Yip Sau Ching v. Yip Che Shing and Others

HCAP 31/2018

[2025] HKCFI 657

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 31 OF 2018

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BETWEEN

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J U D G M E N T

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A.  INTRODUCTION

1.This probate action concerns the validity of 2 wills executed by the late Ip Chan Kee (“Father”)  who passed away on 1 October 2017 at the age of 94.  The parties herein are his 7 children, namely (in order of seniority):

(1)  Yip Sau Ching (葉秀清)  (daughter, plaintiff by original action and 1^st defendant by counterclaim)  (“Ching”)

(2)  Yip Che Shing (葉志成)  (son, 1^st defendant by original action and 1^st plaintiff by counterclaim)  (“Shing”)

(3)  Yip Sau Ling (葉秀玲)  (daughter, 3^rd defendant by counterclaim)  (“Ling”)

(4)  Yip Sau Yuen Maida also known as Ip Sau Yuen Maida (葉秀婉)  (daughter, 2^nd defendant by original action and 2^nd plaintiff by counterclaim)  (“Yuen”)

(5)  Ip Chi Pang Tommy (葉志鵬)  (son, 2^nd defendant by counterclaim)  (“Pang”)

(6)  Ip Sau Wai (葉秀慧)  (daughter, 3^rd defendant by original action and 3^rd plaintiff by counterclaim)  (“Wai”)

(7)  Ip Sau Mee Judy (葉秀薇)  (daughter, 4^th defendant by original action and 4^th plaintiff by counterclaim)  (“Mee”).

2.These 7 children have divided into 2 camps.  Ching, Ling and Pang form one of the camps, and they shall be collectively referred to in this Judgment as “the plaintiffs”.  Shing, Yuen, Wai and Mee belong to the other camp, and they shall be referred to herein as “the defendants”.

B.  BACKGROUND

3.The following background is largely adopted from the list of facts prepared by the parties and the written closing submissions of the defendants.  Unless otherwise stated, they are undisputed/indisputable.

4.Father had been married to Madam Lee Luen Cheung (李鸞章)  (“Mother”)  (who predeceased Father in 2015)  since around 1945.

5.This family had humble beginnings.  The family moved to Hong Kong from the Mainland in the 1950s – 1960s.  It then started a business of making wooden boxes called “建華木箱廠”. From about 1971, the family resided in a unit on Shanghai Street (“the Shanghai Street Flat”)  which was owned by Father.

6.Although Ching was the eldest daughter, she left home at an early stage after she got pregnant in about 1969.

7.Shing is the eldest son of the family.  He was able to get into the University of Hong Kong to study Chemistry and started his own business with factory in the Mainland subsequently.

8.Father and Mother lived in the Shanghai Street Flat until 1990 when they emigrated to Canada with three of their daughters, Yuen, Wai and Mee.  Wai was pregnant at that time.  Since then, the three sisters had stayed on and had not returned to Hong Kong except for short trips.

9.In late 2007, as Mother’s health had been deteriorating, Father and Mother decided to return to Hong Kong for good so as to facilitate medical care for Mother. Upon their return, they resided with Shing’s family at Shing’s house in Hong Lok Yuen (“Shing’s House”)  for a while.  They returned to live in the Shanghai Street Flat subsequently.

10.Financially, Shing had been supporting his parents with monthly allowances both in Canada and in Hong Kong.

11.Ching had been involved in acrimonious litigations with Shing in about 2007/2008.

12.From 2010 onwards until late 2011, Aimah, a domestic helper, served Father and Mother at the Shanghai Street Flat under the arrangement of Shing and his wife Fan Kong Hai (“Fan”)  to help take care of  Mother.  Aimah left the Shanghai Street Flat in late 2011, and was only re-employed in November 2012 (see further below). 

13.It is evident that Ling applied for a space in a caring home on behalf of Mother on 7 February 2012, and an account with Hang Seng Bank designated for the payment of Mother’s expenses was opened by Pang on 11 February 2012 (“the $2M Account”)  upon Father’s instructions.

14.Aimah was to take her holiday to return to Indonesia between 6 December and 12 December 2011.  While there is a dispute as to when Aimah decided not to return to Hong Kong to work, it is undisputed that Shing and Fan did arrange another domestic helper, Snooky, to go to the Shanghai Street Flat for the purpose of looking after the parents during Aimah’s absence.

15.On 16 December 2011, Shing and Fan brought Mother to Shing’s House in order to take care of her.  Be that as it may, Father continued to live in the Shanghai Street Flat by himself (until early 2013 when Aimah came back).

16.While Fan had sought reimbursement for at least some if not all expenses paid for Mother from Pang for the year 2012, she had made no further claim from 2013 onwards.

17.In January 2012, Pang accompanied Father to go back to Canada for the purpose of selling Father’s house there. During the aforesaid visit, Father executed a power of attorney in favour of Mee (for the handling of the sale of the said house in Canada)  before a notary public on 18 January 2012.

18.Father made a will on 20 February 2012(“the February 2012 Will”), which: (1)  appointed Pang as executor; and (2)  left his residuary estate to Pang alone.

19.On 7 March 2012, there was a family gathering at the Shanghai Street Flat attended by Father, Ching, Ling and Ling’s husband (“Wan”).  Part of the conversations among them on that occasion have been recorded by Wan (“the March 2012 Recording”). 

20.On 12 March 2012, Father made another will (“the March 2012 Will”), which: (1)  appointed Ching as executrix; and (2)  left his residuary estate to Ching, Ling and Pang in equal shares.

21.Both the February 2012 Will and the March 2012 Will (collectively, “the Wills”)  were prepared by Messrs Tam, Pun & Yipp, and were witnessed by Mr Paul Yau (“Mr Yau”), a then partner thereof, and also by a then clerk of that firm, Mr Chu Lap Kei (“Mr Chu”).  At the time of the execution of the Wills, Father was 89 years old.

22.Shortly after the execution of the March 2012 Will, Father participated in discussions during another family gathering held on 4 April 2012 which had been recorded by Wan (“the April 2012 Recording”).  The March 2012 Recording and the April 2012 Recording will be collectively referred to as “the 2012 Audio Recordings” below.

23.On 24 April 2012, Father signed a sale and purchase agreement for the purchase of a flat located at Park Summit (“the Park Summit Property”).

24.On 8 November 2012, Father signed an employment contract to employ Aimah under his own name. Since early 2013, he lived in the Shanghai Street Flat together with Aimah.

25.Mother passed away on 3 January 2015.

26.From 7 August 2017 until his demise on 1 October 2017, Father had been hospitalized in the Queen Elizabeth Hospital and in the Kowloon Hospital during different periods.

27.By this action, Ching claims, inter alia, for an order that the March 2012 Will be pronounced in solemn form, whereas the defendants seek, inter alia, declarations to the effect that both Wills are invalid, and that Shing (and/or other person(s)  which the Court deems fit)  be granted letters of administration of Father’s estate.

28.In a gist, the defendants are now challenging the validity of the Wills based on the reasons that:

(1)  Father did not have testamentary capacity;

(2)  he did not know nor approve the contents of the Wills at the time of execution;

(3)  he did not have the testamentary intentions (animus testandi); and

(4)  he executed the Wills as a result of fraudulent calumny.

C.  CREDIBILITY OF WITNESSES

29.In Hu Lan v David Golden [2023] HKCFI 873, this Court held that:

“36. When I consider the credibility of various witnesses who had given evidence in court, I shall take the following matters into account:

(1)  Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility;

(2)  Importance should be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events;

(3)  The court will also attach importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement;

(4)  The court should consider a witness’ motive for deliberately not giving truthful testimony.  For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest;

(5)  It is essential to have regard to the entirety of a witness’ evidence. A witness can make mistakes, but the mistakes do not necessarily affect other parts of his evidence. Likewise, a witness may lie. However, lies themselves do not mean necessarily that the entirety of that witness’ evidence is to be rejected.  A witness may lie in a stupid attempt to bolster his case, but the actual case nevertheless remains good irrespective of the lie;

(6)  On the other hand, where it is shown that a witness has been discredited over one or more matters to which he has testified, this fact is relevant to the assessment of his overall credibility; 

(7)  While the court is entitled to take demeanour into account when assessing testimony, it should be borne in mind that demeanour can be deceptive and is therefore to be approached with care.”

30.I will bear the above in mind when I consider the credibility of the witnesses in the present case.

31.At the trial, the plaintiffs have called 6 witnesses, namely, Ching, Ling, Pang, Wan, Mr Yau and Mr Tony Lee; whereas the defendants have 8 witnesses, namely, Shing, Yuen, Wai, Mee, Fan, Madam Fung Lau Por, Madam Chan Yuk King, and Snooky. 

32.I will consider their credibility generally in turn below.  

C1.   Ching

33.I consider that, generally speaking, Ching is an incredible and unreliable witness. While there are indeed many examples which support these findings, I would only set out a few of them below:

(1)  In her 1^st witness statement, Ching alleged that the relationship between Shing and Father was all along poor, mainly because Shing had a violent character since he was small.  However, she has given contradictory evidence in Court when she accepted that:

(a)  Father was proud of Shing when he was accepted by the University of Hong Kong and when he started his own business;

(b)  When Father returned to Hong Kong from Canada in 2007, Father and Mother lived together at Shing’s House for 2 – 3 months.  Their father-son relationship was normal at the time, and was not poor at all;

(c)  The said father-son relationship only turned sour in around 2011.

In other words, Ching had exaggerated the hatred between Father and Shing in her witness statement.

(2)  Ching insisted in Court that Mother was still able to express herself verbally by the end of 2011.  However:

(a)  This was plainly contradictory to what she herself said during the family gathering in April 2012 (which was recorded by the April 2012 Recording)  when she said words to the effect that Mother did not have the ability to express herself at the material time;

(b)  The fact that Mother was unable to communicate at the material time is also demonstrated by a medical record dated 17 December 2011.

(c)  Her evidence in Court was inconsistent:

(i)    at first, she stated that Mother was barely able to express herself,

(ii)  then she said it was possible that Mother was able to express herself by saying “我不去”,

(iii)  then she became more firm by saying that Mother still had the ability to do so,

(iv)  and then she said Mother was able to express herself by saying a single word.

(3)  Ching initially tried to cover up her hatred against Shing when she gave evidence in Court by saying that although she did have a commercial dispute with Shing in the past, she had no personal grudges against him anymore after the court case in relation to the dispute was settled in June 2010.  However:

(a)  This was contradictory to her own supplemental witness statement in which she described her relationship with Shing as “very bad” in around 2011/2012;

(b)  Upon being further cross-examined, she admitted that she had some grudges against Shing;

(c)  It is evident that Ching had never visited Mother at Shing’s House during the last 3 years of Mother’s life, even though Ching knew that Shing had indicated that he welcomed her to visit Mother at Shing’s House (as Ling had told her about this).

(4)  Ching’s hatred against Shing was to the extent of her not admitting Shing’s blood relationship with Father and Mother in these proceedings.

(5)  In this regard, Ching’s evidence was inconsistent.  While she stated in her witness statement categorically that she did not admit the blood relationship between Father and Shing, she at one stage alleged in her oral evidence that she did not say that “she did not admit” such a relationship.

(6)  In her 2^nd supplemental witness statement, Ching mentioned about an occasion when Father could not distinguish between daytime and night-time in around early 2013.  However, while she was cross-examined, she said that that incident happened in the Summer of 2013 instead, and defended herself by saying that there is not much difference between early 2013 and mid-2013.  She was apparently trying to exaggerate the length of the period between the time when the Wills were executed and the said day/night confusion incident.

(7)  When she explained in her 2^nd Affirmation why she did not make reference to the February 2012 Will in her 1^st Affirmation, she said that: (1)  as she was not involved in the execution of the February 2012 Will and had never seen the original nor any copy thereof, she had very little recollection of it; (2)  the March 2012 Will was executed shortly after the February 2012 Will as an amendment and, as a layman, she did not know that they should be regarded as two distinct documents.  These two explanations are simply contradictory.  I also find her to be incredible when she said that she had little recollection of the February 2012 Will on the basis of her admission that she and Father had had a conversation on the matter.

(8)  Ching had changed her evidence in Court when she was asked whether she knew it was Shing who paid for Pang’s tickets to Canada in 1999, 2007 and 2012.

(9)  There were a lot of hearsay evidence in her witness statement, and sometimes she would treat it as if the evidence was based on her personal experience but in fact it was not.  For example, when she described in paragraph 33 of her witness statement what happened when Father, Ling and Pang went to Shing’s House to visit Mother, she used words such as “我們到康樂園單位看媽媽時” and “[媽媽]與我們對答時”. However, she confessed in Court that she actually did not go with them (she had never visited Mother at Shing’s House – see above).  The said evidence in the witness statement is therefore misleading.

(10)  In order to show that Shing did not take care of Mother properly after taking her to live in his home in December 2011, Ching alleged in her witness statement that: “媽媽在康樂園單位居住期間三次要因尿道炎入院，而她在上海街單位居住期間則從未試過”.  It is now evident (as shown by a Kwong Wah Hospital Discharge Summary)  that such an assertion is wrong.  Yet, she refused to accept that she was incorrect.  She still tried to defend herself in Court by saying that Mother might have been sent to the hospital for some other reasons but then discovered in the hospital subsequently that she was suffering from urinary tract infection.  However, such an explanation was just a speculation on her part because she did not even know whether this was true or not.

C2.  Ling

34.I consider that Ling generally speaking is an incredible and unreliable witness for, inter alia, the following reasons:

(1)  Before Ling prepared her witness statements, she had admittedly discussed the relevant matters with Pang and Ching so as to “refresh her memory”.  In my view, such discussions would taint her recollection of the matters concerned and this would affect the quality of her evidence.

(2)  While Ling initially accepted in the witness box that she had only glanced through the witness statements of others before she adopted them, she changed her evidence subsequently by saying that she had read the statements of the plaintiffs’ witnesses word by word before adopting them.

(3)  Some of Ling’s evidence in Court was apparently contradictory to contemporaneous documents.  For example, while she clearly stated in her WhatsApp message sent on 1 October 2017 that the reason why Father was not discharged from hospital was that Ching did not inform the hospital that Father owned a flat which was accessible by lift, Ling stated in Court that in fact the nurse who took care of Father held the view that Father should not be discharged in the light of his heart and blood vessel condition. In my view, Ling was making up evidence so as to improve the plaintiffs’ case.

(4)  Ling’s denial in her oral evidence of Mee having explained to her why the latter would no longer apply for old-age pension on behalf of Father in 2012 is directly contradictory to her own 3^rd supplemental witness statement, in which she clearly stated that Mee had explained to her regarding the old-age pension.

(5)  Some of Ling’s evidence did not make sense at all.  For example, she said she had given a fabricated version of event to Mee in relation to the March 2012 Will when they met for a meal in March 2018 because she (Ling)  did not want Shing to know that he was disinherited in the March 2012 Will.  However, this evidence did not make sense at all because she had effectively told Mee that Shing was disinherited by telling her that only Ching, Ling and Pang were the named beneficiaries in the March 2012 Will.

C3.  Pang

35.I also find that, generally speaking, Pang is an incredible and unreliable witness:

(1)  Before Pang prepared his witness statements, he had admittedly discussed the relevant matters with Ching and Ling so as to confirm what exactly happened at the material time.  As explained above, such discussions would taint his recollection of the matters concerned and this would affect the quality of his evidence.

(2)  He stated in his evidence that he did not go back to Canada to visit his wife and children (born in 1989 and 1995 respectively)  between 1998 and 2007 partly because he was afraid that Shing would scold him.  In my view, this is totally incredible, because one would not agree not to see his own children (especially when they were still so young)  for that reason.  He had exaggerated his evidence so as to support his allegation against Shing’s character, and he was only trying to blame Shing whenever he could.  The fact, as he subsequently admitted in Court, was that he had a bad relationship with his wife at the material time.

(3)  He further alleged in his oral evidence that he could not see his wife when he returned to Canada in 2012 because he had no time.  That is apparently not the real reason.  The truth is that he had already separated from his wife for a long time by then (as he stated in his witness statement).

(4)  He insisted that Shing did charge him interest on a loan of CAD80,000 which was lent to him in 1997.  However, this was contradicted by a repayment statement produced by Shing.

(5)  He stated in his supplemental witness statement that after the $2M Account had been closed, he returned the closing balance to Father.  This was false, because he subsequently admitted in his 3^rd supplemental witness statement that the closing balance in the sum of $371,403.71 was in fact transferred to his own account.

(6)  He adopted Ching’s evidence on the episode concerning Aimah’s departure from the Shanghai Street Flat, even though he actually had no personal knowledge on that incident.

(7)  In Pang’s witness statement, he stated that when Shing went to the Shanghai Street Flat in December 2011 to take Mother to his home, Mother yelled “我不去，我不去”.  However, Pang admitted in Court that Mother in fact could not speak loudly at the material time at all.  Further, according to Ching’s comments which were recorded in the April 2012 Recording, Mother simply could not express herself verbally at the material time.  The fact that Mother was unable to communicate at the material time is also demonstrated by a contemporaneous medical record dated 17 December 2011.

(8)  He explained in Court that he did not tell Father that Shing intended to pocket the $2 million because he (Pang)  did not have evidence at all to support such a belief.  This is apparently something which he invented.  This is shown by the fact that he had actually included such a belief in his witness statement.  When he was further asked what evidence he had to support such a belief when he put the belief in his witness statement, he could not offer any answer at all.

(9)  It is evident that there was a payment of $300,000 by bank draft from the $2M Account to Pang’s bank account on 12 March 2016.  While he stated in his 3^rd supplemental witness statement (which was made in February 2024)  that he had forgotten how he spent the said $300,000, he alleged in Court that in fact he had retrieved in around December 2023 to January 2024 from his computer the records of such expenditure.  His evidence is clearly contradictory because if he did dig out records of such expenditure so recently, he would not have forgotten about it when he made his latest witness statement in February 2024.

(10)  He initially told the Court that Father decided not to name Shing as a beneficiary because Father was angry about Shing having taken Mother away to Shing’s House.  However, he subsequently changed his evidence, and admitted that he was wrong in making that assertion. 

C4.  Wan

36.I agree with the defendants’ submissions that Wan’s evidence should be considered with caution.  This is because:

(1)  He was evasive in the witness box, and failed to answer straight forward questions directly.

(2)  He had also given contradictory evidence:

(a)  On one hand, he stated that it did not occur to him that he should take a recording on 12 March 2012 of the process of the making of the March 2012 Will, but on the other hand, he also stated that he did not do so because he considered it unlawful to do so;

(b)  He initially stated that he had taken away and kept Father’s notebook when he discovered such a notebook at the Shanghai Street Flat because he found therein information about a dentist which might be useful to him; he subsequently changed his evidence and alleged that he only discovered about the dentist’s information after he had taken Father’s notebook back home.

C5.  Mr Yau

37.Mr Yau is the solicitor who took instructions, drafted and witnessed the execution of the Wills. 

38.However, because of lapse of time, he could not recall the details in relation to the preparation and execution of the Wills. All he could tell the Court was his usual practice when he handled similar situations. 

39.I find that Mr Yau has tried his best to assist the Court and I am satisfied that he is a truthful witness.

C6.   Mr Tony Lee

40.Mr Tony Lee (“Lee”), who is related to Ling’s family by his son’s marriage to Ling’s daughter, was the person who arranged for Father’s execution of the Wills.  He worked as a clerk to Messrs Tam, Pun & Yipp at the material time.

41.While Lee has been working in the legal field, his attitude was quite hostile unnecessarily when he gave evidence in Court for unknown reason(s).  I must say I am not impressed by such a bad attitude. 

42.Putting the aforesaid hostile attitude aside, I am of the view that his evidence is unreliable for the following reasons:

(1)  He tended to answer questions put to him casually without thinking carefully.  For example, when he was asked whether he felt during his telephone conversation with Father on 17 February 2012 (which was a Friday)  that Father was in a hurry to make a will, he answered quickly and firmly in the negative.  However, when he was cross-examined further as to whether he could recall what happened at the time, he admitted that he actually could not recall.  Subsequently he even admitted further that there was a possibility that Father did indicate that he would like to make the will as soon as possible and as a result the February 2012 Will was made on the following Monday (20 February 2012).

(2)  Some of his evidence was self-contradictory. For example, on one hand, he said that he did not ask Father as to why he gave all his assets to one of his sons for the reason that it was a family matter of Father and it was none of his (Lee’s)  business.  However, on the other hand, he stated that he did ask Father why he did not leave anything to his elder son (Shing).

43.Some of his evidence did not make sense.  For example:

(1)  He said he did not mark scheduled time in his calendar for meeting clients because they might be late.

(2)  While (i)  he thought Father had 2 sons and 2 daughters; (ii)  he knew that this court case is about Father’s estate; (iii)  he knew that the March 2012 Will left everything to Father’s 3 children but nothing for the elder son, he said he did not know that this court action was brought by the elder son to challenge Father’s March 2012 Will.

44.Lee’s evidence that Father had told him that nothing was left for Shing because Shing was rich is particularly incredible because:

(1)  While there cannot be any doubt that Lee must know this is an important piece of evidence, he did not include this in his witness statement, with the excuse that he had forgotten about it and no one had ever asked him about this;

(2)  When he gave his evidence in Court, he suddenly mentioned about this part of the evidence without being asked;

(3)  While he had forgotten nearly everything about what happened back in 2012, he could remember about this part of the evidence without explaining why.

C7.  Shing

45.Having considered the entirety of Shing’s evidence, I am of the view that Shing is an incredible witness.

46.I have reached the above view for, inter alia, the following reasons:

(1)  A number of the witnesses mentioned about an incident back in around 1980 when it was said that, in the course of a heated argument between Fan and Yuen in the Shanghai Street Flat (they were all living in the said flat together at the time), Shing took a knife in the kitchen and wanted to stab Yuen (“the Knife Incident”).  Although this very old incident has very little (if any at all)  bearing on the ultimate result of the present case, what it serves to highlight is the (un)reasonableness of Shing’s evidence when he denied what happened at the time.  As pointed out by the plaintiffs’ counsel, if no knife was ever featured in this episode, there is no reason why all of the defendants’ witnesses would have associated the plaintiffs’ account of this incident with the fights over the toilet and would remember this particular quarrel which happened such a long time ago, still less for Shing to be able to allegedly remember that he was peeling an apple with a fruit knife at the material time.

(2)  According to Shing’s witness statement, Father has specifically instructed Shing to take away the title deeds of the 2 landed properties owned by Father so that Shing could assist him in distributing the same among his 7 children.  Shing further alleged therein that he had told Pang about this when he (Shing)  took those title deeds from the safe located in the Shanghai Street Flat on the same day when Father passed away.  However, when Shing was cross-examined on this, he said that he told Pang “將來看一下怎麼安排” (but not about Father’s instructions of equal distribution).  This is inconsistent with what he stated in his witness statement.

(3)  Another important inconsistency in Shing’s evidence is in relation to his alleged notification to his siblings of Father’s instruction to distribute the said landed properties to all 7 children equally. According to his witness statement, he informed all his siblings (except Ching)  about the said instruction when they had meal together after Father’s funeral. However, in his oral evidence, he told the Court that:

(a)  He informed Yuen and Wai that Father had instructed him to keep the title deeds of Father’s landed properties, and he would see how to deal with them (“稍後看怎安排”).  He did not tell them about the instruction to distribute the properties equally because there were other people around and as a result it was not a convenient moment to talk about that at the time.  He only told them (and also Mee)  subsequently at his home;

(b)  He did not inform Ling about this because he had no chance to do so.  He also thought that it was unnecessary to inform Ling about that.

(4)  Shing alleged that Mother was still able to express herself verbally by saying “我不去” (albeit very vaguely)  when Ling called him in around February 2012 and talked about sending Mother to a caring home.  This piece of evidence is clearly inconsistent with his evidence that Mother could not talk at the material time at all.

(5)  A further inconsistency in his evidence is in relation to the timing of Father’s alleged strange behaviour.  For example, while he stated in his witness statement that Father mentioned about the “real Ip Chan Kee” in 2011, he accepted in Court that the first time that Father stated such thing was in 2015.  In my view, when he prepared his witness statement, he was trying to bolster his case.

C8.  Yuen, Wai and Mee

47.I find that Yuen, Wai and Mee are, generally speaking, incredible witnesses. 

48.The most obvious example is that while they had given very bad comments on the personal character of Shing in the past in a lot of messages in WhatsApp group chats among certain siblings, they had, during cross-examination, tried to explain away those adverse comments:

(1)  Yuen stated that she had been misled in the past, that she enjoyed gossiping, that she wanted to resonate with her sisters’ comments on Shing, that sometimes she was just joking (e.g. when she mentioned about the Knife Incident), that some of the comments were actually not directed at Shing but to her ownself as philosophical reminder and that some of the comments had been made causally without serious thought;

(2)  Wai alleged that some of the messages were written as if she was writing a composition.  She also claimed that some of the messages were sent for the purpose of pleasing Ling;

(3)  Mee said that she was not serious about her messages, and she just wrote some of them according to what Ling or Ching told her so as to please them. 

49.Having considered the relevant WhatsApp messages, I hold firmly the view that the explanations given by the 3 sisters are unreasonable and must be rejected.  Their aforesaid evidence only shows that they are not interested in telling the Court the truth, but only in supporting the case of the defendants’ camp so as to pursue their own interest.

50.As far as Yuen is concerned, it should also be highlighted that she alleged in Court that Shing did mention to her during the meal after Father’s funeral about his retention of the 2 sets of title deeds and his plan to distribute the 2 properties among the siblings according to the instructions of Father.  However, she had never mentioned this very important piece of evidence in her witness statement.  In my view, she had only given this evidence in Court without including the same in any of her witness statements because the conversation did not take place at all.  She only said the same in Court after hearing what Shing said in his oral evidence.

51.It should also be pointed out that, according to Yuen, Ching had told her and the other sisters on 5 November 2017 that anyone holding onto Father’s title deeds and his Certificate of Death would be able to apply for ownership of the properties concerned.  At the material time, Yuen must still be considering Shing a very greedy and bad person (because she told the Court that she only discovered that she had misunderstood Shing after the commencement of these proceedings in 2018).  That being the case, it is most unreasonable and inherently improbable that she did not inform the other sisters immediately that Shing had told her that he was holding onto the title deeds.  This demonstrates that she in fact did not have knowledge of that matter at the time. 

52.In relation to Wai and Mee, they only mentioned about Shing’s alleged conversation with them concerning the title deeds during the meal after Father’s funeral on 3 November 2017 when they gave live evidence in Court but had not included the same in their respective witness statements. I am of the view that they, like Yuen, were trying to corroborate Shing’s evidence even though such evidence did not represent the truth.

53.As far as Mee is concerned, I should also refer to her supplemental witness statement in which she doubted whether Father understood the purpose of a Power of Attorney dated 18 January 2012 (“the Power of Attorney”)  pursuant to which Father authorised Mee to sell his property in Canada.  Her basis of doubt was that Father was showing a poker face when the notary public explained the purpose and the terms of the Power of Attorney to him.  That particular part of her supplementary witness statement was made in response to Ching’s evidence that Father’s capacity in making wills in early 2012 was supported by his act of signing various legal documents including the Power of Attorney.  However, when she was cross-examined in Court, she accepted that Father should know the purpose of the Power of Attorney.  In my view, Mee had simply no basis to raise her doubt in her supplemental witness statement.  She was only trying to bolster her case desperately. That shows how unreliable her evidence is.

C9.   Fan

54.I agree with the plaintiffs that the Court should bear in mind that Fan is Shing’s wife and therefore her evidence should be treated with a degree of circumspection.

C10.    Madam Fung Lau Por

55.Her evidence was not challenged by the plaintiffs at all.  There is no reason why the Court should not accept her evidence.

C11.  Madam Chan Yuk King

56.Madam Chan was already 90 years old when she gave evidence in Court.  While it is true that she could not recall, inter alia, where she signed her witness statement, I am of the view that she is a reliable and truthful witness.

C12.  Snooky

57.Snooky has been employed by Shing and Fan as their domestic helper from 2000 to 2008 and then from 2011 to date.  Because of such long and ongoing employment relationship between Snooky and Shing/Fan, I take the view that the Court should approach her evidence cautiously.

58.I accept the plaintiffs’ submissions that Snooky’s testimony on how she prepared her witness statements casts doubts on the reliability and credibility of her evidence.  She claimed that she was not instructed to write her witness statements by Shing/Fan.  Rather, on her own volition, she personally wrote all three of her witness statements.  That is incredible.  More incredibly, she claimed that she had written her 2^nd Supplemental Witness Statement dated 9 February 2024 long time ago, and only recently tendered it when she realised her employers were going to court for litigation. Such assertion is plainly untrue as her 2^nd Supplemental Witness Statement was prepared upon the discovery of new documents during the course of preparation for the trial.

59.The unreliability of Snooky’s evidence is also demonstrated by, for example:

(1)  her admission that she was only guessing when she stated in her witness statement that Father and Mother would talk to each other about their past and their children, when in fact she could not really understand what they were talking about;

(2)  while she alleged in her witness statement that Mother was “strapped onto her bed” while she was living in the Shanghai Street Flat, she admitted in Court that this had never happened.  I wonder how come such a mistake could be made. 

C13. Remark on assessment of credibility

60.Before I leave this section on credibility, I should specifically note that even though I have found that many of the witnesses are, generally speaking, incredible and unreliable, that does not necessarily mean that I should reject their evidence entirely.  Much depends on the circumstances in relation to a particular issue.  But of course, I would bear in mind that I should be very careful before I accept any part of their evidence.  This reminder to myself is also applicable to those witnesses whose evidence should be considered cautiously.  Sadly, that means that the above remark applies to all family members of the (Y)Ip family.

D.   DISCUSSION

61.As mentioned, the defendants challenged the Wills on the grounds that:

(1)  Father did not have testamentary capacity;

(2)  he did not know nor approve the contents of the Wills at the time of the execution;

(3)  he did not have the testamentary intentions (animus testandi); and

(4)  he executed the Wills as a result of fraudulent calumny.

62.I will consider these matters in turn below.

D1.  The March 2012 Will

D1.1  Testamentary capacity

D1.1.1  Legal principles

63.The legal principles regarding testamentary capacity have been set out in Wong Tung Wai v Wong Tung Po [2023] HKCFI 1240 at [14] – [24] as follows:

“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.”

64.As far as burden of proof is concerned, it is trite that the proponent of the will has the persuasive burden of proving on a balance of probabilities that the testator was of testamentary capacity: Nina Kung v Wong Din Shin (2005)  8 HKCFAR 387, at [171] – [173].

65.If someone wishes to dispute the validity of a will on the grounds that there is want of due execution, or of testamentary capacity, or of the requisite knowledge and approval, that person bears an evidential burden of putting the relevant ground of challenge in issue.  If the evidence adduced by him or otherwise arising in the case is of a sufficient cogency to raise such an issue, the court, when assessing the evidence as a whole at the end of the case, decides whether the proponent of the will has discharged the persuasive burden in relation to the relevant fact in issue on the balance of probabilities: Nina Kung v Wong Din Shin (supra), at [176].

66.What Briggs J explained in In re Key, Decd [2010] 1 WLR 2020 at [97] should also be borne in mind:

“The burden of proof in relation to testamentary capacity is subject to the following rules. (i)  While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity. (ii)  In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity. (iii)  If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity none the less: see generally Ledger v Wootton [2008] WTLR 235, para 5, per Judge Norris QC.”

D1.1.2  Expert evidence

67.Parties have adduced expert medical evidence in support of their respective cases.  The plaintiffs’ expert is Dr Choi Wing Kit (“Dr Choi”)  whereas the defendants’ expert is Dr Chung See Yuen (“Dr Chung”).

68.Before I analyse the expert evidence, it should be emphasised that the medical experts herein did not have the opportunity to examine Father face-to-face at all.  Indeed, objective mental assessment on Father had not been performed by any psychiatrist or any other medical doctors around the time when the Wills were made.  Hence, the expert witnesses could only give their opinion on the basis of, inter alia, Father’s reaction and the way he spoke as shown by the 2012 Audio Recordings.  Given the fact that the March 2012 Will was prepared by an experienced and independent solicitor, what Mummery LJ stated in [60] of Hawes v Burgess [2013] WTLR 453 is particularly relevant and should be reiterated again:

“[…] 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.” (emphasis added)

69.In a gist, it is the evidence of Dr Chung that:

(1)  On the basis of the 2012 Audio Recordings and various medical documents in 2017, he opined that Father was suffering from mild dementia with delusion when he executed the Wills.

(2)  There is evidence of significant cognitive decline from a previous level of performance in three of the cognitive domains – learning and memory, executive function and perceptual motor, which interfered with Father’s independence in activities of daily living, such that he required assistance in complex instrumental activities of daily living.

(3)  The fact that Father would quarrel with Shing whenever they met in mid-2011 to end of 2011 shows that the onset of Father’s delusion is in mid-2011 or end of 2011.

(4)  He opined that Father did not have the testamentary capacity when he executed the Wills on the following bases:

(a)  Father did not understand the nature of his act and its effect because Dr Chung could not find any information from the 2012 Audio Recordings which demonstrates his motive in making the Wills.  Further, Father was suffering from dementia with delusion at the time.  The Wills did not mention Shing at all and could not achieve the purpose of not leaving any properties to Shing.  Moreover, although Father would like to leave some properties to Ching, Ling, Yuen, Wai and Mee, the February 2012 Will did not mention any of them and the March 2012 Will did not mention Yuen, Wai and Mee at all.  Such omission was caused by impairment of his ability in making judgement and executive function due to dementia.

(b)  Father was unable to comprehend and appreciate the claims to which he ought to give effect:

(i)  Father decided not to leave anything to Shing because of delusion which perverted his sense of right and prevented the existence of his natural faculties.

(ii)    The 2012 Audio Recordings show that Father’s learning and memory, decision making and understanding had been impaired by dementia.  The short interval between the Wills also shows that he would change his mind within a short time, which may be caused by his memory and cognitive impairment, delusion or a combination of both problems.

(iii)  Although Father was minded to leave certain of his properties to Yuen, Wai and Mee, he did not mention about them in the March 2012 Will.

(iv)  Father’s memory had been impaired, and he had difficulty in remembering several persons who ought to be considered as possible beneficiaries when he made the Wills – he did not mention Yuen, Wai or Mee in the March 2012 Will.

70.On the other hand, Dr Choi opined that:

(1)  When the Wills were executed, Father’s physical state, mental state, cognitive functions and general condition were still very good.

(2)  Father was unlikely to be suffering from dementia in 2012.

(3)  Father’s mental confusion and disturbances in mental state in 2017 were not typical features of dementia but delirium.  It was more likely that they were caused by acute challenges faced by his mind and body at the time. 

(4)  Even if the alleged forgetfulness and suspicion as mentioned in the defendants’ witness statements were true, Father was at most suffering from very mild cognitive decline (aged-associated memory impairment)  back in 2012.

(5)  Hence, when he made the Wills, Father was capable of understanding the nature of the act of making a will.  He had the required testamentary capacity to make the Wills.  He had the ability to appreciate those who have claims to his estate, and to make a decision on the matter.  He was also able to appreciate the extent of his assets.

71.Having considered the expert evidence carefully, I have come to the conclusion that Dr Chung’s evidence should be rejected for the following reasons:

(1)  While both experts have to rely on the 2012 Audio Recordings heavily when they made the assessment, Dr Choi had listened to the entirety of those recordings himself but Dr Chung only spent 1.5 hours listening to the recordings (in relation to those parts of the conversations which he quoted in his expert report)  and he had only read the transcripts in relation to the other parts of the 2012 Audio Recordings.  In my view, it is already difficult enough to assess one’s mental state only by reference to recordings without face-to-face examination, not to mention that those recordings are audio instead of video recordings. It would be even more difficult if a substantial part of the materials referred to are in the form of transcripts, which means for example the tone of the speaker when certain things were said cannot be understood properly.

(2)  With greatest respect to Dr Chung, he had misunderstood Father in quite a number of different aspects which no doubt would have affected his overall assessment of Father’s condition.  For example:

(a)  While Dr Chung thought that Father had accused Shing of pocketing the proceeds from the sale of certain stocks, Father in fact had never made such an accusation;

(b)  Father stated in one of the gatherings that Shing wanted to “趕絕” them.  Dr Chung opined in his expert report that since there is no suggestion in any of the witness statements that Shing was minded to “get rid” of all of them, he considered that Father’s ability to make judgement had been impaired.  However, at the trial, Dr Chung accepted that “趕絕” is actually a figurative speech;

(c)  Dr Chung also opined in his expert report that Father’s ability in judgement and decision making has been impaired because while Father said Shing wanted to kill Mother, there is no evidence on this matter.  However, what Father said should not be taken literally, which Dr Chung also accepted in Court[1].

(3)  Many of Dr Chung’s views were reached on the basis that he could not find “definite” evidence in support of certain assertions made or beliefs held by Father.  This is a strange reasoning as the absence of “definite” evidence before him is neither here nor there.  Further, there is no “definite” evidence which shows that Father was wrong either.  It is therefore quite remarkable for Dr Chung’s inclination to lean towards the conclusion of dementia rather than the other way round.

(4)  Dr Chung’s view that there was evidence of significant decline in Father’s learning and memory which was reached on the basis that he had had his daughters to assist him in calculating the amount of money which was required after the purchase of a new property is unsound.  From the relevant recording, he did not really ask for assistance from his daughters to calculate the amount.  Even if he did, that does not mean that he was unable to do so.  It could be for the sake of convenience only. 

(5)  Dr Chung’s conclusion that Father had difficulty managing his own finance for the reason that his children had helped him calculate the total cost involved in the employment of a domestic helper is not understood.  Father was in fact not quite involved in the conversations concerned, and it was his children who were discussing the necessary expenses themselves.  There is simply no way that Father’s ability to manage finance could be assessed from the conversations concerned.  The same logic applies to the children’s calculation of the value of his Hong Kong Stock Exchange Limited stocks and of the telephone charges.

(6)  Dr Chung’s view that Father’s learning and memory had been impaired (on reliance of which he opined that Father had impairment on mental ability in managing his daily living)  by reason of his “having problem in operating the safety alarm bell device” is totally misconceived. It is apparent from the relevant part of the audio recording that the device was only accidentally activated by Father.  It simply could not be deduced from those incidents that Father did not know how to operate the device.

(7)  Dr Chung’s opinion that Father had had decline in his executive function domain for the reason that his children had helped him contact the Food and Environmental Hygiene Department in respect of water leakage problems has been reached without any sound basis.  As Dr Chung pointed out himself, the reason of Father’s previous inaction was unknown.  Hence, any view reached on the basis of such inaction is speculation.

(8)  Dr Chung’s view that Father had had decline in perceptual motor domain by reason of his inability to locate his dining table during a buffet meal in Canada is, with respect, arbitrary, since there is simply not enough information to reach such a view (for example, how large the restaurant was), not to mention that it seems to be an isolated incident.

(9)  Dr Chung’s conclusion that Father was suffering from delusion cannot stand:

(a)  While Dr Chung’s conclusion was based on the fact that there is no “definite evidence” which supports Father’s belief that Shing was a bad person, he accepted in Court that in fact the reverse is true too – there is no definite evidence which shows that Father’s belief was incorrect.  Hence, it is arbitrary for Dr Chung to reach his conclusion;

(b)  As Dr Chung also accepted in Court, on the basis of Shing’s own evidence, there were reasons for Father’s ill-feeling towards Shing;

(c)  Actually, Father was not the only person who considered that Shing was a bad person – it is undisputed that both Ching and Ling held the same view.  Furthermore, even though Yuen, Wai and Mee have denied it in Court, it is my finding that they indeed also disliked Shing very much for various reasons even up to at least 2016, as demonstrated by their contemporaneous WhatsApp messages. As Dr Chung accepted, the more people who held the same view, the less likely that Father was really suffering from delusion.

(10)  The fact that Dr Chung could not find any information from the 2012 Audio Recordings which demonstrates Father’s motive in making the Wills is neither here nor there, because it has never been suggested by anyone that those gatherings were held for the purpose of discussing the Wills. 

(11)  It is not understood why Dr Chung took the view that the Wills could not achieve the purpose of not leaving any part of Father’s estate to Shing, for it is undisputed that Shing was not named as a beneficiary thereunder.

(12)  I do not think any emphasis should be placed on the fact that Yuen, Wai and Mee were not named as beneficiaries in the Wills, as Dr Chung did in his analysis, because it is evident that Father was indifferent as to whether those daughters should have a share in his estate, and that he had left it to Pang to decide.  It should also be noted that the omission of Yuen, Wai and Mee as beneficiaries in the Wills was not due to Father’s impairment in remembering them as Dr Chung assumed.

72.Dr Chung’s diagnosis of “mild dementia” (which he accepted to be equivalent to Stage 4 under the Global Deterioration Scale for Assessment of Primary Degenerative Dementia (“GDS”))  may also be tested against the clinical characteristics of GDS Stage 4 which include: (1)  Concentration deficit; (2)  Decreased knowledge of recent events in his own life, and of current events in the world around him; (3)  Deficit in memory of his personal history; (4)  Curtailed ability to travel alone; (5)  Apparent difficulties with managing personal finances; (6)  Flattening of affect; and (7)  Withdrawal from previously challenging situations.  I will deal with these characteristics one by one below:

(1)  Concentration deficit – Dr Chung accepted that it is very difficult to say that Father had this symptom by purely referring to the 2012 Audio Recordings.  In effect, he could not find anything in support of the view that Father was suffering from concentration deficit.  To the contrary, as pointed out by Dr Choi (who had listened to the entirety of the 2012 Audio Recordings as opposed to Dr Chung who had only listened to a small part thereof), Father had no problem in maintaining his attention and following through complicated discussion for a long time;

(2)  Decreased knowledge of recent events in his own life, and of current events in the world around him – Dr Chung accepted that he could not tell from the materials available to him whether Father had such a decrement. As a matter of fact, if anything, the 2012 Audio Recordings show that Father was quite aware of what was happening in the society as he could give comments on, for example, the election of Chief Executive and the property market at the time;

(3)  Deficit in memory of his personal history – Dr Chung accepted that he could not locate any evidence which shows such deficit;

(4)  Curtailed ability to travel alone – Dr Chung said there are two matters which suggest that Father had curtailed ability to travel alone, namely, that his relative had brought him to see the doctor and that there were some people who brought him to view some flats which Father might want to buy. However, as Dr Chung admitted, he could not tell whether Father was unable to do these things himself, and whether those relatives were just accompanying him.  On the other hand, it is undisputed that Father had been living in the Shanghai Street Flat alone from late 2011 to early 2013 (that means covering the time when the Wills were executed).  Given the undisputed evidence that Father’s hobby was to go to “yum cha” with his friends on a daily basis, it can be inferred that he had been going out by himself all the time;

(5)  Apparent difficulties with managing personal finances – As I explained above, I don’t agree with the conclusion reached by Dr Chung that Father was unable to manage his personal finances.  The fact that he had been assisted by his children does not necessarily mean that he had difficulties doing it himself.  In answer to this, Dr Chung said the fact that Father did not give a lot of directions to his children as to how the work should be done implies that he had some difficulties.  With respect, I disagree.  Take the calculation of the total cost of employing a domestic helper as an example.  If his children knew the items of expenditure involved, why did Father have to give instructions on how to calculate the amount?

(6)  Flattening of affect – Dr Chung again accepted that there was nothing in the evidence which shows that Father had lost interest in or flattened his hobbies.  To the contrary, Father was still making records of stock prices even in 2015 – 2017.  Furthermore, he still liked going to “yumcha” with his friends to the extent that he refused to move to Shing’s House nor the Park Summit Property (his newly purchased property);

(7)  Withdrawal from previously challenging situations – Dr Chung admitted that he could not find anything which suggests that Father having had this symptom at the material time.

73.It has been argued on behalf of the defendants that since a clinical interview (which is lacking in the present case)  would be required for the application of GDS and Clinical Dementia Rating (“CDR”), little weight should be attached to such scales.  With greatest respect, I disagree, for there must be some guidance which the experts (and ultimately the Court)  should make reference to so as to come to the conclusion whether Father was suffering from dementia, as alleged by Dr Chung.  In my view, the limitation of not having any chance to conduct a clinical interview with Father, as acknowledged by both experts, would only impose difficulty on them (and the Court)  to come to the conclusion that Father was suffering from dementia.  Such a limitation would not affect the applicability of those scales, which, as admitted by Dr Chung during cross-examination, are the most commonly and widely used and accepted tools to assess dementia.

74.It is also remarkable that when Mr Chang SC put to Dr Chung during cross-examination that his diagnosis of mild dementia is equivalent to “Stage 4: Moderate Cognitive Decline” under GDS, Dr Chung accepted such an assertion without qualification.  Even when he explained further that:

“an illness cannot be 100% assigned to a certain group. The overall picture is mild dementia, the overall picture is moderate cognitive decline, but every patient has some good things, some bad things. It depends on which areas are being affected”,

he did not say that the GDS should not be applied at all because of the lacking of a clinical interview.  Further, while Dr Choi had made it clear in his expert report that he would give his opinion on the staging of dementia according to GDS, when Dr Chung compiled the joint expert report, he did not query the adoption of such an assessment tool under the present situation.  Given Dr Chung’s vast experience in this field and as expert witness, it is unimaginable that he would omit to mention about this fundamental matter in his expert report (and during cross-examination). 

75.Pausing here, I note that it has been pointed out by the defendants that the main difference in the approaches adopted by the experts herein is that while Dr Choi focused on the positive matters, Dr Chung laid emphasis on the negative matters.  This Court’s attention had as a result been brought to the case of Re NLS (Mental Condition) [2021] 3 HKLRD 814, [2021] HKCFI 2203 in which Lok J, when considering whether a patient is a mentally incapacitated person in an application under Part II of the Mental Health Ordinance (Cap.136, Laws of Hong Kong), agreed that the Court should focus on the patient’s abnormalities and what he could not do.  On my part, I do not think the alleged difference in the approach matters much at the end of the day because:

(1)  I accept Dr Choi’s explanation that in fact he had looked for both the “positive” and “negative” matters, but just that he could not find anything “negative”;

(2)  As I have explained above, I do not agree with many of the so-called “negative” matters as referred to by Dr Chung. 

76.With greatest respect to Dr Chung, I am also not impressed by his evidence because he has given this Court an impression that he has come to the conclusion of “mild dementia” first before trying to justify such a diagnosis.  For example, when Dr Chung was questioned on the factor of perceptual motor, he accepted that there was inadequate information for him to conclude whether Father’s orientation to places had been impaired.  However, Dr Chung still insisted that it is more likely than not that there was impairment. The following exchanges between Dr Chung and the Bench should be highlighted:

Dr Chung:		It's more likely because I base it on the overall assessment of his various abilities and the usual features of dementia, if he has this problem and that problem, the total picture would make me suspect that they are more likely to be symptoms of disorientation
Court:		So in other words, you use the result of your assessment of other parameters to draw your conclusion in relation to this particular parameter; is that what you are telling me?
Dr Chung:		Yes, you can say that […]

77.In any event, as pointed out by Dr Choi, while Dr Chung opined that Father was suffering from mild dementia at the material time, he did not go further and comment on the severity of his dementia, for it is trite that even a person who is suffering from dementia may still have testamentary capacity. 

78.On the other hand, I accept Dr Choi’s evidence, even though I appreciate his limitation in the assessment exercise given the fact that he had no chance to do a face-to-face examination.  In particular, I agree with Dr Choi’s analysis that:

(1)  By reference to GDS, Father was at most suffering from age-associated memory impairment at the time when he executed the Wills;

(2)  In relation to Father’s attitude towards Mother, even if he did show fluctuating mood and treatment of Mother, he was at most suffering from carer’s stress;

(3)  The conversations reflected by the 2012 Audio Recordings show that Father was able to engage in discussion concerning his finances;

(4)  Father did not suffer from delusion at all.

79.I reached the above findings despite the defendants’ submission that Dr Choi is not a geriatric psychiatrist.  In my view, it does not matter, because I accept that he has experience and practice in old age psychiatry.

80.Hence, as far as expert evidence is concerned, I do not think the defendants have raised any real doubt as to Father’s testamentary capacity, and the defendants have not discharged the evidential burden of proof of want of testamentary capacity.

D1.1.3  Factual evidence

81.The defendants have relied on a number of factual matters in support of their submissions that:

(1)  Father did not understand the nature of the act and its effects;

(2)  Father did not understand the extent of the property of which he is disposing;

(3)  Father was unable to comprehend and appreciate the claims to which he ought to give effect;

(4)  There was disorder of Father’s mind which poisoned his affections, perverted his sense of right, or prevented the exercise of his natural faculties and there was insane delusion which influenced his will in disposing of his property and brought about a disposal of it which, if the mind had been sound, would not have been made.

82.I will go through the factual matters relied on by the defendants one by one below.

D1.1.3.1  Personality changes and strange behaviour

83.The defendants alleged that Father had personality change and had strange behaviour at the material time, which, it was said, raised doubt on Father’s mental capacity at the time of the execution of the March 2012 Will.  The matters relied on will be addressed in turn below.

84.Firstly, it was said that Father was forgetful. However, as Dr Choi has explained, this does not necessarily mean that Father was suffering from dementia.  Dr Choi also opined that even if such forgetfulness were the very early signs of the onset of dementia, it would take 8 to 10 years for such condition to develop into the more severe stages of dementia.  I accept his evidence.

85.Secondly, it was alleged by Shing that Father had spent $500,000 and $300,000 on dental implantation surgery and Chinese paintings respectively, and that this was totally out of Father’s character.

86.However, during cross-examination, Shing admitted that it was only his “guess” that Father had spent such amounts of money on those 2 matters.  He also said that he was informed by Ling about this.  However, in this regard, Ling had given evidence that it was her own speculation that Father had spent the said sums of money on dental implantation surgery and Chinese paintings and that there was no basis for her to support such speculation. 

87.The fact that Ling in fact had no knowledge about the matter is supported by Shing’s admission that Father seldom told others about his own expenditure. 

88.I therefore find that there is no evidence which this Court may rely on to come to the conclusion that Father did spend $500,000 and $300,000 on his own dental implantation and Chinese paintings.

89.In any event:

(1)  according to Ling: “他用在他自己身上，他喜愛的東西，他就很捨得，是啊，這是真的，他自己喜歡的東西就可以很貴都買的”;

(2)  further, when Mee responded to Mr Yu SC’s suggestion that Father was willing to spend money on trips, she said: “他花在自己身上都捨得的”,

Hence, it was not really out of Father’s character for him to spend a large amount of money on himself and on something he liked.

90.Thirdly, the defendants also relied on other incidents which happened from 2013 onwards.  I do not propose to set out those matters here.  It suffices for me to say that I accept the plaintiffs’ submissions that those matters are irrelevant for our purpose because the March 2012 Will had already been executed by the time those incidents happened.

91.Fourthly, the defendants alleged that Father had ill-treated Mother even though he had been a loving and caring husband in the past.  It was also alleged that the way Father treated Mother fluctuated.

92.In this regard, I accept Dr Choi’s evidence that Father had been under carer’s stress.  Hence, this line of argument does not assist the defendants.

93.While dealing with the defendants’ argument that Father’s behaviour at the material time had demonstrated that he had mental problems, I should also add that I accept the plaintiffs’ counter-arguments:

(1)  If the mental problems were as obvious and serious as Shing would like this Court to believe, there is no reason why Shing did not take Father to see a psychiatrist or neurologist, or even raised the idea of consulting a doctor with him.  Shing explained that he did not do so because he knew that Father did not like it.  I do not accept this evidence, because this simply does not make sense.  Mr Yu SC for the defendants urged this Court to bear in mind that Shing is not a medical practitioner and therefore he would not know whether the condition would deteriorate and to what extent.  It was also argued that Shing was not at that time contemplating the contesting of the Wills.  With respect, I do not accept these arguments.  If Father’s problems were that obvious and serious, Shing would not have done nothing about it at all.  If he did not know whether Father’s condition would deteriorate, that would be an additional reason why he would have taken Father to have a check-up earlier rather than later.  It is my finding that Shing did not do it because he in fact did not think there was any problem with Father at the material time, and that is because there was nothing wrong with Father’s behaviour at that time.

(2)  It was exactly because Shing did not consider that Father had any problem that he thought it was alright for Father to live in the Shanghai Street Flat alone for more than a year after Shing had taken Mother to live in Shing’s House.  Shing explained in Court that at the beginning, he was anticipating that Aimah would come back to Hong Kong. However, even according to his own evidence, Aimah had informed him already that she was not coming back.  Therefore, he knew that his hope could not come true anyway.  Then Shing said that even if he went ahead to start the process of employing a helper, it would take a few months before the new helper could report duty.  This excuse cannot assist him, because the fact is that he did not proceed with employing a new helper at all.  Shing also alleged that he had instructed his own helper Snooky to visit Father more frequently, and that he knew that Ling (and he himself)  would also visit Father.  However these would not change the fact that there would be time when Father would be left alone at the Shanghai Street Flat.  This is totally inconsistent with Shing’s evidence that he found that Father had something wrong at the material time.

(3)  Even when Father was admitted into hospital in August 2017, Shing did not mention to the attending doctors that Father had started showing symptoms of mental problems in as early as 2011.  Shing explained that this is because the doctors were very busy, that time was rushed, and that he was not asked about this.  I do not accept such explanations, particularly when it is his own evidence that Father had allegedly behaved strangely in 2017.  In my view, Shing did not inform the doctors about his alleged observation because there was nothing in Father’s behaviour prior to 2017 which aroused his concern.

D1.1.3.2  Exclusion of Mother and the defendants in the March 2012 Will

94.The next matter relied on by the defendants is the fact that not only Mother and the defendants have not been provided for in the March 2012 Will, they were not even mentioned therein.

95.In my view, the mere fact that Mother and the defendants (i.e. those who were not chosen as beneficiaries under the March 2012 Will)  were not mentioned does not assist the defendants.  It is natural that they were not mentioned as they were not the designated beneficiaries.

96.Further, as pointed out by the plaintiffs’ counsel, there is no rule of law or practice that the reasons for the testator’s decisions should be stated in the will.

97.As far as the omission of Mother and the defendants as beneficiaries is concerned, first of all, it has been held in Boughton v Knight (1872-75)  LR 3 P&D 64 at 66 that the law does not say that a testator is incapacitated from making a will if he proposes to make a disposition of his property moved by capricious, frivolous, mean or even bad motives.  Secondly, there is nothing irrational for Father to omit Mother and the defendants from the March 2012 Will:

(1)  Father’s physical condition was far better than Mother at the material time, and Father had already caused the $2M Account to be set up to provide for the need of Mother;

(2)  It is undisputed that Shing’s relationship with Father had turned sour before the execution of the March 2012 Will[2]. It is thus natural that he was not named as one of the beneficiaries;

(3)  As far as the daughters are concerned, Father’s relationship with Ching and Ling must be better than his relationship with Yuen, Wai and Mee, as Ching and Ling were the ones whom Father met from time to time in Hong Kong.  Thus, I do not think the omission of the daughters who lived in Canada is so irrational that the Court should doubt Father’s testamentary capacity;

(4)  One must also bear in mind that Father was a traditional man who was biased towards his sons[3]. It is more likely than not that he was not particularly concerned as to whether the daughters in Canada would have a share, and considered that it was alright for Pang to decide on this matter.

98.In relation to Mee, the defendants emphasised that there is no evidence which suggests that Father was unhappy with her, and that Mee had just been helping Father to sell his property in Canada, and Father had executed the Power of Attorney for that purpose.  That may be so, but as explained, I hold the view that the March 2012 Will is explicable.

99.It should also be made clear that even though Mother and the daughters in Canada were not mentioned in the March 2012 Will, I do not agree that that means Father had lost his memory to recall them who may be fitting objects of his bounty, for there is simply no evidence to support a finding that he had lost such memory.  On the other hand, Father had just been to Canada in January 2012.  He did meet Wai and Mee in Canada.  Before Father went to Canada, Yuen had talked to him on the phone.  It can readily be inferred that Father could still remember them while the March 2012 Will was made. 

100.Furthermore, it was the evidence of Pang (which I accept)  that Father did mention that Pang had the liberty to decide whether any part of Father’s estate should be distributed among the daughters in Canada.  This shows Father did not forget about them.

D1.1.3.3  Lack of conference notes for will preparation and execution

101.The defendants also relied on the “total absence of conference notes for will preparation and execution” and Mr Yau’s evidence that he had no recollection as to the execution of the March 2012 Will, including whether he had asked Father about his children, his wish of distribution, why he would disinherit some other children and why he would alter his testamentary wish to make the March 2012 Will.

102.However, it should be noted that according to Mr Yau’s evidence (which I accept), in accordance with his usual professional practice, if it appeared to him that any client is of unsound mind or otherwise lacks the requisite testamentary capacity, he would not proceed to attest the execution of the will.  While I bear in mind that Mr Yau is not a medical doctor who has received training on identifying mental problem, I am of the view that the Court should give due weight to Mr Yau’s evidence that he found nothing wrong with Father at the material time, particularly when there is no evidence which shows that Father had demonstrated any mental problem at the material time. 

103.It should also be borne in mind that Mr Yau had not only witnessed the March 2012 Will but also the February 2012 Will.  That means he had been able to meet and assess the condition of Father at least twice within a short period of time.  Yet, Mr Yau considered it appropriate to let Father proceed with the execution of the March 2012 Will.  That is a matter to which the Court should give due weight.

104.Mr Yu SC has drawn this Court’s attention to the case of Chiu Man Fu & Others v Chiu Chung Kwan Ying (HCAP 9/2005, unreported, 31 January 2012), in which Poon J (as Poon CJHC then was)  refused to give any weight to a medical doctor (a Dr Ng)’s evidence because he has failed to keep attendance notes in respect of the mental state examination of the deceased therein.  However, that is a finding made in the circumstances in that case and it is apparent that the learned Judge was not laying down any legal principle as such.  Furthermore, it should also be noted that the learned Judge has taken into account the fact that Dr Ng had stated in his witness statement that he had kept attendance notes when he as a matter of fact did not.  This of course would affect the Court’s assessment of Dr Ng’s evidence. Hence, I am afraid this authority does not assist the defendants herein.

105.I have of course not overlooked the defendants’ argument that the golden rule has not been followed in the present case. However, the short answer to this argument is that it is trite that the golden rule is only a prudent practice for solicitors as a means of avoiding disputes, rather than a rule of law.  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: Re Estate of Wong Yin Sheung [2019] HKCA 452, at [39]-[43]. 

D1.1.3.4  Substantial changes in the March 2012 Will

106.The next matter relied on by the defendants is that Father had made substantial changes in the March 2012 Will (as compared to the February 2012 Will).  There was a change in the executorship and also in the list of beneficiaries.  The two Wills were executed within a period of around three weeks’ time.  It was said that this suggests that Father might be suffering from deficiency in his mental ability to make decisions.

107.There is simply no evidence which supports the defendants’ submissions.  In my view, the mere fact that a testator has decided to revise the content of a will does not necessarily mean that he/she does not have mental capacity to make decisions.  After all, making a will is a very serious matter.  It is not surprising that a testator, having made a will, has had a second thought of the matter and decides that the will should be drafted in a different way.

108.In the present case, Pang gave evidence that it was Father who told him that the names of Ching and Ling should be added as Father thought that Pang might not be able to withstand the pressure possibly imposed by Shing if Pang was the sole beneficiary of Father’s estate. 

109.Although I have found that Pang is generally speaking an incredible witness (indeed, I do not accept his evidence that Mee had called him shortly after Father’s making of the February 2012 Will and asked about the will), I do accept his evidence that it was Father who all of a sudden told him about his change of mind as far as the named beneficiaries are concerned, having taken the dynamics of the family into account.  I also bear in mind Father’s attitude against Shing as demonstrated by the 2012 Audio Recordings.  The purpose of the March 2012 Will as explained by the plaintiffs is also consistent with Father’s decision to appoint Ching as the executrix instead.

D1.1.3.5  Delusion

110.As explained above, I do not accept that Father was suffering from delusion at the material time.

D1.1.3.6  Overall consideration of the relevant questions

111.For the above reasons, I am of the view that the defendants have not been able to raise any real doubt as to Father’s testamentary capacity, and that they have not discharged the evidential burden of proof of want of testamentary capacity.  Such a finding is also reinforced by the fact that up to the period of Father’s demise, his medical records identified no mental or cognitive problem at all.

112.For the sake of completeness, I should also round up and state that:

(1)  It is evident that the meeting between Father and Mr Yau held for the purpose of Mr Yau getting instructions from Father for the drafting of the March 2012 Will was uneventful.  In my view, it can be inferred, and I accept, that Mr Yau was satisfied that Father was able to understand the nature of his act and its effect at the material time.  I have also considered the entirety of the 2012 Audio Recordings.  There is nothing therein which gives me any doubt that Father’s mind was clear at the material time.

(2)  The 2012 Audio Recordings also show that Father had a clear understanding of his assets.  I have no doubt that he had a good understanding of the extent of the property of which he was disposing.

(3)  I am satisfied that Father had a good recollection on Mother and his children at the time when he executed the March 2012 Will, and that it was his deliberate decision to include only 3 of his children in the March 2012 Will.  In particular, it was his decision not to leave anything to Shing.

(4)  There was obviously no disorder of the mind nor insane delusion on the part of Father as such at the material time.

113.It is therefore my findings that at the material time:

(1)  Father did understand the nature of his act and its effects;

(2)  Father did understand the extent of the property of which he was disposing;

(3)  Father was able to comprehend and appreciate the claims to which he ought to give effect;

(4)  There was no disorder of Father’s mind which poisoned his affections, perverted his sense of right, nor prevented the exercise of his natural faculties and there was no insane delusion which influenced his will in disposing of his property and brought about a disposal of it which, if the mind had been sound, would not have been made.

114.Father’s testamentary capacity is therefore established.

D1.2 Knowledge and approval

D1.2.1 Legal principles

115.In Gill v Woodall & Ors [2011] Ch 380 (CA), Lord Neuberger held that:

“14. Knowing and approving of the contents of one’s will is traditional language for saying that the will ‘represented [one’s] testamentary intentions’: see per Chadwick LJ in Fuller v Strum [2002] 1 WLR 1097, para 59. The proposition that Mrs Gill knew and approved of the contents of the will appears, at first sight, very hard indeed to resist. As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testatrix, raises a very strong presumption that it represents the testatrix’s intentions at the relevant time, namely the moment she executes the will.

15. In Fulton v Andrew(1875)  LR 7 HL 448, 469, Lord Hatherley said that:

‘when you are once satisfied that a testator of a competent mind has had his will read over to him, and has thereupon executed it…those circumstances afford very grave and strong presumption that the will has been duly and properly executed by the testator…’

This view was effectively repeated and followed by Hill J in Gregson v Taylor[1917] P 256, 261, whose approach was referred to with approval by Latey J in In re Morris, decd[1971] P 62, 77F – 78B. Hill J said that ‘when it is proved that a will has been read over to or by a capable testator, and he then executes it’, the ‘grave and strong presumption’ of knowledge and approval ‘can be rebutted only by the clearest evidence’. This approach was adopted in this court in Fuller v Strum[2002] 1 WLR 1097, para 33 and in Perrins v Holland[2011] Ch 270, para 28.

16. There is also a policy argument, rightly mentioned by Mrs Talbot Rice, which reinforces the proposition that a court should be very cautious about accepting a contention that a will executed in such circumstances is open to challenge. Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries. Human nature being what it is, such people will often be able to find evidence, or to persuade themselves that evidence exists, which shows that the will did not, could not, or was unlikely to, represent the intention of the testatrix, or that the testatrix was in some way mentally affected so as to cast doubt on the will. If judges were too ready to accept such contentions, it would risk undermining what may be regarded as a fundamental principle of English law, namely that people should in general be free to leave their property as they choose, and it would run the danger of encouraging people to contest wills, which could result in many estates being diminished by substantial legal costs.

17.  Further, such disputes will almost always arise when the desires, personality and state of mind of the central character, namely the testatrix herself, cannot be examined other than in a second hand way, and where much of the useful potential second hand evidence will often be partisan, and will be unavailable or far less reliable due to the passage of time. As Scarman J put it graphically in In the Estate of Fuld, decd (No 3) [1968] P 675, 714E: ‘When all is dark, it is dangerous for a court to claim that it can see the light.’ That observation applies with almost equal force when all is murky and uncertain.”

116.In Nina Kung v Wong Din Shin (supra), Ribeiro PJ also explained that:

“206. […] the person propounding the will has the burden of proving due execution, testamentary capacity and the testator’s knowledge and approval of the will’s contents. It is, and was at the time Barry v Butlin (1838)  2 Moo PC 480 was decided, well established that proof of the first two conditions generally meant that knowledge and approval would be rebuttably presumed without the need to adduce affirmative evidence thereof. Thus, in Cleare & Another v Cleare (1865–1869)  LR 1 PD 655, Lord Penzance stated:

‘That the testator did know and approve of the contents of the alleged will is therefore part of the burthen of proof assumed by everyone who propounds it as a will. This burthen is satisfied, prima facie, in the case of a competent testator by proving that he executed it. But if those who oppose it succeed by a cross-examination of the witnesses, or otherwise, in meeting this prima facie case, the party propounding must satisfy the tribunal affirmatively that the testator did really know and approve of the contents of the will in question before it can be admitted to probate.’ (at p.657)

207.  This was also Parke B’s starting-point in Barry v Butlin (1838)  2 Moo PC 480:

‘In all cases the onus is imposed on the party propounding a Will, it is in general discharged by proof of capacity, and the fact of execution, from which the knowledge of and assent to the contents of the instrument are assumed …’ (at p.484)  ”

D1.2.2 Analysis

117.In the present case, since:

(1)  it is undisputed that the March 2012 Will was duly and properly executed; and

(2)  I accept that Mr Chu did read the March 2012 Will over to Father before he executed the same,

there is a very strong presumption that the March 2012 Will represents Father’s intentions at the relevant time. 

118.The defendants rely on two matters in support of their submissions that the plaintiffs have failed to prove Father’s knowledge and approval of the March 2012 Will:

(1)  There is no contemporaneous record of the circumstances of will preparation and will executions, and Mr Yau is unable to recollect anything about the will preparation and will executions.  Further, it was not Mr Yau who interpreted the March 2012 Will to Father (but a clerk who is not called to testify);

(2)  Father had told Shing in September 2017 that he wanted him to obtain the title deeds of the two landed properties and these two properties should be equally divided amongst the 7 children.  This further casts doubt on the question of knowledge and approval on the part of Father.

119.As mentioned in the earlier parts of this Judgment, despite the fact that there is no contemporaneous record of the circumstances of will preparation and execution, this Court accepts that Mr Chu did explain the March 2012 Will to Father.  Although it is evident that Mr Yau did not interpret the March 2012 Will to Father himself, I do not consider that that would affect the conclusion reached by this Court. In this regard, I should emphasise that this Court finds as a fact that Mr Yau did take instructions from Father for the preparation of the March 2012 Will, and that the content of the said will was consistent with such instructions. 

120.Furthermore, according to the evidence of Ching and Ling, Father told them that he had changed his mind and that he would add them as beneficiaries, because he was worried that Pang alone would be under Shing’s influence and not be able to resist Shing’s demands if Shing objects to his decision not to leave anything to Shing.  Although I have found that Ching and Ling are generally speaking incredible and unreliable witnesses, I accept their evidence in this regard because I hold the view that what they described is inherently probable. 

121.Father’s intention as mentioned is consistent with Lee’s handwritten notes, as well as Father’s instructions given to Mr Yau in March 2012.

122.These further reinforce my view that the plaintiffs have successfully established knowledge and approval of the March 2012 Will.

123.In relation to Shing’s allegation that Father had instructed him to equally distribute the two landed properties among the 7 children, I reject Shing’s evidence in this regard:

(1)  Reference may be made to [46(2)] and [46(3)] above.  These parts of Shing’s evidence show that it is more likely than not that Father had not given the said instruction to Shing as alleged;

(2)  I do not accept the evidence of Yuen, Wai and Mee that Shing had informed them about Father’s instructions as I am of the view that they are generally incredible witnesses and that they were only trying to corroborate Shing’s evidence so as to advance their own interest. Indeed, as pointed out by the plaintiffs’ counsel, they did not mention about their alleged conversations with Shing in the yum cha gathering in November 2017, which was most unlikely if what they said was the truth.  In this regard, see also [51] and [52] above;

(3)  It is also inherently improbable that Father would only give instruction on the 2 landed properties, without mentioning his valuable stocks.

124.I should also add that Shing’s case is self-contradictory in this regard.  On one hand, he relied on what Father had allegedly told him in late September 2017 in support of his submission of what Father’s real intention was.  However, on the other hand, it is his own case that Father’s mental condition at the material time was so bad that supported his doubt on Father’s testamentary capacity back in 2012.  In my view, such an inconsistent approach only shows that Shing would do whatever he could to challenge Father’s Wills, irrespective of the truth of the matter.

125.All in all, I am satisfied that Father understood what was in the March 2012 Will when he executed it, and what its effects would be.  The March 2012 Will obviously represents Father’s testamentary intention at the time of execution.  Knowledge and approval on the part of Father is therefore established.

D1.3  Animus Testandi

D1.3.1  Legal principles

126.In Williams on Wills (11^th Ed.), the learned authors wrote at 10.4 that:

“Animus testandi: An instrument cannot be provable will unless the maker had an animus testandi. This means that maker must intend that his document shall take effect as a revocable ambulatory disposition of his property which is to take effect on death. The document in whatever form, must disclose the intention of the maker respecting the posthumous disposition of his property. Subject to this it is not necessary that the testator should intend to perform or be aware that he has performed a testamentary act, but there must be the intention that the document is dependent on the death of the person who executes it. The position is put thus by Sir James Hannen P:

‘The true principle appears to be that if there is proof, either in the paper itself or from clear evidence dehors, first that it was the intention of the writer of the paper to convey the benefits by the instrument which would be conveyed by it if considered as a will; secondly, that death was the event which was to give effect to it, then whatever may be its form it may be admitted to probate as testamentary. It is not necessary that the testator should intend to perform or be aware that he has performed a testamentary act.’ ”

127.If the instrument has the necessary dispositive effect and is duly executed, the necessary animus will be presumed.  However, such presumption can be rebutted.  In Re Berger, deceased [1990] Ch 118, Mustill LJ said at 129G – 130C that:

“1. An instrument cannot be a ‘provable will’… unless it contains a revocable ambulatory disposition of the maker’s property which is to take effect on death. 2. An instrument cannot be a ‘provable will’ unless the maker had an ‘animus testandi’. 3. This expression does not mean that a document cannot be a ‘provable will’ unless the maker has addressed his mind to the question whether the instrument will be capable of admission to probate in the English court, and wishes that it shall be so. Rather, it conveys only that the maker must intend that his document shall effect the kind of disposition referred to under item 1 above. 4…. 5. If the instrument has the necessary dispositive effect, and is duly executed, the necessary animus will be presumed. This presumption is however rebuttable, either by other terms of the document itself, such as the statement that the document is intended for guidance only, or by strong extrinsic evidence.”

128.In Corbett v Newey [1996] 2 All ER 914, Waite LJ further explained at 921a – d that:-

“Animus testandi, or testamentary intent, means an intention to make ‘a revocable ambulatory disposition of the maker’s property which is to take effect on death’: see Re Berger, decd. [1990] Ch 118, 129 per Mustill LJ. A will, in other words, subject the assets of the testator, from the moment of its execution, to a series of dispositions, which, unless revoked, will operate at his death. It is true that those dispositions will remain inchoate until his death, but they operate immediately as ambulatory provisions varying in range or subject matter accordingly as the assets in the ownership of the testator during his lifetime may change in nature, value or extent.Since a will operates from the moment of execution, it necessarily follows that to possess the necessary animus testandi the testator must intend that this dispositive (though revocable and ambulatory)  regime will be called into play immediately and not postponed to, or made dependent upon, some future event or condition. That is why, surprising though the distinction may at first sight be a layman, it is possible to have a will which is on its face conditional, and yet impossible to have a will which though unconditional on its face purports, through some direction imposed externally by the testator at the time of its execution, to be made conditional in its operation.”

D1.3.2 Analysis

129.The defendants submitted that there was a lack of animus testandi on the part of Father.

130.Firstly, the defendants argued that the objective reading of the March 2012 Will gives the reader an impression that Father only had 3 children, and by way of the March 2012 Will, Father devised and bequeathed all his real and personal properties to them without giving any reason.

131.With greatest respect, this argument is totally without merits, for there is no requirement that a testator must state his reason as to why certain of his family members are excluded.  The omission of such family members simply has no bearing on the question of testamentary intent.

132.Secondly, it was submitted on behalf of the defendants that Father’s animus testandi was questionable at the time of the execution of the March 2012 Will because Father’s intention (as alleged by the plaintiffs)  was in direct conflict with the contents of the March 2012 Will.

133.This submission is not understood.  In my view, Father’s intention was clear.  Father’s intention could be achieved because:

(1)  Ching, Ling and Pang would be beneficiaries of his estate;

(2)  Pang could decide whether to distribute Father’s estate among Yuen, Wai and Mee in respect of which Father was indifferent;

(3)  Shing would not be left with anything.

134.Thirdly, it was submitted that:

“If the Court does not find that the “arrangement” (作點安排)  as contended by Ps relate to the business of distribute of his estate after his death but relate to inter vivos financial arrangement for Pang, the doubt of whether the Deceased had animus testandi will become a real one. Ds further submit that in this regard there is no conference note taken from the Deceased as to why he needed to make a will to effect the arrangement he then had in his mind.”[4]

135.Again, this submission has no merits at all. Father’s clear intention to make posthumous disposition of his properties had been proved by Lee’s handwritten notes dated 9 March 2012 and Mr Yau’s evidence.

136.To conclude, I have no doubt that the plaintiffs have proved animus testandi on the part of Father.

D1.4  Fraudulent calumny

D1.4.1  The defendants’ pleaded case

137.In the defendants’ Re-Amended Defence and Counterclaim, it was pleaded, among other things, that:

“7B. Further or alternatively, on date or dates unbeknown to the Defendants, but before the date of the execution of the [February 2012 Will], alternatively before the date of the execution of the [March 2012 Will], Ip Chi Pang Tommy made false representations to [Father] about the character of Yip Che Shing (who would be a potential beneficiary of [Father]’s estate)  of being greedy and putting himself above the Mother’s well-being, for the purpose of inducing [Father] to disinherit, or not to make testamentary disposition in favour of, Yip Che Shing in the [February 2012 Will] and in the [March 2012 Will], knowing them to be untrue or was being reckless as to their truth. The false representations are as follows: -

PARTICULARS

7B.1 Ip Chi Pang Tommy falsely represented to [Father] to the effect that Yip Che Shing wanted to be added as a signatory to and thereby obtain control over the bank account in the name of Ip Chi Pang Tommy designated by [Father] for the maintenance of the Mother and in which account [Father] had deposited a sum of about HK$2 million for the purpose of the Mother’s maintenance. Ip Chi Pang Tommy knew that such representation was false or was reckless in making the said representation, as Yip Che Shing has never asked Ip Chi Pang Tommy to add him as a signatory to the said bank account and Ip Chi Pang Tommy knew that he had not. [“the Signatory Representation”]

7B.2 Ip Chi Pang Tommy falsely represented to [Father] to the effect that Yip Che Shing made numerous requests and/or pestered Ip Chi Pang Tommy to give over the sum of approximately HK$2 million set aside by [Father] for the Mother’s maintenance to Yip Che Shing. Ip Chi Pang Tommy knew that such representation was false or was reckless in making the said representation, as Yip Che Shing has never asked him to give over the said sum of approximately HK$2 million and Ip Chi Pang Tommy knew that he had not. [“the Give-Over Representation”]

7B.3 Ip Chi Pang Tommy falsely represented to [Father] to the effect that Yip Che Shing had threatened him that unless he gave over the HK$2 million set aside by [Father] for the Mother’s maintenance to Yip Che Shing, otherwise Yip Che Shing no longer treat him as a brother (唔當你係細佬). Ip Chi Pang Tommy knew that such representation was false as Yip Che Shing has never made such threat to Ip Chi Pang Tommy and Ip Chi Pang Tommy knew that Yip Che Shing has never done so. [“the Threat Representation”]

[…]

7D.  [Father] executed the [February 2012 Will] and the [March 2012 Will] as a result of the fraudulent calumny.”

(the representations as pleaded in paragraphs 7B.1, 7B.2 and 7B.3 of the Re-Amended Defence and Counterclaim will be referred collectively as “the Representations”)

138.When considering this ground, it goes without saying that this Court should only limit itself to the Representations as pleaded.

D1.4.2  Legal principles

139.In Kunicki v Hayward [2016] EWHC 3199 (Ch), it has been held that a successful claim of fraudulent calumny shall include the following 6 elements:

(1)  The representation was made to the testator;

(2)  The representation made by the representor was false;

(3)  The representation was about the character of the existing or potential beneficiary;

(4)  The representation was made for the purpose of inducing the testator to alter his testamentary dispositions (“Element 4”);

(5)  When the representor made the representation, he knew that it was untrue, or recklessness as to its truth;

(6)  The will was made only because of the fraudulent calumny (“Element 6”).

140.However, as far as Element 4 is concerned, the defendants submitted that it is not necessary for them to prove that Pang made the Representations specifically for the purpose of inducing Father to alter his testamentary dispositions.  It was said that all they had to do is to prove that the Representations were material and that Pang had the intention to deceive, because common law presumes that the representee would rely on the Representations.  Put it in another way, it was advocated that it is not necessary for the defendants to show that Pang had the specific intention of persuading Father to change his testamentary intention: Lowry Trading Limited & Another v Musicalize Limited & Others [2024] EWHC 142, at [47(d)].  Reliance was also placed on the case of Re Edwards [2007] WTLR 1401, in which Lewison J stated that the question is whether the testator, in making his dispositions, has acted as a free agent[5].

141.The question had been considered by HHJ Cawson QC in St Clair v King [2022] EWHC 40 (Ch).  His Honour had the following to say:

“146. […] the question that arose was as to whether it was, in fact, necessary to show that the representation had been made ‘for the purpose’ of inducing the testator to alter their testamentary disposition, or whether it was sufficient to rely upon the more general principle applicable for the purposes of civil liability for fraud, that it must be shown that the representor intended that the representee should rely on the representation, there being a rebuttable presumption that the representor did so intend, and it not being necessary to show that the representor intended the representee to act on the representation in the precise way in which he did act – see e.g. Goose v Wilson Sandford & Co (No.2)  [2001] Lloyd’s Rep PN 189. It was argued on behalf of the appellant in Christodoulides v Marcou that the older authorities demonstrated that a stricter approach than the general principle was applicable in the case of fraudulent calumny, requiring that it be established that the relevant representation had been made for the purpose of inducing the testator to alter their testamentary disposition, and that the trial judge had failed to make any finding as to purpose.

147. Morgan J considered the relevant authorities, including in particular Allen v McPherson (1847)  1 HL Cas 191 and Boyse v Rossborough (1856)  6 HL Cas 2. Morgan J at [55] identified that in Boyse v Rossborough at pages 48-49, Lord Cranworth LC had stated a test for undue influence, including fraud, which turned upon the will being executed in consequence of the fraud, rather than specifically turning on the purpose of the fraudster. This would, of course, be consistent with the general principle. However, as Morgan J went on to say, at page 51, Lord Cranworth stated that the undue influence must be exercised ‘in relation to the will itself, not in influence in relation to other matters or transactions’. Further, at page 53, in relation to the allegation of fraud in that case, Lord Cranworth asked whether there was evidence to show that the representations were made ‘in order to induce’ the testator to change his intentions.

148. On this basis, Morgan J concluded that there was ‘obviously scope for argument’ as to whether in considering a challenge to a will, the Court ought to apply the general principle, or a stricter principle that requires the challenger to show that the fraud was practised for the specific purpose of inducing the testator to change their testamentary disposition. In the event, because the point had not been taken below, Morgan J refused permission to appeal on this point.

149. Ultimately, as in Christodoulides v Marcou, the present case does not turn on a resolution of this issue, and I do not need to decide. However, in the light of the approach taken by the older authorities, and in particular the remarks of Lord Cranworth in Boyse v Rossborough at pages 51-53, should it have been necessary to do so, I would have been inclined to proceed on the basis that a stricter test based on establishment of purpose is required in the case of fraudulent calumny.

150. Courts of Probate have historically taken a stricter approach to establishing a case of undue influence than have Courts of Equity, holding that undue influence is not to be presumed as against a will proved to have been executed with due solemnities by a person of competent understanding and apparently a free agent – see e.g., Parfitt v Lawless (1872)  LR 2 P&D 462 at 468-469, per Lord Penzance. This stricter approach requiring the case to be made out on the basis of affirmative evidence rather than the application of a presumption is, as I see it, justified on the basis that a Court ought to be slow to upset a duly executed will not least because a challenge to a will on the grounds of undue influence will often involve a challenge made years after the event of the making of the will against parties who were unlikely to have been involved in the process. A stricter approach that further requires the purpose of the representation to be shown to be to induce the testator to alter his testamentary dispositions, rather than something else, is, in my judgment, entirely justified on a like basis.” (emphasis added)

142.While what the learned Judge said was obiter, I respectfully agree with his analysis.  I see no reason why the stricter test should not be applicable in the context of fraudulent calumny. 

143.It has been emphasised by Mr Yu SC that the question is whether Father was a “free agent” at the material time (see Re Edwards above), and that he regarded this as the reason why no “specific purpose” on the part of Pang has to be established, so long as Father’s mind had been “poisoned”, because that means he was no longer a “free agent”.  With respect, I do not agree with this analysis, for the question of whether the testator was a free agent actually concerns another element, namely, whether the will was made because of the fraudulent calumny.  However, the element of “specific purpose” is a separate and different ingredient of the claim. 

144.In relation to Element 6, both parties have referred this Court to the following paragraphs in St Clair v King (supra)  which approach I would gratefully adopt as follows:

“151. So far as Mr Jonathan Klein’s requirement (f)  in Re Hayward is concerned, the issue is as to whether it is correct that it is necessary to show that the disputed will is ‘only’ made because of the fraudulent calumny. At [59] in Christodoulides, Morgan J stated that this formulation might well be appropriate on the facts of Re Hayward, but that he would not regard it as a correct statement of the relevant law. He went on at [59] to say:

‘The question for the court is one of causation or inducement. The calumny must induce the change in the testator’s intentions. The challenger must prove that on the balance of probabilities. If it is possible that the calumny did induce the change, but the court is not persuaded on the balance of probabilities that it did induce the change, the challenge will fail. If there are other possibilities or other explanations and those other explanations persuade the court to find on the balance of probabilities that the calumny did not induce the change, the claim will fail. Conversely, although the court is given other possible explanations, if the court is nonetheless satisfied that on the balance of probabilities that the calumny did induce the will, then the claim succeeds. That is what is meant by the references to consistent and inconsistent hypotheses in re Edwards, which is itself based on Craig v Lamoureux [1920] AC 349. However, the use of the word ‘only’ should not be understood as requiring a finding that there must have been no other reason operating in conjunction with the effect of the fraud for the testator to change his or her intentions.’

152.  Based on well-established authorities, I am satisfied that this must be the correct approach, and I consider that Mr Jonathan Klein’s requirement (f)  is better restated as: ‘The fraudulent calumny induced the testator to make the disputed will.’ ”

D1.4.3 Discussion

D1.4.3.1  Whether Pang had made the Representations to Father

145.It is undisputed that Pang did make the Representations to Father.

D1.4.3.2  Whether the Representations were false

146.The question here is whether the Signatory Representation, the Give-Over Representation and the Threat Representation were false.  It depends on whether Shing had ever made the demands and threat (as the case may be)  as alleged. 

147.The subject conversations were allegedly between Shing and Pang only.  However, as I explained above, the difficulty here is that I have found both of them incredible witnesses.  I will therefore consider the question by asking myself which version of event is more inherently probable.

148.I have come to the conclusion that it is more likely than not and more inherently probable that Shing had indeed made the demands and threat (as the case may be).  Therefore it is my finding that the Representations made by Pang to Father were true.  I will explain why below.

149.I am of the view that Shing had made the Representations because he wanted to have control of the fund which Father set aside for the maintenance of Mother.  As the plaintiffs’ counsel pointed out, it is more likely than not that since Shing thought he was the eldest son and the most capable child of the family, he thought that he should have control of the fund.  This is particularly so because Shing had taken Mother to live in Shing’s House, and as a result, he has spent much money on Mother and needed to claim reimbursement afterwards.  Shing must also be of the view that he was the child who had contributed the most (both in terms of effort and money)  as far as taking care of Mother is concerned.

150.Shing and Fan have emphasised that Shing is a successful and wealthy philanthropist who has made a lot of donations to different organisations.  He also stressed that he was a filial son who was willing to provide accommodation to Father and Mother, and take care of Mother since late 2011.  That may well be so.  However, insofar as it is claimed that he was such a generous person that he would not care about the $2 million which was set aside by Father, I do not agree, as it is also evident that he has, in the year 2012, claimed reimbursement from Pang, even for expenses such as parking fees which were incurred by reason of taking Mother for medical consultation.  Indeed, it was the evidence of Fan that she would claim for a mere sum of $5 or $10 if that was indeed spent on Mother.  That being the attitude, in my view, it is completely understandable and hence inherently probable that Shing wanted to have full control of the $2 million, so that he could claim what he and Fan considered to be entitled more easily.

151.This is particularly the case when it was Pang who was the person approving his expenses.  It should be borne in mind that Shing was all along Pang’s boss as well as elder brother.  It must be odd from Shing’s perspective of having to seek the approval of Pang for reimbursement.

152.It was then alleged that Shing and Fan did not mind not claiming for reimbursement at all as demonstrated by the fact that reimbursements were only claimed in 2012 but not from 2013 onwards.  In this regard, one must not lose sight of the evidence of Fan, who told this Court that in fact she was too busy to claim reimbursements.  I accept this is the real reason why there was no more claim for reimbursement from 2013 onwards, and I do not accept Shing’s allegation that he decided not to claim because he was a filial son.   This, in my view, also explains why Shing was eager to obtain control of the $2 million, because that would mean that Fan did not have to spend so much time in arranging the invoices and receipts, etc. for the purpose of presenting the same to Pang for payment, and to explain to Pang regarding such expenses.

153.It was also submitted on behalf of Shing that he was not a greedy person.  In my view, whether he was a greedy person is not the point.  Even if he was not greedy, that does not necessarily mean that he would not have made the demands as alleged.  I have explained why above and I won’t repeat myself.

154.As for the Threat Representation, given my finding that it was more likely than not that Shing had indeed made the demands for control over the $2 million, it is also inherently probable that Shing had made the threat since Pang had not succumbed to Shing’s demands.

155.It was argued by the defendants that since, at the end of the day, Shing did not do anything to “disown” Pang, that shows that Shing had not made the threat that he would “唔當你係細佬” at all.  With respect, I do not accept this argument, because the fact that Shing had not put his threat into action does not necessarily mean that he did not make the threat in the first place.  The fact that Shing had treated Pang well all along also does not necessarily mean that he would not threaten Pang in the way he did.  Indeed, I would have thought that the better he had treated Pang in the past, the more forceful his threat of “唔當你係細佬” would be.

156.It was further alleged by Shing that since he did not have knowledge about the $2M Account, he could not have made the demands and the threat. 

157.However, according to Ling, she had already told Shing when they ran into each other in Woosung Street that Father would deposit $2 million into a bank account to be opened by Pang under his name. 

158.Pausing here, I should make it clear that I have considered seriously whether I should accept Ling’s evidence in this regard, given my previous comment on her credibility.  However, at the end of the day, I have come to the conclusion that I should accept her evidence in this aspect despite the defendants’ various attacks at her evidence on this matter, because I think what she described was inherently more probable.  Furthermore, I note that Shing stated that he only knew that there was a joint name account from which money would be withdrawn to pay off Mother’s expenses, and that his knowledge was obtained when Father threw a bank account passbook onto a table at the Shanghai Street Flat during a heated argument in late 2011.  However, during cross-examination, he stated that this passbook incident in fact took place in late 2016, which was after his shoulder surgery.  If that is the case, then the said passbook incident could not have been his source of knowledge of any bank account.  What remains is Ling’s evidence on how she had informed Shing about the $2M Account. 

159.I have not forgotten that the $2M Account was not opened until 11 February 2012 and the defendants’ argument that Pang’s evidence was strange because according to Pang, when Shing made one of the demands in the Dongguan factory, Pang responded as if the bank account had already been opened, which could not be true.  However, that does not affect my conclusion at all.  I accept Pang’s evidence that, at the material time, he was trying to end the conversation with Shing and leave as soon as possible so that Shing could not ask him further questions on the bank account.  That was the reason why Pang did not clarify the situation.

160.I also take the view that although it seems that Pang had mixed up the time when the $2M Account was decided to be opened, that would not affect my finding in this regard.  In my view, it is more likely than not that by around mid-2011, when it was decided that Mother should be admitted into a caring home, Father had already decided to open a bank account under the name of Pang so that Father could deposit $2 million into this account for the maintenance of Mother.  The bank account was not opened there and then only because a place at the desired caring home was not available yet.  Given the fact that Shing was a businessman and his attitude towards money (as shown by his/Fan’s claim of reimbursement of even small amount of expenses), it is inherently probable that he would have asked Ling as to how the expenditure to be incurred would be funded.

161.Shing also alleged that he had already asked Mother for her view in respect of being admitted into a caring home when she was still living in the Shanghai Street Flat, and that Mother had already indicated her objection against the idea.  I do not accept such evidence.  This is because, as he admitted, he did go to have a viewing of a caring home in Kwai Shing together with Ling afterwards.  In my view, if he already knew that Mother did not want to be admitted into a caring home, he would not have agreed to spend time on such a matter further, since he was a busy businessman.

162.The defendants further argued that if the Woosung Street incident did take place and if Ling did tell Shing about Father’s intention to open a bank account, then according to the plaintiffs’ case that Shing wanted to obtain full control of the bank account, Shing would have suggested to Ling that he be designated as the sole signatory rather than adding him as an additional signatory.  I do not think this argument assists the defendants at all, because there was no evidence that the parties did continue to discuss further as to whether, upon the addition of Shing’s name, he could withdraw money from the bank account on his own. 

163.Looking at the matter in another way, since it is Shing’s claim that the March 2012 Will should be set aside on the ground of fraudulent calumny, he bears the burden to prove each of the 6 elements of the claim.  Since I do not accept Shing’s evidence, he fails to discharge his burden of proof that the Representations were false. 

D1.4.3.3  Whether the Representations were about Shing’s character

164.The next question is whether the Representations were about Shing’s character of being greedy and putting himself above Mother’s well-being.

165.The defendants submitted that they were, because Father had a firm idea in his mind that Shing was extremely greedy and not a good person. 

166.With respect, I do not agree. 

167.I accept the plaintiffs’ argument that once Shing had made the demands that he be added as a signatory and the money in the bank account be handed over to him, failing which he would no longer treat Pang as his brother, it was incumbent upon Pang to convey the messages to Father for his decision as to whether Shing’s demands should be acceded to. 

168.Even though it is evident (in particular, as shown by the 2012 Audio Recordings)  that Father indeed viewed Shing as a very greedy person, that does not necessarily mean that the nature of the Representations should be considered in such light.  

D1.4.3.4  Whether Pang made the Representations with the specific purpose of inducing Father to alter his testamentary dispositions

169.It is the defendants’ submission that this Court should pay particular attention to the following timeline:

(1)  At the end of 2011, Father told Pang that he wanted to sell his house in Canada;

(2)  In early February 2012, Father told Ching and Ling that he was hoping to make some arrangement to assist Pang.  Given his good relationship with Pang, Father must also have told Pang about this beforehand.  Further, since as a matter of fact Father did not make any capital inter vivos provision for Pang,  this was actually an indication that Father was going to make a will in Pang’s favour;

(3)  Father then decided to open the $2M Account in February 2012;

(4)  Shortly after the opening of the $2M Account on 11 February 2012, Father deposited $2 million into the said bank account;

(5)  In mid-February 2012, Father asked Pang if he was free those two days and said he wanted to make a will.  Father said he had already decided to make a will at the solicitors’ firm which Lee worked in.  He also said that he wanted to make a will because he did not want Shing to snatch his estate;

(6)  According to Lee’s attendance notes, Father called him on 17 February 2012 and stated that he would like to make a will. 

170.On the basis of the above timeline, it was submitted by the defendants that Father must have actually told or implied to Pang that he (Father)  was going to make arrangements in the sense of making a will in his favour in early January 2012 and that therefore Pang made the Representations, knowing full well that Father had in mind making a will without knowing what provision was going to be included by Father[6]. It was further said that that was the reason why Pang was so cold to Yuen, Wai and Mee when Father and Pang went to Canada in January 2012, because the more Father gave to the other siblings, the less Pang was going to receive.  It was also submitted that Pang must have made the Representations to Father in a “very narrow window of time” (i.e. between shortly after 11 February 2012 and shortly before 17 February 2012).

171.I am afraid I am unable to accept the defendants’ submissions:

(1)  An obvious fallacy of the defendants’ case theory is that, if “Father must have actually told or implied to Pang that he (Father)  was going to make arrangements in the sense of making a will in his favour”, there was really no need for Pang to say anything to Father for the purpose of inducing Father to provide for him in the will.

(2)  As explained in the earlier part of this Judgment, it is this Court’s finding that Father had already decided to open the $2M Account in around mid-2011 even though the plan was not actually implemented until Ling had received the notification (on around 7 February 2012)  that a place at the desired caring home (Po Leung Kuk Comfort Court for the Senior)  was available.  Further, Shing had made the demands before February 2012, or even in 2011.  That means by the time of the demands, Pang did not even know that Father was going to make a will.  Hence, he could not have the specific purpose of inducing Father to alter his testamentary dispositions.

(3)  Indeed, as explained above, it is the finding of this Court that the Representations were made for the purpose of asking for Father’s instructions.

(4)  Whilst it is undisputed that Father had mentioned that he intended to provide capital for Pang to start his own business, there is no evidence on the timeframe of such an offer, and it is unclear why Father did not put this into action at the end of the day.  The defendants submitted that the fact that Father had made no inter vivos provision for Pang means that Father was actually indicating that he was going to make a will in Pang’s favour.  I disagree with this suggestion.  This is because I am of the view that one should not assess the matter with the benefit of hindsight.  Indeed, if Father took the view that it was necessary to provide Pang with capital so that he could leave Shing’s employment, why should Father wait and only put such a plan into action by leaving his estate to Pang after his death? It should be borne in mind that even though Father was already quite old in around 2011/2012[7], he was still quite healthy at the time.  It was unknown when he would pass away (hence, when Pang would be benefited).

(5)  There is no evidence which shows (and this Court refuses to infer)  that Pang knew in January 2012 that Father was going to make a will.  Therefore it was far-fetch to suggest that Pang’s alleged attitude to Yuen, Wai and Mee had anything to do with Father’s intention to make a will.

172.Hence, it is my finding that Pang did not make the Representations with the specific purpose of inducing Father to alter his testamentary dispositions.

D1.4.3.5  Whether Pang knew the Representation(s)  was/were untrue

173.As it is my finding that the Representations were true, there is no need to consider this element further.

D1.4.3.6  Was the March 2012 Will made because of the fraudulent calumny

174.The question here is whether the defendants could prove that, on the balance of probabilities, the calumny did induce the change in Father’s testamentary dispositions.

175.In my view, the defendants have failed to do so, because it is evident that there are other possible reasons why Father decided to disinherit Shing:

(1)  According to Shing’s own evidence, he did criticise and reprimand Father in late 2011 for mistreating Mother.  Given various witnesses’ evidence that Father was an authoritative person, used to be respected and obeyed by all his children, and his decisions were never questioned, I am of the view that it can be inferred that Father must have felt that his dignity had been affronted by Shing.  In fact, it is more likely than not that this sort of arguments between Father and Shing had taken place more than once, since Father himself recalled that Shing had said such words a few times at the Shanghai Street Flat (“喺呢度都講咗幾次㗎嘞”);

(2)  From the 2012 Audio Recordings, it can also be gathered that Father was indeed very unhappy about Shing’s act in taking away Mother from the Shanghai Street Flat.  In my view, even if Father did not expressly object against the idea of Shing taking Mother to live in Shing’s House in December 2011 (or, for that matter, even if he did see them off downstairs and remind Shing to take good care of Mother), that was only because of his own recognition that he could not, as a matter of reality, take care of Mother without any domestic helper at the material time.  Father had no choice but to accede to Shing’s suggestion of taking away Mother.  That does not mean that Father was not unhappy about the situation.  In fact, it was because of Father’s unwillingness of being separated from Mother that he had decided to purchase the Park Summit Property, so that he and Mother could live together again in future.  The above finding is corroborated by Shing’s own evidence:

(a)  He stated that Father had “少許微言” on his action in taking away Mother.  He even said that Father did ask whether there was any other alternative.  That reflects Father’s unwillingness of letting Mother go.  Furthermore, I am of the view that Shing had apparently tried to tone-down Father’s disagreement by using the words “少許”, which I do not accept to be true.  It is more likely than not that Father had reacted more strongly than Shing alleged;

(b)  Shing also accepted that Father was frustrated (“無奈”)  at the time.  In my view, that is because Father had no choice but to accept his own inability of taking care of Mother himself without any domestic helper.

D1.4.4 Conclusion on fraudulent calumny

176.For the above reasons, I find that the defendants have failed to prove fraudulent calumny.

D2.  The February 2012 Will

177.As the defendants have failed to challenge the validity of the March 2012 Will, theoretically there is no need to consider the February 2012 Will.  However, even if the Court is required to do so, there is no doubt that, following from the conclusion above, the February 2012 Will must also be valid, since the areas of attack on the February 2012 Will are narrower (for example, the argument on Father’s change of mind within 3 weeks is inapplicable).

DISPOSITION

178.I therefore order that:

(1)  The Will dated 12 March 2012 be pronounced in solemn form;

(2)  Caveat No. HCCA 5762/17 entered on 13 November 2017 do cease to have effect;

(3)  A grant of Probate of the Will dated 12 March 2012 be made to Yip Sau Ching (the plaintiff by original action);

(4)  The defendants’ counterclaim be dismissed.

COSTS

179.I make a costs order nisi that the defendants do pay the plaintiffs’ costs of the action (including their costs of the counterclaim), with certificate for two counsel, to be taxed if not agreed.

180.The above order nisi shall become absolute in the absence of application to vary (which, if any, shall be made by letter, and will be disposed of on paper)  within 14 days hereof.

Mr Jonathan Chang SC leading Ms Esther Mak, instructed by Sit Fung Kwong & Shum, for the plaintiff (by original action)  and the defendants (by counterclaim)

Mr Benjamin Yu SC leading Mr Herbert Leung and Mr Patrick Chiu, instructed by Kelvin Cheung & Co for the defendants (by original action)  and the plaintiffs (by counterclaim)