Leung Sze Sum Cindy and Another v. Au Lap Yan and Another

HCAP 7/2017

[2022] HKCFI 793

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 7 OF 2017

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Before: Deputy High Court Judge Man, SC in Court

Date of Hearing: 24 February and 3 March 2022

Date of Judgment: 18 March 2022

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JUDGMENT

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I. INTRODUCTION

1.This case concerns a will of Madam Au Ching Yee (“the Deceased”).  She made a will dated 17 February 2000 (“the Will”). In this action, the 1^st and 2^nd Plaintiffs ask the Court to propound the Will in solemn form of law.

2.At the outset, I note that while the Plaintiffs have seen through these proceedings, the Defendants have not. The Defendants have filed pleadings, but not evidence. Mr. Ko (counsel for the Plaintiffs) fairly accepted that the Plaintiffs must nonetheless still prove their case. I will therefore proceed on this basis.

3.A special feature of this case is the original of the Will cannot be found after the death of the Deceased. Accordingly, only a copy of the Will is placed before the court in evidence.

II.     BACKGROUND

4.The following facts are either undisputable or undisputed. I find them accordingly.

Parties

5.The parties in this case come from two families: the one the Deceased was born into; and the one she married into:-

(1)  The Deceased’s father had three wives. The Deceased was one of the first wife’s daughters. The second and third wives had two children each. One of the third wives’ sons had two children: the 1^st Defendant is one of them.

(2)  The Deceased herself was the third wife of one Leung Tsz Heung (梁梓薌). Of the wives of Leung Tze Heung, the first wife had three children:-

(a)  One of those children is Leung King To (梁景圖), deceased. One of Leung King To’s three sons is the 2^nd Defendant. The 2^nd Defendant participated in these proceedings as the administrator of Leung King To’s estate;

(b)  Another of those children is Leung King Chun (梁景俊).  The Plaintiffs are among the daughters of Leung King Chun.

6.The Deceased’s relationships with the Plaintiffs and Defendants are therefore as follows:-

(1)  The Plaintiffs are the grandchildren of the Deceased’s husband. The evidence suggests that the Plaintiffs called the Deceased “grandmother” (嫲嫲);

(2)  The 1^st Defendant is the Deceased’s nephew, even though the 1^st Defendant’s father is only the Deceased’s half-sibling; and

(3)  The 2^nd Defendant is the grandson of the Deceased’s husband, who represents the interests of the Deceased’s husband’s son.

The Plaintiffs’ relationships with the Deceased

7.The following facts are indicative of the Plaintiffs’ relationship with the Deceased over time.

8.During the Plaintiffs’ childhoods and adolescences:-

(1)  Since they were born in 1959 and 1963 respectively,  the 1^st and 2^nd Plaintiffs and their immediate family (“Plaintiffs’ Family”) lived with the Deceased and her husband (“Grandparents”). Later on, the Grandparents and the Plaintiffs’ Family moved to their own respective residences. Nonetheless, they would still dine at the Grandparents’ residence every night;

(2)  Throughout their childhoods and adolescences, both Plaintiffs maintained a close relationship with the Deceased. The Deceased spent a lot of time with the Plaintiffs.

9.After the Plaintiffs became adults:-

(1)  In 1978, the 1^st Plaintiff left Hong Kong to pursue her tertiary education. In 1990, the 2^nd Plaintiff also left Hong Kong, as the Plaintiffs’ Family migrated to Canada;

(2)  After the Plaintiffs migrated to Canada, the Deceased visited the Plaintiffs’ Family 4 times in Canada: once in Edmonton, staying in the Plaintiffs’ Family’s residence for a month; and thrice in Vancouver, staying in the Plaintiffs’ Family’s Residence for around 3 months each time;

(3)  From 1995-1998, the 1^st Plaintiff was in Hong Kong for work. While she was back, she resided at the Deceased’s residence for a few months. Additionally, the 1^st Plaintiff visited the Deceased in Hong Kong in 1999, 2002, 2006, 2007, 2009, 2011, and 2012;

(4)  The 2^nd Plaintiff would often come back to Hong Kong to visit the Deceased. She did so once every two years when the Deceased was healthy, and every year when the Deceased’s health was deteriorating;

(5)  When the Plaintiffs were not in the same country as the Deceased, they would often keep in touch with her, and talk to her through long distance calls.

Events around the Will’s execution

10.When the 1^st Plaintiff visited Hong Kong in 1999, she had a conversation with the Deceased. In that conversation, the Deceased asked the 1^st Plaintiff for a copy of her passport, and told the 1^st Plaintiff that:-

(1)  she would follow up with lawyers on some documents, and that she had arrangements for both Plaintiffs; and

(2)  She had arrangements for the Plaintiffs because they did not have stable jobs, did not make much money, were single, and would thus face difficulties if they got sick or lose their jobs.

The 1^st Plaintiff accordingly gave the Deceased a copy of her passport, which the Deceased returned after a few days.

11.Secondly, the 2^nd Plaintiff visited the Deceased in Hong Kong in or around 1999 or 2000. During that visit, the Deceased:-

(1)  brought the 2^nd Plaintiff to Hang Seng Bank Limited’s North Point branch;

(2)  added the 2^nd Plaintiff’s name to her safe in Hang Seng Bank; and

(3)  told the 2^nd Plaintiff that if anything happens to the Deceased, the 2^nd Plaintiff now knows where the Deceased’s safe and bank accounts are kept.

The Will’s Execution

12.In 2000, the Deceased had one Chan Kwan Hung Arthur (“Mr. Chan”), a solicitor, prepare the Will for her. She had instructed Mr. Chan that the Plaintiffs would be executrices and beneficiaries of her estate under the Will. Mr. Chan complied, and the Deceased executed the Will on 17 February 2000.

13.After the Deceased executed the Will, Mr. Chan’s staff took a photocopy of the Will (“Copy”). The Will was given to the Deceased. Mr. Chan kept the Copy in his office.

Material Events after the Will’s Execution

14.Some time after executing the Will, the Deceased’s health started to deteriorate.

15.On 1 September 2009, the Deceased was placed in a hospice (將軍澳靈實寧養院). She was formally diagnosed with dementia that very month.

16.After May 2010, the Deceased was taken out of the hospice, and placed in a nursing home (新同樂護理中心). She was afterwards taken out of the nursing home, and placed in an elderly home (添福老人院).

The Deceased’s Death and the Efforts to Search for the Will

17.On 7 September 2012, the Deceased died without issue. She was 89.

18.On 14 September 2012, the 2^nd Plaintiff visited Mr. Chan’s office. She instructed Mr. Chan’s firm to search for a will made by the Deceased. Mr. Chan could only locate the Copy in his firm’s office.

19.On 31 October 2014, the Plaintiffs instructed Messrs. Ho Tse Wai, Philip Li & Partners to conduct a search for any will, codicil, and testamentary disposition made by the Deceased by making a general inquiry with all solicitors’ firms through the Law Society of Hong Kong. Those efforts still did not yield the original of the Will.

20.Having set out the relevant background, I now turn to what I believe to be the issues in this case: (1) whether the Deceased duly executed the Will; and if so (2) whether she revoked it.

III.      WAS THE WILL DULY EXECUTED?

21.Under s. 5(1) of the Wills Ordinance(Cap. 30) (“WO”), a will is valid if:-

(1)  It is in writing, and signed by the testator, or by some other person in his presence and by his direction;

(2)  It appears that the testator intended by his signature to give effect to the will;

(3)  The signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time; and

(4)  Each witness either attests or signs the will; or acknowledges his signature in the testator’s presence. No form of attestation is necessary.

22.Mr. Chan does not give direct evidence on the circumstances of the execution of the Will.  However, Mr. Ko relies on the following arguments to prove due execution:-

(1)  where a will appears on its face to be validly executed, it is presumed to be; and

(2)  the Will appears on its face to be validly executed.

I address these points in turn.

The presumption of due execution

23.It is beyond dispute that the presumption of due execution exists: Williams on Wills, 11^th Edn at §13.1. It applies if the case’s circumstances suggest the will is duly executed: seeLeung Kwai Lin v Wu Wing Kuen (2001) 4 HKCFARat §66D per Litton NPJ.

24.Two things about this presumption are of particular note.

25.First, the circumstances that could engage the presumption are varied. They need not include the production of the instrument in question, or even a copy or draft of the same.

26.Leung Kwai Lin illustrates this. While it concerns a power of attorney (“POA”)rather than a will, the analysis applies to wills mutatis mutandis. In that case, P agreed to buy a property from V. V derived title from C, who in turn derived title from X. An attorney appointed under the POA had executed the assignment from X to C on X’s behalf.

27.By the time C assigned the property to V, the POA was already lost. Not even a copy was available. However, the solicitor acting for X and C in that assignment had made a statutory declaration. The declaration stated that she had read the POA, and that the POA appeared to comply with all formalities. Not having been involved in the POA’s execution, the solicitor could not declare that it actually complied with all formalities.

28.In the Court of Final Appeal’s view, the circumstances suggested the POA was duly executed. As such, the presumption of due execution applied. The circumstances referred to were as follows:- 

(1)  the solicitor had to ensure X’s assignment to C was proper. She had perused the POA, and was satisfied that it was duly executed;

(2)  after X’s assignment to C, C’s manager examined the POA, and never took issue with it; and

(3)  C then assigned the property to V. The POA was already then lost, so C used the statutory declaration to convey title. X never came forward to say she knew nothing about her flat’s sale throughout all these assignments.

Supra at 65E-66A per Litton NPJ; see also 67F-H per Sir Anthony Mason NPJ.

29.Secondly, the presumption’s force varies with the circumstances engaging it. The more suggestive the circumstances are of due execution, the stronger the presumption.

30.The existence of a copy of a will that appears to be duly executed may constitute such circumstance: supra 65C-E per Litton NPJ, 66I-68B per Sir Anthony Mason NPJ, especially if the copy shows the will contains a proper attestation clause: see supra at 65B-D per Litton NPJ; see also Williams on Wills, 11^th Edn at §13.2.

Do the circumstances in this case engage the presumption?

31.In my judgment, the circumstances of this case are sufficient to engage the presumption of due execution. In reaching this conclusion, I have had particular regard the following features of the Copy which show that:-

(1)  the Will contains a full attestation clause;

(2)  Mr. Chan and one Corrina Y. H. Chan (a clerk of Arthur K H Chan & Co (“Ms. Chan”) both signed the Will qua attesting witness, right under the attestation clause;

(3)  The Deceased also signed the Will, right next to the attestation clause;

(4)  Ms. Chan interpreted the Will in Cantonese to the Deceased before the Deceased signed the Will.

32.In my judgment, these circumstances show that the Will appears to have been duly executed at some point in time. This creates a strong presumption that the Will was duly executed. There being no evidence going the other way, I find that the Will was indeed duly executed.

IV.      WAS THE WILL REVOKED?

33.Usually, if it is established that a deceased has made a will, the party contending revocation has to prove revocation: Re Estate of Lioe Ka Khie [2009] 2 HKLRD 115 at §21 per Lam J (as he then was).

34.As the Defendants have not filed evidence, the only thing that may suggest the Will was revoked is the fact that it was in the Deceased’s custody after its execution, and is now missing.

35.Where a will was in the testator’s custody and cannot be found at his death, there is a rebuttable presumption that the testator destroyed the will with intention to revoke it (“the Presumption of Revocation”): Re Estate of Lioe Ka Khie at §§21-26 per Lam J (as he then was).  The testator’s destruction of the will with the intention of revoking it is one of the ways of revoking a will: see s. 13(1)(d) of the WO.

36.Mr. Ko argues that the Presumption of Revocation does not hold in this case for two reasons:-

(1)  the evidence before the court is sufficient to rebut the presumption; and/or

(2)  The Deceased became “insane” after the Will’s execution, and stayed that way until she died. This creates a rebuttable counter-presumption that the Deceased was “insane” when she destroyed the Will (“Counter-Presumption”).

I address these arguments in turn.

V.      IS THE PRESUMPTION OF REVOCATION REBUTTED BY EVIDENCE?

37.In his oral closing, Mr. Ko submitted that in order to rebut the Presumption of Revocation, the plaintiff only needs to prove that, on the balance of probabilities, the Will was not revoked.  The plaintiff does not have to prove specifically whether the Will was stolen, mislaid, mistakenly torn up, or exactly why it is that the original is nowhere to be found. 

38.I would agree with this submission.  As the ultimate question is whether the testator had revoked the will, and the Presumption of Revocation is merely to assist the Court to arrive at the answer to that question, in my view the presumption is rebutted if the person propounding the will can prove, on the balance of probabilities, that the testator had not revoked the will.

39.In Mr. Ko’s submission, the following facts show that the Deceased did not intend to revoke the Will:-

(1)  the Deceased never consulted Mr. Chan as to revocation or informed Mr. Chan that she had revoked the Will; and

(2)  the Plaintiffs maintained a good relationship with the Deceased since their childhood up till her death.

40.I accept both of Mr. Ko’s submissions:-

(1)  It should be recalled that Mr. Chan had custody of the Copy, and in all likelihood the plaintiff knew that that was the case. To revoke the Will without consulting or informing Mr. Chan so that he could shred the Copy would be to run an unnecessary and easily avoidable risk of the Will being wrongly proved. It is unlikely for anyone who intends to revoke a will to run such a risk;

(2)  Given the facts found at §§8-9 above, I have no difficulty accepting that the Plaintiffs had a very good relationship with the Deceased until her death. Further, I am satisfied that the Deceased’s relationships with the Plaintiffs were so good that she desired to provide for them financially. There is no evidence suggesting that this desire either changed or waned.

41.Accordingly, I find that the Presumption of Revocation (if engaged) has been rebutted, and that the Deceased did not revoke the Will.

VI.      COUNTER-PRESUMPTION

42.In addition to the above, I am also satisfied that the Counter-Presumption is engaged, and is not rebutted in this case. 

Law on the Counter-Presumption

43.As explained at §35 above, if a will was in the testator’s custody and cannot be found at his death, the Presumption of Revocation is that the testator destroyed the will with intention to revoke it.

44.However, if a testator became “insane” after executing his will (presumably for more than a de minimis period), and the testator has had custody of his will for a period spanning both when he was “sane” and “insane”, the Presumption of Revocation does not apply: see the headnote of Sprigge v Sprigge (1865-69) L.R. 1 P. &D.; see also 609-610 per Sir. J. P. Wilde.

45.Rather, the Counter-Presumption is that the testator destroyed the will while “insane”, and thus could not have had the intention necessary to revoke the will in the meantime: Sprigge v Sprigge, in particular at 609.  It would then be for the person seeking to oppose the proof of the will to prove that the will was destroyed during a time when the testator had full capacity.

46.Both the language and the rationale of Sprigge v Sprigge at 609 make clear that, in this context, to be “insane” is to lack mental capacity to revoke a will. A person lacks capacity to revoke a will if he lacks testamentary capacity: see §18.17 of Williams on Wills, 11^th Edn. 

47.As such, in this case, the Counter-Presumption arises if the Deceased lacked testamentary capacity for a period (which is not de minimis) between the Will’s execution and her death.

The Deceased’s testamentary capacity after executing the Will

48.To have testamentary capacity, one must: (1) understand the nature of the act of making a will and its effects; (2) understand the extent of the property of which he is disposing; and (3) comprehend and appreciate the claims to which he ought to give effect: see Au Wing Lun, also known as Au Wing Lun William v Choy Po Chun, Au Chadwick [2018] HKCFA 61 at §4 per Ribeiro PJ.

49.Mr. Ko argues the Deceased lacked testamentary capacity between 2009 and her death (“the Period”). To this end, he relies on an expert report prepared by Dr. Choi Wing Kit dated 28 April 2020 (“Report”).  

50.The Report concludes that the Deceased was incapable of understanding the nature of the act of revoking (and thus making) a will, as well as its effects and consequences between 2009 and her death. That is because:-

(1)  The Deceased’s medical records from 1 September 2009 to 27 May 2010 suggest that the Deceased was suffering from moderately severe to severe dementia, with severe to very severe cognitive decline and impairment. As dementia is typically chronic and deteriorating in the Deceased’s age bracket, the Deceased’s condition lasted the Period’s duration;

(2)  Persons with severe cognitive impairment suffer from a number of symptoms. Most notably: they suffer from severe memory loss – only fragments remain; they are oriented to person only, but not space and time; and they are unable to make judgment and solve problems;

(3)  Given the above, it is likelier than not that, during the Period, the Deceased was incapable of understanding the nature of the act of revoking a will, as well as the effects and consequences of a revocation.

51.I accept Dr. Choi’s conclusions in the Report.

52.In the premises, I find that the Deceased lacked capacity to revoke the Will during the Period. The Counter-Presumption thus applies. As the Defendants have not led any evidence to rebut the Counter-Presumption, the Counter-Presumption holds.  That means that the court is to proceed on the basis that the Will was not revoked.

VII.      ORDER

53.Since I have held that the Will was duly executed and not revoked, I make an order (as proposed by Mr. Ko) as follows. I accept Mr. Ko’s submission that although the original of the Will is not before the court, it is the Will (as opposed to the Copy) which is proved, although such proof is by way of the contents as seen from the Copy:-

(1)  The Will and its contents as proven by the Copy lodged into Court via Mr. Chan’s Affirmation dated 30 July 2020 be pronounced in solemn form of law;

(2)  The Plaintiffs’ costs be paid out of the Deceased’s estate;

(3)  There be no order as to costs between the Plaintiffs and the 1^st Defendant, and as between the Defendants (costs as between the Plaintiffs and the 2^nd Defendant having already been dealt with by a Court order dated 1 December 2021).

54.I should also register my gratitude to Mr. Ko for his helpful assistance.

Mr Tony Ko, instructed by Ho, Tse, Wai & Partners, for the 1^st and 2^nd plaintiffs

The 1^st defendant was not represented and did not appear