Lee in her meetings with Madam Wong.  Throughout the years, she did not find that there was any problem with Madam Wong’s physical and mental capabilities.

142.Anna Wu had followed her professional practices regarding the preparation and execution of legal documents, and there is no reason for her to believe that she had deviated from these professional practices for the preparation and execution of the relevant documents in the present case.

143.Anna Wu came to know James in the period from 1987 to 1992.  She had not worked for James professionally.

144.Anna Wu was a professional solicitor and her testimony is impeccable.  Being a person who has an impressive record in public service, I do not think that she would have exaggerated or fabricated her evidence with a view to advance the interest of a party who is strictly not her former client.  She may have her reputation to protect, but I do not accept that she would fabricate evidence just for such purpose.

145.As Anna Wu had served as a solicitor for Madam Wong for a considerable period of time, she had numerous opportunities of meeting and communicating with Madam Wong.  Being an experienced solicitor, it would be hard to imagine that she would not have been able to detect anything which might suggest that Madam Wong did not understand what she was going.

146.There is no hint of exaggeration in Anna Wu’s evidence.  In her testimony, she frankly admits that she cannot recall the details of all the circumstances under which the declarations and wills came to be prepared given the long lapse of time.  However, she is able to refresh her memory from the documents themselves.  In the witness box, she may be able to provide some more particulars upon cross-examination, but there is no basis for the court to say that she simply “reconstructs” the relevant events based on documents.  After all, Madam Wong had been her client for a long period of time.  Though she may not be able to recall every details of events which happened many years ago, her evidence is more than sufficient for the court to reach the conclusions that: (i) Madam Wong gave true instructions to her for the preparation of the relevant wills and documents; (ii) Madam Wong understood the contents of the relevant documents she was executing; and (iii) the documents reflect the true intentions of Madam Wong for the execution of these documents.

147.There is an issue as to whether Anna Wu was personally involved in providing estate planning services to Madam Wong, in particular the arrangement for the sale of the La Salle Property to Lasting Fortune as part of the estate planning exercise.  Anna Wu replies in the negative whereas James seems to suggest that Anna Wu was involved in providing such services.

148.In my judgment, such apparent inconsistency would not undermine the credibility of the evidence of either of them.  One has to bear in mind that Anna Wu had all along been dealing with Madam Wong, Robert and Lee at the material time.  James only came into the picture much later and so there might well be misunderstanding about the scope of the estate planning exercise and the roles played by different persons in such exercise.

149.There are also some suggestions in the evidence of Anita Ho and John Ku that Anna Wu was somewhat involved in the setting up of the HSBC Trust and the sale of the La Salle Property.  Mr Wong submits that Anna Wu had deliberately concealed her involvement in these matters.  I reject such serious allegation, and I find that such “inconsistencies” can only be caused by the genuine mistakes and misunderstandings on the part of these witnesses.  It is clear that whether Anna Wu was involved in these other arrangements is not a material issue in this case.  There is simply no point for Anna Wu to have concealed her involvement in these matters. After all, Anna Wu has only been asked to focus on matters relating to the preparation and execution of the wills and the related documents, and so it is not surprising that Anna Wu or the other witnesses may have made a mistake about such details.

150.Anna Wu has also been asked as to why some of the documents were created in 1987, 1991 and 1992, and why she says at the trial for the first time that there was in fact a “progression” and “particular sequence” behind the documents she was asked to prepare.  As Anna Wu agrees that she has little recollection of the matters that happened many years, Mr Wong submits that Anna Wu must have exaggerated James’ case as being able to supply such “new” information.

151.I disagree.  Though Anna Wu may not be able to recall the details of every single incident, she should be able to tell the court the general purposes of these documents.  After all, she was heavily involved in the preparation and execution of these documents.  Further, Anna Wu does not volunteer the “new” information at the trial.  It is only upon strenuous cross-examination that she provides further particulars according to her best recollection.

152.In the latter part of this Judgment, I will elaborate further on the point as to why I conclude that the whole series of documents reflect the consistent intention of Madam Wong throughout the years and why Anna Wu prepared and Madam Wong executed the 1992 Will despite the making of the 1987 Deed of Confirmation and Trust.

153.For these reasons, I have no hesitation in accepting that the evidence given by Anna Wu is both credible and reliable.

154.John Wu took over as the solicitor for Madam Wong after Anna Wu retired from her private practice in 1999.  John Wu also speaks Shanghainese dialect and so he was able to communicate with Madam Wong in her native dialect.

155.John Ku tells the court as to how he was introduced to Madam Wong.  During the interactions between them from 1999 to 2005, John Ku did not find any reason for him to doubt the mental capacity of Madam Wong. She understood the matters handled by John Ku on her behalf, and she was fully capable of managing her affairs independently.

156.John Wu testifies as to how he obtained instructions for the preparation of the 1999, 2001 and 2004 Wills, how these Wills were executed, and the measures taken by him to ensure that Madam Wong understood the contents of the said Wills before execution.  The 1999 and 2001 Wills were executed in John Ku’s office, whereas the 2004 Will was executed in James’ office.

157.John Ku also tells the court his involvement in the various incidents in 1999, including the HSBC Trust Incident, the Safe Deposit Box Incident, the CKB Incident, the Wells Fargo Incident and the WHB Incident.  On these occasions, Madam Wong told him that it was Maria who tried to interfere with the management of her own financial matters and properties.  John Ku also disbelieves that Madam Wong would have left Hong Kong for the United States out of her own free will.

158.John Wu has been subject to long and strenuous cross-examination at the trial, and yet his evidence has remained unshaken.

159.Mr Wong submits that John Ku is argumentative and evasive.  I do not agree with such observation.  Being his client for a long time and that both Madam Wong and John Ku are Shanghainese, it is clear to me that John Ku is keen to protect the interest of her former client.  At least to him, Madam Wong had expressed her views clearly in the 1999, 2001 and 2004 Wills.  As a responsible solicitor, he only tries to protect the true testamentary intentions of Madam Wong.

160.He also became involved in a number of incidents in which there were disputes relating to the handling of assets and properties of Madam Wong.  There is no evidence that Robert or James was much involved in these disputes.  As John Ku believed that Madam Wong was able to exercise her independent judgments in handling her financial matters, John Ku was keen to protect the interest of Madam Wong in these disputes.

161.There is some confusion as to whether James was present in the room in which the 2004 Will was executed.  However, given the lapse of time, I do not find that such confusion in the evidence would undermine the overall credibility of John Ku’s evidence.

162.One legitimate criticism that can be made against John Ku as a witness is that he did not follow the “golden rule” in the execution of the 1999, 2001, 2004 Wills.  This was certainly unwise, in particular in view of the various incidents which occurred in 1999.  John Ku’s explanation is that he had not heard about the “golden rule” at the material times.  Throughout his professional career, he had not applied such rule in the execution of the wills of his other clients.

163.I will elaborate on this issue further in the latter part of this Judgment on the testamentary capacity of Madam Wong in the execution of the 1999, 2001 and 2004 Wills.  At this stage, it suffices for me to say that such non-compliance should not undermine the credibility of John Ku as a factual witness.  To me, John Ku is the type of “old-fashioned lawyer” who has not kept himself updated with the latest developments in the law, and yet I have no reservation in accepting his factual evidence as the truth.

164.Anita Ho is the solicitor attesting the execution of the 1992 Will.  The 1992 Confirmation of Testamentary Intention, the 1992 Declaration of Adoption and the agreement and assignment for the sale of the La Salle Property were also executed by Madam Wong in her presence.  Though with the lapse of time, there is no reason for me to doubt the credibility and reliability of Anita Ho’s evidence.  I also accept her evidence that she had explained the contents of the 1992 Will to Madam Wong in Cantonese (with some Putonghua) and she was satisfied that Madam Wong understood the contents of the 1992 Will.

165.Yeung and Tam, both staffs of JHT, witnessed the execution of the 1999 and 2001 Wills respectively.  Though with the lapse of time, I do not any reason to doubt the credibility and reliability of their evidence.

2.5     Credibility of the evidence of Maria

166.I then turn to the witnesses in support of Maria’s case.  Obviously, Maria herself is the main witness.

167.Maria gives her side of the story about the family history.  According to her, Robert and Chen had not been in good terms starting from 1960s and there were constant quarrels between the two.  On the other hand, Chen had a good relationship with Louis and her family.

168.Maria denies that she was the one who created the trouble after the death of Chen, and in fact her relationship with Madam Wong was even closer after Chen’s death.  On the other hand, the relationship between Robert’s family and Madam Wong was not close.  Madam Wong did not attend James’ wedding in Sydney in 1999 and Robert’s funeral in Shanghai in 2003.  Maria also produces quite a number of photographs showing that Madam Wong attended various functions and went for overseas trips and cruises with Maria.

169.Madam Wong told Maria that she was her natural daughter.

170.According to Maria, Madam Wong started to develop paranoia behavior sometime in June 1997 and became increasingly forgetful.  She also gives an account of the deterioration of Madam Wong’s mental condition ever since.

171.Maria provides the court with her account about the various incidents which occurred in 1999.  According to Maria, it was Madam Wong who had instructed solicitors from HWG to represent her in the HSBC Trust Incident.

172.Maria claims that Madam Wong left Hong Kong for San Francisco out of her own free will.  It was only because of her then poor condition that Maria opposed Madam Wong for flying back to Hong Kong.

173.According to Maria, given their close relationship, it was impossible that Madam Wong made no provision for her and her family in the Wills.

174.Having carefully considered Maria’s evidence and observed her in the witness box, I find her to be a calculated person.  I also accept the observation of Mr McCoy, SC[7], counsel for James, that Maria “is totally dominating, does not listen to others but only says whatever she wants, argumentative, went so far as to refuse to answer some questions put to her and furthermore, in the face of clear evidence that she consistently exerted her control over Madam Wong’s finance and person [Maria] still insisted that she only loved Madam Wong and simply wanted to ‘protect her’”.  I do not find her to be an honest or truthful witness.

175.The evidence of the present case shows that Maria is an aggressive and money-oriented person. This can be shown by the attitude of Maria back in 1978 about the distribution of Chen’s estate.  Whatever was the immediate background leading to execution of the Succession Agreement shortly after the death of Chen on 13 April 1978, whether there was a threatened contest by Maria for Letters of Administration or not, it is a logical inference that unless there was some sort of argument raised by Maria, there was no need for Madam Wong, as a “parent” and the surviving spouse of Chen, to require the execution of the Succession Agreement in such formal manner.  Had the relationship been so harmonious as portrayed by Maria, there would have been a straightforward application of the Letters of Administration to Madam Wong and all businesses would have been continued without a need to “divide” all the assets of the family between Maria on the one hand and Madam Wong and Robert on the other.

176.The terms of the Succession Agreement also show that the settlement agreement was made after serious negotiation between the parties.  There is reason for the court to believe that it was Maria who caused the family to “divide” the assets.

177.Further, Maria’s evidence about Madam Wong’s good relationship with her and bad relationship with Robert does not sit well with the contents of the 1978 Will which was executed by Madam Wong shortly after the Succession Agreement.  Though the validity of the 1978 Will is not a central issue in this case, such will certainly reflects the intention of Madam Wong by that time. After the Succession Agreement, Madam Wong intended to leave all her estate to Robert with James as the substitute beneficiary.  This could not have been the case if their relationship was poor by that time.  Further, such testamentary arrangement contradicts Maria’s belief that Madam Wong could not have ignored Maria in her will.  I will elaborate this point further in the latter part of this Judgment.

178.From at least 1999, Maria started to put her eyes on the assets of Madam Wong and interfere with the management of her finances.  She went wild after learning about the HSBC Trust in 1999 and began a series of acts to probe into the trust and assets of Madam Wong.  Maria chose to engage lawyers whom Madam Wong did not even know to pursue the discovery of the details of the trust, when Madam Wong had been engaging John Ku as her lawyer since early 1999.  In particular, John Ku speaks Shanghainese and the evidence shows that Madam Wong felt at ease speaking to him.  Joseph and Maria even planted a recording device in Madam Wong’s handbag to try to discover every private and privileged conversations between John Ku and the staff of the HSBC Trustee.  Maria even suggests that Madam Wong had knowledge of the secret recording and everything that was planned, which must be far more complicated than making the Wills.  In my judgment, this must be something made up by Maria herself.

179.Maria went so far as to litigate against Madam Wong in the interpleader proceedings commenced by Wells Fargo when Madam Wong clearly wanted to protect her own money and revoke the POA given to Maria.  Maria in the course went so far as to apply for a temporary restraint order.  Despite that, Maria in her testimony still insists that she had not been litigating against Madam Wong, but she had, as Maria was claiming the beneficial interest in the funds.  This is very much in contrast with the attitude of Mary who, despite the earlier promise given by Madam Wong, just respected her wish in the disposal of her assets.

180.One of important considerations undermining the credibility of Maria’s evidence is that she always tailors her evidence to suit her own needs.  On the one hand, she insists that Madam Wong’s mental condition was so poor and she had been manipulated by Robert, James and even Mary in setting up the HSBC Trust or executing the various POAs.  On the other hand, she maintains that, for the transactions in her favour, Madam Wong’s mental condition was perfectly fine and she knew what she was doing.  Maria refused to return Madam Wong’s properties and valuables in the Safe Deposit Box notwithstanding her repeated demands made via John Ku on 17, 26 and 29 June 1999 respectively, and chose to query John Ku’s authority to act for Madam Wong.  Even after months, she made Madam Wong to sign on paper stating that she did not wish to pursue the matter.  In light of John Ku’s evidence and that Madam Wong went so far as to report the matter to the police, clearly Maria persuaded Madam Wong to change her mind and sought to “protect” her again.

181.Maria is also less than honest when she gives evidence about Madam Wong’s jewelry in the Safe Deposit Box.  At one stage, Maria claims that the properties in the Safe Deposit Box included “some older jewelry … … that had very little value and immense sentimental value”.  However, it is revealed at the trial that the properties inside the Safe Deposit Box included very valuable jewelry such as diamond rings and jade bracelets. These items can hardly be described as something that had very little value.  As I see it, Maria is only trying to conceal the fact that she had taken some valuable jewelry from the possession of Madam Wong.

182.Another glaring example about “selective mental condition” relates to Maria’s evidence about the mental condition of Madam Wong when she flew to the United States in 2005.  It has all along been Maria’s evidence that Madam Wong’s mental condition was so poor at least from 1999 that she did not know what she had done in respect of certain banking transactions.  She claims that Madam Wong had been manipulated by persons such as James and Mary.  However, Maria’s evidence changes when it came to the circumstances under which Madam Wong agreed to fly to the United States.  Maria and Joseph maintain that it was Madam Wong’s true wish that she wanted to leave all her family and friends in Hong Kong and flew to the United States to join Maria.  Whilst complaining that James and Mary had been manipulating Madam Wong, Maria denies her own manipulation.  In my judgment, it was a classic example that Maria had been trying to dominate over Madam Wong and exert pressure on Madam Wong to accept what she “believed” to be in the best interest of Madam Wong.

183.In fact, Maria must have been scheming the “abduction” of Madam Wong for some time during which she applied for a BNO passport and the United States visa on Madam Wong’s behalf surreptitiously, since the usual HKSAR and Mauritius passports of Madam Wong were kept at James’ office.  Maria admits applying for a BNO passport in her mother’s name.  The whole circumstances of Madam Wong suddenly agreeing to go to San Francisco with Madam Wong during lunch and then packed simple belongings in a trash bag and flew that very day without informing anybody in her Hong Kong family are simply incredible, especially in light of Maria’s own case that Madam Wong did not have mental capacity to understand even the simplest matters, for example as to where she was at the moment, in 2004 and 2005.

184.When she is asked as to why Madam Wong had to fly so suddenly without informing James, her long-term friends, her live-in companion Poon and the driver Fong, Maria is simply evasive and cannot provide a satisfactory answer. In my judgment, the secret and sudden steps taken by Maria to remove Madam Wong away from Hong Kong to where Maria lived must have been against Madam Wong’s true wish.

185.Maria initially denies she deliberately chose the weekly holiday of Poon to take Madam Wong away to the United States.  However, from further cross-examination, Maria can clearly remember that Poon had already taken leave for 2 days prior to their departure.  It is therefore highly unlikely and unreasonable that she is unable to recall which day Poon was on leave.  To the contrary, all the evidence suggests that Maria deliberately planned 11 May 2005 to be the day she secretly took Madam Wong away without alerting anybody in Hong Kong, so as to avoid the risk that Poon and the other caregivers might “sabotage” her plan.  That is also why Maria did not use the driver and car of Madam Wong to go to the airport.

186.I also do not accept Maria’s evidence that she had placed a note to the caregivers of Madam Wong informing the leaving and address in the United States.  It is not disputed that James spent a few months with the assistance of private investigator to locate the whereabouts of Madam Wong and began his long litigation against Maria in the US Proceedings.

187.By reason of the scheme of events and the conduct of Maria since 1999, I accept the submission of Mr McCoy that it must have been Maria’s last attempt to try to exert control over the person and finance of Madam Wong after years of failure of her various attempts to take money from Madam Wong.

188.The above is corroborated by Maria’s application for conservatorship of Madam Wong in July 2005, i.e. two months after Madam Wong arrived at San Francisco in May 2005.  To assert that all the acts were done in Madam Wong’s best interest including the repeated refusal, appeals and applications to stop Madam Wong to return to Hong Kong, which had been ruled by the American courts to be in Madam Wong’s best interest, is simply absurd and against common sense.  Maria took out 19 different failed applications under the umbrella of the US Proceedings all with the sole aim of preventing Madam Wong from returning to Hong Kong and keeping Madam Wong within her close distance and control.  Madam Wong at the age of 88 (in 2005) could not possibly have wished to live in an English speaking unfamiliar place in the United States away from her residence at the Regalia, her familiar family and caregivers and friends in Hong Kong.  The end result is that Madam Wong was too frail to go after the prolonged legal proceedings and she eventually died in a foreign country without her usual companions, relatives and friends. Maria’s said conduct is nothing but pure cruelty on Madam Wong for her own selfish agenda and purposes.

189.Maria seeks to justify the “abduction” by saying that Madam Wong was not well taken care of in Hong Kong as she was diagnosed as suffering from subdural haematoma shortly arriving in San Francisco.  However, the evidence shows that Madam Wong was enjoying her life in Hong Kong.  In 2004, she still attended various social functions, meeting John Ku in one of them.  Given her wealth and the numbers of caregivers and friends in Hong Kong, it was only a lame excuse on the part of Maria in portraying a miserable life for Madam Wong in Hong Kong.  Further, there was no difficulty for Maria to bring Madam Wong to attend medical consultations in Hong Kong.  Given her resources, it is difficult to understand why Madam Wong could only receive good medical care in the United States.

190.Mr Wong submits that there was no benefit for Maria to have “abducted” Madam Wong to the United States.  Further, Maria had not asked Madam Wong to execute any will in her favour whilst Madam Wong stayed in the United States, and so the relocation of Madam Wong must have been well-intentioned and motivated by her love and care for Madam Wong.   However, by removing Madam Wong from the care of James and her usual caregivers, Madam Wong was prevented to do anything to manage her finances.  By that time, Maria did not know the existence of the 5 Wills, and so probably in her eyes, the then abduction might just prevent Madam Wong to make any will unless under her supervision. Further, Maria did manage to cause Madam Wong to transfer some of her assets to her.  She also tried very hard to get a further share of the family fortune by desperately trying to ascertain the terms of the HSBC Trust.  In fact, the absence of any will in Maria’s favour may just mean that Madam Wong still retained the ability to resist Maria’s attempt to get any more share of the family fortune from her. 

191.It is simple common sense that relocation to another country for an old aged lady is not a small matter.  The same should only be done after careful consideration and planning, which there was none in the present case.  No matter how Maria says she loved and cared for Madam Wong as daughter to mother, the abduction of Madam Wong and her behaviour in the US Proceedings prove to be contrary.  Given Maria’s character and her ‘perseverance’ in trying to control Madam Wong, it is only natural for her to refuse to acknowledge and accept Madam Wong’s decision to leave all her estates to the male line of descendants of the Chen’s family and keep up her fight against James for Madam Wong’s estate in both Hong Kong and the United States.

192.Maria has shown the court a lot of photographs with a view to show that her relationship with Madam Wong was close.  However, one must not forget that Madam Wong was a gracious and conservative lady.  There is no serious dispute that she paid attention to her appearances in front of others, in particular she had a circle of well-to-do friends.  She also treasured harmony within the family and tried to avoid confrontations if possible.  Even if she might have a particular view about a certain matter or person, she might not have voiced out her opinion to avoid confrontations.  She cared for the “face” of the family.  Given her character and family background, it is not surprisingly that she did not say “no” to Maria for her invitation to attend various social functions or go for different overseas trips.  Even if Maria was aggressive probing into her financial affairs, Madam Wong tolerated her as she was a soft and kind hearted person.  However, there came a time when Madam Wong was so fed up with the pressure when she moved out of the La Salle Property in order to have some peace.  She also shared her frustration with Mary who was a person she trusted.

193.I also find that Maria is evasive when she is asked about her role in the medical consultations with Dr Peter Wu on 19 March 1999, Dr Huang Chen Ya on 25 May 1999 and Dr Chen Char Nie on 24 September 2004.  Certain information was supplied by Maria to the doctors during these consultations.  During cross-examination, James’ counsel suggests to her that she has exaggerated the medical condition of Madam Wong.  Instead of directly answering the question, Maria is evasive about the role she played in the interview sessions and tries to downplay the influence she exerted on the medical specialists by saying that she was only answering the doctor’s questions when she was asked to reply.  It was Madam Wong who gave “active” feedbacks to the doctors.  This cannot be true given that Maria alleges Madam Wong had had poor memory at the time of medical consultations, and so it remains doubtful how Madam Wong would have been able to give the medical specialists a detailed history of her supposedly “deteriorated mental capacity”.  This also undermines the reliability of the findings made by these doctors.

194.Further, there is no evidence that Madam Wong had attended further consultations by Dr Wu or Dr Huang after 1999.  If Madam Wong’s condition was so poor as alleged by Maria, I doubt why Maria, if she did care for the welfare of Madam Wong, had not arranged further consultations by these two specialists.

195.Maria is also evasive and cannot provide a satisfactory explanation as to why, having learnt about the possible proceedings under the Mental Health Ordinance (Cap 136) in about 1999 and 2000, she had not made any such application before the Hong Kong court or the Guardianship Board.  The evidence shows that Maria had no difficulty in arranging Madam Wong to attend medical consultations, and so obtaining the necessary medical reports should not have been a problem.  That was the case even if, according to Maria, Madam Wong disliked to see the doctors or be labelled as someone suffering from “dementia”.  If she genuinely cared for the welfare of Madam Wong, this is what I would expect her to have done years ago, unless she knew that she probably would not be appointed as Madam Wong’s guardian and she could not obtain any advantage by reason of such proceedings in Hong Kong.  The situation became different after the abduction and she immediately commenced conservatorship proceedings after Madam Wong arrived in the United States.

196.For the above reasons, I have to come to the conclusion that Maria is a selfish, aggressive, possessive, dominating, manipulative, self-centred and money-oriented person.  I fully realise that these are harsh criticisms, but the evidence of this case leaves me with little choice.  I do not accept her to be a truthful or reliable witness and I reject her evidence as the truth.

2.6     Credibility of the evidence of Joseph, Anson, Elizabeth, Derrick and Chow

197.Joseph, Anson, Elizabeth, Derrick and Chow are Maria’s husband, sister-in-law, daughter and son and Madam Wong’s friend respectively.

198.According to Joseph, Madam Wong had a close relationship with Maria’s family.  He tells the court the social functions and overseas trips attended by Madam Wong and Maria’s family.  Madam Wong’s mental condition started to deteriorate in late 1990s and she needed assistance to take care of her daily needs.  Madam Wong started to have poor memory and get annoyed easily.  He then tells the court how Madam Wong became confused about various matters relating to the handling of her finances in 1999.  He says that “someone was taking advantage of her feeble mental condition to gain control of her assets”.  He gives his account as to how he and Maria brought Madam Wong to the United States in 2005.

199.Due to his relationship with Maria, I do not think that Joseph’s testimony can add any more weight to the evidence of his wife.  His description of Maria’s relationship with Madam Wong may be tainted with the subjective observations made by his wife who is obviously a dominating person.  Furthermore, for the same reasons given above[8], I do not accept Joseph’s evidence that Madam Wong had given express permission for them to plant the audio recording device in Madam Wong’s handbag during the 2^nd HSBC Trust Meeting.  In the disguise of protecting Madam Wong herself, Joseph was only assisting Maria to find out the details of the HSBC Trust and Madam Wong’s assets to advance Maria’s personal interest.  I also reject Joseph’s evidence that Madam Wong’s trip to the United States in 2005 was not a pre-mediated one and Madam Wong left Hong Kong out of her own free will.

200.Anson’s evidence is of limited assistance.  She just tells the court her impression of Madam Wong as a polite and pleasant lady.  She met her on some social occasions.  It appears to her that Madam Wong’s relationship with Maria was close.  However, I doubt very much whether Anson, which cannot be described as close to Madam Wong or Maria, can provide reliable evidence on these matters.  I attach no weight to Anson’s evidence.

201.Elizabeth has obtained a university degree in Medicine.  She gives the court an account about the relationship of Madam Wong with her family and the overseas trips they had made together.  According to Elizabeth, it was Maria who took care of the medical needs of Madam Wong.  She went to study in the United Kingdom in late 1980s and returned to Hong Kong in late 1990s to study medicine.  After coming back to Hong Kong, she found that the mental condition of Madam Wong started to deteriorate, displaying symptoms such as poor memory, not well-oriented as to time and place and more reliance on others to carry out some everyday tasks.  She also seems to suggest that her visits to Madam Wong had been restricted by the caregivers employed by Robert or James, in particular Poon, and they were not treating Madam Wong well. Elizabeth suggests that Madam Wong’s caregivers had tried to alienate Madam Wong from her family.  She also gives her account about the Relocation Incident.

202.Derrick gives similar evidence.  According to him, Madam Wong was very conscientious about her physical appearance and neatness.  He came back to Hong Kong in 1997 after his study in the United States.  He spent 6 months living with Madam Wong in the La Salle Property, during which Madam Wong expressed her lack of trust of the people around her.  Madam Wong also mentioned to her that the “company” had limited her cash money for spending.  After the Relocation Incident, Madam Wong did not look heathy and her physical appearance was also poor.  Both Elizabeth and Derrick seem to suggest that Madam Wong had not been well taken of when she stayed in the Regalia.

203.Mr McCoy only put one question to Elizabeth and Derrick, i.e. they have exaggerated their evidence in their testimony, to which they both deny.  According to Mr Wong, as there is no or no meaningful basis to challenge the veracity of these witnesses, the court should accept their evidence in full.

204.I can make a few observations about their evidence.  First, both Elizabeth and Derrick came back in the late 1990s after their studies aboard.  Before that, their recollections are from their childhood memories.  Second, both of them suggest that Madam Wong’s condition started to deteriorate in around 1999.  Derrick says that Madam Wong was getting paranoid and she expressed dissatisfaction against Poon.  All these happened in 1999 when Maria started to probe into the financial affairs of Madam Wong.  Apparently, Madam Wong had no such problem before 1999.

205.Both Elizabeth and Derrick had no difficulty in seeing Madam Wong.  They suggest that Poon had been trying to restrict their visitations.  However, the fact that Derrick was able to spend 6 months with Madam Wong in the La Salle Property speaks for itself.  Even if Poon were to restrict their visitations, the timing coincides with the attempts made by Maria to probe into the finances of Madam Wong in that year.  There is no indication that Robert or James had made any attempt to limit their visitations.

206.On the whole, I do not find that the evidence of Elizabeth or Derrick can take Maria’s case any further.  Apart from the said observations, I have to approach their evidence with caution as they are closely related to Maria who, as mentioned above, is a dominating and manipulative person.

207.Again, Chow’s evidence is of limited assistance.  According to Chow, she had been a friend of Madam Wong and Maria for 20 years.  She gives her account about the relationship between Madam Wong and Maria.  She also claims that she had to obtain permission from Poon before she was able to visit Madam Wong.  Without supplying the court with further details to back up her general allegations, I would only attach little weight to her evidence.

208.In conclusion, the evidence of Joseph, Anson, Elizabeth, Derrick and Chow does not add much weight to the already discredited evidence of Maria.  Further, they do not know anything about the Wills and the background and the circumstances of their making and the in-depth relationships amongst members of the Chen’s family.  They do not know about: (i) the 1978 Succession Agreement and its background; (ii) any of the making of the documents in 1987, 1991 and 1992 and the HSBC Trust; or (iii) any of the incidents relating to the banks and the Wells Fargo Incident and the related interpleader proceedings.  Finally, they do not provide the court with any background or details about the US Proceedings.

209.Further, they were not in constant contact with Madam Wong or her Hong Kong family.  They only provide the court with snapshots of isolated incidents which are of little value to the determination of the main issues relating to the making of the 5 Wills and the undercurrents of the relationships within the Chen’s family.

210.Having made these findings about the credibility of the evidence of the various witnesses, I then proceed to address the question about the testamentary intention of Madam Wong as expressed in the Wills.

PART 3: MADAM WONG’S INTENTION IN LEAVING HER ENTIRE ESTATE TO JAMES  

211.In my judgment, the background history of the Chen’s family can easily explain why Madam Wong sought to leave her share of the family wealth to James.

212.There is no serious dispute that the wealth of the Chen’s family was mainly accumulated through the lifelong efforts of Chen, followed by those of Robert and James after Chen’s death.  Madam Wong had at all material times, other than selling tofu at the very early days in the Mainland, been a housewife and did not work.  She is known to everyone to be a traditional Shanghainese dignified, graceful and calm lady.  On the other hand, Chen was the head and sole business operator of the family business.  Being the head of a traditional Shanghainese family, his words should have carried considerable weight in the family.  With such background, it is only natural and logical that Madam Wong would have honoured the wishes of Chen and let the male line of descendants to inherit the family wealth.

213.There is also no serious dispute that Chen was fond of James. Being the only male grandson from the male branch of the family, this was quite normal for a traditional and conservative family like the Chen’s family.  By reason of such affection, I have reason to believe that James was intended to be the ultimate beneficiary of at least a substantial part of the family wealth.

214.Under the 1978 Will, the beneficiary was Robert with James as the substitute beneficiary, excluding Maria, Mary and Margaret. By that time, James was only about 17 years old.  Later under the 1992 Will, James was named as the sole beneficiary with other substitute beneficiaries.  Pausing here, I can make two observations.  First, this supports that James was intended to be the ultimate beneficiary of Madam Wong’s estate, the wealth of which originated from Chen’s business.  James might be too young when the 1978 Will was executed.  He was a mature adult in 1992 and so the testamentary arrangement was changed in 1992.  Second, Robert was not a money-oriented person.  When the 1992 Will was executed, James only came back to Hong Kong for a short while.  Robert had all along been taking care of Madam Wong and should have known about the 1992 Will, and yet he was not concerned that Madam Wong removed him as a beneficiary of her estate, though he remained as a substitute beneficiary who was lowest in rank.

215.Mr Wong submits that the circumstances as to why Madam Wong executed the various documents in 1987, 1991 and 1992 were dubious. It was strange that Madam Wong executed the 1987 Deed of Confirmation and Trust, the 1991 and 1992 Adoption Declarations.  It was also odd that Robert executed various documents affirming that he would take care of the funeral arrangements of Madam Wong.  However, if Robert had been planning all these for his private gain, it does not sit well with the fact that James became the sole beneficiary under the 1992 Will.  Though Robert was the substitute beneficiary who was lowest in rank, the chance of him in getting any share of Madam Wong’s estate was practicably none.

216.As mentioned above, Maria was keen to a get a distribution of estate of Chen after his death, and as a result Madam Wong and Maria had to formalise the wealth distribution arrangement in the Succession Agreement.  After the Succession Agreement, there was a clear separation of the family: Robert continued to operate the African business while Maria took over the Guam business.  Madam Wong and Robert continued to live in Hong Kong while Maria and her family moved to the United States in 1986 and came back to Hong Kong only occasionally.  In practical terms, there was a clear division of both physical presence and family assets left by Chen.

217.Under such circumstances, it is only fair to say that after the Succession Agreement, Maria had already got a fair share of the Chen’s family assets.  This was the case irrespective of whether Maria was the natural or adopted daughter of Madam Wong.  It also explains why, shortly after the Succession Agreement, Madam Wong executed the 1978 Will which basically bequeathed her whole estate to the male descendant branch of the Chen’s family excluding Maria, which made perfect sense especially considering that the family business in Africa was to be taken care of and operated by Robert.  There was absolutely no reason for Madam Wong to give her share in the fruits of the African business operated and developed by Robert to Maria.

218.Madam Wong also confirmed such intention in the 1987 Deed of Confirmation and Trust.  In such document, Madam Wong expressly stated that:

(i)     the proceeds and assets of Chen entrusted to Madam Wong and held under her custody had not been distributed by her to Robert;

(ii)    Robert had spent considerable time in Africa developing the family business and had not drawn his share of the profits from the business;

(iii)   Robert objected to the investment in Guam which was initiated by Maria; and

(iv)   after Chen’s death, Madam Wong distributed part of Chen’s estate to Maria, and the reminder of the estate should belong to Robert.

219.Maria is trying desperately to show that Robert was a non-filial son.  It is true that there was disagreement between Chen and Robert regarding the management of the family business, and their relationship was quite tense in the 1960s and early 1970s.  However, there is no indication that their relationship was poor starting from late 1970s.  There was no disagreement or fight between Madam Wong and Robert about the distribution of the family wealth.  In fact, Madam Wong was the main beneficiary of the African business and Robert had been taking care of such business ever since the death of Chen. Robert had also been looking after the daily needs of Madam Wong.  All these do not sit well with the allegation that Robert was a non-filial son.

220.In 1975, Robert wrote the 1975 Letter to Madam Wong stating that, inter alia, although he was still not trusted by Chen, he promised Madam Wong that he would take care of her and would invite her to live with his family when she grew older.  Maria says that Robert was only interested in the distribution of the family wealth and that was why he put his self-proclaimed filial piety on record.  I do not see it that way.  From the tone of the letter, Robert only wanted to show his love for Madam Wong despite his tense relationship with Chen.  Chen and not Madam Wong was the one in control of the family wealth by that time, and so the writing of the 1975 Letter should not have been a calculated move on the part of Robert to achieve any financial gain.  Indeed, one would not expect that such letter would be scrutinized by the court many years later.

221.Maria tries to make it an issue that Madam Wong’s name was missing in the gravestone of Chen.  In this regard, James is only right in saying that he knows very little about this matter as he was not in Hong Kong by that time and such matter would be something beyond his control.  However, the absence of Madam Wong’s name is neither here or there.  It only shows that the Chen’s family is a male-dominated family, and perhaps Madam Wong was the second wife of the family and Chen and Madam Wong only got married after the death of Chen’s first wife.  The most important thing is that Madam Wong was quite contended for Robert to take care of her financial interest in the African business by that time.  This could not have been the case if their relationship was poor by that time.

222.More importantly, there is nothing in the evidence to show that the tense relationship between Chen and Robert, if any, had undermined Chen’s affection for James who was his eldest and only grandson from the male branch of the family.  As mentioned above, it seemed that the whole arrangement was for James to inherit the bulk of the family wealth.  The fact that Robert was side-lined in the 1992 Will speaks for itself.

223.It is not disputed that Madam Wong had never disclosed to Maria anything about the Wills, the corroborative 1987, 1991 and 1992 documents, the establishment of the HSBC Trust in 1999, during her whole life time.  In particular, there is no suggestion that Madam Wong had suffered from any mental impairment prior to about 1999.  It can only mean that, in relation to such most important financial and assets related decisions, Madam Wong did not want Maria to know.  The logical reason is that Madam Wong did not want Maria to interfere with her decisions relating to her finances and assets.

224.This is corroborated by the evidence that Maria took Madam Wong to various banks in 1999, made her signed documents making Maria joint signatories of the Safe Deposit Box and bank accounts, engaging lawyers for Madam Wong who did not even know those lawyers and planting a recorder in Madam Wong’s handbag to try to dig into the terms of the HSBC Trust at the 2^nd HSBC Trust Meeting.

225.Madam Wong’s intention to leave only the male branch of the family to inherit her estate had been consistent throughout the years.  There is no serious challenge to the mental condition of Madam Wong prior to about 1999.  Before that, Madam Wong had expressed her intention clearly in the 1978 and 1992 Wills, the 1987 Deed of Confirmation and Trust and the other corroborative documents.  Her intention had remained unchanged after 1999.  As to whether Madam Wong understood the contents of these documents before execution, I will address such issue further in the latter part of this Judgment.[9]

226.As the Chen’s family is a male-dominated family and Maria is not blood-related to Chen, whether Maria is the natural or adopted daughter should not be an important factor affecting Madam Wong’s wish as to whom to succeed her estate.

227.In any event, Maria agrees that she cannot know if she was adopted or not.  After the death of Chen, Madam Wong was the only one who knew the truth, and yet she made “conflicting” declarations as to whether Maria was her natural or adopted daughter.

228.In the 1979 Affidavit, Madam Wong described Maria as the “lawful legitimated daughter” of Chen.  She stated that Maria was “begotten” by her at the time when she was cohabiting with Chen.  On the other hand, Madam Wong made clear and express confirmations in the 1991 and 1992 Adoption Declarations that Maria was her adopted daughter. The latter version is corroborated by the autobiography of Robert, in which he described Maria as the adopted daughter of Madam Wong.  Given his position in the family, Robert’s words should carry some weight in determining this particular issue.

229.Mr Wong submits that the evidence relating to the circumstances under which the 1991 and 1992 Adoption Declarations came to be prepared and signed is unsatisfactory.  I do not agree.  Though Anna Wu and Anita Ho may not be able to remember all the minute details, there is no reason for me to doubt the professionalism of these two experienced solicitors and that these two declarations were properly executed by Madam Wong with her clear understanding of the contents therein.  I will deal with such issue further in the latter part of this Judgment.[10]

230.On the contrary, the 1979 Affidavit was made by Madam Wong as the Administratrix for the purpose of applying the Letters of Administration in respect of Chen’s estate.  As it was agreed by the relevant parties that Maria would obtain a share of Chen’s estate under the Succession Agreement, I have reason to believe that Madam Wong described Maria as Chen’s “lawful legitimated daughter” in the 1979 Affidavit so as to justify or explain the distribution of part of Chen’s estate to her.   She was not particularly concerned about the accuracy of the description by that time.

231.Maria would have one chance to discover the truth of their relationship when the court in the United States advised Maria and Madam Wong to do a DNA test in the US Proceedings, but Maria refused.  Maria explains that, due to the sensitive and emotional damages that might be caused by the result of the test, she did not want to undergo such exercise.  Based on my findings on the credibility of Maria’s evidence and her character, I have grave reservation about the genuineness of such explanation.

232.For the above reasons, I find on the balance of probabilities that the contents in the 1991 and 1992 Adoption Declarations are true and Maria is only the adopted daughter of Madam Wong.  However, I must emphasis that the result of the case would be the same even if I am wrong on such issue.  As mentioned above, whether Maria is the natural or adopted daughter of Madam Wong, it was still Madam Wong’s intention in leaving her entire estate to the male branch of the family.

233.Further, there is hint in Mary’s evidence that, whether Maria is the natural daughter or not, it was not intended that Maria would benefit from the wealth of the Chen’s family.  During cross-examination, Mary testifies that Madam Wong had repeatedly told her that the “moneys”, meaning the family wealth, belonged to the Chen’s family (“陳家嘅錢係陳家嘅”).  Mary further says that if Chen had left a will before his demise, he would have given everything to James as he was his beloved natural grandson.  It is not surprising for Chen, being traditional Shanghainese elder, to have wished to leave all the fruits of his life to the male line of the descendants and excluding Maria from inheritance, in particular Maria was not blood-related to him.  It is also natural that, Madam Wong, having obeyed Chen all her life, would have honoured Chen’s wish and continued to leave her entire estate to the male descendant’s branch of the Chen’s family.  The arrangement even makes more sense if Maria is just the adopted daughter of Madam Wong.

234.Given such family background, one can easily explain why Madam Wong was so unhappy when Maria sought to fight for a distribution of the family wealth after the death of Chen in 1978, and why she took the view that, by getting 25% of the shares of Chen’s estate under the Succession Agreement, Maria had already obtained her due share of the family wealth, in particular she was not blood-related to Chen himself.

235.Mr Wong seeks to argue that Madam Wong could not have left out the female members in the family for inheritance purposes.  In the 1987 Deed of Confirmation and Trust, Daisy was named together with Robert as the beneficiaries of the trust covering Madam Wong’s cash, assets and investments under her name or through companies in which shares were registered in her name.  If only the male descendants were to benefit from the family wealth, there is no reason to have included Daisy as a beneficiary under the trust arrangement.

236.I disagree.  First, it is unclear about the true effect of the 1987 Deed of Confirmation and Trust.  The evidence suggests that no one had acted pursuant to or intended to give any legal effect to such document, and hence I have reason to believe that this document is no more than a confirmation by Madam Wong that she intended the male branch of the family to inherit her wealth which originated from the family business of her husband.  Second, Madam Wong could have included Daisy as a beneficiary as she came from the male branch of the family.  Third, Madam Wong could have trusted that Daisy would take care of the interest of her husband and son, and so leaving her as a beneficiary is also consistent with Madam Wong’s intention that the male branch of the family was to benefit from her estate.

237.One must also not forget that Margaret and Mary are also the other female family members being excluded from the distribution of the family wealth.  Though Margaret and her children were stated in the 1992, 1999, 2001, 2004 Wills as the substitute beneficiaries, the chance of them in getting anything from Madam Wong’s estate was quite remote.  It was not a case that Margaret would get a smaller share and James a bigger share of the family wealth, but James was the only beneficiary getting the entire estate.  For Margaret, she comes from the male branch of the family and yet she gets nothing from the estate.  For Mary, though she may not be the natural daughter of Madam Wong, there is no serious dispute that Madam Wong had all along treated her as her daughter. Yet no provision was made for her in any of the Wills.  Having considered these factors, there is nothing odd or irrational that no provision was made for Maria and her family in any of the Wills.

238.Further, whether Maria is Madam Wong’s natural or adopted daughter, one would expect that Madam Wong would have known her family well, in particular the characters of her “children”.  She must have known the undercurrents between Maria and Mary since childhood, and the personalities of the different family members.  On the one hand, as corroborated by the making of the Succession Agreement, she must have known that Maria is a money-oriented person.  On the other hand, Mary, though not blood-related to the Chen’ family, had not sought financial assistance from the Chen’s family throughout the years.  Despite having emigrated to the United States, she came back to visit Madam Wong on a regular basis and maintained a close relationship between them.  Affection and not money is the only reason to explain Mary’s behavior.

239.The Wells Fargo Account was opened back in 1981 with the POA given in favour of Mary, and yet Mary made no attempt to use the money in such account for her benefit.  In the eyes of Madam Wong, Mary was a person she could trust.  Though Mary could never get a share of the family wealth under the testamentary arrangement, Madam Wong wanted to help her by giving her some money to use in case of needs.  It also explains why Madam Wong had sought the assistance of Mary in the handling some of the banking matters in 1999.  If Mary was eyeing the assets of Madam Wong, she could have withdrawn money in Madam Wong’s accounts in the United States, to which she had access, long time ago.  This was not the case here.

240.On the other hand, Madam Wong must have known Maria well.  In her mind, Maria had already obtained her share of the family fortune under the Succession Agreement, and hence no further provision should be made for Maria under the testamentary arrangement.

241.These are my findings about the relationships within the family and Madam Wong’s testamentary intentions.  I also accept that the contents of the Wills are rational in light of these findings.

PART 4: FINDINGS ON THE VALIDITY OF THE WILLS

242.As mentioned above, I accept Anna Wu, John Ku, Anita Ho, Yeung and Tam to be truthful and reliable witnesses.  So far as the factual circumstances surrounding the preparation and execution of each of the Wills, I accept their evidence as the truth.

243.It is trite that a person who propounds a will has the legal and persuasive burden of satisfying the court, on the balance of probabilities, that it is the will of the deceased.  This requires proof of three matters: (i) due execution; (ii) testamentary capacity; and (iii) knowledge and approval.[11]

244.A person propounding a will must show that the testator knew and approved of its contents, establishing that the testator knew: (a) what was in the will when he signed it; and (b) what its effect would be. Where the will was prepared by a solicitor, was properly read to or read by the testator before signing, and duly executed, there is a strong though not conclusive presumption that the testator had knowledge and approval of the contents of such will.[12]

4.1     The 1978 Will

245.The contents of the 1978 Will speak for themselves as to the formality, proper execution and attestation of the 1978 Will.  Further, the proper execution of such will is supported by the unchallenged evidence of Anna Wu who attested the 1978 Will as a witness.  According to her:

(i)     she was not the one who prepared the 1978 Will;

(ii)    she was the one who interpreted the 1978 Will and explained the nature and contents of such will to Madam Wong in Cantonese;

(iii)   Madam Wong was able to understand her explanation and had acknowledged her full understanding and approval, and there were no circumstances that might reasonably cause her to have any suspicion as to Madam Wong’s testamentary capacity;

(iv)   Madam Wong executed the 1978 Will in her presence; and

(v)    the 1992 Will superseded and revoked the 1978 Will, and the “cancelled” stamp and the date stamp were applied onto the copy of the 1978 Will solely for the purpose of record keeping.

246.However, the original of the 1978 Will cannot now be located.

247.Maria does not challenge that the 1978 Will reflected the true intention of Madam Wong.  That means, with the evidence of Anna Wu, Madam Wong knew and approved such will.  It follows that Madam Wong, at the age of 61 and shortly after Chen’s death, decided to leave her whole estate to the male descendants of the Chen’s family and hence excluding Maria.  All the other subsequent Wills basically repeat and reflect the same intention of Madam Wong in particular to exclude Maria.  There were some amendments to the arrangements under the following Wills but the same intention appeared in all such Wills.

248.The only defence raised by Maria against the 1978 Will is that it was “revoked” by reason of an inference from the loss of the original of the will that Madam Wong destroyed it.

249.Maria is relying on s 13(1)(d) of the Wills Ordinance (Cap 30) which reads:

“No will or part of a will shall be revoked other than ….; (d) by burning, tearing or otherwise destroying of it by the testator, or by some person in his presence and by his direction, with the intention of revoking it.”

250.Maria also relies on the presumption of destruction with reference to the fact that the 1978 Will was last traceable to Madam Wong but was not subsequently found after her death.

251.The validity of the 1978 Will is not the main battleground between the parties. There cannot be any attack on the mental capacity of Madam Wong by that time, and one cannot say that Madam Wong did not understand the contents of the 1978 Will.  As I see it, the importance of the 1978 Will is that it shows the intention of Madam Wong shortly after the making of the Succession Agreement that she intended to leave all her estate to Robert to the exclusion of Maria by that time.

252.In my judgment, there is overwhelming evidence to show that most of the subsequent Wills, in particular the 1992 Will, are valid.  In the unlikely event that all the subsequent Wills are held to be invalid, there may be an issue about the validity of the 1978 Will.

253.Whether a will has been revoked is a question of fact.  In Re Estate of Lioe Ka Khie, Lam J (as he then was) said the following about revocation of wills:[13]

“Whether a will has been revoked is a question of act. Usually, if it is established that a deceased had made a will, the party who seeks to contend that he died intestate bears the burden of showing that the will had been revoked. However, in cases where a will was in the custody of a testator and it cannot be found at his death, there is a rebuttable presumption that the testator himself destroyed the will for the purpose of revoking it. That presumption can be rebutted and the strength of the presumption varies according to the circumstances of the case. Amongst other things, the character of the custody, the character of the testator, his relationship with the beneficiaries under the will and other next of kin since the making of the will up to his death and the contents of the will are relevant matters to be taken into account. Since the ultimate question is whether the will has been revoked, the court must also examine whether the testator had any cause to revoke the will and other factors supporting as well as those pointing against a case of revocation. The burden is on the party propounding the will to prove that the will had not been revoked.”

254.There are disputes between the parties as to whether the 1978 Will was revoked under s 13(1)(b) or 13(1)(d) of the Wills Ordinance, the former provides for revocation of a will by another will and the latter for revocation of a will by destroying it with the intention of revoking it, and whether the presumption arising from the non-location of will arises.[14]

255.The direct evidence of Anna Wu is that the 1978 Will was revoked by the making and execution of the 1992 Will.  That was why the chop “cancelled” with the date of the 1992 Will below it was caused to be put on the front and back pages of the 1978 Will.  It was for that reason that the original 1978 Will was given back to Madam Wong.

256.In my judgment, the evidence of the present case clearly shows that Madam Wong had intended the 1992 Will to supersede the 1978 Will.  Under such circumstances, there was no point for her to keep the original of the 1978 Will.  If for any reason the 1992 Will is held to be invalid, Madam Wong would still have intended the 1978 Will to take effect.

257.Judging from the contents of the 1978 and 1992 Wills, Madam Wong’s intention had all along been consistent.  As mentioned above, Madam Wong had intended the male branch of the Chen’s family to benefit from her estate to the exclusion of Maria.  She was prepared to honour the wish of Chen who was mainly responsible for building up the family wealth.  Chen was fond of James.  He was still a young boy in 1978, and so it would be natural for Madam Wong to leave her estate to Robert, and in the case of his death, to James. James came back to Hong Kong in 1990, and so by that time, Madam Wong made the 1992 Will with James as the sole beneficiary.  Based on such circumstantial evidence, I find as a matter of fact that, if for any reason the 1992 Will is not valid, Madam Wong would still have intended the 1978 Will to take effect. In other words, she had no intention to destroy the 1978 Will completely.  Hence, if for any reasons all the subsequent Wills are held to be invalid, the 1978 Will should stand as the last valid will of Madam Wong.

258.Mr Wong has taken a pleading point.  According to him, James’ case is that there was a “conditional revocation” of the 1978 Will, i.e. the 1978 Will was only intended to be revoked if the subsequent will (the 1992 Will) is held to be valid.  For James to rely on such doctrine, he must plead and prove the alleged condition upon which the revocation depended. Mr Wong has also cited In re Southerden[15], In re Surridge[16] and Hong Kong Civil Procedure (2019)[17].

259.Although these authorities are not conclusive as to whether the allegation of conditional revocation needs to be expressly pleaded, there is some force in the pleading argument.  After all, this is an important matter which directly affects the validity of a will.  Hence, whilst the facts of the present case clearly support the application of the doctrine of conditional revocation, I have to rule against James on the pleading point. In any event, this is academic in light of the subsequent findings in this Judgment.

4.2     The 1992 Will

260.The subsequent Wills are therefore easy to follow by Madam Wong since there was never any change of her basic intention.  They are short and not complicated at all.  They show the consistent intention of Madam Wong throughout the period of 26 years.

261.The contents of the 1992 Will speak for themselves as to the formality, proper execution and attestation of the 1992 Will. The only defences raised by Maria in respect of such will are that: (i) Madam Wong did not know or approve of the contents of such will; and (ii) Madam Wong was making such will under the undue influence of James.  At the PTR, it was clarified that no other person other than James was alleged to have unduly influenced Madam Wong.

4.2.1  Madam Wong’s knowledge and approval of the contents of the 1992 Will

262.In my judgment, it is quite hopeless to say that Madam Wong did not know or approve of the contents of the 1992 Will.

263.First, there is no evidence that Madam Wong had by that time suffered from any mental impairment which would affect her ability to understand the contents of the 1992 Will.

264.Second, the 1992 Will was prepared by a professional and experienced solicitor, Anna Wu, who had obtained detailed instructions from Madam Wong regarding the contents of such will.  The 1992 Will was also executed in the presence of another professional solicitor, Anita Ho, who attested the execution of the will and explained the contents thereof to Madam Wong.

265.Though Madam Wong’s mother tongue was Shanghainese, it would be absurd to suggest that Madam Wong could not understand Cantonese well or could not express herself in Cantonese.  First, Madam Wong had been living in Hong Kong for a long time prior to her “abduction” to the United States.  Second, there is no indication that Madam Wong had any difficulty in communicating with Anna Wu, Phoebe, Elizabeth or Derrick throughout the years.  In particular, serious legal and financial matters were discussed in the meetings involving Anna Wu and Phoebe.  It would be against common sense to suggest that, despite her lack of understanding of the contents discussed, Madam Wong just attended these meetings on a regular basis.

266.It is one thing to say that Madam Wong would feel more comfortable speaking Shanghainese, it is another to say that Madam Wong did not understand Cantonese well.  A lot of persons surrounding Madam Wong did not speak Shanghainese, but there is no indication that Madam Wong had any difficulty in communicating with them.  Further, the fact that James invited Phoebe to take Shanghainese lesson is neither here or there.  Phoebe’s ability to speak Shanghainese might just enhance the ambience of the conversations.

267.In the subsequent 1999, 2001 and 2004 Wills, the contents had been translated to Madam Wong in Shanghainese as it happened John Ku can also speak Shanghainese, it does not mean that Madam Wong could not understand the contents of the 1992 Will.

268.I am also satisfied that Madam Wong understood and approved the other documents, including the 1987 Deed of Confirmation and Trust and the other corroborative documents in 1991 and 1992, before she executed them.  The 1987 Deed of Confirmation and Trust was prepared by RWC and signed by Madam Wong in the presence of Anna Wu.  The 1991 Adoption Declaration was prepared by RWC and sent to Madam Wong via Lee with Chinese translation for execution.  The 1992 documents were prepared by RWC and signed by Madam Wong in the presence of Anita Ho.  It cannot be seriously argued that Madam Wong did not understand their contents before she signed these documents.

269.In general, proof of due execution and testamentary capacity means that knowledge and approval would be rebuttably presumed without the need to adduce affirmative evidence thereof.[18]  However, Mr Wong submits that James cannot rely on proof of due execution and testamentary capacity to infer knowledge and approval because the second rule of Barry v Butlin[19]is engaged, which provides that, if a party writes or prepares a will under which he takes benefit, that is a circumstance that ought generally to excite the suspicion of the court, and requires the court to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed.[20]  The application of the second rule has been extended to those cases where a person takes a benefit under a will which he has been instrumental in preparing or obtaining without being its actual creator.[21]  Mr Wong submits that this was the case here.

270.Despite that the court must be vigilant and jealous in approaching the evidence, I have no doubt in my mind that the 1992 Will had been properly executed and Madam Wong did know and approve of the contents of such will.  In the earlier part of this Judgement, I have already discussed the family background and how Madam Wong came to the view that her estate should be left only to the male branch of the family.  As a result, she had readily allowed Robert and James to take care of her financial matters. Robert was not a money-oriented person.  On the other hand, James was only the step-grandson who recently came back to Hong Kong.  I do not accept that, at least by that time, James would have been able to influence Madam Wong to make any will in his favour.  His role in assisting Madam Wong to prepare the 1992 Will could not have been anything other than genuine.

271.Further, James’ role in the preparation of the 1992 Will can only be described as minimal.  According to the testimony of Anna Wu, she received instructions from Madam Wong and Robert.  Anna Wu further says in her oral testimony that the relevant meetings were held amongst Madam Wong, Robert, Lee and herself.  James was not present.  There is no evidence from Maria to contradict such evidence.

272.Mr Wong has raised some issues about the circumstances under which the 1992 Will was executed with a view to show the lack of knowledge or approval: (i) Anna Wu cannot remember why a Chinese summary of the 1992 Will was sent to Madam Wong in 1996; (ii) Anita Ho was not told that Madam Wong’s mother tongue was Shanghainese, and Anita Ho believes that Madam Wong understood the 1992 Will because she had “nodded”; (iii) due to the lack of such knowledge, it must mean that Anita Ho did not adjust the speed of her translation and explanation of the 1992 Will according to Madam Wong’s proficiency level.  Furthermore, it was unlikely that Madam Wong had been properly explained and understood the true effects of the 1992 Will vis-à-vis the 1987 Deed of Confirmation and Trust.

273.Despite the able submission of Mr Wong, I do not accept that these submissions would in any way undermine James’ case on the proper execution of the 1992 Will with full knowledge and approval on the part of Madam Wong.  First, one should not speculate as to why a Chinese summary of the 1992 Will was sent to Madam Wong in 1996.  There might be a lot of reasons as to why such document was sent to her a few years later when she perfectly understood the contents of the will in 1992.  It is also too much to expect Anna Wu to remember all the minute details of the file that she had handled quite some time ago.  What is most important is the circumstances under which the 1992 Will was prepared and executed.  Second, Anita Ho was a professional solicitor attesting the execution of the 1992 Will.  There is no reason for the court to doubt that, even if she did not know the full background of Madam Wong, she would have taken the necessary steps to ensure that Madam Wong understood the contents of the 1992 Will before execution.  Finally, as I have mentioned above[22], the 1987 Deed of Confirmation and Trust was no more than a confirmation that Madam Wong intended to leave her estate to the male branch of the family excluding Maria.  No one had acted on such document or intended for such document to have its precise legal effect.  Hence, it was not surprising that Anna Wu had not explained to Madam Wong the exact legal relationship between the two documents.

274.James seeks to rely on Gill v Woodall & Ors[23]for the proposition that a will properly executed, after being prepared by a solicitor and read over to the testator, raises a “very strong presumption” that it represents the testator’s intentions at the moment he or she executes the will.  In my judgment, it is not even necessary for James to rely on such presumption.  There is ample evidence to show that Madam Wong intended to leave her estate for the benefit of the male branch of the family excluding Maria, and the contents of the 1992 Will just reflected such intention on her part.  Coupled with the unshaken evidence from witnesses such as Anna Wu and Anita Ho about the preparation and execution of the 1992 Will, I have no hesitation in finding that such will was properly executed with Madam Wong’s full knowledge and approval of its contents.

4.2.2  Was the 1992 Will executed under undue influence?

275.Maria also attacks the 1992 Will on the ground of undue influence by James.  There is no dispute that the burden lies on Maria to establish such allegation.[24]

276.In my judgment, there is simply no evidence to substantiate the allegation of undue influence, whether by James as pleaded or by anyone else.

277.First, by the time of the making of the 1992 Will, James was only Madam Wong’s step-grandson who recently came back to Hong Kong.  Before that, he spent most of his time living overseas.  As compared with Robert and Lee, or even Maria or Mary, I wonder how James could have been in a position by then to manipulate or influence Madam Wong to deal with her assets and finances in his favour.

278.In fact, there is no evidence that James had actively assisted Madam Wong to handle her personal and financial affairs before 1995.  All along, Madam Wong had Robert and Lee to help her and plan with her.  James only started to take up a more substantial role in about 1995 when he set up Legacy Advisors to help managing assets and investments of Chen’s family members. Madam Wong only gave James the POA of her Citibank account in 1998.  Hence, there is no evidence whatsoever that James had unduly influenced Madam Wong and caused her to execute the 1992 Will to his advantage.

279.Second, James testifies that he did not even know the existence of the 1987 documents (when he was not in Hong Kong and was only 26 years of age living in the United States) at the time.  Further, as mentioned above[25], James’ role in the preparation of the 1992 Will can only be described as minimal.  There is also total absence of evidence as to how James could have exerted any pressure on Madam Wong to make and execute the various documents from 1987 to 1992.

280.As Lee was the company’s accountant trusted by Chen, Madam Wong might have placed a lot of trust on Lee in particular in handling her finances.  Lee might also have played a significant role in the making of the 1987 Deed of Confirmation and Trust and the 1992 Will.  Yet there is absolutely no evidence that Lee had in any way collaborated with James in relation to the making of these documents.  Being a person who had worked for Chen for a long time, it might well be the case that Lee was only assisting Madam Wong to give effect to the wish of Chen in allowing James to inherit the family fortune.

281.In order to support the allegation of undue influence, Maria seeks to rely on the sale of the La Salle Property with a view to show that James had all along been targeting the assets of Madam Wong for his own advantage. Further, Madam Wong had repeatedly made a number of documents from 1987 to 1992.  Maria claims that Madam Wong would not have done so unless she was told to do so.

282.In analysing the evidence above, I have already found that the sale of the La Salle Property was part of the estate planning exercise with a view to avoid the payment of estate duty.  It might be the case that Madam Wong had received advice from probably Robert and Lee in respect of the management of her assets and financial matters, but this is far from saying that James, or indeed Robert and Lee, had unduly influenced Madam Wong in making the 1992 Will.  In particular, Robert was not the direct beneficiary and Lee had obtained no benefit under the 1992 Will.  By the time of the making of the 1992 Will, James should not have been able to influence Madam Wong to make a will leaving all her estate to himself.  Obviously, it was only Madam Wong herself who could make such sort of decision.

283.I also find nothing dubious for Madam Wong to have made repeated documents to confirm her testamentary wishes.  Some of these documents were made by Madam Wong before James came back to Hong Kong.  As I see it, the making of repeated and perhaps reductant documents is something consistent with the behaviour of elderly people who just want to make her wish crystal clear with no room for doubt.

284.For the above reasons, in respect of both defences of “want of knowledge and approval” and “undue influence by James”, all that Maria relies on is pure conjecture or “unjustifiable inference” which cannot be drawn from the facts of the case.  I therefore have no hesitation in finding that: (i) the 1992 Will had been executed in a proper manner; (ii) in executing such will, Madam Wong had full knowledge of and approved the contents of such will; and (iii) Madam Wong was not subject to undue influence in making such will.

4.3     The 1999, 2001 and 2004 Wills

285.I will deal with the validity of the 1999, 2001 and 2004 Wills (the “Last 3 Wills”) together, as Maria challenges the Last 3 Wills on the same basis that Madam Wong did not have the testamentary capacity at the time of the execution of these Wills.  Though the allegation of undue influence is repeated as a further ground to challenge the validity of the Last 3 Wills, it is quite clear from the evidence that there is no further factual basis to support such allegation so far as the Last 3 Wills are concerned.

286.Maria relies on various incidents from about 1999 to 2004 to support her allegation of the lack of testamentary capacity on the part of Madam Wong in the execution of the Last 3 Wills.  Further, Maria claims that Madam Wong had been diagnosed as suffering from dementia of the Alzheimer’s type from 1999 the latest, and that also affected her testamentary capacity in the execution of the Last 3 Wills.

4.3.1  Legal principles on testamentary capacity

287.The law on testamentary capacity of the testator at the time of the execution of the will is well established.  In the recent case of Lau Kin Wing Ken & Ors v. Deng Yujiao & Another[26], Chow J had succinctly summarised the principles at §68 of the judgment:

“(1) The four criteria for testamentary capacity in the classic statement by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565 have been endorsed by the Court of Appeal in Chiu Man Fu v Chiu Chung Kwan Ying, CACV 40/2012 (18 June 2013), at paragraph 52, and are well established –

“It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

(2) The question of whether a testator had testamentary capacity should be treated as a “practical question” which does not depend solely on scientific or legal definition, and is a question of degree to be solved on the facts and circumstances of each case. The criteria in Banks v Goodfellow are not matters that are directly medical questions, but are matters for commonsense judicial judgment on the basis of the whole of the evidence (see Boughton v Knight (1873) LR 3 P&D 64 at 67, Sir J Hannen, and Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197).

(3) The fact that a person was suffering from dementia, or had partial unsoundness of mind, does not necessarily mean that he did not have testamentary capacity to make a will (see Chiu Man Fu v Chiu Chung Kwan Ying, HCAP 9/2005 (31 January 2012), at paragraph 133 per Poon J (as he then was); Chan Chun Pui and Pang Woon Kam v Feng Cuixian, HCAP 13/2007 (24 July 2009), at paragraphs 121-124 and 146 per Recorder A Ho SC.)

(4) The fact that the dispositions in a will are rational is an important factor or indicator of testamentary capacity. So also is the fact that a will is prepared by an independent and experienced solicitor, is executed by the testator after the solicitor has read through and explained its provisions to the testator, and the solicitor is satisfied that the testator is capable of understanding, and understands, the will (see Banks v Goodfellow, supra, at 558 and 565-566; Hoff v Atherton [2004] EWCA Civ 1554, at paragraph 44 per Peter Gibson LJ).

(5) The following words of caution stated by Mummery LJ in Burgess v Hawes [2013] EWCA Civ 74 are, I consider, worth repeating in this judgment:-

“57      That said, it is, in my opinion, a very strong thing for the judge to find that the Deceased was not mentally capable of making the 2007 Will, when it had been prepared by an experienced and independent solicitor following a meeting with her; when it was executed by her after the solicitor had read through it and explained it; and when the solicitor considered that she was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational.

60      My concern is that the courts should not too readily upset, on the grounds of lack of mental capacity, a will that has been drafted by an experienced independent lawyer. If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity. The court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testatrix, and particularly in circumstances when that expert accepts that the testatrix understood that she was making a will and also understood the extent of her property.”

288.In the appellate decision in the same case, the Court of Appeal agreed that the question of testamentary capacity is a practical question and the court has to assess it by reference to the whole of the evidence, not confining itself to medical evidence, and apply judicial common sense in the exercise.[27]

289.In the case of an aged testator or a testator who has suffered a serious illness, there is a “golden rule”, recognised since the case of Kenward v Adams[28], which had been summarised by Poon J (as he then was) in Re LLC (Statutory Will) as follows:[29]

“In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions to be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfied himself of the capacity and understanding of the testator, and records and preserves his examination and findings: Kenwards v Adam, The Times, 20 November 1975, per Templeman J; see also Buckenham v Dickinson [2002] WTLR 1083. Although this golden rule is not a rule of law, it is prudent practice which the court expects the practitioners to follow closely in normal circumstances.”

290.In the more recent decision of Re Estate of Au Kong Tim[30], the Court of Appeal had provided further guidance on the application of the golden rule:

“2.3      In view of the importance the Court attaches to a will which has been executed before a solicitor in this way, proper groundwork should be undertaken by the solicitor who is charged with this task. The solicitor should not regard the task as merely a formal act. Although in Hong Kong instructions to prepare a will may often be given by the adult children of the testator who is elderly and not in good health, it behoves the solicitor who wishes to discharge his duty properly to meet the testator personally for the purpose of taking instructions or confirming the instructions. He should do this well before the day appointed for the execution of the will which by then is already prepared on the instruction given by someone other than the testator.

2.4     The enquiries made by the solicitor at such an appointment should, subject to the circumstances of each case, including the following, namely,

1) The age of the testator,

2) His health condition,

3) Whether he has a surviving spouse,

4) The number of children and grandchildren he has,

5) Whether there is someone other than his immediate family member dependent on him for support,

6) The beneficiaries he would like to provide for in his will,

7) His properties,

8) Whether he has made a previous will,

9) Whether he understands the new will will revoke the previous will,

10)Whether he understands the difference between the new and previous will.”

2.5      The list is of course not exhaustive and the extent of the inquiry will depend on the circumstances of the case. In the case of an elderly and infirm testator, the solicitor should follow the checklist referred to in [40] of Chow J’s judgment below [see [2017] 4 HKLRD 284], namely, the checklist set out in the ‘Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers’ published by the British Medical Association and the Law Society designed to ascertain whether the testator is capable of ‘understanding the nature of the act and its affects’, ‘understanding the extent of the property being disposed of’ and ‘able to comprehend and appreciate the claims to which a person making a will ought to give effect’.

2.6      The solicitor should ensure he follow the ‘golden rule’ referred to by Templeman J in Kenward v Adams [citation], namely, when a solicitor draws up a will for an aged or seriously ill testator, it should be witnessed or approved by a medical practitioner who ought to record his examination of the testator and his findings, and that an earlier will should be examined and any proposed alterations should be discussed with the testator.

2.7      While it is accepted that the golden rule does not lay down the law and merely contains prudent guidance for solicitors (Hoff v Atherton [2005] WTLR 99 (CA) at [49] and In Re Key, Decd [2010] 1 WLR 2020 at [7]), the words of Briggs J in Re Key, Decd are worth repeating:

‘8. Compliance with the golden rule does not, of course, operate as a touchstone of the validity of a will, nor does non-compliance demonstrate its invalidity. Its purpose, as has repeatedly been emphasised, is to assist in the avoidance of disputes, or at least in the minimisation of their scope. As the expert evidence in the present case confirms, persons with failing or impaired mental faculties may, for perfectly understandable reasons, seek to conceal what they regard as their embarrassing shortcomings from persons with whom they deal, so that a friend or professional person such as a solicitor may fail to detect defects in mental capacity which would be or become apparent to a trained and experienced medical examiner, to whom a proper description of the legal test for testamentary capacity had first been provided.”

291.In Re Estate of Wong Yin Sheung[31], Kwan VP made it clear that much depends on the facts and evidence in a case and there is no rigid rule that a party propounding a will would not be able to establish testamentary capacity if a solicitor failed to make proper enquiry and follow the golden rule in Kenward v Adams as a matter of good practice.  In that case, notwithstanding the failings on the part of the attesting solicitor, the Court of Appeal found on the facts in the case there was sufficient evidential basis for inferring that all the criteria in Banks v Goodfellow had been satisfied.  The matters that Kwan VP took account were set out at §37 of the judgment and the whole factual circumstances including evidence from family members on the mental condition of the testatrix were regarded as relevant.

292.It is common ground that, in respect of the Last 3 Wills, John Ku had not complied with the golden rule in arranging a medical practitioner to witness or approve the execution of the respective wills or to make the proper inquiry about the condition of Madam Wong before the execution of the respective wills.

4.3.2  Non-medical evidence in support of testamentary capacity

293.According to the aforesaid authorities, the court has to adopt a holistic approach in determining the question of testamentary capacity taking into account all the evidence of the case including factual and medical evidence.

294.So far as the factual evidence in support of the testamentary capacity of Madam Wong is concerned, the main evidence comes from John Ku.

295.John Ku is a native Shanghainese speaker.  He was introduced to Madam Wong via the Huang Brothers, i.e., Joseph and Francis Huang, who were belonged to the Shanghainese clan.  He replaced Anna Wu and started representing Madam Wong as her solicitor since early 1999 and until she was taken away by Maria on 11 May 2005.  He never acted for James.

296.John Ku was the one who assisted and advised Madam Wong to ‘finalize’ and execute the Last 3 Wills.  John Ku frankly admits under cross-examination that he did not know and had not thought about the “golden rule” for the preparation of a will for old aged or infirmed testator.   John Ku considers himself to be an experienced probate lawyer.  In his 40 years of practice, there was never once occurred to him that he had to ask a doctor to accompany him when a will was executed.

297.From his dealings with Madam Wong throughout the years from 1999 to 2005, John Ku considers Madam Wong was alert and could give clear instruction and make her own decision despite her age.  John Ku testifies that, being an experienced probate solicitor, there were no circumstances that might cause him to draw inference or suspect that Madam Wong lacked the mental capacity to execute the Last 3 Wills.  Neither did he know or find that Madam Wong had shown signs or symptoms of mental problem since 1999 as alleged by Maria.

298.Under cross-examination, John Ku testifies that:

(i)     In respect of the Last 3 Wills, he was only preparing for modifications of Madam Wong’s testamentary arrangements without the need of starting from “scratch”.

(ii)    Every time it was James who informed John Ku the changes that had to be made to Madam Wong’s wills and he did not ask questions deliberately in relation to other parts of her will.

(iii)   On the first occasion, the modification leading to the 1999 Will was caused by the change of James’ name from “Chen Sai Kit James” to “Chen Yue Jia James” on 21st August 1995.

(iv)    On the second occasion, the change to the 2001 Will was caused by the removal of Robert as one of the executors and trustees.

(v)    The last update leading to the 2004 Will was caused by the demise of Robert and the substitution of the Chen Yet-Sen Family Foundation as the ultimate substitute beneficiary in the event that James and Margaret die without leaving any issue.

(vi)   John Ku recalls that on the second occasion he sought instruction from Madam Wong directly on the phone.  He is able to recall that occasion as he rarely called Madam Wong on phone and for a chat.  He had to seek instruction from Madam Wong about what to do upon removal of Robert’s name from the will.

(vii)   John Ku confirms that on each occasion he would explain to Madam Wong the contents of the respective will as to what were stated there. According to him, there was no reason why he had not done so.

(viii)  John Ku believes that Madam Wong understood and approved of the contents of the Last 3 Wills from the positive answers she gave to his questions.  As Madam Wong had complete choice as to whether to sign the respective will or not, John Ku believes that Madam Wong was willing to execute the Last 3 Wills with full knowledge and approval of their contents.

299.John Ku’s evidence on Madam Wong’s mental capacity for the execution of the Last 3 Wills is corroborated by the evidence of Yeung, Tam and Phoebe.

300.Yeung and Tam were clerks of John Ku’s law firm and they were invited to witness the execution of the 1999 and 2001 Wills respectively.  Both Yeung and Tam did not know Madam Wong, had not met her before and had no relationship or dealing with Madam Wong or her family.  They are able to recognize their own signature on the respective wills.  They are unable to recall any circumstances that were peculiar and would cause them to draw inference or suspect that Madam Wong lacked the mental capacity to execute the wills.  During cross-examination, Tam even goes further and says that she recalls a conversation between her and Madam Wong when she witnessed the execution of the 2001 Will.  She is positive that Madam Wong did not show sign of any mental issue.

301.Phoebe is and was the accountant of Legacy Advisor.  She had known Madam Wong for a long time from August 1996 to May 2005. Apart from her quarterly meetings with Madam Wong, Phoebe would pay her visits from time to time.  Her role was to assist Madam Wong to manage her Citibank account.  She also took instructions from Madam Wong.  She remembers on one occasion she accompanied Madam Wong and Lee to the Social Welfare Department to check on her status for old age allowance, commonly known as “fruit money”.  From her years of interactions with Madam Wong, Phoebe finds that Madam Wong was a composed, graceful and quiet old lady.  Phoebe believes that Madam Wong understood her reporting and was able to show her understanding and approval through various bodily gestures like head nodding and smiling.

302.Under cross-examination, Phoebe recalls that she was invited by James to witness the execution of the 2004 Will.  The execution took place in the office of Legacy Advisor on 28th July 2004.   In her testimony, she is able to recall that: (i) when she entered the room, she saw John Ku and Madam Wong; (ii) John  Ku explained to Madam Wong the contents of the 2004 Will; (iii) John Ku and Madam Wong talked for a while and Phoebe was able to understand a bit of the exchanges as she attained beginner level in Shanghainese; (iv) Phoebe heard Madam Wong said to John Ku: “these are left for ‘jai jai’ (仔仔)” and  Phoebe knew Madam Wong was referring to James when she said “jai jai”; (v) during the course of the conversation, Phoebe observed from Madam Wong’s facial expression that she was listening attentively; (vi) Phoebe heard Madam Wong said “okay” and then signed on the 2004 Will; and (vii) Phoebe confirms that there were no peculiar circumstances that would cause her to suspect of the mental capacity of Madam Wong while she executed the 2004 Will.

303.Phoebe’s evidence about what Madam Wong had said when she executed the 2004 Will, “these are left for ‘jai jai’ (仔仔)”, is corroborated with and supported by the evidence of Mary.  Under cross-examination, Mary testifies that: (i) James was called “jai jai” (仔仔) when he was young; (ii) Madam Wong told her all the money belonged to “jai jai”; (iii) if Chen died with a will, he would have left everything to James; and (iv) all her assets belonged to James as he was their grandson.  Mary has no doubt about that.  There is no evidence that Phoebe knew Mary or had met her before.  Their evidence complements each other and further strengthens James’ case.

304.As mentioned above, I accept these witnesses to be honest and reliable witnesses.  Some of them like John Ku and Phoebe had met and communicated with Madam Wong on numerous occasions to discuss various legal and financial matters relating to Madam Wong.

305.Further, both James and Mary testify that Madam Wong, though of advance age, had not suffered any of the mental problems as suggested by Maria and her witnesses.  Mary also communicated with Madam Wong on a wide range of matters.  James may have a personal interest in the outcome of the proceedings but Mary does not.  In the earlier part of this Judgment, I have already given my reasons as to why Madam Wong found Mary to be a trustworthy person; and (ii) she felt at ease in speaking her mind with Mary. During their in-depth conversions, Mary would have had ample opportunities in observing the mental condition of Madam Wong and learning her testamentary intentions.  Under such circumstances, I have reasons to find that the mental condition of Madam Wong could not have been that poor as described by Maria and her witnesses.

4.3.3  The medical evidence relied on by the parties

306.In my judgment, the medical evidence in the present case is not very helpful in determining the question of testamentary capacity of Madam Wong at various times.

307.The medical evidence relating to the mental condition of Madam Wong can be divided into three board categories, namely:

(i)     the contemporaneous medical records and reports of Madam Wong during 1999 to early 2005 before she went to the United States;

(ii)    the reports of medical examinations of Madam Wong after her arrival in the United States; and

(iii)   the expert medical evidence of Dr Wong and Professor Mak.

308.Maria took Madam Wong in 1999 to see two experienced medical practitioners: Dr Wu and Dr Huang.  They knew both what to ask for and what to look for.  Dr Wu found Madam Wong to have no other neurological symptom except short-term memory loss.  Madam Wong was “fully conscious and alert and well orientated to time and place”.  She had no deficits or deficiencies.  The clinical diagnosis was “cerebral vascular insufficiency”.  He prescribed as medication for Madam Wong Aricept which is used to slow down mild cognitive impairment.

309.Dr Huang found that Madam Wong exhibited features “consistent with early Dementia”.  However, he expressly stated that further examinations and investigations needed to be carried out to see whether the mental state was “treatable or irreversible”.  As dementia is irreversible, it follows that at the time Dr Huang had not determined whether it was dementia or not.  Therefore, Dr Huang was not saying that it was dementia, only that it was consistent with early dementia, which was a possibility that could be further explored.

310.Dr Huang conducted the Mini-Mental Status Examination (“MMSE”) test on Madam Wong.  She had a score of 17/30.  According to the recommendation made in the Article titled “Reliability and Validity of the Cantonese of Mini-Mental State Examination – A Preliminary Study” by Helen Chu, the cut-off point for elderly persons over 65 years old with little or no education is 19-20/30.  The interpretation of the result of the test is hotly contested by the parties.  Since the parties’ experts have given their opinion on the result of the MMSE, I will deal such matter in the latter part of this Judgment.

311.According to the contemporaneous records made in 1999, Madam Wong was only observed to have suffered from one symptom: short-term memory impairment.  As agreed by Professor Mak, there was no reference to other impairments, such as deterioration in self-care ability, inability to know her family members, or any impairment of executive function, language or long-term memory.  According to Dr Huang, Madam Wong could still play mah-jong games with her friends though her skill might have been affected by her short-term memory loss.

312.Maria has also sought to rely on a report made by Dr Law who was a psychologist.  His report of the October 1999 meeting with Madam Wong was only made in 2006.  He took the view that Madam Wong suffered from “moderate dementia” because of the result of the MMSE administered by Dr Huang.

313.In my judgment, this report by Dr Law is of limited assistance. Dr Law did not exhibit any contemporaneous medical notes from 1999 to support his “assessment”, and he had not explained why he did not have them nor how he had managed to recreate his opinion for seven years earlier.  According to Dr Law, Maria had tracked him down in the United States in 2006 and got him to recreate the 1999 scenario.  However, without any supporting notes or details, I have grave reservation about the reliability of Dr Law’s assessment.  Further, Dr Law stated that Madam Wong was “uncooperative” during the examination, which according to Dr. Wong, would significantly undermine any diagnosis as neither “rapport or observation” were possible.  Under such circumstances, I attach very little weight to such report.

314.In between 2000 and 2003, there were indeed no medical reports on the latest physical and mental condition of Madam Wong.  If Madam Wong’s condition had been that bad as alleged by Maria, there was absolutely no reason why Maria, being such a “loving caring daughter”, did not bring Madam Wong to see these specialists during such period.  Further, Maria was strenuously fighting against Madam Wong in the interpleader proceedings commenced by Wells Fargo.  She claimed that Madam Wong had given the money in the Wells Fargo Account to her out of her own free will.  In saying so, Maria did not contend that Madam Wong had any mental issue by that time.

315.Maria brought Madam Wong to visit medical specialists again in 2004.  According to Dr Chen Char-Nie, Madam Wong was suffering from dementia of the Alzheimer’s type.  Similar diagnosis was made by Dr Sylvia Chen.  Dr Sylvia Chen also administered the MMSE test and Madam Wong only scored 12/30.  It is worth noting that both doctors, in particular Dr Sylvia Chen, had relied very much on the information provided by Maria in reaching their diagnosis.

316.It is not in dispute that Madam Wong’s condition had slowly deteriorated but the issue remains as to whether Madam Wong still had the requisite mental capacity to execute the 2004 Will.  I will deal with this issue further in the Judgement below.

317.I then turn to the reports of the medical examinations of Madam Wong after her arrival in the United States.  These reports are of little value in terms of the purpose of the present proceedings as all were findings and diagnosis made in 2005 and thereafter.  They are at most some references for which the court and the medical experts can look at so as to draw inference about Madam Wong’s mental condition before she left Hong Kong.

318.Bearing in mind that Madam Wong was found to have suffered from subdural haematoma in her brain after her arrival in the United States, it might be one of the many reasons that affected her mental state by that time, not to mention that she was brought to a ‘strange’ foreign country and she spoke no English, was lonely and without the support of her family, caregivers and usual friends.

319.Yet under such circumstances, Dr Nievod, who was an independent clinical psychologist appointed by the Conservator Debra Dolch, commented that Madam Wong was smarter than she presented.  Though Madam Wong initially demonstrated a moderate level of dementia, she had shown to have a higher level of cognitive skills during the evaluation process.  Further, during his interview with Madam Wong, Dr Nievod found that it was apparent whenever Madam Wong was taken to a physician at the request of Maria, she was reluctant or “oppositionally” declined to perform.  Hence, one cannot totally rule out the possibility of Madam Wong’s pretending or resisting surreptitiously towards all kinds of medical consultations or examinations arranged by Maria for her.  All these are possible contributing factors leading to the progressive deterioration of Madam Wong’s mental capacity upon her arrival at the United States.

320.Dr Nievod spent 9 hours with Madam Wong in the absence of Maria, and in great detail in 2005 he was able to record his observations of an active and even playful Madam Wong.  Madam Wong was even able to ask why Dr Nievod did not include the drawing test administered by the other doctors.  As Dr Nievod was an independent expert, weight has to be given to the reliability of his report.

321.I then turn to the expert opinion by Dr Wong and Professor Mak.

322.Both Dr Wong and Professor Mak would have to give their evidence based on the past available medical records about Madam Wong.   Such kind of “retrospective assessments” were made by the experts without the opportunities of seeing or examining Madam Wong when she was still alive.  These medical opinions certainly have their own limitations.

323.In the absence of other notable symptoms in the recorded contemporaneous medical records made by highly experienced medical practitioners, Dr Wong is of the view that, whatever the terminology, Madam Wong in 1999 only had mild or modest cognitive impairment.  She had no dementia in 1999.  As evidenced by Dr Wu’s and Dr Huang’s reports, the highest it can be said for Maria’s case is, as Dr Huang stated, she had short-term memory loss possibly consistent with dementia.  But at that stage no actual diagnosis of early dementia was made or could be made, as other investigations would have to be carried out.  If it was reversible, as Dr Huang stated it might be, her cognitive decline logically could not be attributable to dementia.

324.Further, the current prevalent statistics show that the duration of survival of major Neurocognitive Disorder Due to Alzheimer’s Type (“ANCD”), based on DSM IV TR and DSM V (which is the Diagnostic and Statistical Manual of Mental Disorders by American Psychiatric Association), is 10 years from the onset of illness.  So if Madam Wong were suffering from major ANCD of moderate severity in 1999, the onset of illness would have been in 1994 or 1995 and it would have been improbable that she had lived up to May 2013.

325.Finally, Dr Wong considers that as: (i) Madam Wong was able to recognize Maria and her relationship with Maria; and (ii) there was no evidence of diminished self-care ability in 1999 and that she enjoyed her daily living activities as usual, Madam Wong could not have suffered anything more than mild ANCD in 1999.

326.On the other hand, Professor Mak’s assessment on the mental condition of Madam Wong is mainly based on the MMSE result.  For such test conducted by Dr Huang in 1999, Madam Wong only scored 17/30.  Based on such result, Professor Mak is of the view that Madam Wong was suffering from moderate degree of ANCD in 1999.

327.At the trial, there is heated debate as to the relevance of the MMSE results.  Both experts have also relied on different answers given by Madam Wong in the 1999 test with a view to support their respective opinion on the medical condition of Madam Wong by that time.

328.First, there is no serious dispute that MMSE is not a diagnostic test for dementia.  It is only “a screening test for cognitive function, and not a diagnostic test for dementia”.[32] The MMSE is not definitive or diagnostic.  Professor Mak also admits that, in the context of explaining the results of MMSE tests in another case, the validity of such test depends on how it is administered.  The test is infected with subjective risks and evaluations.  It is also just an elementary screening test.

329.Though the cut-off point of 19-20/30 has a sensitivity of 97.5%[33], the cut-off point is a reference only and it depends very much on the education background and age of the patient concerned.

330.More importantly, the result of the test would depend on the circumstances under which it is administered.  There are indeed many other factors that may affect the patient’s MMSE performance, e.g., his or her rapport with the interviewing doctors, his or her mood and physical condition of the day.  Further, as demonstrated by a number of incidents in 1999, it is clear that Madam Wong could be confused and nervous in handling various matters in the presence of Maria.  That is also the observation shared by Dr Nievod, who opined that Madam Wong was less inclined to perform whenever she was requested to see a doctor arranged by Maria.  Indeed, under cross-examination, Maria agrees that Madam Wong did not like Maria to bring her to see different doctors.  Hence, one has to approach the results of the MMSE tests with some caution, which are not conclusive as to the mental conditions of Madam Wong at the material times.

331.Dr Wong agrees that Madam Wong had suffered from mild ANCD in 1999.  Maria agrees under cross-examination that there was no reduction in the self-care ability of Madam Wong in 1999.  Such objective evidence does not sit well with the assessment that Madam Wong was suffering from moderate ANCD in 1999.  Further, Madam Wong was able to live up to 2013, and so it does not fit the statistics mentioned above[34] if Madam Wong was suffering from moderate ANCD in 1999.

332.In my judgment, the medical evidence is not very helpful in determining the mental conditions of Madam Wong at the material times.  There are simply many variables with the MMSE tests, and it would be unsafe for the court to rely just on the MMSE results in determining the question of testamentary capacity.  To me, the conducts and behaviour of Madam Wong and the observations made by the different factual witnesses about her mental condition should be given more weight in deciding this important question.

4.3.4  Various incidents relied on by Maria to challenge the testamentary capacity of Madam Wong

333.Maria relies on a number of incidents from about 1999 to 2001 with a view to show that Madam Wong lacked the testamentary capacity to make any wills from at least 1999 onwards.  Madam Wong appeared to have given conflicting instructions to banks and other financial institutions relating to the management of her assets.  She was sometimes forgetful and could not remember something she did in the past.  She appeared confused at times.  All these tend to show that Madam Wong was prone to manipulation and undue influence by others.

334.I am also troubled by these incidents, but ultimately I come to conclusion that Madam Wong had the testamentary capacity to make at least the 1999 and 2001 Wills.

335.Before I deal with the individual incidents, I would make the following observations.  First, there is no serious challenge to the mental condition of Madam Wong before 1999.  Even according to Maria’s case, Madam Wong’s mental condition started to deteriorate in about 1999, and the timing coincides with the campaign started by Maria to probe into Madam Wong’s financial affairs.   Second, Maria is a dominating and manipulative person, and the pressure exerted by her had caused Madam Wong to be confused on a number of occasions.  The high-handed approach of Maria can be demonstrated by facts such as: (i) she insisted to engage an English speaking solicitor, who was a stranger to Madam Wong, to represent her in the 2^nd HSBC Trust Meeting; (ii) she secretly planted an audio recorder in the handbag of Madam Wong to record the conversations in the said meeting; and (iii) she actively fought against Madam Wong in the Wells Fargo interpleader proceedings.

336.Maria produces the transcript of the 2^nd HSBC Trust Meeting (the “Transcript”) at the trial.  There is an issue about the accuracy of the Transcript and so the Audio Recording is played back at the trial.

337.I can make the following observations after listening to the Audio Recording:

(i)     The quality of the tape is substandard that in many parts other than hearing people mumbling in the background, the contents of which were basically incomprehensible.

(ii)    The Transcript is not a verbatim record of the meeting.  Further, the person preparing the Transcript did not seem to understand any or any Shanghainese at all as she had left out a large part of the conversations without translations, in particular the long exchanges between John Ku and Madam Wong in Shanghainese during the meeting.

338.It is true that Madam Wong was confused in the 2^nd HSBC Meeting.  She also mentioned something like she did not know where she was, all the family including Robert and James were not good to her and she wanted to keep the money for herself.  Before this meeting, Maria must have been putting considerable pressure on Madam Wong to find out the details of the HSBC Trust, but without any success.

339.At trial, John Ku is cross-examined at length on the contents of the 2^nd HSBC Trust Meeting.  John Ku testifies that it was the staff of the HSBC Trustee who invited him to attend the meeting.  There is simply nothing for me to doubt the truth of such explanation.  According to his understanding of Madam Wong, John Ku believes that, from the way Madam Wong asked the HSBC Trustee staff where she was twice and her answers about seeing doctors, Madam Wong was just using an avoidance tactic in the meeting such that she did not have to answer any questions put to her.  Given Madam Wong’s character, the pressure that she had been subjected to and the presence of a “stranger” lawyer, there is some weight in such observation.

340.Notwithstanding the problems with the Audio Recording and the Transcript, it can clearly be heard that Madam Wong spoke in Shanghainese with John Ku in long and coherent sentences.  As compared with the other attendees of the meeting, Madam Wong felt at ease in speaking with John Ku.  It was mostly when she was speaking with the other persons that she appeared confused and used short and truncated sentences.  The ability on the part of Madam Wong to communicate fluently and coherently with John Ku does not sit well with the allegation that she was suffering from serious mental incapacity at the time.  It just demonstrates that Madam Wong knew what was going on but, given the embarrassing position which she was put into, she did not want to cooperate with the other attendees of the meeting.

341.In my judgment, the Audio Recording only shows, at most, that Madam Wong was annoyed when she was confronted by many professionals in the meeting. Though Maria was not present at the meeting, she should have known that the solicitor of HWG was arranged by Maria to be present there.  She wanted to avoid the questions put to her, and yet she was comfortable in speaking with John Ku who was a person she could trust.

342.From the evidence gathered at the trial, Madam Wong was a quiet, calm and gracious lady and so her behaviour in the 2^nd HSBC Trust Meeting was very much out of the ordinary.  She showed her temper.  It was quite obvious that she hated of being put in such situation and wanted to avoid the meeting if possible.

343.The other incidents with the banks and the financial institutions involve apparent different instructions given to these institutions regarding the disposal of Madam Wong’s assets.  The confusion started when Maria started to probe into Madam Wong’s financial affairs.  However, Madam Wong appeared to be calm and alert on other occasions without the presence of Maria.  She was able to recognize all the people around her and their relationships with her. Hence, I have no reason to doubt Madam Wong’s ability to manage her personal and financial affairs in the absence of Maria.

344.There came a time when Madam Wong had had enough from Maria and sought to keep a distance from her.  James’ evidence on the Relocation Incident is supported by the evidence of Mary, Phoebe and John Ku. I do not accept that Robert and James were the kind of person who would have forced Madam Wong to leave her residence against her will.  In fact, I see no immediate reason as to why they had to do so.  The evidence also shows that Madam Wong was close to the staff in the hotel and was well taken care of there.  Instead of having been manipulated by Robert and James due to her mental impairment, I find that it was Madam Wong’s own unimpaired decision to move out of the La Salle Property.

4.3.5  Findings on the testamentary capacity

345.The contents of the 5 Wills are substantially the same, with the result that James would inherit the entire Madam Wong’s estate.  If Maria has to succeed, she has to persuade the court to strike down all the 5 Wills.

346.In my judgment, there is ample evidence to substantiate the validity of the 1992 Will and so the question of the testamentary capacity to make the last 3 Wills is quite academic.  Yet it is still the task of the court to decide the validity of the Last 3 Wills as it remains a live issue between the parties.  But in case that I am wrong on such finding, I would have no hesitation in propounding the 1992 Will as the last valid will of Madam Wong.

347.It is regrettable that John Ku had not complied with the golden rule in the execution of the Last 3 Wills.  As I see it, John Ku is the type of “old-fashioned lawyer” who believes in his own personal experience without updating himself of the current development of the law.  This was certainly unwise in light of the whole series of events in 1999.

348.Despite that, I accept John Ku to be a credible witness on the facts.  Since John Ku had met Madam Wong on numerous occasions, including formal and social occasions, he should have been in a good position to observe the mental condition of Madam Wong from 1999 to 2005.  His evidence is supported by the same observations made by Phoebe, Mary and James.

349.Though Madam Wong was confused at times, in particular when she was confronted with the pressure exerted by Maria relating to the handling of her finances, Madam Wong appeared to be calm and composed on other occasions.  She was able to make decisions relating to her finances in the quarterly meetings, and she was able to conduct in-depth conversations with Mary.  Throughout such period, she was able to recognise her relationship with Maria and other family members including those from Maria’s family.  She appeared perfectly normal in the presence of people she trusted including John Ku.

350.Even according to Maria’s own case, there was no issue with the mental condition of Madam Wong at least on some occasions between 1999 to 2001:

(i)     Madam Wong understood and agreed for Maria and Joseph to plant an audio recorder in her handbag for the 2^nd HSBC Trust Meeting;

(ii)    Madam Wong was able to instruct lawyer from HWG to represent her in the 2^nd HSBC Trust Meeting;

(iii)   Madam Wong was able to give clear instructions: (a) to Maria to transfer the properties in the Safe Deposit Box to another safe deposit box; (b) to CKB to transfer the sum of US$1,161,711.32 to another joint name account during the CKB Incident; (c) to Wells Fargo to revoke the POA previously given in favour of Mary;

(iv)    Madam Wong was able to recognise her relationship with Maria and gifted some of the jewelry in the Safe Deposit Box and the money in the Wells Fargo Account to Maria; and

(v)     Maria did not see the need to commence any proceedings under the Mental Health Ordinance relating to the welfare of Madam Wong or to bring her to attend further medical consultations with Dr Wu or Dr Huang.

351.It is quite clear to me that Madam Wong’s intention in leaving her estate to James had remained unchanged throughout the years.  She had expressed her intention clearly in all the relevant documents executed by her in 1992 and before, and there was nothing happening in the family which would have caused her to change such basic intention.  Even in 2004 when the 2004 Will was executed, she was able to express her intention that her estate was left for James.[35]

352.The changes made in the Last 3 Wills are all minor: the 1999 Will with the change of name of James, the 2001 Will with the removal of Robert as one of the executors in view of his deteriorating health condition and the 2004 Will with the Foundation in the name of Robert be substituted as the ultimate substitute beneficiary after Robert’s death.  The changes might have been initiated by James or Robert, but that did not affect Madam Wong’s intention to leave her entire estate to James.

353.The 4 criteria for the Banks v Goodfellows test are: (i) whether the testator understand the nature of the act and its effect; (ii) whether the testator understand the extent of the property of which he is disposing; (iii) whether the testator can comprehend and appreciate the claims to which he ought to give effect; and (iv) with a view to the latter object, whether there is a disorder of the mind that shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties, and whether there is insane delusion which shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

354.In applying these 4 criteria, I am satisfied that Madam Wong had the testamentary capacity to execute at least the 1999 and 2001 Wills.  According to the evidence, Madam Wong had already made up her mind that her entire estate would be left for James for the various reasons given in the earlier part of this Judgment.  There was nothing which would have caused her to change her mind over the years.  Hence, even given her mild or moderate cognitive impairment or even early dementia the latter of which I do not accept, the minor changes made in the 1999 and 2001 Wills should have been easy for Madam Wong to understand and apprehend.

355.Maria claims that she was a person for whom provision should be made in the wills.  However, Madam Wong had already expressed her intention earlier that Maria would be excluded as a beneficiary of her estate.  Though Madam Wong might have suffered from some cognitive impairment at the time of the execution of the 1999 and 2001 Wills, she had no difficulty in recognising Maria and appreciating the relationship between them.  According to Maria’s own case, Madam Wong was by then even able to make decisions to gift her some of her assets.  In such case, in executing the 1999 and 2001 Wills, Madam Wong, with the same intention of leaving her entire estate to James, should have had no problem in understanding the extent of the property she was disposing and comprehending and appreciating the claims to which she ought to give effect.  Further, I do not find that the impairment suffered by Madam Wong would have been serious enough to poison her judgments in this regard.

356.Though Madam Wong was aged 82 and 84 at the time, she should have had no difficulty in understanding the explanations given by John Ku to her about the contents of the wills.  In particular, the evidence shows that John Ku was a person trusted by Madam Wong and she felt comfortable speaking with him.  They also communicated in their native dialect.  Apart from perhaps short-term memory loss, she suffered no other objective symptoms such as inability to take care of herself or inability to recognise the people around her and their relationships.  She was well oriented as to time and place before Dr Wu.  The only occasions where Madam Wong appeared confused were when: (i) she was subject to immense pressure by Maria when she was probing into her financial affairs; (ii) she was put in difficult or embarrassing positions by Maria such as attending the 2^nd HSBC Trust Meetings; or (iii) she was arranged by Maria to see different medical practitioners.

357.Mr Wong tries to point out that the contents of the 1999 and 2001 Wills might not be that simple.  Madam Wong might not have been able to focus on the multiple pieces of information at the same time, including, for example, the number of children and grandchildren she had and her relationship with each of them, and the order in which they should take their shares of the estate, etc.  This was essential for her having a proper understanding of the effect of the wills including the various substitute beneficiary clauses.  Further, given the impairment suffered by Madam Wong, she might not have been able to understand the extent of the property being disposed of under the wills.

358.I disagree.  The evidence shows that Madam Wong, during the relevant period, was able to recognise all the people around her and her relationships with them.  Madam Wong had kept on saying “moneys (meaning the family wealth) belonged to the Chen’s family (“陳家嘅錢係陳家嘅”)” and “[her estate] are left for ‘jai jai’”, which support that the basic testamentary intention of Madam Wong had remained unchanged.  It was not too difficult for Madam Wong to know that she had other family members but, in her eyes, they did not have a claim to her estate which originated from Chen’s business.  For her, the remaining task was to work out the different substitute beneficiaries which should not have been too difficult for her given her basic intention.

359.Under such circumstances, understanding and knowing the details of all her assets became less significant.  In any event, though Madam Wong might not have been able to remember all the details of her assets (I wonder whether anyone would be able to remember all such details given the size of Madam Wong’s estate), she, at the time of the execution of the 1999 and 2001 Wills, should have had a general idea about the size of the estate disposed of under the will.  In particular, she was able to understand the reporting relating to her finances in the quarterly meetings and gave instructions to James and Phoebe regarding such matters.

360.For these reasons, I am satisfied, on the balance of probabilities, that all the criteria in the Banks v Goodfellow test are satisfied for the execution of the 1999 and 2001 Wills.

361.I have more reservation about the 2004 Will.  There is no serious dispute that Madam Wong’s mental condition had deteriorated over time after 2001.  Madam Wong was aged 87 in 2004 and she only scored 12/30 in the MMSE test administered by Dr Sylvia Chen in the same year.  Despite all the arguments about the relevance of MMSE test results, this is a very poor score.  Even the expert opinion in support of the testamentary capacity for the 2004 Will by Dr Wong, James’ own expert, is made on a low margin of probability of 51%.  As I am less certain whether there was by then some disorder of the mind which might affect her ability to understand the explanation given by John Ku about the contents of the 2004 Will, on the balance of probabilities, it would be unsafe for the court to propound the validity of the 2004 Will.

362.Nevertheless, there is one observation I would make about the execution of the 2004 Will.  According to Phoebe who was present at the execution of the will, she recalls clearly that Madam Wong said the words “these are left for ‘jai jai’”.   In my judgment, this is a clear indication that Madam Wong was able to express her testamentary intention by that time.  By saying so, Madam Wong was confirming that her estate was left for James to the exclusion of all others.  It also indicates that Madam Wong was somewhat aware of the other family members, but she insisted that her estate “was left” for James.  To me, the second and third conditions for the Banks v Goodfellow test are satisfied.  It is only because of the poor MMSE result, which casts doubt on Madam Wong’s ability to understand the explanation given by John Ku before the execution of the 2004 Will, that I have hesitation in propounding the validity of the 2004 Will.

363.For the above reasons, I propound the 2001 Will as the last valid will of Madam Wong.  In case that I am wrong on the question of the testamentary capacity in respect of the 2001 Will, I would propound the 1999 Will and next in order the 1992 Will as Madam Wong’s last will.

364.I assume that there is no issue about the declaration sought in paragraph 1 of the prayer of relief in the Consolidated Statement of Claim.  I would make an order nisi to that effect.  I also make a cost order nisi that the costs of the action be to James.  The order nisi shall be made absolute 14 days after the date of the handing down of this Judgment.

Ms Gerard McCoy, SC, Mr Erik Shum and Ms Percy Yue, instructed by Haldanes, for the Plaintiff in both actions

Mr Horace Wong, SC, Mr Benjamin Chain and Ms Astina Au, instructed by Y S Lau & Partners, for the Defendant in both actions