Wong Tug Wai v. Wong Tung Po

HCAP 3/2017

[2023] HKCFI 1240

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 3 OF 2017

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BETWEEN

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JUDGMENT

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INTRODUCTION

1.This was the trial of the Plaintiff’s (“the Plaintiff” / “Tung Wai”) claim in respect of the estate of his late mother, Ms Tsang Yin Ping (“the Deceased”). The Deceased passed away on 9 May 2014. By Amended Statement of Claim (“ASOC”) dated 15 April 2019, Tung Wai claims against the Defendant (“the Defendant” / “Tung Po”).

2.The Deceased was born in 1935. She married the late Mr Wong Kwan Shing, the parties’ father, in 1954. They had five children, in order of seniority – Tung Po, Ms Wong Pik Sai, Ms Wong Shuk Yin (“Shuk Yin”), Mr Wong Tung Fuk (“Tung Fuk”) and Tung Wai. By the time of trial, Ms Wong Pik Sai and Shuk Yin were deceased.

3.The dispute is, in essence, between the brothers. There are two wills of the Deceased which have been placed before the Court at trial. The first is dated 4 January 2008 (“the 1^st Will”), and the second is dated 6 March 2014 (“the 2^nd Will”). The key point of distinction is that the 1^st Will identifies the Plaintiff as the sole executor and sole beneficiary, whilst the 2^nd Will identifies the Defendant as sole executor and the beneficiaries are the Defendant and Tung Fuk, in equal shares, excluding the Plaintiff.

4.Upon the application of the Defendant (and unbeknownst to the Plaintiff at the time), probate was granted in respect of the 2^nd Will on 7 January 2015 under grant number HCAG 016013/14 (“the Grant”).

5.By the ASOC, Tung Wai seeks relief that the 2^nd Will be pronounced against and the Grant be revoked, and that the 1^st Will be admitted to probate. Consequential thereto, he also seeks orders that the Defendant do hold the estate of the Deceased under the Grant on trust and to return the estate to the Plaintiff, and that the Defendant account for any loss / depletion of the estate of the Deceased which may have been dissipated or unlawfully distributed to Tung Fuk. Finally, he seeks damages for any misappropriation of the estate of the Deceased by the Defendant.

6.The ASOC sets out two bases for the reliefs sought:

(1) First, it is said that that the Deceased’s health had deteriorated since late 2012, and that she had had a confused mind since her admission to a residential home for the elderly in December 2012 (“the Elderly Home”). It is thus said that she lacked testamentary capacity at the time of the making of the 2^nd Will.

(2) Second and alternatively, it is said that the 2^nd Will was procured by the Defendant with undue influence having been exerted on the Deceased. The essence of the Plaintiff’s claim is that the Defendant ‘prompted, urged, pressurized, and coerced the Deceased into making [the 2014 Will]’, whereby he: (a) falsely represented to the Deceased that P behaved viciously towards her and assaulted her; (b) ‘disturbed the emotion of the Deceased, confused her mind and incited a sense of detestation against [the Plaintiff] in her’; and (c) on the date when the 2014 Will was executed, the Deceased had a ‘frail body and feeble mind’, and her ‘testamentary will had been sapped and overborne by the undue influence exerted by [the Defendant]’.

7.By Amended Defence dated 10 May 2019, the Defendant denies the various allegations. It is his case that the Defendant was fit to execute the 2^nd Will and the Grant is valid. The allegation of undue influence is similarly denied.

8.At trial, the Court heard evidence from the Plaintiff and his expert witness, Dr Wong Yee Him (“Dr Wong”), a psychiatrist, in support of the Plaintiff’s case. On the Defendant’s side, Tung Po and Tung Fuk gave evidence. In addition, the Defendant also called Ms Tsang Ping Ping, the Deceased’s sister; Mr Li Man Pong (“Mr Li”) and Ms Wong Chui Yuk (“Ms Wong”), the two attesting witnesses to the 2^nd Will, who were respectively a solicitor and a clerk from the firm of Messrs. KY Lo & Co; and finally, Dr Yu Yi Ling (“Dr Yu”), a neurologist who was the Defendant’s expert witness.

9.The Plaintiff was not present at the time of the attestation of the 2^nd Will. Tung Po, Tung Fuk, Ms Tsang Ping Ping, Mr Li, and Ms Wong were present.

10.Throughout the trial, and in the pleadings and witness statements, there have been numerous allegations levelled on both sides regarding alleged mistreatment of the Deceased. Where relevant, these will be discussed below.

11.In addition, a notable point as to the evidence in this case is that there are several video recordings of the Deceased made by Tung Po in the period leading up to and during the actual attestation of the 2^nd Will. The Court has thus had the benefit of seeing these video recordings of the Deceased and has weighed them alongside the other evidence that has been tendered at trial.

12.At trial, the Plaintiff was represented by Counsel Mr Alexander Cheung, and the Defendant was represented by Counsel Mr Ken To.

B. RELEVANT LEGAL PRINCIPLES

B1. Testamentary Capacity

13.Both parties have referred to Nina Kung v Wong Din Sin (2005) 8 HKCFAR 387. The relevant paragraphs are set out below:

“171. A person who propounds a will has the legal or persuasive burden of satisfying the court that it is the will of the deceased: Barry v Butlin (1838) 2 Moo PC 48; Robins v National Trust Company Limited & Others [1927] AC 5145, Wintle v Nye [1959] 1 WLT 284 (HL).

172. The standard of proof is the balance of probabilities. The proponent of the will must show on a preponderance of the evidence that it is the will of the deceased: Worth v Clasomh & Another (1952) 86 CLR 439 at p. 453; Fuller v Strum [2002] 1 WLR 1097 at p. 1120.

173. This means that the proponent of the will has the persuasive burden of proving on the balance of probabilities that:

(a) there was due execution of the will;

(b) the testator was of testamentary capacity; and

(c) the testator knew and approved of the contents of the will. (Barry v Butlin (1838) 2 MOOPC 480; Re Harmes Estate [1946]3 DLR 497 (PC)).

…

176. If someone wishes to dispute the validity of a will on the grounds that there is want of due execution, or of the requisite knowledge and approval, that person bears an evidential burden of putting the relevant grounds of challenge in issue, the court when assessing he evidence as a whole at the end of the case, decides whether the proponent of the will has discharged the persuasive burden in relation the relevant fact in issue on the balance of probabilities.

177. On the other hand, where a person seeks to challenge a will on the grounds that the testator was induced to make the will by fraud or by undue influence, such person bears the persuasive burden of establishing the fraud or undue influence: Boyse v Rossborough (1857) 6 HLC 2; Craig v Lamoureux [1920] AC 349 (PC). These pleas presuppose execution of the will by the testator. The allegation is that such execution was procured by acts of fraud or undue influence performed by others; Tyrrell v Painton [1894] p. 151 at 157/ C H Sherrin et al, Willams on Wills (Butterworths, 8^th Ed) §5.9.

178. The person propounding the will has no burden of disproving fraud or undue influence, although he is obviously likely in practice to adduce whatever evidence may be available to counter those allegations. Where those issues are raised assuming that the court is satisfied as to due execution, testamentary capacity and knowledge and approval, the court askes itself at the end of the day whether, having regard to all the evidence adduced, the person opposing the grant has satisfied the court that it is more likely than not that the testator was induced to make the will by fraud or undue influence, as the case may be.”

14.As to testamentary capacity, the statement by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565 (as endorsed by the Court of Appeal in Chiu Man Fu v Chiu Chung Kwan Ying (CACV 40/2012, 18 June 2013) at [52]) has also been cited by both sides. This laid down the following criteria for testamentary capacity:-

“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.”

15.As to the approach to this question of testamentary capacity, Chow J (as he then was) held in Choy Po Chun v Au Wing Lun (HCAP 7/2010, 4 July 2017) at [45] that:-

“In Boughton v Knight (1873) LR 3 P&D 64 at 67, Sir J Hannen stated that the question of whether a testator had testamentary capacity should be treated as a ‘practical question’ which did not depend solely on scientific or legal definition, and was a question of degree to be solved on the facts and circumstances of each case. Further, as pointed out by the Court of Appeal of New South Wales in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, 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.”

16.The Court should not too readily upset a will prepared by experienced solicitors on the ground of mental incapacity. In Hawes v Burgess [2013] WTLR 453, Mummery LJ stated:-

“57 That said, it is, in my opinion, a very strong thing for the judge for 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 the testatrix understood that she was making a will and also understood the extent of her property.”

17.In Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387, Chan PJ stated at [15]:-

“…the courts generally prefer the direct evidence of witnesses who actually saw and heard what happened to the opinion evidence of an expert …”

18.The Court of Appeal of New South Wales in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 stated at [65] as adopted by the English Court of Appeal in Simon v Byford [2014] WTLR 1097 at [17]:-

“…However, evidence of such understanding [of the Deceased’s testamentary capacity] may come from non-expert witnesses. Indeed, perhaps the most compelling evidence of understanding would be reliable evidence (for example, a tape recording) of a detailed conversation with the deceased at this time of the will displaying understanding of the deceased’s assets, the deceased’s family and the effect of the will. It is extremely unlikely that medical evidence that the deceased did not understand these things would overcome the effect of evidence of such a conversation.”

19.For the case of an aged testator or a testator who has suffered a serious illness, there is a ‘golden rule’ that 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: Re LLC (Statutory Will) [2010] 3 HKLRD 16 at [144].

20.In Re Estate of Au Kong Tim [2018] 2 HKLRD 864, the Court of Appeal provided the following guidance on the application of the golden rule at [2.3]-[2.7]:

2.3 In view of the importance that 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, include 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 the 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 also follow the checklist referred to in paragraph 40 of the Chow J’s judgment below, 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 effects’, ‘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 follows the ‘golden rule’ referred to by Templeman J in Kenward v Adams (1975) The Times 29 November 1975, 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 (C.A.) at [49] and In re Key, Decd [2010] 1 WLR 2020 at [7]), the words of Briggs J in 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.’

21.The testator in Re Estate of Au Kong Tim was 92 years of age at the time of making the will, living in a care home and showing signs of infirmity; a state which the court said “cried out loudly for more detailed enquiry to be conducted by the solicitor” (at [3]). The Court of Appeal found in that case that whilst the first instance judge had considered the first aspect of the Banks v Goodfellow questions about testamentary capacity (viz. if the deceased was capable of understanding the nature and the act of making the will and its effects), he had failed to make findings on the latter two aspects (i.e. whether the deceased was capable of understanding the extent of the property that he was disposing, and whether he was able to comprehend and appreciate the claims to which he ought to give effect), and there was insufficient evidence upon which draw inferences in regards to the same (at [54] to [65]). In such context, they emphasised the prudence of following the checklist (referenced at paragraph 2.5 of the decision, “Checklist”) and the golden rule so as to avoid possible disputes as to validity of the will in question (at [75] to [76]).

22.However, in Re Estate of Wong Yin Sheung [2019] HKCA 452, Kwan VP made it clear at [39]-[43] that much depends on the facts and evidence in any given 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 that case, the solicitor had similarly failed to follow the Checklist or the golden rule, and there had been no questions asked as to other close relatives, the size of the estate or the nature of the assets. Nonetheless, the Court of Appeal observed that the judge may well have implicitly found that all three criteria were satisfied, and in any event made the distinction (in contrast to Au Kong Tim) that there was sufficient evidence upon which to draw the relevant inferences. See also: Chen Yue Jia James v Chen Maria [2020] HKCFI 2410 at [289]-[291].

23.The fact that a person is 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 133 per Poon J; Chan Chun Pui and Pang Woon Kam v Feng Cuixian (HCAP 13/2007, 24 July 2009) at 121-124 and 146 per Recorder A Ho SC.

24.However, the fact that the dispositions in a will are rational is an important factor or indicator of testamentary capacity. See: Banks v Goodfellow at 558 and 565-566; Hoff v Atherton [2005] WTLR 99 at [44] per Peter Gibson LJ.

B2. Undue Influence

25.Undue influence in the law of probate is different from undue influence as understood in equity. It is more stringent in the sense that actual undue influence is required to be proved, and undue influence is not presumed in making a testamentary gift: Hubbard v Scott [2012] WTLR 29 at [2].

26.In Li Chi Loy v Li Lai Lan Candice [2008] 5 HKLRD 74 at [83], Poon J (as the Chief Judge then was) adopted the summary of undue influence in a probate litigation in Re Edwards [2007] WTLR 1387 at [47]:

"… The approach that I should adopt may be summarised as follows:

(i) In a case of testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence.

(ii) Whether undue influence has procured the execution of a will is therefore a question of fact.

(iii) The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps, no more than a reminder of the high burden, even on the civil standard, that a claimant bears in providing undue influence as vitiating a testamentary disposition.

(iv) In the context undue influence means influence exercised either by coercion, in the sense that the testator’s will must be overborne, or by fraud.

(v) Coercion is pressure that overpowers the volition without convincing the testator’s judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator’s free judgment, discretion or wishes, is enough to amount to coercion in this sense.

(vi) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness’s sake to do anything. A ‘drip drip’ approach may be highly effective in sapping the will.

…

(ix) The question is not whether the court considers that the testator’s testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his disposition, the testator has acted as a free agent.”

27.As to the nature of the influence exerted that constitutes undue influence, Sir J.P. Wilde in Hall v Hall (1868) L.R. 1 P. & D. 481 at 482 held:

“To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, -- these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator’s judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of someone else’s.”

28.Similarly, in Wingrove v Wingrove (1885) 11 P.D. 81 at 82-83, it was held:

“To be undue influence in the eye of the law there must be – to sum it up in one word – coercion. It must not be a case in which a person has been induced, by means such as I have suggested to you, to come to a conclusion that he will make a will in a particular person’s favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he does not desire to do, that it is undue influence.

The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness’ sake, to do anything. This would equally be coercion, though without actual violence.

These illustrations will sufficiently bring home to your minds that even very immoral considerations either on the part of the testator, or of someone else offering them, do not amount to undue influence unless the testator is in such a condition, that if he could speak his wishes to the last, he would say, ‘this is not my wish, but I must do it’ …

There remains another general observation that I must make, and it is this, that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power, that the will such as it is, has been produced.”

29.‘Victimisation’, ‘domination’ and ‘coercion’ are the words used in the authorities: Hubbard v Scott [2012] WTLR 29 at [46]. As Lord Haldane said in Craig v Lamoureux [1920] 1 AC 349 at [357], citing Boyse v Rossborough (1856) 6 HLC 2 at [52]:

“In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis.”

30.As to the proof of actual undue influence, In Re Good (deceased), Carepeto v Good [2002] WTLR 801 at [126], it is held that in the absence of any direct evidence, coercion may be found by the court drawing inferences from the general circumstances.

B3. Assessment of Witness Evidence

31.The following propositions are well-settled as regards the approach to witness evidence and documentary evidence.

32.The Court will have regard to the inherent probabilities of the parties’ respective cases, and the internal consistency of the witnesses’ evidence and their demeanor when testifying at trial. Further, the Court will have regard to the contemporaneous documents, circumstantial evidence tending to support one account rather than the other, and the overall impression of the character / motivation of the witnesses (Re B (Children) [2009] 1 AC 1).

33.The Court bears in mind not only the witnesses’ demeanor in court, but also the history of events, and the contemporaneous documents and the inherent probabilities of the witnesses’ accounts (Esquire (Electronics) Ltd v The Hong Kong and Shanghai Banking Corp Ltd [2007] 3 HKLRD 439 at 494C).

C. BACKGROUND AND DISPUTED MATTERS

C1. Factual Background and Disputed Matters

34.The following matters form the background to the disputes between the parties. Where relevant, key points of dispute in the evidence are highlighted below.

C1a. The Living Arrangements of the Deceased

35.The Deceased, her husband and her children previously lived in Ping Shek Estate. Most of the children grew up and eventually left the family home. The Plaintiff, however, continued to live with his mother. After he married, his whole family lived with the Deceased.

36.In 2007, the Deceased gave up her right to reside in Ping Shek Estate in exchange for a right to purchase a property under the Home Ownership Scheme at Hong Yat Court. With the financial assistance of Shuk Yin, 4002, 40/F, Hong Lai House, Hong Yat Court, Lam Tin (“Hong Yat Property”) was purchased under the names of the Plaintiff, his wife and the Deceased, held by way of a joint tenancy. The Deceased resided in the Hong Yat Property with the Plaintiff’s family until she was admitted to the Elderly Home in late 2012.

37.The first area of dispute between the parties relates to this living arrangement.

38.The Defendant makes serious allegations as to the treatment of the Deceased by the Plaintiff during the time she resided with the Plaintiff and his family. It is the Defendant’s allegation that the Deceased told him that the Plaintiff assaulted her and behaved viciously towards her. The Defendant also alleged that whilst the Deceased was living in the Hong Yat Property, the Deceased said she was made to wear diapers and prevented from accessing the toilet in the flat in the evenings.

39.On the other hand, whilst the Plaintiff acknowledged that he had had typical family quarrels with the Deceased, and also acknowledged that he once broke the Deceased’s walking stick in frustration (by accident), he maintained that he had a good relationship with his mother and was a filial son, a point which she recognised and was appreciative of.

40.Related to this, there is an issue between the parties as to how regularly the Defendant visited his mother at the Hong Yat Property, and thus whether he was able to recall the layout of the flat and the access situation to the toilet by his mother. All of these disputes ultimately go towards whether the Deceased would have been motivated to disinherit the Plaintiff in 2014 and instead leave her property and estate to the elder brothers.

C1b. The 1^st Will

41.On 4 January 2008, the Deceased executed the 1^st Will, appointing the Plaintiff as both the sole executor and beneficiary of the Estate of the Deceased. The Defendant and Tung Fuk were not made aware of the execution of this 1^st Will at the time.

C1c. The Kwun Tong Property and the Deed of Gift

42.In or around 1978, the Deceased had purchased Unit D on 2/F, Block 3, Nos.448-458 Kwun Tong Road, Kwun Tong Industrial Centre, Kowloon (the “Kwun Tong Property”). Rental income derived from the Kwun Tong Property had been applied to support the family, and later on, to support the living and medical expenses of the Deceased.

43.In the last quarter of 2012, the Deceased had a fall and was hospitalised. During her period of hospitalisation, on 9 November 2012, the Deceased executed a Deed of Gift, gifting the Kwun Tong Property to the Plaintiff.

44.Another area of dispute between the parties relates to this Deed of Gift.

45.The Defendant’s allegation is that the Deceased had progressive cognitive impairment since 2012, and she had essentially been misled into gifting the Kwun Tong Property to the Plaintiff. The Plaintiff denies this, saying that the Deceased was the one who willingly and knowingly wished to undertake the transfer to him. This transfer was initially not made known to the Defendant and Tung Fuk; they subsequently discovered it. Steps were taken in 2014 relating to this transfer, as further described below.

46.During the trial the Defendant was questioned as to why, if he truly believed that this Kwun Tong Property belonged to the Deceased, steps had not been taken to recover the same for the benefit of the estate. He indicated that it was because of this ongoing litigation, and that he would take steps at an appropriate juncture later on.

47.The parties agreed that it was not for this Court at this juncture to make ultimate findings as to the substantive allegations of misappropriation insofar as the Deed of Gift and the Kwun Tong Property were concerned.

C1d. The Deceased’s admission to the Elderly Home in December 2012

48.On 11 December 2012, the Deceased was admitted to an Elderly Home.

49.In December 2012/January 2013, the Plaintiff asked Tung Fuk to sign a document for the Deceased’s Comprehensive Social Security Assistance Scheme application confirming that Tung Fuk would not financially support the Deceased. Tung Fuk refused. It was during this process that the transfer of the Kwun Tong Property was discovered by the elder brothers. The brothers quarrelled regarding this and their relationship soured substantially thereafter. The Defendant highlights that this transfer terminated the major, if not the sole, source of income of the Deceased, in the form of rental generated by the Kwun Tong Property. The Plaintiff says that he was simply administering the property for his mother, and that it was her intention to give it to him for this purpose and she had also done so taking into account her ill health and old age.

C1e. The steps taken in 2014 regarding the Kwun Tong Property

50.In the initial months of 2014, the Deceased – at each juncture accompanied by the Defendant – apparently took steps to apply for legal aid to commence proceedings against the Plaintiff, the ultimate objective being to recover the Kwun Tong Property:

(1) On 7 January 2014, the Deceased re-applied for her HKID card in order to apply for legal aid;

(2) On 21 January 2014, the Deceased attended the Bank of China to apply for her bank statements to prove her eligibility in applying for legal aid; and

(3) On 7 February 2014, the Deceased took out a legal aid application for an intended action against, inter alia, the Plaintiff to recover the Kwun Tong Property. In the questionnaire for the legal aid application, it is stated that the Deceased signed the Deed of Gift whilst she was still hospitalized with unsatisfactory mental state, and she executed the document without knowing its contents and effect.

51.A further area of dispute relates to the steps taken during this period. It is the Defendant’s allegation that the steps were taken upon the Deceased’s insistence that he should help her in recovering the Kwun Tong Property from the Plaintiff, since she was upset about having been misled into gifting him the same. The Plaintiff, on the other hand, casts doubt on this version of events, stating that the Deceased had willingly transferred the Kwun Tong Property to him, the implication being that the steps taken above were only undertaken upon the heavy influence and persuasion of the Defendant – even suggesting at one point that she had been “brainwashed” against him.

C1f. The 2^nd Will

52.As noted above, the 2^nd Will was made on 6 March 2014. The above matters form the background as regards the question of whether the Deceased would have been motivated to make the 2^nd Will, effectively disinheriting the Plaintiff and leaving the estate to the elder brothers.

53.On 20 February 2014, at the arrangement of the Defendant, Ms Wong took instructions personally from the Deceased at the Elderly Home.

54.On 6 March 2014, the Deceased executed the 2^nd Will in the presence of Ms Wong, Mr Li, the Defendant, Tung Fuk, and Ms Tsang Ping Ping. By the 2^nd Will, she appointed the Defendant as the sole executor. As can be seen from the video recording, the actual signing process was relatively quick. Mr Li read through the contents to her, and she signed on the same.

55.The key dispute between the parties is thus in respect of this 2^nd Will:

(1) The main question is whether the Deceased had the requisite testamentary capacity to execute this 2^nd Will. Relatedly, the parties have made submissions as to the applicability of the “golden rule” and the significance of the fact that this was not followed.

(2) On the Plaintiff’s alternative case, the question is whether, during the period in the lead up to the execution of the 2^nd Will, the Defendant had taken the steps alleged which constituted actual undue influence on the Deceased.

C1g. Events following the execution of the 2^nd Will

56.On 24 March 2014, the Deceased, together with the Defendant, attended a meeting at the Legal Aid Department in furtherance of the application discussed at paragraph 50 above.

57.On 26 March 2014, 28 March 2014 and 1 April 2014, the Defendant, the Plaintiff and the Social Welfare Department took out their respective applications for legal guardianship to be appointed for the Deceased.

58.On 11 April 2014, the Deceased was interviewed for the purpose of the preparation of a social worker’s report in relation to the application for legal guardianship (“the Social Worker’s Report”).

59.The aforementioned applications and the Social Worker’s Report ultimately prepared have been referenced by both sides during the trial, as the contemporaneous documentation serves to give some indication of the Deceased’s state of mind in or around the relevant time period. The experts have referenced and/or been questioned about these documents, as well as various other medical records and the video recordings made by the Defendant. All of these contemporaneous materials and the witness evidence, inform the Court’s holistic consideration of the key dispute as to testamentary capacity.

C1h. Deceased’s passing and subsequent events

60.On 9 May 2014, the Deceased died of heart failure.

61.On 7 January 2015, probate of the 2^nd Will was issued to the Defendant.

62.On 23 January 2017, the Plaintiff commenced these proceedings.

C2. Medical History of the Deceased

63.Another key area of evidence concerns the medical history of the Deceased, both leading up to and during the material time.

64.The Deceased studied up to lower secondary level, and she suffered from a minor stroke in or around 2001.

65.In October 2012, the Deceased had sustained a head injury in a fall accident and was admitted to hospital. On 19 October 2012, she was assessed by a psychiatrist at United Christian Hospital and found to be cooperative, with relevant response and not depressed. At the time, she scored 12/30 in a MMSE test which had been administered (i.e. mini-mental state examination, further explained below). The psychiatrist’s impression was that she was a ‘hot-tempered patient with underlying dementia’. She was considered psychiatrically fit to be transferred to Kowloon Hospital for rehabilitation.

66.On 30 October 2012, she was found to be cooperative, alert with fair orientation in time and place, with poor short-term memory. At that time, she scored 19/30 in MMSE. It was noted that she was alert and able to follow 2-step command, but her short-term memory was poor and her time and place orientation was fair. Following rehabilitation, she was able to walk with the aid of a walking stick for 60 metres under supervision.

67.In December 2012, after her discharge from the hospital, she was admitted to Hong Ling Nursing Centre (i.e. the Elderly Home discussed above).

68.In or around the end of 2013, she was admitted to United Christian Hospital on a number of occasions. One such occasion was December 2013, when she had bronchitis. She was subsequently discharged back to the Elderly Home.

69.As noted above, on 20 February 2014, Ms Wong took instructions from the Deceased regarding the 2^nd Will.

70.On 22 February 2014, the Deceased was admitted to a hospital after a fall causing fractured ribs. The admitting nurse noted that the Deceased had no problem with her consciousness, mood and communication. Upon her admission, her Glasgow Coma Scale was 15 out of 15, indicating she was alert and conscious. Examination by the attending doctor showed that she was alert with full orientation. A CT scan of her brain revealed old infarcts and features of small vessel disease. She was discharged on 26 February 2014. The discharge summary noted that she was suffering from chronic rheumatic heart disease, hypertension, congestive heart failure, a previous stroke with left side weakness, atrial fibrillation (for which she was on medication) and gout.

71.At a clinic follow up on 4 March 2014, it was noted that the pain control around her chest wall was “ok” and her medical condition was stable.

72.The 2^nd Will was made on 6 March 2014.

73.On 9 March 2014, the Deceased was admitted to hospital for abdominal pain. On admission, the nurse note recorded that the Deceased had no problem with cognition, mood and communication. However, on 16 March 2014 to 19 March 2014, the nurse note recorded that the Deceased’s cognition was impaired, though there was no problem in her mood and communication.

74.For the purposes of her guardianship applications, two doctors examined the Deceased:

(1) On 9 March 2014 and 17 March 2014, the Deceased was examined by Dr Cheung Hay Man.

(2) On 14 March 2014, the Deceased was examined by Dr Chan Ka Yee.

75.In Dr Cheung Hay Man’s report dated 17 March 2014:

(1) It was noted that the Deceased suffered from “other disorder or disability of mind which does not amount to mental handicap” being “Cerebral Vascular Accident / hemorrhage”. She was said to be “improving”.

(2) It was recommended that she be received into guardianship in respect of her “Accommodation / Residence”.

(3) In terms of her limitations of capacity, the doctor noted that the mental disability limited the Deceased’s capacity to make decisions as to her medical treatment including compliance with medication, her ability to manage finances, and her ability to make decisions on personal care, training and accommodation.

76.In Dr Chan Ka Yee’s report dated 19 March 2014:

(1) It was noted that the Deceased suffered from “mental illness” of “vascular dementia” with a “downhill / stepwise course.”

(2) It was noted that the Deceased scored 10/30 in MMSE on 14 March 2014 (It is unclear whether it is Dr Chan who performed the test).

(3) It was opined that the Deceased was a mentally incapacitated person suffering from a mental disorder of a nature or degree which warranted her reception into guardianship, the cited basis being the MMSE score as well as the CT scan having been performed on 22 February 2014 indicating “small vessel disease, old infarcts”. It was further noted that the guardianship arrangement would assist the decision-making and execution in respect of accommodation / residence, finance, medical treatment, and welfare planning.

77.As noted above, a social worker also visited the Deceased on a number of occasions in April 2014. The lengthy report covers much ground, but inter alia mentions or discusses the following matters which occurred over the course of the visits:

(1) The Deceased was able to respond to and greet the social worker, was able to tell her name and age, but could be disoriented as to time and place.

(2) The Deceased could hold a newspaper and read by herself.

(3) She expressed sadness at the conflict between her sons.

(4) The Deceased recognized her sons and showed positive responses to each of them.

(5) She told the social worker that “it was her desire to transfer the factory property to the Plaintiff because she was too old with weak health”.

(6) Afterwards when the Defendant visited, she recognized him and said that he “was a filial son and always visited her.” She then said (in the Defendant’s presence) that the Plaintiff “was bad because he cheated her to transfer the ownership of the factory property to him.”

(7) When reminded of her late mother, she responded by crying and indicating that she’d passed away recently (when in fact she had passed away a decade ago).

(8) There were occasions when her cognition and general responsiveness appeared to be lower.

78.The Deceased was admitted to United Christian Hospital on 5 May 2014. She died on 9 May 2014. The cause of death was heart failure.

C3. The Experts’ Evidence

79.Neither of the experts in this case met the Deceased. Their assessments were based on the available records, the broad gist of which have been summarized above.

80.In Dr Wong’s report dated 5 March 2019, the following is discussed.

81.Note is made of the MMSE scores from October 2012 onwards, the social worker’s report, as well as aspects of the medical history essentially as summarized above (albeit with limited reference to the nurses’ and doctor’s contemporaneous notes as to the Deceased’s general state).

82.The conclusion is drawn that the Deceased was suffering from dementia in 2012 to 2014. This is based on the known MMSE scores and other materials, as below:

(1) He explains MMSE in further detail. In essence, it is a 30-point test that is used to screen for cognitive impairment. It is commonly used in medicine to estimate the severity of cognitive impairment at a given point in time and to follow the course of cognitive changes in an individual over time. A cut-off point of 23 or below is used to discriminate between patients with cognitive impairment and normal subjects. There is also some literature which indicates that this score can be influenced by education level of the subject; those with lower education level would have a lower cut-off score – Dr Wong use the cut-off of 21 in the case of the Deceased.

(2) Referencing the two MMSE scores in October 2012 (19) and March 2014 (10), Dr Wong says that “this score is definitely incompatible with normal cognitive function” and that she was “definitely suffering from significant cognitive impairment.” He further says that “this score is consistent with mid to late stage Dementia.”

(3) Referencing her stroke history, heart problems, and CT Brain scan, he says that these are “typical for Vascular Dementia”. He also references the social worker’s report, again noting that her behaviour reported therein is consistent with mid-to-late stage Dementia.

83.He then goes on to discuss whether the Deceased had testamentary capacity, opining inter alia that:

(1) He has limited information or data on her attention, and is unable to ascertain whether she could understand the information relevant to making the decision of making the will. However, placing heavy emphasis on the MMSE score of 10 as at 14 March 2014, he believes she was not capable of retaining the information long enough for making the decision, and that she was unable to weigh the information was part of the process of decision making.

(2) He believed it was unlikely that the Deceased could understand the extent of her property fully at that juncture, citing again the MMSE score of 10, and also the disorientation as to time, date and place since 2012.

(3) He considers she would have been unable to comprehend and appreciate the claims to which she ought to give effect, noting that although she seemed to be able to name her sons as at the time of the 2^nd Will, she was “quite confused” about facts pertaining to her different sons – in support of this, he cites the Deceased’s varying accounts as recorded in the Social Worker's Report of whether she had willingly given the Kwun Tong Property to the Plaintiff; this is further discussed below. He again notes the MMSE score of 10 in relation to this aspect.

(4) Based on the above, he concludes that the Deceased did not have the necessary mental capacity.

84.Dr Wong’s approach to the video evidence is to note that in most circumstances, the video by itself would not yield adequate information upon which to draw a conclusion about mental capacity. Nonetheless, he opines that the appearance and behaviour of the Deceased in the videos is consistent with someone suffering from moderate Dementia.

85.In Dr Yu’s report dated 7 July 2017, the following is discussed.

86.He summarises the medical history, the background to the 1^st and 2^nd Wills, the guardianship applications, and his review of the video recordings.

87.He then provides his opinion, noting that it is “an attempt to arrive at a conclusion of her likely mental capacity based on a retrospective analysis of the information made available to me.”

88.He then goes on to make note of inter alia the following aspects of the medical data:

(1) He opines that the the Deceased “probably developed cognitive dysfunction in early 2012” and with regards to the low MMSE scores in 2012, agrees that these indicate “moderate cognitive impairment.”

(2) He references the various hospital records in or around 6 March 2014, and notes that “it was only in the period from 16^th to 19^th March 2014 that the nurses noted that her cognition was impaired, but there was no problem in her mood and communication.”

(3) He makes note of the video recording clips, and notes that she was able to understand verbale communication and conduct sensible conversations, although she could not recall some details. Her answers were largely consistent.

(4) Notwithstanding the cognitive impairment, he concludes that she had the testamentary capacity based on the video recordings shortly before and after the execution, which he says “showed that her mind was equal to the task of understanding the contents of the Will and the implications thereof, as evidenced by her interaction with the solicitor on 6^th March 2014.”

89.The main points on which the experts disagree are as follows:

(1) Dr Wong disagrees with Dr Yu’s reference to general records (such as intake forms, case notes and the like) when coming to a conclusion on the Deceased’s mental state, positing that they are of limited utility since they are not standardized nor clinically validated for evaluation of a patient’s mental state.

(2) Dr Wong also disagrees with Dr Yu’s reference to the video recordings since an ability to say yes, to nod, or to chat socially “are not indications that she fulfilled the criteria to establish Testamentary Capacity.” The experts are unable to agree on the interpretations of the video-recording clips.

(3) The doctors disagree on the relevance and significance of the MMSE score of 10 as at 14 March 2014 (Dr Wong considers this highly relevant; Dr Yu does not).

D. ANALYSIS

90.As summarised above, the key issues in this case as defined by the pleadings concern (1) the testamentary capacity of the Deceased and (2) the allegation of actual undue influence. I set out below my conclusions after having considered the totality of the evidence presented by both sides, and the detailed submissions presented by counsel during trial.

D1. Testamentary Capacity

91.Upon a review of the evidence as presented at trial, I consider that the Defendant has satisfied his burden of proof to demonstrate that the Deceased had the requisite testamentary capacity to make the 2^nd Will. In coming to this conclusion, I have borne in mind and applied the legal principles as cited at Section B above.

92.Factually, I have had regard to the totality of the evidence, including:

(1) The background circumstances and the context this provides;

(2) The various witnesses’ evidence;

(3) The contemporaneous documentary evidence, including the various medical records and the two reports of Dr Cheung May Han and Dr Chan Ka Yee;

(4) The information contained in the Social Worker’s Report, noting it may contain various levels of hearsay and that the visits took place after the date of execution of the 2^nd Will;

(5) The video recordings; and

(6) The experts’ opinions.

93.My observations on the various aspects of the evidence are summarized below.

D1a. Background Circumstances and Context; Social Worker’s Report

94.Insofar as the background circumstances are concerned, the Court heard evidence from various parties on the nature of the relationship between the Deceased and her sons. Having regard to both sides’ evidence, I have made findings on the key areas of dispute, as summarized below. I note that these findings are made insofar as is evidentially relevant and necessary for the purposes of this case. Particularly as to the Kwun Tong Property, I am not drawing final conclusions as to whatever (as yet unframed and unpleaded) claim the Defendant may wish to initiate for and on behalf of the Estate. I also note that there was a plethora of background discussed (such as in relation to various properties in China, the late sister Shuk Yin’s estate, etc.) the substance of which I have taken into account, but which may not necessarily be fully set out below. What follows are my observations on the most hotly contested aspects that parties have spent the most time on in submissions and evidence.

95.I find that the Deceased had a generally harmonious relationship with all of her sons.

96.I found the Plaintiff to be a generally credible witness insofar as his and his family’s relationship with his mother was concerned. He and his family had lived with his mother for most of her life, had taken care of her daily needs up to her passing, and had endeavoured to help her make ongoing arrangements in respect of her affairs, whether concerning the numerous hospital stays, financial arrangements, legal arrangements or whatnot.

97.As to the accusations levelled against him by the Defendant of mistreatment of the Deceased, I consider that whilst the Plaintiff might have had disagreements and the occasional arguments and disputes with his mother, he was not abusive nor violent towards her. There are three specific aspects where the cross-examination focused the most, and I shall take them in turn.

98.First, I do not find that the Plaintiff had “assaulted [the Deceased]” and “behaved viciously towards her,” and certainly not on a consistent or frequent basis. This is a serious allegation which would require cogent evidence to support such contention.

99.I do accept that the Plaintiff likely had arguments with his mother from time to time, and bouts of frustration or anger related to the friction which comes from living together, particularly when this is with an elderly relative that has different living habits or patterns than younger family members. Such frustration may have manifested in a strong tone of voice or, as the Defendant himself admitted, him breaking her walking stick – by accident – during one such frustrating moment. As was noted in one of the hospital records, the Deceased herself could be hot-tempered, and this could well exacerbate day to day interactions. However, I do not accept that the Deceased was gravely distressed by the Plaintiff and his treatment of her.

100.In this regard, the evidence relied upon by the Defendant was somewhat equivocal. Much emphasis was placed on the video recordings and the questions and answers between the Defendant and the Deceased on these and other topics. However, I found the recordings and their contents – which were brief snippets of what must have been substantially longer visits – to be of limited assistance, given much of the conversation was driven by the Defendant, with the Deceased only occasionally responding with very brief one word or single sentence answers.

101.On the occasions when she did discuss being hit, the Plaintiff’s counsel’s suggestion was that she had mixed up the scenario where her husband had previously hit her – once – many years ago. There was a lack of clarity as to this aspect and it was not entirely clear from the recordings whether the Deceased might have been speaking about the husband or the Plaintiff.

102.As to the Defendant’s own recollection of his conversations with his mother, I find that he had a tendency to be easily persuaded of his own biases against his younger brother. The sad reality of this case seems to be that, as is often the case, the siblings have vastly differing perspectives of each other, which have been exacerbated by after-the-fact rationalizations – sometimes accurate, but often biased – founded in old resentments and years of complex familial relations. I thus placed limited weight on the evidence of the Defendant when he recounted his mother’s version of events, noting that this is hearsay that has been filtered through the Defendant’s own perspective. I am bolstered in this conclusion after having reviewed the videos and observed the often one-sided conversations between the Defendant and the Deceased (as noted above).

103.Secondly, as to the situation with the nighttime toilet arrangements at the Hong Yat Property, I find that there had not been mistreatment of the Deceased. Whilst it may have been a source of friction, I do not consider this was something which would have detrimentally broken the relationship between the Deceased and the Plaintiff.

104.Similarly in this regard, the evidence was equivocal insofar as the Defendant’s rather serious allegations. Whilst he had originally contended that he had visited his mother often at the Hong Yat Property, he acknowledged in cross examination that this was, in fact, not the case, as he felt uncomfortable going there since it was not his mother’s home, but rather was his younger brother’s home. By that point, it would appear that relations between the brothers was already strained, and the resentment that had built up meant that the Defendant would take the Deceased out rather than spend time in the Hong Yat Property. It follows that he had limited occasions on which to observe the layout of the flat and note what the arrangements might have been as to the toileting at night.

105.The observation I made above regarding the Defendant’s own perspective and filtering of his conversations with his mother apply equally to this aspect of the Defendant’s allegations.

106.On the other hand, the photos and floor plans of the flat produced during trial did not take the matter very much further. The photos produced by the Plaintiff were intended to support his contention that the allegation of the Defendant was factually unsound, given the relevant layout would not have prevented the mother from going to a toilet which was communal and not an ensuite (the Defendant’s key contention being that the toilet in question was an ensuite within the master bedroom, and thus the Plaintiff had forbidden the mother from going at night for fear that she would disturb him and his wife as they slept). The photos were taken at a much later date and thus did not shed much light on the situation at the material time.

107.Third, as to the Kwun Tong Property and the transfer thereof to the Plaintiff in 2012, there is insufficient evidence to conclude at this juncture that the Deceased had been misled into gifting the property to the Plaintiff. Rather, on the balance of probabilities and on the basis of the evidence presently received, I consider it more likely than not that the transfer had been done because the Deceased wished for the Plaintiff to take care of logistics and administrative matters for her, and also because she cared for his family. There has been discussion of various aspects of evidence, the following of which I take particular note:

(1) As mentioned above, I find that the Deceased had a generally harmonious relationship with the Plaintiff and his family. It would not have been unusual for the Deceased to ask him to take care of matters in this way, taking into account her ill health.

(2) Whilst there have been after the fact allegations that the Deceased had been “misled”, I find the Social Worker’s Report to be telling and quite informative (notwithstanding the limitations it presents as to hearsay, the potentially unclear cognitive state of the Deceased during some of the visits, etc). The report records that all the sons had provided relevant information to the social worker for the purposes of the report. Insofar as the Deceased’s relationship with her sons is concerned, the material passage records as follows:

“25. On 11.4.2014, Madam Tsang could recognized [sic] Tung-wai and was interested in watching the grandson’s photos and videos in Tung-wai’s mobile phone. However, when talking about Tung-po, Madam Tsang was a little bit angry and said that Tung-po was bad (“個衰仔”). Madam Tsang showed good response to Tung-wai’s greeting and they could chat in a relaxing atmosphere. Tung-wai also held a caring attitude towards Madam Tsang.

26. On 14.4.2014, madam Tsang was interviewed with the presence of Ms Lam, Care Worker of the home. … She also said that she was sad because her sons had conflicts with each other. She said that it was her desire to transfer the factory property to Tung-wai because she was too old with weak health.

27. When Tung-po arrived at the [Elderly Home] on 14.4.2014, Madam Tsang could recognized Tung-po. Madam Tsang said that Tung-po was a filial son and always visited her. When talking about Tung-wai, Madam Tsang said that Tung-wai was bad because he cheated her to transfer the ownership of the factory property to him. She also blamed Tung-wai to ask someone to hit Tung-po and Tung-fuk. She was sad when talking about this. As observed, Tung-po also held a caring attitude towards Madam Tsang by helping Madam Tsang to lie on bed when she felt tired. They could communicate in a natural way.”

(3) Taking the above into account, and having observed the evidence of the witnesses during trial, I find the most likely explanation is that the Deceased had harmonious relationship with all her sons, but she was aggrieved at the breakdown of relations between them, and found herself stuck between them and their disputes. The fact that she changed her tune in front of the social worker as recorded in the report depending on which son happened to be visiting is more likely attributable to a conscious display to placate each son rather than a confused state of mind. It would appear at least on the face of the report that she had the clarity of mind to make such a switch as and when necessary. As Counsel Mr Cheung vividly put it on more than one occasion, this was likely a case of the Deceased “見人講人話，見鬼講鬼話” (in other words, playing to the audience at any given time), and perhaps going along with what they suggested in order to keep the peace.

(4) In coming to such a conclusion, I have also taken into account the evidence of the Plaintiff, who said that it was his mother who indicated that she wished to make such arrangements in 2012 regarding the Kwun Tong Property. I find his version of events to be credible in the circumstances. This is contrasted with the Defendant’s evidence, which suffers again from the bias and hearsay problems that I have explored above.

(5) What then does one make of the steps which were taken in early 2014 about the Kwun Tong Property? What we have, prima facie, is a set of applications and as yet incomplete preparatory steps to initiate a claim. We do not and cannot know what the Deceased would have ultimately done had she lived longer. The Plaintiff is unable to speak to this aspect directly given he was unaware of the steps at the time, save to speculate that the Defendant had “brainwashed” or influenced his mother. The Defendant on the other hand insists that the Deceased was the one who asked him to help her claim the property back.

(6) In assessing this aspect of the evidence, I bear in mind the dynamic between the Defendant and his mother, as was reflected in the video recordings. Again, one might query whether the Defendant’s eagerness to take this up on his mother’s behalf stemmed from his bias and resentment towards the Plaintiff, and whether the Deceased went along with it for the time being in order to placate the Defendant. I am asked to place much weight on the fact that the Deceased willingly took each of these steps, and never once was her mental capacity or motivations questioned by those persons who were sorting out the administrative steps for e.g. the ID card, bank account statements, etc. However, I find this to be too far an inferential leap. On each occasion she was accompanied by her son, the Defendant, who admittedly gave material instructions for and on her behalf. It would not have been the task of the bank officers, or officers in the Immigration Department to assess or query whether the Deceased was mentally competent to take the relevant steps. All they needed to do was to process the forms and ensure they contained the relevant information in order to process the applications. Insofar as the Legal Aid application was concerned, again it was a case of the information being recorded such that the application could then be processed and assessed, rather than being critically assessed at that particular stage. There is no dispute that the form was not filled in by the Deceased herself, although she did sign and place her thumb imprint on it. However, this should still be weighed against the totality of the evidence. Taking matters in the round, I am unable to place conclusive weight on these steps or this set of documentation.

(7) The only other witness of note on this aspect is Ms Tsang Ping Ping, who alluded very briefly in her witness statement to an occasion in late 2012 which the Deceased had told her about, when she was taken out of the hospital and to a restaurant, and presented with a document to sign, but she had no idea what that document was. The implication was that the Deceased had been misled as to the document and duped into signing the relevant documents for transfer. However, this version of events is somewhat unclear and also suffers from similar hearsay problems as well. It is thin evidence upon which to found a serious allegation. Between this version and the Plaintiff’s, I prefer the Plaintiff’s version of events - viz. that the transfer had been willingly made in 2012 – given the overall circumstances as already explored above.

108.In the premises, I consider that the key bases upon which it was suggested by the Defendant that the Deceased was unhappy with the Plaintiff’s treatment of her are not established.

109.However, and importantly, I also consider that the Deceased had a harmonious relationship with her other two sons. This is apparent from the consistent visits which are spoken to by the Defendant himself, the contents of the Social Worker’s Report, and the evidence of Ms Tsang Ping Ping, amongst others. These factors all likely influenced her when considering the arrangements for the 2^nd Will. I shall explore this further below.

D1b. Witnesses’ evidence

110.As to the witnesses’ evidence, I have the following observations.

111.The Plaintiff: I have already made some observations on aspects of the Plaintiff’s evidence above. Whilst I found him to be credible insofar as his own interactions with his mother are concerned, he too suffers from a form of perspective bias when it comes to his elder brothers. There was clearly a level of animosity and acrimony which influenced his interpretation of his brother’s actions and statements, whether direct or indirect. For instance, he would tend to assume that they were out to “brainwash” the Deceased or manipulate her, as was apparent from several instances of the cross-examination. I have similarly given lesser weight to his evidence in this regard, given the above.

112.The Defendant and Tung Fuk: As to the Defendant and Tung Fuk’s evidence, insofar as the arrangements for the 2^nd Will are concerned, I found them to be generally credible. But given the inherent benefit which they stand to take from the same, I have tempered the weight placed on their evidence regarding their mother’s intentions and state of mind.

113.Ms Wong and Ms Tsang Ping Ping: I found the most helpful and credible witnesses to be Ms Wong, the clerk who took the instructions from the Deceased, and Ms Tsang Ping Ping:

(1) Ms Wong’s demeanour throughout her cross-examination was straightforward and honest. She was clear, no-nonsense, and stood up well to challenge. She gave a fair account of the meeting that she had with the Deceased in February 2014, and noted that during the meeting (in the absence of the Defendant or anyone else in the room):

“[Ms Wong] asked [the Deceased] how she would like to distribute her assets. [The Deceased] then replied that she wanted to distribute her estate to her two sons. [Ms Wong] further asked [the Deceased] to identify whom those two sons she was referring to and she replied with the name of the Defendant and Wong Tung Fuk. Then, after [Ms Wong] explained to her what an executor of a will was, she specified to have the Defendant as the executor of her will. …”

(2) The brief particulars of that meeting were noted in an attendance note (recording the instructions regarding the choice of executor and the equal distribution between the Defendant and Tung Fuk), which was reported to Mr Li. The contents of the note are essentially consistent with what Ms Wong has set out in her witness statement.

(3) Similarly, Ms Tsang Ping Ping was a forthright and honest witness. She had spent a great deal of time with her sister, visiting with her during the material period. It was her evidence that her sister was of sound mind when the will was made and capable of analyzing the contents of the will. Whilst her witness statement is brief, her views must be seen in light of the amount of time that she’d spent with her sister during the period in question – certainly more than the brief check ins which nurses or doctors might perform. Thus, even if she is not an expert witness, bearing in mind the approach summarized in Section B above, I still place considerable weight on her evidence. I note also that she has no particular motivation to give anything but an honest version of events as she perceived them. Overall, her evidence was very persuasive.

114.Mr Li: Mr Li’s evidence confirms the account of Ms Wong. He and his firm have been subject to some criticism for not following the golden rule or the Checklist (as discussed above). Whilst it is unfortunate that he had not seen fit to do so, I do not consider this to have affected his credibility per se. It also does not automatically mean that the Defendant’s case fails. It simply means that the Court must assess the (less than ideal) state of affairs and evidence before it and consider whether the criteria set out in Banks v Goodfellow are nevertheless satisfied. As to the failure to follow best practice, I can do no better than to echo and emphasise the Court of Appeal’s guidance in the case of Au Kong Tim (set out at paragraph 20 above).

115.To state the obvious, Mr Li, Ms Wong and Ms Tsang Ping Ping have no interest in the outcome of the proceedings. For this reason, and taking into account their demeanour and answers whilst giving evidence, I have placed greater weight on their evidence.

116.Finally, I note that the Defendant asks me to draw an adverse inference against the Plaintiff for failing to call his wife as a relevant witness. I do not consider that such inference needs to be drawn. There is no suggestion that she had direct knowledge as to the issue of testamentary capacity per se, nor that she was present at the execution of the 2^nd Will, nor even that she had relevant evidence insofar as the period leading up to the execution. Whilst she may have been involved in some of the background matters, at best she would have been able to speak generally to the Deceased’s relationships with her children. It is not immediately apparent to me that this merits the drawing of the adverse inference.

D1c. Contemporaneous documentary evidence including medical records; video recordings; Expert evidence.

117.I refer to the summary of the medical history in Section C2 above.

118.These aspects of evidence – i.e. the contemporaneous documents and the video recordings – are considered together because they were the aspects which were most heavily referred to by the experts. I set out my observations below.

119.In short, I find the experts’ opinions to be of some but not very great assistance. I prefer and place greater weight on the overall witness and factual evidence as supported by the contemporaneous documents rather than the after-the-fact assessment by the experts. This is particularly so when the videos, records, etc. are available for the Court itself to see. Where the experts have been of particular assistance is in explaining the technical aspects such as what a MMSE test is, how it is done and its utility; the relevance of the Glasgow Coma Scale; and the interpretation of the medical records.

120.As to approach, I find that Dr Wong placed undue weight on the MMSE assessments to the exclusion of the other aspects of the evidence (in particular, the contemporaneous medical records). I preferred the approach of Dr Yu in this regard, who took into account the background records, whilst still noting that they were not of themselves conclusive.

121.Whilst an attempt had been made to challenge Dr Wong’s credibility by reference to his evidence in a prior case, I find that he maintained his independence in this case and did not put himself into the shoes of the Plaintiff or advocate for him, whether unintentionally or otherwise. My conclusion as to the expert evidence is strictly based on the preference as to overall approach.

122.Having reviewed the contemporaneous documents and various medical records, I find that these support the conclusion that the Deceased most likely had testamentary capacity as at the time of signing the 2^nd Will:

(1) The available records show that whilst her health was declining and that she had some form of ongoing dementia, she was still lucid and able to converse with the medical professionals in late 2013 to early 2014. I accept that the intake forms and daily records are not there for the purpose of recording or assessing mental capacity, but they do form an overall picture of her general state, which may then be supplemented by the other witness evidence (as above).

(2) The MMSE test dated 14 March 2014 (with the result of 10/30) which Dr Wong places such emphasis on, as noted in Dr Chan Ka Yee’s report, was performed after the date in question – 6 March 2014. There seems to be a broad consensus that a patient’s performance in such a test can be influenced by his or her state as at that specific point in time. Indeed, this is illustrated by the earlier set of MMSE results back in October 2012, when an initial score of 12/30 improved to 19/30 within a relatively short window (see paragraph 65 to 66 above). It is likely the case that she was in a particularly poor state on 14 March 2014, around the time when the contemporaneous medical records show her general state took a turn for the worse, but this does not mean that this same score would have been achieved had such a test been performed on 6 March 2014. Ergo, simply because she had a poor score on 14 March 2014 doesn’t automatically support the conclusion that she was not in a fit state of mind one week earlier.

(3) To the contrary, the video recording on that date seems to show that she was sufficiently lucid to follow along when Mr Li read the 2^nd Will to her, and her relatives prompted her to indicate her acceptance of the contents. I note that the video in and of itself, if viewed in isolation, would be inconclusive at best. However, this is supplemented by the witness evidence and the overall background, which I have already discussed above.

123.In the circumstances, taking a holistic view of the documents and recordings, I tend to prefer Dr Yu’s take as to testamentary capacity. And in any event, I would have come to this conclusion on a commonsense analysis of the evidence as a whole.

D2. Answering the Banks v Goodfellow Questions

124.Taking into account all of the above, I have come to the following conclusions as to the three questions set out in Banks v Goodfellow.

Was the Deceased capable of understanding the nature of the act of making the 2^nd Will and its effects?

125.Based on the above evidence as analysed, I answer this question in the affirmative. In this regard, I place particular reliance on the evidence of Ms Tsang Ping Ping, Ms Wong, Mr Li, and the available medical evidence, which are supplemented by the video recordings.

Was the Deceased capable of understanding the extent of the property of which she was disposing?

126.Similarly, I would answer this question in the affirmative. In this regard, I take note that:

(1) The instructions taken independently by Ms Wong, whilst brief, were sufficiently clear that it would be her entire estate that she intended to deal with. The Deceased recognized Ms Wong on 6 March 2014, and confirmed the same instructions when the draft was read back to her by Mr Li.

(2) This is to be understood against the background of the Deceased having previously made the 1^st Will and thus having an understanding of the extent of her assets and what she may or may not wish to dispose of.

(3) I also note the Deceased had voluntarily made observations on occasion in the video recordings as to what assets she didn’t have (“no money”) and also the fact that she understood she had an account with the Bank of China.

(4) I have found that the Deceased was aware that the Kwun Tong Property had been transferred to the Plaintiff (noting in particular her acknowledgment of the same to the social worker).

(5) All in all, I consider there is sufficient evidence upon which to infer she was generally aware of the extent of her estate.

Was the Deceased able to comprehend and appreciate the claims to which she ought to give effect?

127.I answer this question in the affirmative. In this regard, particular reliance and note is placed on the following:

(1) The Deceased was able to give clear instructions about her desired executor and beneficiaries, and confirmed the same during the actual signing.

(2) There is sufficient evidence upon which to infer she was aware of each of her children and who she wished to leave her estate to. In April 2014 she was able to recall for the social worker that she had five children, and also able to identify the sons who visited her. There is no indication that she had given incoherent or absurd instructions in respect of the 2^nd Will (e.g. to leave her estate to her deceased children).

128.The above conclusions and inferences are bolstered by the fact that the will in question is relatively simple (hence easier to understand and communicate on, even for an elderly person who has chronic illness and who may not be able to discuss at length or in depth what her views are). I also note that the overall arrangement is not unreasonable – the Plaintiff would be able to remain in the Hong Yat Property, and at least prima facie, the Kwun Tong Property had also been passed to him since the Deed of Gift was made in 2012.

E. UNDUE INFLUENCE

129.The allegation of undue influence can be disposed of shortly.

130.It will be apparent from the analysis above that I do not consider the Plaintiff had come anywhere near establishing a case of actual undue influence.

131.I note in particular the following matters:

(1) The instructions were taken by Ms Wong independent of anyone else in the room. The Deceased could easily and readily have told Ms Wong that she didn’t want to make the will.

(2) There is little direct evidence of any dependence by the Deceased upon the Defendant. If anything, she would have been more reliant on the Plaintiff, who was more involved in and in charge of settling bills and the like for her daily care.

(3) The case as pleaded and as set out in the witness statement of the Plaintiff is a curious one. In essence, it cites the 6 available video recordings and refers to these as being occasions where the Defendant “repeatedly and falsely represented to the Deceased that the Plaintiff had behaved viciously towards her and assaulted her” and that consequently, the Defendant “disturbed the emotion of the Deceased, confused her mind and incited a sense of detestation against the Plaintiff in her." It is in such circumstances that it is suggested the Defendant “pressurized and coerced the Deceased” into making the 2^nd Will.

(4) I have found against the Plaintiff’s case in this regard. I note particularly that I do not consider that the Deceased had been confused as to the Plaintiff, nor did she detest him. Rather, what appears to be the case is that she was saddened by her sons’ disputes and was trying to placate each of them as best she could.

(5) Furthermore, the Plaintiff himself has admitted in cross-examination that the videos themselves do not show pressure from the Defendant to the Deceased to execute the will.

F. MISCELLANEOUS MATTERS

132.There was some debate in closing as to whether the Plaintiff was running an unpleaded case on fraud. I note that Mr Cheung confirmed that any allegation of fraud was only within the undue influence context. In any event: (1) I have made findings in respect of the case as pleaded. It would not be permissible for the Plaintiff to travel beyond the scope of the pleading; and (2) even if he were permitted to run such a case, there is insufficient evidence upon which one would come to a finding of fraud.

133.There was also some debate as to whether the Plaintiff was taking issue (or entitled to take issue) with the Deceased’s knowledge and approval of the 2^nd Will. Mr To cites O. 76 r.9(3) of the RHC, the proposition being that any allegation that the ‘testator did not know and approve of its contents must specify the nature of the case on which he intends to rely’. Knowledge and approval ‘must be pleaded, together with the full particulars in support thereof’: 76/9/3 of HKCP 2022. Mr Cheung answers that the Court’s suspicion and vigilance is aroused in this case (citing Barry v Butlin (1838) 2 Moo. P. C. 4801, 481). Regardless, given the conclusions above, it should be apparent that this Court’s finding is that the Deceased had the requisite knowledge and approval, and was not “brainwashed” into making the same (as suggested in the Plaintiff’s Reply paragraph 3).

G. CONCLUSION

134.In the circumstances, the Plaintiff’s case is dismissed. I make an order nisi that the costs of the action are to be to the Defendant, to be taxed if not agreed.

135.I thank counsel for their assistance.

Mr Alexander Cheung, instructed by K.P. Lam & Co. for the Plaintiff

Mr Ken To, instructed by K.Y. Lo & Co. for the Defendant