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HCAP 15/2021
[2025] HKCFI 720
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PROBATE ACTION NO 15 OF 2021
(Transferred from High Court Miscellaneous Proceedings No. 986 of 2019)
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IN THE MATTER of a Will of Wong Yuk Chun (王玉珍), Deceased, dated 3 April 2012 |
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and |
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IN THE MATTER of the Estate of Wong Yuk Chun (王玉珍) late of Flat 26B, Block 1, No. 38 Da Pu Road, Shanghai Shi, People’s Republic of China (中华人民共和国上海巿打浦路38弄1号26B室), widow, Deceased |
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BETWEEN
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POON SING WAH (潘星華) |
Plaintiff |
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and |
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POON SING NAM (潘星南) |
Defendant |
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| Before: |
Hon K Yeung J in Court |
| Date of Hearing: |
8-10, 13-14 and 17 January 2025 |
| Date of Judgment: |
20 February 2025 |
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J U D G M E N T
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A. Introduction
1.The plaintiff (“P”) and defendant (“D”) are natural sister and brother. The present disputes concern the validity of what P seeks to propound as the last and valid will dated 3 April 2012 (the “Will”) of their mother Wong Yuk Chun (王玉珍, “Mother” or the “Deceased”). D disputes P’s case. Specifically, he denies the authenticity of the Deceased’s signatures on the Will, disputes the Deceased’s testamentary capacity to make the same, and claims further that P had exerted undue influence upon the Deceased.
2.There has been a prior action in the Mainland between inter alios P and D[1] (the “Mainland Action”) concerning the Deceased’s interests in a property in Shanghai (the “Shanghai Property”) which P says forms part of the Deceased’s estate (the “Estate”). The claim had been tried, and decision handed down (the “Mainland Decision”). Amongst other matters, the Court (the “Mainland Court”) found in favour of P on the validity of the Will. P says that by reason of the Mainland Decision, and by reason of the operation of the doctrines of issue estoppel, Henderson v Henderson abuse and/or abuse of process (which I will for ease of presentation call the “Abuse Doctrines”), D is estopped and/or debarred from challenging certain matters which D is seeking in the present action to challenge (the “Abuse Issues”). P says that in any event, she is able to prove before this Court her case on the validity of the Will.
3.This is the trial of the parties’ dispute. Mr Ken TC Lee and Ms Beatrix MK Lee appeared for P. Until recently, D had been legally represented. He filed a Notice to Act in Person on 3 January 2025. He appeared in person during the trial. He is proficient in both Chinese and English.
B. The Family, and the relevant properties
4.The Deceased and Poon Hay Chun (潘煦春, “Father”) were married in 1947.
5.Father passed away in 2010.
6.The Deceased held a Hong Kong Identity Card. She had been living in Shanghai since about 1995, until she passed away on 29 August 2013. She died at the age of 88.
7.Mother and Father had 3 children. They were all born in Taipei. They are, in descending order of seniority:
(a) P, daughter, who was born in 1949. She emigrated to Singapore in 1978;
(b) D, son, who was born in 1951. He emigrated to Canada in about 1988;
(c) Poon Sing Tung (“Tung”), son, was the youngest. He was born in 1954. Tung predeceased Mother, in 2012. He had a wife and daughter. They have both waived any of their entitlement to the Estate.
8.While this is a probate but not administration action, the following assets once held by the Deceased are relevant to the understanding and consideration of the issues concerned:
(a) Flat F, 20/F, Block 1, Ronsdale Garden, 25 Tai Hang Drive, Jardine’s Lookout, Tai Hang, Hong Kong (the “Hong Kong Property”). According to the land search records and on the face of the documents registered:
(i) It was purchased in July 1986;
(ii) It was by assignment of 8 July 1986 assigned to and registered in the names of the Deceased and D as joint tenants;
(iii) By a Notice of Severance of Joint Tenancy dated 12 April 2011[2] (the “Notice of Severance”), the Deceased severed the joint tenancy between her and D;
(iv) By a Deed of Gift dated 3 April 2012 (the “Deed of Gift”), the Deceased assigned to P her half share in the Hong Kong Property;
(v) The Deed of Gift bears the signatures of the donor (the Deceased), donee (P), the witness (stated to be “WILFRED S.W. CHIU” (“Mr Chiu”, a Hong Kong solicitor with Messrs Li, Wong, Lam & W.I. Cheung, “LWL&C”), and the interpreter (stated also to be Mr Chiu);
(vi) It is to be observed that if the above severance and transfer are valid, the Deceased’s share of interests in the Hong Kong Property would not form part of her Estate;
(b) Flat 26B, Block 1, 38 Da Pu Road, Shanghai, People’s Republic of China (上海市打浦路38弄l號26B室) (the “Shanghai Property” or “打浦路房屋”). It was the main subject matter of the Mainland Action, which I will come to later. It had since about 1996 until the Mainland Decision been registered in the names of the Deceased and D as co-owners;
(c) The Deceased’s share of the deposits in Australian dollars (the “AUD Savings”) in a joint account of the Deceased and D with the Hennessy Road Branch of the Bank of China (the “Deceased/D Joint A/C”). Relevant to the Deceased/D Joint A/C is a Power of Attorney which the Deceased signed in Shanghai on 12 April 2011 authorising P to make enquiry with the bank about that account (the “Power of Attorney”);
(d) The time deposit in the principal sum of RMB1,380,000 (the “RMB Time Deposit”) with the Agricultural Bank of China in the Mainland (the “ABC Savings A/C”). On 28 April 2011, 2 days before maturity, the Deceased was issued with a replacement deposit confirmation slip in respect of the RMB Time Deposit, withdrew the entire sum, waived the interest, and deposited the funds into an account in P’s name;
(e) Another account which the Deceased held with the Agricultural Bank of China (the “ABC A/C”); and
(f) A safety deposit box in Shanghai.
C. Medical history
9.It is useful and convenient to set out chronologically the Deceased’s relevant medical history, which I find on the evidence as follows:
(a) On 20 April 2011:
(i) At Hercules (East Point) Medical Diagnostic Centre (“Hercules”), the Deceased received Plain CT Scan of the Brain. The report is dated 20 April 2011 (the “Hercules Brain Scan Report”)[3];
(ii) Also at Hercules, the Deceased underwent divers tests of urine, haematology, biochemistry, Serology and Immunology, and Endocrinology. The results are set out in the report of 27 April 2011 (the “Hercules Test Report”)[4];
(iii) The Deceased was medically examined by Dr Lau Ying Kit David for one hour (“Dr Lau”, “Dr Lau’s Examination”). The related medical certificate is dated 11 May 2011[5] (the “Dr Lau’s Medical Certificate”);
(b) On 10 August 2011, the Deceased had an accident (“Accident”) and broke one of her thigh bones;
(c) On 18 August 2011, the Deceased was admitted into Rui Jin Hospital (瑞金醫院) (“RJH”). She had an operation on her injuries. She was discharged on 29 August 2011. The Summary of Hospitalization (“RJH/Summary”)[6] has been produced;
(d) Between 29 August 2011 and 8 October 2011, the Deceased was hospitalized in Shanghai Seaman’s Hospital (上海海員醫院) (“SSH”). The Summary of Discharge (“SSH/Summary”)[7] has been produced;
(e) On 9 October 2011, P transferred the Deceased to the Shanghai Sixth People’s Hospital (上海市第六人民醫院). On the same night, P took the Deceased to Yong Hao Hospital (永浩醫院), where she stayed for about 2 weeks;
(f) On 18 October 2011, the Deceased was admitted into Tianlin Subdistrict Community Health Service Centre in Xu Hui District, Shanghai (徐匯區田林街道社區衛生服務中心/徐匯區紅十字老年護老院) (the “Geriatric Hospital” or “Tianlin Community Hospital”):
(i) According to the “出院病人一覽”[8] (“Tianlin Admission Records”), the Deceased was hospitalized during the following spells:
(1) 18 October 2011 to 16 January 2012;
(2) 18 January 2012 to 6 April 2012;
(3) 9 April 2012 to 13 August 2012;
(4) 13 August 2012 to 15 November 2012;
(5) 15 November 2012 to 13 December 2012;
(6) 18 December 2012 to 13 May 2013;
(7) 13 May 2013 to 17 August 2013;
(ii) Divers medical records (“Tianlin Records”)[9] have been adduced.
10.I will deal with some of the records in more details when I come to consider the Deceased’s testamentary capacity.
D. The Will[10]
11.I describe what appear on the face of the Will:
(a) It is a 5-page document in Chinese. The first four pages are numbered (pages 1 to 4). The fifth page is only a backsheet;
(b) At the top of page 1 are the words “遺囑”. There is then an unnumbered paragraph, followed by §§1 to 3 and the first line of §3(a). On page 2 are the second line of §3(a), §3(b), and §§4 to 7;
(c) The unnumbered paragraph on page 1 gives the Deceased’s name, her Hong Kong Identity Card number, her Shanghai address at the Shanghai Property, and declares that she revokes all of her prior wills and codicils, and that it is her last will;
(d) The Will is interpreted and governed by Hong Kong law (§1);
(e) P is designated and appointed as the sole executor and trustee (§2);
(f) Net of funeral and other expenses, all of the Deceased’s properties anywhere in the world, movable and immovable, be divided into 10 equal parts, and that:
(i) P shall have 9 of those 10 equal parts (§3(a));
(ii) The remaining part be donated to charitable bodies (§3(b));
(g) The Deceased particularizes her assets as including her share of the funds in the Deceased/D Joint A/C, and her share of interests in the Shanghai Property (§4);
(h) §§5 to 6 concern the intended donation. §7 authorises the executor to engage professionals for the execution of the Will;
(i) At the bottom of each of pages 1 and 2 are 3 signatures;
(j) On page 3:
(i) §8 appears on top, which reads:
本人聲明除[P]外，本人的其他親生子女，即長子[D]及次子[Tung]已從本人之其他方面獲贈家族的財產，因此本人不在此遺囑另行分配。
(ii) It then says “在見証下，本人於2012年4月3日親筆簽署。” What purports to be the Deceased’s signature then appears against the words “立遺囑人王玉珍:”;
(iii) The following words immediately follow:
上述遺囑經吾等在場見證，由上述立遺囑人王玉珍(WONG YUK CHUN) 親自簽署，作為其最後遺囑；同時吾等應其所請為之見證，於簽署名字作見證人時，上述立遺囑人與吾等兩人均同時在場，此證。
(iv) Followed immediately are:
(1) An signature next to the chop of:
WILFRED S.W. CHIU[11]
Solicitor, Hong Kong SAR
LI, WONG, LAM & W.I. CHEUNG
(2) Another signature next to the chop of:
TAM MAN CHUN[12]
Legal Executive to Messrs. LI, WONG, LAM & W.I. CHEUNG
Solicitor, Hong Kong SAR
(v) The 3 signatures at the bottom of each of pages 1 and 2 are consistent with they being the signatures of the Deceased, Mr Chiu and Mr Tam;
(k) Page 4 contains only the following words and signatures:
上述遺囑經由下述人士以中國語文中的上海方言向立遺囑人王玉珍閱讀，立遺囑人王玉珍表示清楚明白及為其意願。
The signatures, name and Mainland Identification Card number of 陳美華 (Chen Mei Hua, “Madam Chen”) then appear.
E. The Mainland Action and the Mainland Decision
12.The following features of the Mainland Action and Mainland Decision are relevant.
13.P’s 民事訴狀filed in the Mainland Action was dated 3 September 2013[13]. It was filed before the 上海巿黃浦區人民法院 (i.e. the Mainland Court). P was the plaintiff. D was the defendant. Apart from costs, P’s only substantive 訴訟請求 was “判決原告繼承王玉珍房屋，價值人民幣180萬元”. That “房屋” was the Shanghai Property. P pleaded in the 民事訴狀members of the family, and the date when the Deceased passed away. She pleaded the Shanghai Property, and the fact that it was in the joint names of the Deceased and D. P pleaded the Will and its material contents. She then pleaded that:
綜上，原告認為母親王玉珍逝世後，根據遺囑，原告應當分得上述房屋價款的1/2 ……
14.Both P and D were legally represented in the Mainland Action. Records of the evidence of certain witnesses, and what parties’ lawyers had submitted to the Mainland Court during a number of hearings (“證人筆錄”, “談話筆錄” or “庭審筆錄”) are before this Court. D disputed P’s claim. In particular, D disputed the validity of the Will, and the Deceased’s mental capacity to make the same. As summarised by Mr Xiao Shuobin (“Mr Xiao”, who is the expert witness on Mainland law P has engaged and called[14]):
25. 根據2015年1月14日的談話筆錄，被告不認可該遺囑，其中一個原因是“當時立遺囑人王玉珍的意識能力明顯下降，不具備清醒的意識”。
26. 根據2015年4月27日的談話筆錄，原告的其中一項證據為“王玉珍在院證明”，證明王玉珍神志清楚。被告對這項證據表示“不認可”。從該談話筆錄看來，被告並沒有提供證據反駁原告的說法。
27. 根據2016年4月19日的庭審筆錄（下稱“該庭審筆錄”）第2頁，被告確認上述兩份談話筆錄。
28. 根據該庭審筆錄第7頁，在法庭辯論階段，被告的論點包括以下：
“… 立遺囑人王身體狀況年事已高，不可能意志清楚，況且兩位見證人在語言無法順暢溝通情况下，根本無法反映王的真實意思表示，從病史記錄上，可以充分反映王從2011年開始言語表達不清，更何況兩位香港律師（律師趙思瑋、法律行政人員談文鎮）言語無法聽懂和理解，所以溝通不暢通情况下，老人意志模糊不可能做出公正遺囑内容…”
15.The issues before the Mainland Court, and its resolution of the same, are also apparent on the face of the Mainland Decision[15]:
(a) The Mainland Decision was dated 19 August 2016;
(b) P and D were respectively the plaintiff and defendant. A charitable organization was also before the Court as a “第三人”;
(c) The Mainland Court recorded that both of P’s and D’s legal representatives had participated in the action, and that “本案現已審理終結”;
(d) P’s claim is summarised as follows:
2012年4月3日，王玉珍留有一份經我國司法部委托香港律師辦理內地使用公證文書的遺囑，主要內容為，遺產(動產及不動產）十分之九歸原告所有，十分之一贈與慈善機構。[打浦路房屋] 產權於1996年登記於王玉珍及被告名下（共同共有）。王玉珍在該房屋內的產權份額屬於其個人財產而非其與潘煦春的夫妻共同財產。現原告訴至法院，請求判令：打浦路房屋中屬於王玉珍產權份額由原告繼承，無需實際分割該房屋，並由原告捐贈10％折價款給第三人慈善機構。
(e) D’s disputes are summarised as follows:
被告不認可原告提供的王玉珍的遺囑，因為該遺囑違反了《香港、澳門特別行政區律師事務所駐內地代表機構管理辦法》…… 。香港律師無權在中國境內對遺囑進行見證，且該香港律師未在中國取得職業許可証。另外，當時立遺囑時王玉珍的意識能力明顯下降，不具備清醒的意識。王玉珍在打浦路房屋內的房產份額屬於其與潘煦春的夫妻共同財產。王玉珍所佔十六分之五的產權份額應按法定繼承處理。因被告照顧母親較多，故被告要求多分份額 ……
(f) The Mainland Court recorded that, inter alios, Mr Chiu, Mr Tam and Madam Chen attended the trial hearing and gave evidence. The Mainland Court further summarised their respective evidence in the Mainland Decision;
(g) Having considered the evidence, the Mainland Court stated its reasoning and views as follows:
本案的主要爭議焦點為，2012年4月3日王玉珍所立代書遺囑是否有效。對此，本院認為，本案中見證人的具體身份不影響該代書遺囑的效力。被告認為兩見證人對見證地點陳述錯誤的問題，鑑於見證人係前日從香港趕來，次日進行見證，並認為王玉珍出現之處就是王玉珍的家，並不違背常理。對場所的誤解並不能否認三見證人及王玉珍在立遺囑時處於同一場所。至於被告認為該遺囑係由原告一手操辦的問題，本院認為，法律只規定與立遺囑人有利害關係的人不能作為遺囑的見證人，並不禁止利害關係人幫助立遺囑人聯繫見證人。該份遺囑的內容最終得到王玉珍的確認。綜上，根據證人證言及相關證據，該份遺囑確係王玉珍的真實意思表示，且見證人、代書人均在該遺囑上簽名，符合代書遺囑的形式要件。本院確認該份代書遺囑有效。打浦路房屋產權係由王玉珍與被告共同共有，故應先析出被告的份額後，按照遺囑處理。被告要求多分遺產份額的要求，因其未提供充分證據證明其對被繼承人照顧較多，本院不予支持。原告認為打浦路房屋中屬於王玉珍的份額屬於其個人財產，沒有法律依據，本院確認係該份額係屬王玉珍與潘煦春的夫妻共同財產 ……
(h) The Mainland Court ruled that the Shanghai Property is upon the death of the Deceased co-owned by P and D, in the following shares: 7/16 by P, and 9/16 by D;
(i) The Mainland Court at p.8 of the Mainland Decision set out the relevant statutes which the Mainland Court applied. They are all Mainland Statutes (in particular sections 3, 5, 16 and 26 of《中華人民共和國繼承法》).
F. Procedural history of the present trial, and the pleadings
16.On 16 September 2013, D filed Caveat No. HCCA 004008 of 2013 (the “Probate Proceedings”).
17.On 6 February 2014, P filed a Warning to Caveator.
18.On 12 February 2014, D filed his Appearance to Warning.
19.On 17 June 2019, P filed her Notice of Intention to Proceed in the Probate Proceedings.
20.By Originating Summons issued on 8 July 2019, P commenced the present action in HCMP 986/2019. It was supported by P’s first affirmation of 21 June 2019 (“P/Aff1”). P referred to the Mainland Decision, which D had lodged no appeal. P relied further on the doctrines of issue estoppel, Henderson v Henderson abuse and/or abuse of process. She sought a Declaration that the Will is the Deceased’s last valid will, and a grant of probate to her as the named executor.
21.On 29 July 2019, D filed his affirmation in opposition (“D/Aff”).
22.On 10 September 2019, P filed her affirmation in reply (“P/Aff2”). Her prayer for relief under the Originating Summons was maintained.
23.On 7 November 2019, Wilson Chan J ordered that the matter do continue as if commenced by Writ, and gave directions on the filing of pleadings.
24.Pleadings have since been filed. The current set comprises:
(a) P’s Amended Statement of Claim on 3 August 2021 (the “ASOC”). In addition to the relief sought originally in the Originating Summons, P also seeks an Order that the Court shall decree probate of the Will in solemn form;
(b) D’s Amended Defence and Counterclaim of 9 August 2021 (the “AD&C”);
(c) P’s Reply and Defence to Counterclaim of 10 February 2020 (“R&DC”).
25.By Order of Master Phoebe Man, the case was formally transferred to the Probate List.
G. Parties’ respective pleaded cases
26.P’s case is straight-forward. She says that the Will is the Deceased’s last valid will. The Deceased was of sound testamentary capacity. Execution was witnessed by Mr Chiu and Mr Tam. The Will was accepted to be valid by the Mainland Court. D is estopped and/or debarred from challenging inter alia the following matters (1) the Deceased’s testamentary capacity of, (2) the Deceased’s testamentary intention; (3) that the Deceased had knowledge and approved of the contents of the Will; (4) that the formality of the Will has been complied with; (5) the validity of the Will; (6) The terms of the Will; and/or (7) P’s identity as an executor appointed under the Will[16].
27.In the course of his opening submissions, upon my request for clarifications, Mr Lee clarified and accepted that P is not seeking to rely on the Mainland Decision to prove her case before this Court. To prove her case, she relies on the evidence called before this Court. The Mainland Decision is relied upon as the trigger for the Abuse Doctrines. I will come back to explain the implication of this latter.
28.D does not accept the authenticity and validity of the Will (which he calls the “Alleged Will”). Three specific challenges are pleaded in the AD&C, namely:
(a) D’s Pleaded Issue#1 - Authenticity of the Deceased’s signature on the Will, as pleaded in §10, in the following words:
The signature of the Deceased (taking the form of her Chinese name “王玉珍”), appearing on various pages of the Alleged Will, appeared to be identical to the name of the Deceased written by the [P] in the statement of claim (民事訴狀) of the [Mainland Action] and the death certificate of the Deceased;
(b) D’s Pleaded Issue#2 - Lack of testamentary capacity, as pleaded in section C of the AD&C. The pleaded particulars[17] include the Deceased’s age at the time of the Will, her prior hospitalization, the Deceased’s exhibited symptoms of dementia prior to October 2011, P’s abduction of the Deceased on 9 October 2011 and cutting off D’s contact with her since, the Deceased’s previous opposition to the idea of making a will, and that the dispositions constituted by the Will and the Deed of Gift would not have been ones which the Deceased would have approved if she had been of sound mind or acting on free will; and
(c) D’s Pleaded Issue#3 - Undue influence, as pleaded in section D of the AD&C. D pleads[18] that:
[P] abducted the Deceased from hospital after her discharge and made use of (1) the Deceased’s isolation and/or (2) the Deceased’s dependence upon her for the everyday necessities of life to force her to make the Alleged Will contrary to her own wish. The particulars under paragraph 12A above are repeated.
D counterclaims for (1) a Declaration that the Will is not the Deceased’s last valid will, (2) a Declaration that the Deceased died intestate, (3) a grant of Letters of Administration to him, or alternatively to an independent professional.
H. The trial bundle, and D’s production of new documents
29.The trial bundles originally comprise 9 files (A, B1 to B4, and C to F).
30.In respect of the trial bundles, I record the following matters:
(a) Bundle F contains documents which D seeks to introduce, but which P originally objected. After some discussions in court, parties accepted, and I ruled, that only Item 189, pages 1639 to 1664 of Item 192, Items 193 to 194, and Items 198 to 199 in Bundle F are retained. The rest are removed;
(b) I record that on the first day of the trial, D raised a number of concerns over the contents of certain Bundles. Rather than for this Court to go through with parties the objected items one by one, I upon the suggestion of Mr Lee stood the case down briefly so that parties could deal with their differences. In the end, parties agreed, which I allowed, that a new bundle G be included so as to address those concerns.
I. Witnesses
31.P has called the following witnesses:
(a) As factual witnesses:
(i) P herself (who has given, in addition to P/Aff1 and P/Aff2, 2 witness statements of 16 August 2021 (“P/WS1”) and 11 November 2022 (“P/WS2”), and 2 further affirmations of 17 June 2021 (“P/Aff3”) and 5 October 2021 (“P/Aff4”));
(ii) Madam Chen, who has given one witness statement of 13 August 2021 (“Chen/WS”). The Deceased was her aunt. Amongst others, P’s case is that the Deceased made and executed the Will in Madam Chen’s home in Shanghai, in her presence, and that Madam Chen read the contents of the Will in Shanghai dialect to the Deceased (as recorded on page 4 of the Will);
(iii) Mr Chiu (who has given one witness statement of 12 August 2021 (“Chiu/WS”). As mentioned above, he is a solicitor with LWL&C. He qualified as such in September 2007;
(iv) Mr Tam (who has given one witness statement of 13 August 2021 (“Tam/WS”). He is a legal executive of LWL&C;
(b) As expert on Mainland law, Mr Xiao:
(i) By order of 9 March 2022, Master Hui granted P leave to adduce expert evidence on the following issue (the “Mainland Law Issue”):
whether the [Mainland Decision] in the [Mainland Action] is a decision on the merits, and is final, conclusive and binding on the parties under the laws of the People’s Republic of China;
(ii) Mr Xiao is a senior partner of 廣東廣信君達律師事務所. As mentioned above, he has prepared the Xiao Report.
32.D has called only himself. He has given D/Aff and 2 witness statements (dated 5 August 2021 (“D/WS1”) and 1 June 2022 (“D/WS2”)). He has called no expert.
J. Credibility of the witnesses
33.On assessing credibility and reliability of witnesses, Mr Lee has cited to me Re Estate of Lung Yee Fun [2024] HKCFI 1025 (§41) and Wong Tung Wai v Wong Tung Po [2023] HKCFI 1240 (§§31-33). I have considered them. They are not controversial.
34.I consider the credibility and reliability of the witnesses in turn, and in the order in which they were called.
35.P:
(a) P adopted her witness statements as her evidence in chief;
(b) She was cross-examined primarily with reference to some of the events set out in the chronology prepared by Mr Lee;
(c) One theme of the cross-examination was that the Deceased did not have her Hong Kong Identity Card with her (which was amongst other travel documents kept by D) when she signed the Power of Attorney (so that the solicitors witnessing the execution of the same could not have identified the Deceased by inspection of her Hong Kong Identity Card), that P visited the Hennessy Branch of Bank of China with knowledge of that fact, and that the Deceased also did not have her Hong Kong Identity Card with her during Dr Lau’s Examination. He said that Dr Lau’s Medical Certificate should therefore not be admissible;
(d) Those are not matters which affect P’s credibility. I accept P’s evidence that D had locked up amongst other documents the Deceased’s identity card and passport, and that he had at the material times refused to answer P’s calls. The Deceased sought P’s help. The Deceased reported loss of her Hong Kong Identity on 21 April 2011.[19] The Power of Attorney was prepared in such the circumstances with the Deceased’s Home Return Permit (回鄉證, which was the only identification document which she still had access to) so that P could make enquiries with the Bank of China about the AUD Savings. The fact that the Deceased did not have her Identity card with her has no material impact on the admissibility or accuracy of Dr Lau’s Medical Certificate;
(e) P was challenged in respect of her recollection of the amount of interest from the AUD Savings. D put to her one Deposit Renewal Confirmation[20], and suggested to P that the interest rates were only 1.8% or 1.55% per annum, and the interest was not as much as P suggested. P replied that she was talking about 2011 when she visited the Hennessy Branch of the Bank of China, but that the Deposit Renewal Confirmation D showed her was dated 10 July 2013. D then suggested to P that the interest rates could not have fluctuated by that much. P’s recollection is in fact supported by documents and is clearly correct, as according to 2 other Deposit Renewal Advices[21], the relevant interest rates in late 2010 and early 2011 were in fact at the much higher rates of 3.88% and 3.95% per annum;
(f) D cross-examined P on the basis that P had, he alleged, “abducted” Mother and had kept her away from him for more than 600 days since October 2011. P accepted that she did not want D to know where Mother was. She said that she saw signs of D trying to move Mother. D had ill-treated Mother. He had threatened to stop paying interest from the AUD Savings to Mother for her living expenses. He had even threatened to transfer out the RMB Time Deposit to his own account upon its maturity on 1 May 2021. He had failed to take calls from Mother. Mother was utterly disappointed with D whom she had till then loved most. Mother wanted P to protect her assets from D. I accept P’s evidence, and that there was no kidnap. She did what she did to care for P and to protect Mother’s assets upon Mother’s request;
(g) There is no dispute that on 30 August 2013, P withdrew RMB20,000 from the ABC A/C:
(i) D suggested that P did so by forging the Deceased’s signature. He relies on the exchanges between the Mainland Court and parties’ lawyers as recorded in the 談話筆錄 of the hearing on 27 April 2015[22], that:
審： 被告要求調査王玉珍名下農業銀行卡號……[23]中各幣種存款……港幣現滙在2013年8月30日有一筆取現港幣20000元，農行工作人員告訴本院，取款單上的簽名為“王玉珍”, “代理人” 欄處沒有相應簽名，出示銀行回單及交易明細，雙方意見？
原代：事實無異議。人民幣和港幣現鈔，餘額較小，不再作為遺產處理。
(ii) P says that she did so through logging in through the internet using a password that the Deceased had entrusted with her earlier, and that the sum was used to pay for a portion of the Deceased’s funeral expenses[24];
(iii) Details of what the bank staff had told the Mainland Court are not clear. The relevant documents have not been produced. This Court does not know the effects of the “取款單”, whether it evidenced an over-the-counter or other form of withdrawal, and what the signature(s) thereon in fact denotes. P’s use of the funds for the Deceased’s funeral purposes is also supported by the Statement of Expenditure prepared by Madam Chen[25];
(iv) On the evidence before me, I do not find any forgery against P;
(h) D showed P the Tianlin Admission Records. D said that according to that record, the Deceased was admitted on 18 January 2012 and only discharged on 6 April 2012. He suggested therefore that when the Deceased executed the Will, she was still in this spell of admission. P replied that even though the Deceased might have been admitted, during the time when the Deceased’s conditions were good, Madam Chen from time to time took her out for meals, washing hair etc. That is entirely consistent with what she has said at §13 of P/WS2. She said that on 3 April 2012, the Deceased was taken to Madam Chen’s home where the Will was executed. I accept P’s evidence in this regard. It is in fact also Madam Chen’s evidence that she picked up the Deceased from The Geriatric Hospital that morning;
(i) P was asked about an email between her and Mr Chiu that was exhibited in P/Aff4. It was suggested to her that parts of the email was deliberately edited out when produced. I have in this regard also considered §1.viii(c) of D’s closing submission. I have considered the contents of the entire email. I see no reason for P to have deliberately edited the email. Any failure to produce the entire email is in my view inadvertent;
(j) D challenged P’s evidence that she did not do what she did for money. He highlighted to P amongst others the Notice of Severance, the Power of Attorney, the Mainland Action. P said that she was answering the Deceased’s request for assistance, who had become totally disappointed with D. I accept her evidence in this regard;
(k) I have considered P’s evidence holistically. Her evidence is inherently probable, coherent, has no material inconsistency, internal or external, and is consistent with contemporaneous documents and conduct. Whilst demeanour is of lesser importance when considering credibility and reliability, I do note that P gives evidence in a natural, spontaneous and forthright manner;
(l) I find P to be an honest and reliable witness.
36.Mr Tam:
(a) Mr Tam adopted his witness statement as his evidence in chief;
(b) D did not during cross-examination challenge Mr Tam’s evidence. He was only asked to confirm part of §21 of Chiu/WS, which he did;
(c) I have considered Mr Tam’s evidence holistically. His evidence is supported by contemporaneous documents, inherently probable, and has no inconsistency. He, being a legal executive of LWL&C, has no interest in the outcome of the action, and has no motive to lie;
(d) I find Mr Tam to be an honest and reliable witness.
37.Madam Chen:
(a) Madan Chen adopted her witness statement as her evidence in chief;
(b) Again, D did not during cross-examination challenge Madam Chen’s evidence;
(c) The cross-examination concerns principally only the Statement of Expenditure. She accepted that she received fees for caring the Deceased in the sum of RMB3,000 per month. She said that she had in fact spent them back to the Deceased, in particular when she took her out for various grooming activities;
(d) I have considered Madam Chen’s evidence holistically. Her evidence is inherently probable, coherent, has no material inconsistency, and is consistent with contemporaneous documents and conduct;
(e) I find Madam Chen to be an honest and reliable witness.
38.Mr Chiu:
(a) Mr Chiu adopted Chiu/WS as his evidence in chief;
(b) D during cross-examination did not challenge Mr Chiu’s evidence in any respect. He was only shown the 證人筆錄of his evidence given to the Mainland Court during the hearing on 19 April 2016[26]. He was asked to confirm the truth of his evidence as recorded, which he did;
(c) At §22 of Chiu/WS, he says that “Given this witness statement concerns the making of the will only, instead of the execution of the Deed of Gift, I do not set out in full the explanation process and execution of the Deed of Gift herein.” Upon this Court’s request for elaborations, Mr Chiu said that he did explain and interpret the contents of the Deed of Gift to P and the Deceased. He confirmed his signatures thereon, and confirmed that both P and Deceased signed the same in his presence;
(d) This Court asked Mr Chiu whether the Deceased understood written Chinese. He said that the Deceased “大致上睇得明”;
(e) I have considered Mr Chiu’s evidence holistically. His evidence is supported by contemporaneous documents, inherently probable, and has no inconsistency. He, being a solicitor, has no interest in the outcome of the action, and has no motive to lie;
(f) I find Mr Chiu to be an honest and reliable witness.
39.Mr Xiao:
(a) Originally D did not accept Mr Xiao’s expertise. With the view of establishing the same, Mr Lee sought leave which I granted for him to seek elaborations from Mr Xiao on his expertise. I have considered his evidence in that regard. I took into account his qualifications and experience, and in particular the fact that his expert evidence on Mainland law had been accepted in 6 to 7 previous cases before the Court of First Instance on probate matters in Hong Kong. I accepted and ruled that he is an expert on the Mainland Law Issue. I record that in fact, having heard Mr Xiao’s evidence on his expertise, D no longer sought to challenge his status as an expert;
(b) In relation to the substantive opinion of Mr Xiao’s evidence, D only asked him questions in relation to §66 of Xiao Report. Specifically, he asked whether Mr Xiao referred to s.211 of the《民事訴訟法》in that paragraph. Upon clarifications from this Court, D accepted that he himself confused s.211 of that statue with s.207. Both sections are in fact covered in §52 of Xiao Report;
(c) I find that Mr Xiao is an honest and reliable witness.
40.D:
(a) I find that D is neither a credible nor reliable evidence. His evidence suffers from material inconsistencies and conflicts. There are material aspects of his evidence which are inherently improbable, and do not appear in his witness statements. He was also prepared to say things that suit his case no matter how nonsensical and inherently improbable they are. Below are some prime (but not exhaustive) examples:
(i) D was asked question about Dr Lau’s Examination and Dr Lau’s Medical Certificate. D was evasive in his answers. He did not tackle the accuracy of the same. Nor was he seeking to say that it was not the Deceased whom Dr Lau had examined. He just kept dwelling on the point that the Deceased did not have her Hong Kong Identity Card with her on the day when she was examined, that Dr Lau should not have examined her, that it was a malpractice on the doctor’s part to have done so, and that he could be sued for that. D provided no basis for his allegations, which have in any event no material impact on the accuracy of Dr Lau’s Medical Certificate;
(ii) D’s case on whether the Deceased exhibited any symptoms of dementia at the stage when she had the Accident has been inconsistent. He has said variably that the symptoms were “not pronounced”[27], or “clear”[28] or there had been “onset of dementia”[29]. During cross-examination, D also described the symptoms as being absent-mindedness, clumsiness, sleeplessness, need to be cheered up like a young girl, or that upon admission into RJH, mistaking a building across as her home. They are not mentioned in his witness statements[30]. In the course of his oral evidence, he kept repeating the old age of Mother, and saw fit even to assert that all who are 86 years of age have dementia, and it is just a matter of degree;
(iii) In respect of the transfer of the AUD Savings into the Deceased/D Joint A/C:
(1) There was no dispute that the funds were originally not in that account, and were transferred into it;
(2) D accepted that he and the Deceased travelled to Hong Kong to effect the transfer;
(3) At §24 of D/WS2[31], D says that:
While I was not privy to the reason for my parent’s decision to transfer the AUD Savings to the joint account held by me and my mother, I surmise that the sum was meant as a repayment or gift for my contribution towards setting up and running my father’s international trading business upon returning to Hong Kong as a US-trained mechanical engineer and business management graduate …
(4) Even half of the AUD Savings represent a substantial sum of money. It is inherently improbable that D and his parents had not talked about it before the transfer, and D did not at least ask, but could only “surmise”;
(5) If the transfer were meant to be a repayment or gift for his contribution as D claims, one asks why the funds were transferred into a joint account. In this regard, D claimed under cross-examination that he did not know that the making the transfer would be one purpose of the trip to Hong Kong before they left Shanghai, that he only knew of the intended transfer when he was at the bank, that it was Mother who made arrangement for the Deputy General Manager to be there, that he had given no instructions to the bank as to how the joint account was to be structured or as to the respective powers of the joint account holders, that he only became aware of those years later, and that D simply signed whilst at the bank whatever that were presented by the Deputy General Manager to him;
(6) His story is inherently most improbable, particularly in light of the fact that D held a MBA degree;
(iv) The alleged note in Mother’s exercise book (the “Alleged Note”):
(1) At §40 of P/WS1, P says that in around March 2011, she received a call from Mother. Amongst other things, Mother sought her help to retrieve interest payments from the AUD Savings. Mother said that D had stopped picking up her calls. Mother further said that D had told her he would stop passing to her any payment of interest from the AUD Savings to cover her living expenses, and when the RMB Time Deposit became mature on 1 May 2011, D would transfer the funds to an account of his;
(2) D specifically responds to that paragraph in §30 of D/WS2. He says that he all along financially supported Mother’s medical and living expenses. He says that he has never threatened to cut off Mother as P alleges at §40 of P/WS1;
(3) In the course of his cross-examination, D volunteered the following matters. He said Mother had told him that she had in a school exercise book used by her when attending the Shanghai University for the Elderly found a note in D’s name that he would not be giving her interest from the AUD Savings. He denied being the author of that note;
(4) That alleged incident is not in any of D’s witness statements;
(5) That note, if really existed, must have caused great worry and anxiety on Mother’s part. She would have immediately called D, asked him why, and D would have denied being the author, and the matter would have been looked at further, in particular as to who tried to frame D;
(6) Yet, when being asked to clarify, D said that Mother must have discovered the note when school term started in late March or early April 2011. Yet, despite frequent phone conversations between them (D says almost daily), Mother did not tell him over the phone about the note. She only did so when D went to Shanghai on 4 May 2011. And even when so told, D claims that he was not surprised as so much had been done in April, that if somebody wanted to damage his relationship with Mother, that would not be a bad way of doing it, but that he did not ask to see the note, as Mother’s words were good enough for him, and as damage had been done. When asked about whether Mother scolded him, he first said no and then immediately changed to say yes;
(7) The version of events D gave is inherently most improbable, incredible and bears all hallmarks of being a recent fabrication;
(8) I reject specifically D’s evidence on the existence of the Alleged Note;
(v) D during cross-examination claimed that Mother “always” told him that as everything was joint-joined, he would have them when she passed away, and that when Father and Mother passed away, he would take over. None of those are in his witness statements;
(vi) D during cross-examination claimed that Father and Mother had complained to him that that P had pushed them to make a will. Again, that is not in his witness statement. He claim that that has been covered by §47 of D/WS1 where he mentions “Mother’s previous indication that she was reluctant to make any will”. I do not accept that those general words cover the specific allegation that P had pushed their parents to make a will;
(b) I have considered D’s evidence holistically. I remind myself that when assessing reliability and credibility, I have to consider the totality of the evidence. I remind also myself that the unreliability of specific aspects of a witness’s evidence may not necessarily affect his overall credibility or reliability. But having considered all the evidence in the round, I form the view that the matters highlighted above bear adversely upon his overall credibility and reliability.
41.For the above reason, in case of any conflict of evidence, I prefer the evidence of P, Mr Chiu, Mr Tam and Madam Chen to that of D.
K. The relevant law on propounding a will
42.What a person who propounds a will has to established have been authoritatively considered and explained by the Court of Final Appeal in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387:
(a) In §§171 to 173, by Ribeiro PJ set out what the proponent of the will has to establish:
171. A person who propounds a will has the legal or persuasive burden of satisfying the court that it is the will of the deceased: Barry v Butlin (1838) 2 Moo PC 480; Robins v National Trust Co Ltd & Others [1927] AC 515; Wintle v Nye [1959] 1 WLR 284 (HL).
172. The standard of proof is the balance of probabilities. The proponent of the will must show on a preponderance of the evidence that it is the will of the deceased: Worth v Clasohm & Another (1952) 86 CLR 439 at p.453; Fuller v Strum [2002] 1 WLR 1097 at p.1120.
173. This means that the proponent of the will has the persuasive burden of proving on a balance of probabilities that:
(a) there was due execution of the will;
(b) the testator was of testamentary capacity; and,
(c) the testator knew and approved of the contents of the will. (Barry v Butlin …; Re Harmes Estate [1946] 3 DLR 497 (PC)).
(b) On the question of burden of proof, the learned Permanent Judge explains further that (emphasis added for ease of presentation):
176. 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.
177. On the other hand, where a person seeks to challenge a will on the grounds that the testator was induced to make the will by fraud or by undue influence, such person bears the persuasive burden of establishing the fraud or undue influence: Boyse v Rossborough (1857) 6 HLC 2; Craig v Lamoureux [1920] AC 349 (PC). These pleas presuppose execution of the will by the testator. The allegation is that such execution was procured by acts of fraud or undue influence performed by others: Tyrrell v Painton & Another [1894] P 151 at p.157; Williams on Wills (8th ed., 2002) §5.9.
178. The person propounding the will has no burden of disproving fraud or undue influence, although he is obviously likely in practice to adduce whatever evidence may be available to counter those allegations. Where those issues are raised (assuming that the court is satisfied as to due execution, testamentary capacity and knowledge and approval), the court asks itself at the end of the day whether, having regard to all the evidence adduced, the person opposing the grant has satisfied the court that it is more likely than not that the testator was induced to make the will by fraud or undue influence, as the case may be.
(c) D refers to and relies on the two rules in Barry v Butlin. D also relies on Wintle v Nye. In those regards, Ribeiro PJ explained as follows:
204. … In Barry v Butlin …, Parke B set out two rules which have since repeatedly been referred to:
These rules are two; the first that the onus probandi lies in every case upon the party propounding a Will; and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable Testator.
The second is, that if a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased. (at pp.482–483)
205. The first rule, which allocates the persuasive burden to the person propounding the will, is not controversial. However, the second rule, which refers to a requirement that the proponent of the will remove or dispel “suspicious circumstances” has bedevilled the approach to the evidence in the courts below. An understanding of the scope of that rule (referred to here simply as “the second rule”) is therefore essential …
206. As noted above, 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 … 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 …
…
208. The particular circumstance introduced in Barry v Butlin … involved the fact that “a party writes or prepares a Will, under which he takes a benefit”. The second rule states that such circumstance ought generally to excite the suspicion of the court, so that knowledge and approval is no longer presumed. Instead, the court demands affirmative evidence which it subjects to a “vigilant and jealous” examination, refusing to pronounce in favour of the will unless satisfied that it expresses the true will of the deceased. That this is the effect of the second rule …
209. It is therefore important to note that Parke B was not seeking to create a general rule imposing a burden on the proponent “to dispel suspicious circumstances surrounding a will”. His Lordship was careful, in Barry v Butlin … itself, to stress that the second rule was concerned with proof of knowledge and approval, that it did not automatically apply and that it did not displace the usual rules concerning the burden of proof. Continuing from the passage cited above, his Lordship stated:
… it cannot be that the simple fact of the party who prepared the Will being himself a Legatee, is in every case, and under all circumstances, to create a contrary presumption, and to call upon the Court to pronounce against the Will, unless additional evidence is produced to prove the knowledge of its contents by the deceased. A single instance, of not unfrequent occurrence, will test the truth of this proposition. A man of acknowledged competence and habits of business, worth £100,000, leaves the bulk of his property to his family, and a Legacy of £50 to his confidential attorney, who prepared the Will: would this fact throw the burthen of proof of actual cognizance by the Testator, of the contents of the Will, on the party propounding it, so that if such proof were not supplied, the Will would be pronounced against? The answer is obvious, it would not. All that can be truly said is, that if a person, whether attorney or not, prepares a Will with a Legacy to himself, it is, at most, a suspicious circumstance, of more or less weight, according to the facts of each particular case; in some of no weight at all, as in the case suggested, varying according to circumstances; for instance, the quantum of the Legacy, and the proportion it bears to the property disposed of, and numerous other contingencies; but in no case amounting to more than a circumstance of suspicion, demanding the vigilant care and circumspection of the Court in investigating the case, and calling upon it not to grant probate without full and entire satisfaction that the instrument did express the real intentions of the deceased. (at pp.484–485)
210. This approach has been adopted in many cases ...
(d) The learned Permanent Judge then at §213 onwards traced the origin of the “erroneous notion that the second rule is authority for a general requirement that the proponent of a will ‘dispel all suspicious circumstances surrounding the will’ ”.
43.Specifically in relation to the requisite criteria for testamentary capacity, Mr Lee has referred this Court to the recent summary given by Deputy Judge Leung (as he then was) in §§30 to 38 of Re Estate of Lung Yee Fun, which I reproduce here for ease of reference (and in particular for D’s given that he is acting in person):
30. The 4 criteria for testamentary capacity laid down (at 565) in Banks v Goodfellow (1869-70) LR 5 QB 549 and recited in Chiu Man Fu & Ors v Chiu Chung Kwan Ying, CACV 40/2012 (18 June 2013) (at §52) are as follows:
(1) A testator shall understand the nature of the act and its effects.
(2) He shall understand the extent of the property of which he is disposing.
(3) He shall be able to comprehend and appreciate the claims to which he ought to give effect.
(4) No disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties. 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.
31. Each of the above criteria must be satisfied before the court holds that the testator had the requisite testamentary capacity at the material time: see Re Estate of Au Kong Tim (Wills: Validity) [2018] 2 HKLRD 864 (at §29).
32. Where the will was prepared by experienced and independent solicitors, the court is expected to exercise caution before the same should be upset on the ground of mental incapacity. Where the will was so prepared after actual meeting with the testator when the solicitor was instructed and formed the opinion from the meeting that the testator was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational, and the will so drafted was executed after it has been read though and explained by the solicitor, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity. The court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testatrix, and particularly in circumstances when that expert accepts that the testatrix understood that she was making a will and also understood the extent of her property: see Hawes v Burgess [2013] EWCA Civ 94 at §§57, 60.
33. However, the appellate court in Re Estate of Au Kong Tim (Wills: Validity) (above) made clear (at §§59; 77) that this is not to say that the opinion of an experienced and independent solicitor in respect of the capacity of the testator, without more, should be conclusive. Any such opinion must be shown to be based on proper assessment and accurate information. There also comes the consideration of the often cited “Golden Rule”.
34. The “Golden Rule” suggests that in case of an aged or seriously ill testator, his will should be witnessed or approved by a medical practitioner. The appellate court in Re Estate of Au Kong Tim (Wills: Validity) explained (at §§2.1-2.4) that in practice, the solicitor who wishes to discharge his duty properly is expected to meet the testator personally for the purpose of taking or confirming instructions in respect of a checklist of information. The solicitor should refer to 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 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 as well as comprehending and appreciating the claims to which a person making a will ought to give effect.
35. That being said, the appellate court also explained (at §8) that compliance with the “Golden Rule” does not operate as a touchstone of the validity of a will, nor does non-compliance demonstrate its invalidity. Its purpose is to assist in the avoidance of disputes or at least in the minimization of their scope by ensuring that basic requirements for the validity of a will would not be overlooked. That the so-called rule is really a matter of good practice was further made clear by the appellate court in Re Estate of Wong Yin Sheung [2019] HKCA 452.
36. In Re Estate of Lau Heung [2019] HKCA 769, the attesting solicitor had not adopted the ‘golden rule’ or the checklist procedure mentioned above but the will was upheld at trial and on appeal. The appellate court in that case (at §§18 and 19) referred to Re Estate of Wong Yin Sheung (above) where the appellate court, as mentioned, made it clear that much would depend on the facts and evidence in a case. The court also noted that Re Estate of Au Kong Tim (Wills: Validity) (above), as mentioned, did not rigidly prescribe 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 rule as a matter of good practice. The question of testamentary capacity is a practical question and the court has to holistically assess the question by reference to all the evidence including, but not limited to, medical evidence, and to judicial common sense. Such understanding was most recently reiterated and applied in Wong Tung Wai v Wong Tung Po [2023] HKCFI 1240 at §22.
37. In other words, the question of whether or not a testator had testamentary capacity at the material time does not depend solely on scientific or legal definition or medical evidence. Nor does compliance or not with the “golden rule” or the checklist procedure and guidelines in the instruction taking mentioned above serve more to answer the dispute than as a good practice to avoid or minimise dispute in the first place. It is ultimately a practical question of degree to be resolved on the basis of the facts and circumstances of each case as they happened. The criteria in Banks v Goodfellow (above) are not matters that are directly medical questions, but are matters for common sense and judicial judgment upon a holistic assessment of all the evidence. See also Theobald on Wills (19th ed) at §4-019.
38. The physical and mental condition of the testator, and its impact on his testamentary capacity, at the material times aside, the court would consider the rationality of the disposition under the will in the circumstances of the case. That also calls for caution, as the court has recognized that human nature is multi-dimensional and at times complicated, and therefore a testator, like any ordinary human being, conducts himself according to his own personality, temperament, traits, idiosyncrasies or eccentricities and that his act is influenced by his affections, desires and prejudices. Thus, in determining testamentary capacity, the law does not call for a perfectly balanced mind freed from all influence of prejudice, passion and pride. Nor does the law say that a man is incapacitated from making a will if he is moved by capricious, frivolous, mean or even bad motives. Eccentricity or lack of justice or even lack of common sense in the dispositions is not of itself enough. The testator may, for example, disinherit, either wholly or partially, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and the court must give effect to his will, however much the course he has pursued is condemnable, so long as he has the requisite testamentary capacity. The court does not sit to correct injustices in that respect. In other words, the law does not require a testator to act fairly, as one may perceive, when he makes a will. The law is not concerned with an objective assessment if his testamentary disposition is fair, reasonable or not, as this is not the test of whether he had the testamentary capacity to make the will: see Chiu Man Fu (CFI) (above) (at §§74-75). Without prejudice to the above, comparison of the will with the testator’s previous testamentary disposition may cast light on the rationality of the former: see Lee Wai Ho v Fung Kui Chuen, HCAP 21/2011 (19 August 2014) at §21.
44.To similar effects are the summary and observations made by Recorder Rachel Lam SC in Wong Tung Wai at §§13-24, which I have also considered.
45.On the principles relevant to undue influence in the probate context, Mr Lee has cited to this Court the summary and observations made by Recorder Rachel Lam SC at §§25 to 30 in that same case:
25. Undue influence in the law of probate is different from undue influence as understood in equity. It is more stringent in the sense that actual undue influence is required to be proved, and undue influence is not presumed in making a testamentary gift: Hubbard v Scott [2012] WTLR 29 at [2].
26. In Li Chi Loy v Li Lai Lan Candice [2008] 5 HKLRD 74 at [83], Poon J (as the Chief Judge then was) adopted the summary of undue influence in a probate litigation in Re Edwards [2007] WTLR 1387 at [47]:
“…The approach that I should adopt may be summarised as follows:
(i) In a case of testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence.
(ii) Whether undue influence has procured the execution of a will is therefore a question of fact.
(iii) The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps, no more than a reminder of the high burden, even on the civil standard, that a claimant bears in providing undue influence as vitiating a testamentary disposition.
(iv) In the context undue influence means influence exercised either by coercion, in the sense that the testator’s will must be overborne, or by fraud.
(v) Coercion is pressure that overpowers the volition without convincing the testator’s judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator’s free judgment, discretion or wishes, is enough to amount to coercion in this sense.
(vi) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness’s sake to do anything. A ‘drip drip’ approach may be highly effective in sapping the will.
…
(ix) The question is not whether the court considers that the testator’s testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his disposition, the testator has acted as a free agent.”
27. As to the nature of the influence exerted that constitutes undue influence, Sir J.P. Wilde in Hall v Hall (1868) L.R. 1 P. & D. 481 at 482 held:
“To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, -- these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator’s judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of someone else’s.”
28. Similarly, in Wingrove v Wingrove (1885) 11 P.D. 81 at 82-83, it was held:
“To be undue influence in the eye of the law there must be – to sum it up in one word – coercion. It must not be a case in which a person has been induced, by means such as I have suggested to you, to come to a conclusion that he will make a will in a particular person’s favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he does not desire to do, that it is undue influence.
The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness’ sake, to do anything. This would equally be coercion, though without actual violence.
These illustrations will sufficiently bring home to your minds that even very immoral considerations either on the part of the testator, or of someone else offering them, do not amount to undue influence unless the testator is in such a condition, that if he could speak his wishes to the last, he would say, ‘this is not my wish, but I must do it’ …
There remains another general observation that I must make, and it is this, that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power, that the will such as it is, has been produced.”
29. ‘Victimisation’, ‘domination’ and ‘coercion’ are the words used in the authorities: Hubbard v Scott [2012] WTLR 29 at [46]. As Lord Haldane said in Craig v Lamoureux [1920] 1 AC 349 at [357], citing Boyse v Rossborough (1856) 6 HLC 2 at [52]:
“In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis.”
30. As to the proof of actual undue influence, In Re Good (deceased), Carepeto v Good [2002] WTLR 801 at [126], it is held that in the absence of any direct evidence, coercion may be found by the court drawing inferences from the general circumstances.
L. The Issues involved
46.Despite directions this Court gave during the Pre-trial Review hearing, parties have not been able to agree upon and lodge any agreed list of issues.
47.In P’s list of issues, and in so far as P’s claim is concern (and I will deal with the Counterclaim separately), Mr Lee frames the Abuse Issues as the primary issue[32]. He suggests that it is only when the Abuse Issues are answered in favour of D when the issues as to whether the Will was the Deceased’s last valid will (the “Validity Issue”)[33] arises. Mr Lee further submits that even in that eventuality, and despite any challenge by D, P is still able to prove her case by the evidence adduced before this Court.
48.As I have recorded above, in the course of his opening submissions, Mr Lee confirmed that P is relying on the evidence (oral and documentary) adduced before this Court to prove her case. She is only relying on the Mainland Decision as the trigger for the Abuse Doctrines against D.
49.In my view, that must be right. The authorities on the Abuse Issues which Mr Lee cites to this Court mostly were (or originated from) interlocutory applications for striking out made by defendants against the claimants on the basis of the Abuse Doctrines. If the claimants were not allowed to re-litigate and their pleadings and claims struck out, that would be the end of the matter. There was no separate need on the part of the applying defendants to separately establish any claim.
50.It is different here. Even if D is precluded from re-litigating some of the issues which D is seeking to challenge, P still has the onus of proving her case. Maybe if the Abuse Doctrines on the facts operate against D, P’s task of proving her case might become easier (and even that I am not certain of, as explained below). But still, she will have to prove her case.
51.There is further this consideration. I have set out those specific challenges which D has pleaded (authenticity of signatures, testamentary capacity, and undue influence). They are matters which mostly overlap with those which this Court would have to, even in the absence of any specifically challenge by D, consider any way (though the incidence of burden of proof may be different, as I have discussed above). In this regard, I record and note 2 matters:
(a) In the course of his oral opening, with reference to the 2 two rules in Barry v Butlin, Mr Lee fairly accepted that P bears the onus elucidated in the first rule, and acknowledged also that the 2nd rule is on the facts of this case engaged (though Mr Lee at the same time and justifiably so referred this Court to the explanation of that 2nd rule by Ribeiro PJ in Nina Kung);
(b) I respectfully reiterate and highlight the observations of Ribeiro PJ in §176 of Nina Kung (which I bold and italicized above), that the evidential burden may be discharged by evidence adduced by the party seeking to challenge the will or “otherwise arising in the case”. On the facts of this case, and given Mr Lee’s acknowledgement that the 2nd rule in Barry v Butlin is engaged, even if there had been no specific challenge from D, this Court would still need to be vigilant and jealous in examining the evidence in support of the Will.
52.The matter can be taken one step further. This is not an interlocutory application. An application to strike out for infringement of any of the Abuse Doctrines during the interlocutory stage makes sense, as, once successful, the applying party will be spared from incurring the time and costs necessary for the preparation of the response. No application to strike out D’s defence has in fact been made in this case. The case has been prepared as a trial, and now presented as such. P is further saying that she can in any event prove her case. That being the case, the first issue to be considered must be whether P can indeed prove her case. If, considered holistically with the issues raised by D (hence adopting an approach favourable to D), P remains successful in establishing her case, the Abuse Issues simply are not engaged.
53.Upon the above analysis, I will proceed first on the basis, favourable to D, that the Abuse Doctrines on the facts do not operate against him, and then to consider whether, despite his pleaded challenges and his case, P is nonetheless successful in establishing her case.
54.I now proceed to consider the 3 issues which D has pleaded. As I have recorded above, Mr Lee accepts that on the facts of this case, the 2nd rule in Barry v Butlin is engaged. It is hence encumbent upon this Court to be vigilant and jealous in examining the evidence.
M. D’s written closing submissions
55.Before considering those 3 issues, I feel necessary to make the following observations in respect of D’s written closing.
56.First and foremost, I record that I have read and considered his submissions in full.
57.Whilst I will as appropriate deal with the relevant parts of his submissions below, I note and record that his submissions are replete with allegations of fraud and conspiracy theories. Prime examples are:
(a) The allegation of “the Great April 2011 Scheme of Stealing Money”;
(b) The reference to the Alleged Note at §1, and the allegation that “P, obviously planted that note … , quickly came to Shanghai to rescue, with the presence of her lawyer … shortly after, and started the Great April 2011 Scheme of Stealing Money”, when the existence of the Alleged Note was not only not pleaded, not mentioned in any of his witness statements, and had not even been suggested to P during cross-examination;
(c) Various allegations of P having “committed the act of fraud” in §1;
(d) Allegation of D “bribing” the bank manager when transferring out the RMB Time Deposit on 28 April 2011 (§1.viii);
(e) Allegation of D setting:
up the alleged Will … to give 10% of the AUD fixed deposit money fraudulently transferred into the Deceased saving account … to a powerful and politically connected charity in Shanghai … in order to ensure the judge of the Shanghai civil action … initiated one day before the funeral will accept the alleged Will and allowed P to have the Deceased’s 50% share (i.e., if the Shanghai property is “co-owned” as claimed by P …, but actually it is “Jointly-owned” …) of the Shanghai property, either in value or percentage of holding; (§1.viii(b))
(f) The insinuation that the Accident was planned by D as part of the abduction or kidnap, in that (original emphasis):
However, to kidnap the Deceased is not easy as the Deceased was a strong-minded lady, and always wanted to call and talk daily to D, her favourite son. So the best way after kidnapping her was to keep her in bed and sedated all the time at some place nobody knew about her. Hence, the “accident” occurred that the Deceased was being pushed by moving car into the ditch at the small park inside the Shanghai Property on the day same as P’s lawyer’s letter rejecting the Deceased’s request to cancel Notice of Severance of Joint Tenancy, and even after 40 days at the hospital followed the leg operation, the Deceased still could not walk. So on October 9, 2011, the next day after the Deceased returned home from the hospital at the Shanghai Property, the Deceased was kidnapped by P until her death 690 days later, without a single chance to see or talk to her favorite son and grandsons. … (Second unnumbered paragraph of §2.2)
(g) That P deceived Mr Chiu (§2.3); and
(h) The staff of the Bank of China being “corrupt” (§3.2).
There are other examples (see for instance §5).
58.None of the above have been pleaded, nor canvassed with the witnesses during cross-examination, nor supported by evidence or any inference. They are not helpful towards the resolution of the disputes at all.
N. D’s Pleaded Issue#1
59.D’s Pleaded Issue#1 concerns the authenticity of Mother’s signatures on the Will.
N.1. D’s case and submissions
60.D disputes the authenticity of Mother’s signatures on the Will. In the course of evidence, he stressed, with reference to the Tianlin Admission Records, that when the Deceased executed the Will, she was still in the spell of hospitalization between 18 January 2012 and 6 April 2012. His case is that the one who signed the will on 3 April 2012 in front of Mr Chiu and Mr Tam was not the Deceased. He elaborated upon this in section B.1 of his written closing. He points to §18 of Chiu/WS[34] where Mr Chiu gives his observations on the Deceased’s conditions on 3 April 2012. D contrasted that with certain entries in the medical records. He points to §21 of Chiu/WS[35], and submits that it was unreasonable for the Deceased to have asked Madam Chen instead of P about the details of the Will. He says that it is unreasonable for P not to have described in her statements what happened on 3 April 2012. He submits that the Will was not signed by the Deceased.
N.2. The evidence
61.I have considered Mr Chiu’s evidence.
62.Mr Chiu’s evidence is of importance. Also for ease of reference, I summarise the contents of Chiu/WS as follows:
(a) P called him on 29 March 2012 and expressed wish to instruct him to handle a will matter for the Deceased, and to effect a transfer of the Deceased’s interest in a Hong Kong property to her by way of a deed of gift. She gave him information on the Deceased: the Deceased was a Hong Kong permanent resident who was in Shanghai. She understood Cantonese, Mandarin and Shanghainese. She was in Shanghai. Because of the Deceased’s physical condition, it was not convenient for her to travel to Hong Kong. Despite that, she was mentally sharp and well. P wanted him to travel to Shanghai to handle the matter;
(b) He told P that he must take or subsequently confirm instructions directly from the Deceased in person for the execution of the will and the deed of gift;
(c) Email correspondence between him and P ensued. The initial draft of the Will was prepared by P;
(d) He arranged Mr Tam to be the other witness for the execution of the Will;
(e) He on 30 March 2012 prepared the 2nd and 3rd drafts, with instructions from P;
(f) Further instructions and information on and about the Deceased, the will and the deed of gift were subsequently obtained from P. They covered the following about the Deceased (a) age being 87, (b) her health, that “recently hospitalised, physically inconvenient, mentally sharp and well and not suffering any illness affecting her mental capacity”[36], (c) with no surviving spouse, (d) had 3 children (P, D and Tung) and some grandchildren, (e) with no dependents, closely related persons or partners, (f) beneficiaries of the intended will being P for 90% and a reputable charitable organization in Hong Kong of the Mainland for 10%, (g) she having only 3 important assets: (1) interest in the Shanghai Property, (2) interest in the Hong Kong Property, which was to be transferred via the intended deed of gift, and (3) funds in the Deceased/D Joint A/C, (h) reasons for not providing for D and Tung, and (i) there having been no previous will;
(g) Mr Chiu became alerted to and concerned about the Deceased’s old age, her bodily condition and recent hospitalization, and the fact that P would be the beneficiary under the Deceased’s intended will and deed of gift;
(h) At §11 of Chiu/WS, he says the following:
I then explained to [P] that due to the Deceased’s old age and bodily condition, it was preferred to appoint a specialised medical practitioner to examine the Deceased’s conditions at the execution of the Deceased’ [sic] will. However, since such execution was to be held in Shanghai, it was logistically difficult both ways in either bringing a Hong Kong specialised medical practitioner to Shanghai or finding a Mainland medical practitioner with such qualification and speciality. [P] told me that the Deceased had recently been inspected in 2011 by a Hong Kong medical practitioner, who opined that the Deceased was mentally sharp and well. Hence, [P] informed me that [P] and the Deceased decided to proceed without the presence of a specialised medical practitioner. Under such circumstances, I was aware that I shall use my own tools as a lawyer to determine the Deceased was of testamentary capacity to make the intended will and had knowledge and approval of the content of the intended will when I would meet the Deceased in person.
(i) The 4th draft of the Will[37] (the “Fourth Draft Will”) was then prepared. Compared with the Will, the Fourth Draft Will did not have page 4. Save that, its contents are the same as that of the Will;
(j) Mr Chiu then on 2 April 2012 sent the Fourth Draft Will to the Deceased for her approval. He also on that afternoon called the Deceased, whose identity was confirmed by P over the phone. He spoke in Cantonese about the contents of the Fourth Draft Will. The Deceased replied and confirmed with him in Mandarin that she understood and agreed with its contents. She also confirmed the preparation of the deed of gift;
(k) He and Mr Tam travelled to Shanghai on the evening of 2 April 2012;
(l) On the morning of 3 April 2012, after breakfast, Mr Chiu and Mr Tam was led to what he described as “the residential premises”. Madam Chen and 2 other whom he believed to be the Deceased’s relatives were also there;
(m) Madam Chen assisted the Deceased in a wheelchair to Mr Chiu. When P introduced her to him and Mr Tam, she nodded and smiled at them;
(n) Mr Chiu then confirmed with Deceased that she could understand Cantonese and Mandarin. He asked her to produce her Hong Kong Identity Card which she did. He asked her whether she wished to be examined by a medical practitioner. She said she did not need to be. Mr Chiu says[38] that:
Throughout the whole process of the entire day, I observed that the Deceased looked very conscious, sharp and alert in our interaction. She spoke with clarity and her messages were explicit and unequivocal. She also appeared to be at ease.
(o) Mr Chiu then started to explain to the Deceased the contents of the Fourth Draft Will. He describes the process in §19 of Chiu/WS, as follows:
After the aforementioned confirmations, I then started to explain to the Deceased in Cantonese the content of the Fourth Draft Will, during which the Deceased from time to time nodded her head and replied to me in Mandarin to indicate that she understood what I said to her. She answered my questions in Mandarin. This process lasted for around 40 to 50 minutes and involved not only explanation of the draft will clause by clause, but also further enquiries that I made to simultaneously confirm my previous instructions obtained through [P] and ascertain the Deceased was of testamentary capacity and had knowledge and approval of content of the Fourth Draft Will to be executed.
(p) At §20 of Chiu/WS, Mr Chiu sets out what he and the Deceased touched on during the exchange. He lists them out. These are important. Whilst the list is long, due to its importance, I reproduce §20 in full as follows:
From the exchange between myself and the Deceased at that time, we touched and/or discussed on all material aspects related to the preparation and execution of the Deceased’s will matter, included but not limited to the following:-
(Note 1: The following is to be understood as - question or meaning of thequestion posed by me: answer or meaning of the answer given or indicated bythe Deceased to myself.
Note 2: The following is the information exchanged between me and theDeceased. It is not the transcript of the conversation nor a verbatim record ofthe conversation)
(a). The Deceased’s age: 87 years old;
(b). Health condition of the Deceased: recently hospitalised, physically inconvenient, mentally sharp and well and not suffering any illness affecting her mental capacity;
(c). Address of the Deceased: she prefers to use her own address, i.e. the Shanghai Property, as her address on the will;
(d). Whether the Deceased had any surviving spouse: no;
(e). Children and grandchildren the Deceased: three children, i.e. [D], [P] and their younger brother [Tung], and some grandchildren;
(f). Whether the Deceased had any dependants, closely related person or partners: no;
(g). Whether the Deceased had made any previous will: no;
(h). Whether the Deceased understood that this will shall revoke all previous will, if any: understood;
(i). Whether the Deceased understood the difference between this will and any of her previous will: she never made any will before;
(j). Whether the Deceased understood when the will shall take effect: when she die;
(k). Whether the Deceased understood she could change her will at anytime before her death: understood;
(l). Whether the Deceased understood the appointment of executor and the wide power granted to the executor in respect of manging [sic.] her assets after her death: yes;
(m). Who to be appointed as executors: [P];
(n). Who to be listed as beneficiaries of her estate: [P], who would get 90% of her estate, and a charitable organisation to be selected, which would get 10% of her estate;
(o). How did the Deceased want to gift her assets by way of the will: the Deceased wants to gift 90% of her interest in the Shanghai Property and her interest in the sums in accounts with Bank of China Hong Kong to [P] and the remaining 10% be gifted to a charitable organisation;
(p). Whether the sums the Deceased meant were the [AUD Savings]: yes;
(q). Whether the Deceased knew the exact amount in the bank account: the Deceased knew there were substantial sums in Australia Dollars, one being around AUD 700,000 and one being around AUD 300,000 but it was dealt with by her son [D], so she could not be sure;
(r). Whether the said charitable organisation is to one recognised by the government of Hong Kong and/or PRC: also by the Singapore government, as [P] is more familiar with Singapore;
(s). Did the Deceased have any other substantial assets: 50% interest in the Hong Kong Property;
(t). Did the Deceased want to dispose of her interest in the Hong Kong Property by her will: no, she wants to transfer her interest to [P] now;
(u). Whether the Deceased understood why the Hong Kong Property will not listed in the will: yes, as it would to be transferred to the [P] there and then;
(v). Whether the Deceased knew who else held interest in the Shanghai Property: her son [D];
(w). Whether the Deceased knew who else held interest in the Hong Kong Property: her son [D];
(x). Whether the Deceased knew whether the Hong Kong Property was held by joint tenancy or tenancy in common with [D]: tenancy in common;
(y). Whether the Deceased knew why the Hong Kong Property was not held by joint tenancy: the Deceased severed the joint tenancy before;
(z). Other than the Hong Kong Property, the Shanghai Property, and the two accounts with the Bank of China Hong Kong, did the Deceased have any other assets of value: there was not much of any other assets left under her own name;
(aa). When does the Deceased want the [P] and the charitable organisation to receive her assets: after the Deceased’s death;
(bb). Whether the Deceased understood that the Deceased could dispose of her assets before her death in any way she desire, and the disposition will diminish the interest of the beneficiaries in the estate after her death: yes;
(cc). Whether the Deceased understood that the individual beneficiary, i.e. the [P] might die before the Deceased’s own death: yes;
(dd). Whether the Deceased understood how her assets, including the Shanghai Property and her interest in the said bank accounts, would be disposed of without making this will and in the absence of any pervious will: her assets will be shared by her 3 children;
(ee). Whether the Deceased understood that her debts and expenses incidental to her death and funeral would be first paid out by her estate before gifting to the beneficiaries: yes;
(ff). Whether the Deceased had any debts: no;
(gg). Whether the Deceased understood that there were other potential beneficiaries to her estate such as her two sons, the grandchildren, partner, spouse or otherwise: yes, her sons and maybe the grandchildren;
(hh). Whether the Deceased wished to list her two sons and the grandchildren as beneficiaries: no;
(ii). Whether the Deceased understood this making of the will would mean any other potential beneficiaries, including but not limited to her sons, the grandchildren, any of her dependant, closely related person or partners, would not receive anything from her estate upon her death: yes;
(jj). The reason that the Deceased decided not to leave anything to [D] in her will: because [D] had already obtained much of the family’s assets from his deceased father and her, and he already held interest in the Hong Kong Property and Shanghai Property and obtained sums from the deceased father and her;
(kk). Whether the Deceased could remember and list out what [D] had already gotten from the family, if any: interest in the Shanghai Property, interest in the Hong Kong Property, large sums from his deceased father and the Deceased over the years;
(ll). The reason that the Deceased decided not to leave anything to her younger son, [Tung] in her will: because the family had already given [Tung] some suns many years ago when [Tung] left Hong Kong to Canada. [Tung] had not been around the Deceased throughout the years after his immigration to Canada. The relationship between the Deceased and [Tung] was distant;
(mm). Whether the Deceased could remember and list out what [Tung] had already gotten from the family, if any: yes, none apart some sums from many years ago obtained from the family before his immigration to Canada;
(nn). The reason that the Deceased was not giving anything to some grandchildren: because it is not her concern - they are her children’s concern;
(oo). The reason the Deceased decided to transfer her interest in the Hong Kong Property to [P] now and to list [P] as a beneficiary of 90% entitlement of her estate in her will: she was now the only remaining child who had never received any of the family’s assets and she had been taking very good care of the Deceased, therefore she should get something out of her will and to receive the Deceased’s share in the Hong Kong Property immediately;
(pp). Whether the Deceased understood what [P] would be getting from the will: yes, 90% of the sums in the said accounts and her interest in the Shanghai Property;
(qq). Whether the Deceased understood that she was to give her interest in the Hong Kong Property by a deed of gift to [P] but not by will: yes;
(rr). Whether the Deceased understood I prepared the will in accordance to the laws of Hong Kong: yes;
(ss). Whether the Deceased understood that the will is to be governed by Hong Kong law and the Hong Kong court shall have jurisdiction: yes;
and
(tt). Whether the executor of her will could appoint professionals to assist in execution of the will upon her death: yes.
(q) Whilst explaining the contents of the Fourth Draft Will to the Deceased, Mr Chiu observed that the Deceased from time to time “conducted simple communication with Madam Chen in Shanghainese.” Mr Chiu could understand a little bit of Shanghainese, as his mother was from Shanghai and spoke Shanghainese. He “therefore understood the communication between the Deceased and Madam Chen at the time was mostly the Deceased confirming the content of the draft will, or repeating what I had just said to Deceased” (§21 of Chiu/WS);
(r) Mr Chiu was hence satisfied that the Deceased had testamentary capacity. He says at §22 as follows:
After my explanation of the Fourth Draft Will clause by clause and conducting my enquiries, I was satisfied that the Deceased was of testamentary capacity to execute the will as per the draft will and had approval and knowledge of the content of the draft will. In particularly, I came to the view the Deceased understood the nature of making the will and its effect, the Deceased understood the extent of the assets that she was disposing under the will, as well as by the deed of gift, and the Deceased comprehended and appreciated the claims of any other potential beneficiaries to her estate, such as her sons and the grandchildren. I was also satisfied that the Deceased was voluntarily gifting her interest in the Hong Kong Property to [P]. It was at this juncture I executed the deed of gift (the “Deed of Gift”) with the Deceased and [P].
(s) Given the involvement of Madam Chen in the process, Mr Chiu deemed it prudent to set it out in the final draft of the will. He contacted his secretary in Hong Kong and asked her to add to the Fourth Draft Will what is now in page 4 of the Will. §5 of the Fourth Draft Will was also amended to include Singapore;
(t) The final draft of the will, which Mr Chiu calls the “Final Draft Will”, was then emailed to him;
(u) At that stage, Mr Chiu asked P to leave the room where they were in. Mr Chiu says that even though P had till then been in the room,
she was walking in and out of the room. She never spoke during the process except for miscellaneous matters and when she was asked to sign the Deed of Gift.
(v) Mr Chiu describes what followed in §§25 to 28 of Chiu/WS, that:
25. I then read the Final Draft Will to the Deceased clause by clause. Whenever I finished reading a clause of the Final Draft Will to the Deceased, I invited Madam Chen to repeat the clause that I just read in Shanghainese. The Deceased would confirm to me in Mandarin. I also asked questions in relation to that clause in Cantonese and the Deceased confirmed and answered to me in Mandarin. She answered to me positively and unequivocally about content of each clause with clarity. These questions concern my enquiries conducted in paragraph 20 above and are not repeated herein.
26. Before the official execution of the will, I asked the Deceased for one more time whether she understood and agreed to the content of the Final Draft Will, to which the Deceased nodded her head again and answered to me in Mandarin that she understood and approved all content of the Final Draft Will. Upon the Deceased’s approval indicated by her conduct and words spoken, I proceed to the signing.
27. Out of prudence, I conducted another mini enquiry with the Deceased mainly to confirm that she understand content of the will that she was about to sign at the time and she would sign it totally out of her own free will, which included but was not limited to the following:-
(a). Confirmed again that the Deceased understood that [P] was going to be the executor and the beneficiary of 90% of the estate under the Final Draft Will, and the remaining to be received by a charitable organisation;
(b). Confirmed that the Deceased was making such will voluntarily and willingly;
(c). Confirmed that the Deceased was not under any duress, undue influence, pressure from [P], Madam Chen or anyone;
(d). Asked if the Deceased had anything else to tell or ask me about, which she confirmed to be none; and
(e). Explained the effect of the will, the assets to be disposed under the will, and the zero entitlement of her two other sons, the grandchildren and others under the will.
28. The Deceased then signed her name on the Final Draft Will, which became the Will of the Deceased (the “Will”). The Deceased signed on page 1 to 3 of the Will on her own without any aid of anyone. [Mr Tam] and I also signed on page 1 to 3 with our respective name chop on page 3 as the attesting witnesses. I requested Madam Chan [sic] to confirm her involvement in the execution of the Will. I asked her to write her personal information and sign on page 4. Madam Chen confirmed the content on page 4 and did as invited. At this point, the Will was formally executed by the Deceased.
(w) Mr Chiu concluded in §30 as follows:
During the whole process above, based on my observations set out above, I was satisfied that the Deceased was of testamentary capacity in executing the Will. The Deceased understood the nature of making the Will and its effect, the Deceased understood the extent of the assets she was disposing under the Will, as well as by the Deed of Gift, and the Deceased comprehended and appreciated the claims of any other potential beneficiaries to her estate, such as her sons, the grandchildren, dependants, closely related persons or partners, and the fact that they will receive nothing from the Deceased’s estate under the Will. I was satisfied that the Deceased understood and had knowledge and approval of the content of the Will. It appeared to me the Deceased made the Will voluntarily and was not subjected to any duress, undue influence or pressure.
63.I have considered Mr Tam’s evidence. He was with Mr Chiu throughout. Save certain specific matters (that he does not understand Shanghainese so that he did not understand what were said between the Deceased and Madam Chen, and that he could not confirm what Mr Chiu’s secretary said over the phone), he confirms the contents of Chiu/WS. He himself at §§3(c), (d) and (f) says as follows:
(c). In particular, I agree with the observation of [Mr Chiu] in paragraph 18. The Deceased looked very conscious, sharp and alert throughout the process, despite of her old age and her bodily condition that she was sitting on a wheelchair. She spoke with clarity and her messages were explicit and unequivocal. She also appeared to be at ease. She was delighted to meet us. She was very polite and she smiled at us most of the time. She kept thanking [Mr Chiu] and me for travelling to Shanghai. She did not appear to me as under any duress, undue influence, or pressure in meeting us and dealing with the Deed of Gift and her Will.
(d). In respect of paragraph 27, I signed as an attesting witness there and then because I had the same view that the Deceased was of testamentary capacity in executing the Will. Particularly, the Deceased understood the nature of making the Will and its effect, the Deceased understood the extent of the assets she was disposing under the Will, as well as by the Deed of Gift, and the Deceased comprehended and appreciated the claims of any other potential beneficiaries to her estate, such as her sons, the grandchildren, dependants, closely related persons or partners, and the fact that they will receive nothing from the Deceased’s estate under the Will. I had the same view that the Deceased had approval and knowledge of the content of the Will. I had the same view that she made the Will in the absence of any duress, undue influence or pressure.
…
(f). Based on the entire event on 3rd April 2012, I also have the same view that the Deceased was of testamentary capacity in executing the Will and the Deceased had approval and knowledge of the content of the Will. She made the Will in the absence of any duress, undue influence or pressure.
64.I have considered Madam Chen’s evidence. She says in §12 of Chen/WS that “In the morning of 3 April 2012, I picked up the Deceased from the Geriatric Hospital and took her to my home where we waited for the Hong Kong lawyer and his clerk to come.” Whilst she does not understand Cantonese, but in so far as what she could observe and her involvement in the process, she confirms the truth and accuracy of Chiu/WS.
N.3. Discussion
65.D has adduced no expert handwriting evidence. The plea at §10 of the AD&C (which I have set out above) represents at best D’s subjective view. He himself in the course of cross-examination accepted that it is speculative. I have in any event compared the Deceased’s signatures on the Will with her names that were written on the 民事訴狀and the death certificate of the Deceased. I myself cannot see sufficient similarity that may support D’s allegations.
66.I note D’s reliance upon the Tianlin Admission Records. I have recorded P’s replies when she was cross-examined on them. Madam Chen’s evidence is consistent with and supports P’s evidence. Madam Chen said during cross-examination that she had in fact spent the caring fees back to the Deceased, in particular when she took her out for various glooming activities. I have also set out Madam Chen’s evidence at §12 of Chen/WS, that it was she who picked up the Deceased from the Geriatric Hospital on the morning of 3 April 2012. I accept P’s and Madam Chen’s evidence.
67.Mr Chiu and Mr Tam did not prior to 3 April 2012 know the Deceased. But Mr Chiu had checked the Deceased’s Hong Kong Identity Card. He was satisfied with the identity of the Deceased. Madam Chen knew the Deceased. P has also confirmed the truth and accuracy of the parts of Chiu/WS in so far as she knows and was involved. D did not challenge Mr Chiu’s, Mr Tam’s and Madam Chen’s evidence as to what happened that morning.
68.I have considered the medical records, which I will deal with in more details in the context of D’s Pleaded Issue#2. Their contents are far removed from having any effect of upsetting the clear evidence from the witnesses, nor supporting D’s impersonation theory.
69.On the totality of the evidence before me, I accept the evidence of Mr Chiu, Mr Tam, P and Madam Chen and place weight on them. I find that Madam Chen picked up the Deceased from the Geriatric Hospital on the morning of 3 April 2012. It was the Deceased whom Mr Chiu and Mr Tam met on 3 April 2012. The Deceased signed on the Will, which process was witnessed by Mr Chiu and Mr Tam.
70.In my view, D’s challenge in connection with this issue is fanciful. The matters which D seeks to rely on are insufficient to discharge any evidential burden on him to discharge, as explained by Ribeiro PJ in Nina Kung. In any event, P is, in the light of the clear and overwhelming evidence before this Court, able to discharge any persuasive burden on her to prove the due execution of the Will.
N.4. Conclusion on D’s Pleaded Issue#1
71.I rule that the Deceased did sign on the Will as described by Mr Chiu, Mr Tam, P and Madam Chen, and that all the signatures thereon which appear, or which are presented or described to be hers (bottom of pages 1 and 2, and on page 3 of the Will) are indeed hers. I find that the all the signatures and the Will are authentic and genuine. I find due execution proved.
O. D’s Pleaded Issue#2
72.I have set out the applicable legal principles above.
73.I have set out D’s pleaded case above.
O.1. 2 specific factual findings
74.I deal with 2 factual allegations made by D first.
75.I find that there is no “abduction” or “kidnap” by P of the Deceased:
(a) I have stated why in my view D is neither credible nor reliable as a witness. I reject his oral assertion that there was any such “abduction” or “kidnap”;
(b) P deals with the relevant facts principally at §§69-80 of P/WS1. In gist, Madam Chen on around 3 October 2011 told her over the phone that Mother was not feeling very well, in that she suffered from a number of physical conditions including having bladder and kidney stones, blood in urine, and some cardiovascular problems. That is supported by the SSH/Summary. D dismissed the situation, and refused to transfer Mother to hospital of higher level for further checkup or better treatment. P flew to Shanghai on around 5 October 2011. Knowing P’s return, D stopped visiting Mother at the hospital. Madam Chen told P that D planned to discharge Mother on the 8th. P met D at Mother’s home that day. She asked D how he would take care of Mother. D’s responded by shrugging his shoulders, telling P that it was her problem. Out of concern, and in the light of D’s stance, P on 9 October 2011 took Mother to Shanghai Sixth People’s Hospital for examination. On the same night, P took the Mother to Yong Hao Hospital, where she stayed for about 2 weeks. On 18 October 2011, Mother was admitted into the Geriatric Hospital. Out of concern that D would force Mother to be discharged again and be deprived of treatment she needed, P did not inform D of the address of the Geriatric Hospital;
(c) D reported the matter to the Shanghai Police. As a result, Mother was interviewed by the Shanghai Police on around 17 January 2012. P and Madam Chen had also been interviewed. No charge had been laid. In fact, as D himself says at §18 of D/WS1, he received a letter from the Shanghai Police rejecting his request for the contact information of Mother as she was unwilling to provide her contact information with him;
(d) I specifically accept P’s evidence in the above regards. I so find. I find that there had been no “abduction” or “kidnap” by P of Mother.
76.P had not pushed Mother to make a will:
(a) I have recorded above the evidence D volunteered during cross-examination that Father and Mother had complained to him that P had pushed them to make a will. I have found that D is neither a credible nor reliable evidence. I specifically reject D’s evidence in this regard;
(b) P deals with Mother’s intention and instructions to make a will at section V of P/WS1. In gist, she says that it was as a result of the poor treatments from D which Mother had experienced that made her start to think about preparing a will so as to better arrange her properties. D threatened to cut Mother off financially. I specifically accept P’s evidence in the above regards, and I so find.
O.2. Mother’s testamentary capacity
77.D deals with this issue in section B.3 of his written closing. He refers to certain entries in the Tianlin Records. He relies on his own evidence given in the course of cross-examination about Mother having mistaken a building across the hospital as her home, and having behaved like a child.
78.I do not accept D’s oral evidence on Mother’s alleged symptoms. I have recorded that his evidence has been inconsistent. The 2 alleged symptoms are not mentioned in any of his statements. I specifically reject D’s oral evidence in those regards.
79.I consider the other evidence.
80.In the Hercules Brain Scan Report of 20 April 2011, cerebral atrophic changes are commented to be “mild”, and that “No other abnormality of the brain is seen”.
81.As stated in Dr Lau’s Medical Certificate, Dr Lau is a Specialist in Psychiatry, and has the qualifications of MBChB (CUHK), MRCPsych (UK), FHKCPsych, and FHKAM (Psychiatry).
82.Dr Lau’s Medical Certificate states, relevantly:
2. I have examined [the Deceased] for one hour at my clinic on 20 April 2011. Her daughter was also seen for collateral information.
3. She recognized the General Power of Attorney that she signed on 12 Aril [sic] 2011 at Shanghai. She understood the nature and the legal consequences of a General Power of Attorney and she was able to recall the nature and extent of her property. She could identify her daughter, Miss POON Sing-wah and she agreed to appoint her as the attorney to manage her property and affairs on her behalf.
4. I am of the opinion that [the Deceased] is mentally fit to execute the General Power of Attorney.
83.D relies on some of the medical records in relation to the Deceased’s hospitalization after the Accident. Those records are equivocal, and subject to interpretation:
(a) First and foremost, D has not engaged any expert to interpret and explain those records, and no such expert opinion is before this Court;
(b) I state the obvious, that D himself is not qualified to interpret them;
(c) Mother was hospitalized as a result of the physical injuries she suffered as a result of the Accident. There is no evidence that she had been specifically examined by those hospitals for her psychological, psychiatric and cognitive abilities;
(d) There were remarks in the Tianlin Records (e.g. the set during Deceased’s spell of admission between 18 January and 6 April 2012) that the Deceased “言語含糊不清” and “對答欠切題, 口齒含糊不清”[39]. There is however no objective medical evidence on the cause of those manifestations;
(e) There are on the other hand and in any event, as pointed out by Mr Lee[40], also remarks like “神志清楚” and “神清”[41], and “神志清晰”[42];
(f) In the record for the admission spell between 18 October 2011 and 16 January 2012, under the heading of “出院診斷”, there are the remarks of “腦梗塞(急性期)” and “血管性痴呆”[43]. But according to the record for the admission spell between 18 January and 6 April 2012, under the heading of “出院診斷”[44], the remark became “腦梗塞(恢復期)”, and there was no remark of “血管性痴呆”;
(g) There is no medical evidence on the effects and implications of that one remark of “血管性痴呆”;
(h) There is on the other hand another “在院証明” issued by the Geriatric Hospital dated 8 April 2013[45] which stated that the Deceased “在簽署文件時神志清楚，簡單對答”;
(i) I note the Deceased’s age. But that by itself does not suggest that she lacked testamentary capacity. I reject D’s assertion that all people of the Deceased’s age had dementia;
(j) In the absence of professional interpretation in support, the equivocal medical records by themselves lack the cogency to discharge the evidential burden on D in relation to the Deceased’s testamentary capacity.
84.The medical records in fact do not stand by themselves on the question of testamentary capacity. There is the independent evidence of Mr Chiu and Mr Tam.
85.By the time of the Will, Mr Chiu had about 4.5 years post-admission experience as a solicitors. I have set out his evidence in detail above. He prepared the 2nd to the final drafts. He was alerted to the Deceased’s age, health and recent hospitalization, and the fact that P was going to be the beneficiary under the intended deed of gift and will. He was aware of the preference of having a medical practitioner appointed to examine the Deceased at the execution, and advised P so. But given the location where the intended will was to be signed, and the Deceased’s recent examination in 2011, P decided to do without one. It is important to note that Mr Chiu then became aware that “I shall use my own tools as a lawyer to determine the Deceased was of testamentary capacity to make the intended will and had knowledge and approval of the content of the intended will when I would meet the Deceased in person.” It is clear that he met the Deceased with the above specifically in mind.
86.Mr Chiu understood the criteria for testamentary capacity. That is clear when one reads §§22 and 30 of Chiu/WS. They follow the wording of Banks v Goodfellow.
87.Mr Chiu went through the process with the Deceased, in my view, meticulously with her testamentary capacity and the criteria for testamentary capacity in mind. The Deceased appeared to him to be conscious, sharp and alert, spoke with clarity, conveying her messages explicitly and unequivocally, and appeared to be at ease[46]. The Will is not long, but the process took 40 to 50 minutes, suggesting that the process was a thorough one. I have reproduced his exchange with the Deceased, as set out in §20 of Chiu/WS. He then caused the Final Draft Will to be prepared, and read it to the Deceased clause by clause. The Deceased responded positively and unequivocally. Out of prudence, he conducted another mini enquiry before formal execution (§27).
88.I refer also to Mr Tam’s evidence which I have also summarised above.
89.As the Court of Appeal in Re Estate of Aug Kong Tim (at §59) explained, the evidence of an experienced and independent solicitor on a testator’s testamentary capacity is not, without more, conclusive. Any such view must be shown to be based on a proper assessment and accurate information.
90.On the evidence, I am of the view that Mr Chiu’s view was based on a proper assessment and accurate information.
91.I add one observation here. As I have observed above, D has not challenged Mr Chiu’s evidence. He is apparently running a impersonation theory, that the person in front of Mr Chiu on the morning of 3 April 2012 indeed, as per Mr Chiu’s view, “looked very conscious, sharp and alert in our interaction”, just that she was not the Deceased. I have rejected that theory. I have ruled that the person in front of Mr Chiu that morning was indeed the Deceased.
92.Mr Lee fairly acknowledged that the present case is not ideal, in that the “Golden Rule” was not followed. There is also no express reference to 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. Mr Lee refers me to Re Estate of Lung Yee Fun at §§34-36. As explained by Cheung JA in Re Estate of Au Kong Tim at §2.7 (referred to in §35 of Re Estate of Lung Yee Fun):
2.7 While it is accepted that the golden rule does not lay down the law and merely contains prudent guidance for solicitors (Hoff v Atherton [2005] WTLR 99 (CA) at [49] and In re Key, Decd [2010] 1 WLR 2020 at [7]), the words of Briggs J in Re Key, Decd are worth repeating:
8 Compliance with the golden rule does not, of course, operate as a touchstone of the validity of a will, nor does non-compliance demonstrate its invalidity. Its purpose, as has repeatedly been emphasised, is to assist in the avoidance of disputes, or at least in the minimisation of their scope. As the expert evidence in the present case confirms, persons with failing or impaired mental faculties may, for perfectly understandable reasons, seek to conceal what they regard as their embarrassing shortcomings from persons with whom they deal, so that a friend or professional person such as a solicitor may fail to detect defects in mental capacity which would be or become apparent to a trained and experienced medical examiner, to whom a proper description of the legal test for testamentary capacity had first been provided.
93.In §36 of Re Estate of Lung Yee Fun, Deputy Judge Leung referred to Re Estate of Lau Heung. It is useful and enlightening to recite what Lam VP (as the PJ then was) actually said there, that:
17. In [Re Estate of Au Kong Tim], the attesting solicitor failed to conduct proper enquiry which the court expects when a will is prepared for an elderly person who was in poor health, see the judgment of Cheung JA at [2.3] to [3] and the judgment of Kwan JA at [56] to [57] and [60]. The Court was therefore unable to infer from the fact that the will was prepared and attested by a solicitor that all the criteria in Banks v Goodfellow had been satisfied though there was no difficulty regarding the first criterion.
18. Subsequently, in Re Estate of Wong Yin Sheung [2019] HKCA 452, Kwan VP made it clear that much depends on the facts and evidence in a case and Re Estate of Au Kong Tim (Wills: Validity), supra, did not rigidly prescribe that a party propounding a will would not be able to establish testamentary capacity if a solicitor failed to make proper enquiry and follow the golden rule in Kenward v Adams (1975) The Times, 29 Nov 1975 as a matter of good practice. In that case, notwithstanding the failings on the part of the attesting solicitor, the Court of Appeal found on the facts in the case there was sufficient evidential basis for inferring that all the criteria in Banks v Goodfellow had been satisfied. The matters that Kwan VP took account were set out at [37] of the judgment and the whole factual circumstances including evidence from family members on the mental condition of the testatrix were regarded as relevant.
19. This holistic assessment was in line with the Judge’s proposition (2) at [68] of the judgment below. We respectfully agree that the question of testamentary capacity is a practical question and the court has to assess it by reference to the whole of the evidence (not confining itself to the medical evidence) and apply judicial common sense in the exercise.
94.First off, I am of the view that the enquiry set out by Cheung JA at [2.3] in Re Estate of Au Kong Tim has indeed been conducted by Mr Chiu.
95.Further, I repeat my observations above. The process undertaken by Mr Chiu was meticulous. In doing so, he further clearly had the Banks v Goodfellow criteria for testamentary capacity in mind. In the present case, there is no need for this Court to resort to inference. In my view, the Banks v Goodfellow criteria have indeed been satisfied.
96.D’s plea that the Deceased otherwise would not have made the dispositions is nothing but a bare surmise, to which I attach no weight.
O.3. Conclusion on D’s Pleaded Issue#2
97.For the above reasons, I am of the view that the evidence which D seeks to rely on are by themselves of insufficient cogency to discharge the evidential burden on him to dispute the Deceased’s testamentary capacity. In any event, having assessed all the evidence carefully and holistically, and applying judicial common sense in the exercise, I am of the view that P has in any event discharged the persuasive burden on her to establish the Deceased’s testamentary capacity.
P. D’s Pleaded Issue#3
98.I have set out the applicable legal principles above.
99.I have also set out D’s pleaded case above.
100.I have considered section B.4 of D’s written submissions which deals with this issue.
101.I repeat my findings of facts above. I have found that there was no abduction. There was no kidnap. What P did was done for the purpose of taking care of Mother. I accept P’s evidence that Mother made the Will voluntarily and was not subject to any duress, undue influence or pressure by her or anyone.
102.I find that D has failed to discharge the persuasive burden on him to establish undue influence. I in any event accept P’s evidence, and find positively that there has been none.
Q. Mother’s knowledge and approval of the contents of the Will
103.Whilst not expressly raised, in discharge of this Court duty upon the 2nd rule in Barry v Butlin having been engaged, I consider also Mother’s knowledge and approval of the contents of the Will.
104.Testamentary capacity on the one hand, and knowledge and approval of the contents of the will concerned, are two different points. This is obvious from Nina Kung cited above. This was also pointed out by Kwan JA in Re Estate of Au Kong Tim at §67.
105.I heed the fact that it was P who initially engaged Mr Chiu. I also heed the fact that P was the main beneficiary under the Will and the Deed of Gift. I have found that P had not pushed Mother to make the Will. I have accepted P’s evidence at section V of P/WS1, which I have summarised above. There is also the record of discussions between Mother and P, which I accept[47].
106.I refer again to Mr Chiu’s evidence, which shows that the Deceased clearly knew and approve the contents of the Will.
107.I note specifically that part of the exchange between the Deceased and Mr Chiu concerned the reasons as to why D and other potential beneficiaries were not named as such. §8 of the Will also expressly deals with that.
108.The Will is in Chinese. According to Mr Chiu, the Deceased “大致上睇得明” Chinese. There is no evidence to the contrary.
109.For completeness, I refer to the various letters issued allegedly by the Deceased seeking to reverse the Notice of Severance. D has failed to make clear the circumstances in which lawyers were engaged for the Deceased. I also accept P’s evidence that when she went to Shanghai afterwards, the Deceased made no demand to her in that regard. I attach no weight to those letters.
110.On the evidence, I am of the view that P has established that Mother knew and approved of the contents of the Will.
R. The Abuse Issues
111.Given my views and conclusions above, the Abuse Issues are not engaged. In deference to submissions made, I have nonetheless considered them. I set out the gist of my views below.
112.If necessary, I would rule the Abuse Doctrines would debar D from raising and re-litigating D’s Pleaded Issue#1, but not D’s Pleaded Issues#2 and #3.
113.Mr Lee relies on the doctrine of issue estoppel, and Henderson v Henderson abuse. I consider them in turn.
R.1. The doctrine of issue estoppel
114.On the requirements requisite to trigger the operation of the doctrine of issue estoppel, Mr Lee has cited to me a number of cases. They include Zheng Zhenxin v Chan Chun Keung [2018] HKCFI 2284 (at §30, citing The Sennar (No 2) [1985] WLR 490 and Carl Zeiss Stiftung v Rayner & Keeler Ltd [1967] 1 AC 853) and Chu Kong v Lau Wing Yan [2023] HKCFI 2703 (at §55). Those requirements are as follows:
(a) The judgment relied on giving rise to the issue estoppel must be: (a) of a court of competent jurisdiction, (b) final and conclusive and (c) on the merits;
(b) The parties in the earlier judgment are the same as those in the subsequent proceedings; and
(c) The issue in the subsequent proceedings in which the estoppel is raised as a bar must be the same issue as that decided by the judgment in the earlier action.
115.The Mainland Court was clearly a court of competent jurisdiction. This is apparently not challenged, as it is not even within the scope of the Mainland Law Issue.
116.As recorded in the Mainland Decision, witnesses were called, facts were established, Mainland law were applied, and conclusions on substantive rights reached. It was not a decision made only on procedure. In my view, it is clearly a decision on merits – see The Sennar (No 2) [1985] 1 WLR 490 at 499 (applied by our Court of Final Appeal in First Laser Ltd v Fujian Enterprises (Holdings) Co Ltd (2012) 15 HKCFAR 569 at §§45-46.
117.On the requirement of being “final and conclusive”:
(a) I respectfully agree with the views of Lisa Wong J expressed in §89 of Jiang Xi An Fa Da Wine Co Ltd v Zhan King [2019] HKCFI 2411 (a view expressed after Her Ladyship had considered cases like Chiyu Banking Corporation Limited v Chan Tin Kwan [1996] 2 HKLR 395 and Lee Yau Wing v Lee Shui Kwan [2007] 2 HKLRD 749), that:
… there is no definite authority that the existence of the “trial supervision” procedure would deprive a PRC judgment of its otherwise final and conclusive character. Rather, the matter has to be proved at trial at which evidence of material PRC law would have to be adduced by the parties and assessed by the court in the actual enforcement proceedings.
(b) I have considered the opinions of Mr Xiao:
(i) Mr Xiao explains the basic litigation system in the Mainland at §46, that (emphasis added for ease of presentation):
兩審終審制是《中華人民共和國民事訴訟法》基本的訴訟制度。當事人如果認為一審裁判錯誤，不服一審裁判結果時有權在法定上訴期間内提起上訴，通過行使上訴權的方式在二審程序救濟權利，二審程序才是當事人行使上述權後的常規糾錯程序。至於未提出上訴而已產生法律效力的一審判決，以及經上訴程序而作出的二審判決，均是法定的生效判決和終審判決而得到法院的確認和執行。判決生效後的再審程序是窮盡常規糾錯程序後針對生效裁判可能存在重要錯誤而賦予當事人的特别救濟程序。
(ii) In respect of D’s 上訴權under the 兩審終審制, the time limit for D to do so under Article 164(1) of the PRC Civil Procedure Law 2013 has long lapsed, and no appeal has been lodged. Further, no basis has been shown in support of any application for extension under Article 83 of that statute;
(iii) In respect of the 再審程序:
(1) As explained by Mr Xiao at §50(b):
上海市第二中級人民法院（上海市黄浦區人民法院的上一級法院）及最高人民法院，若發現該内地判決書確有錯誤，均有權提審或者指令上海市黄浦區人民法院再審。
(2) The powers can be exercised upon D’s application or on the Courts’ initiation;
(3) As to any application by D, Mr Xiao opines, having considered the relevant statues, and the absence of any appeal by D, at §54(c) that:
根據（2020）最高法民申7058號，即使被告提出再審申請，基於其在法定上訴期限内未提起上訴，亦沒有證據顯示客觀上導致其不能行使上訴權的合理理由，人民法院會認為其放棄常規的救濟途徑、濫用再審程序而根本不受理其再審申請。
(4) As to any active exercise of powers by the Courts, Mr Xiao opines at §§56 and 57 that:
56. 如上述，二審終審制是我國民事訴訟法的基本制度，一般而言，一個民事案件經過兩級法院的審理，就能及時作出公正的裁判，不需要更多的審級。二審程序是常規糾錯程序，再審程序是窮盡常規糾錯程序後才使用的特别救濟程序。換言之，再審已經是例外，由人民法庭依職權主動提出再審更是例外中的例外。
57. 退一萬步而言，即使啟動了再審程序，本人認為，根據該内地法院已生效判決查明的事實和依據的法律觀點，推翻該判決的可能性也微乎其微。
(iv) In respect of 抗訴by 上海市人民檢察院第二分院或最高人民檢察院, Mr Xiao, having considered the relevant Rules and Statutes, opines at §§66 to 68 that:
66. 在本案中：
(a) 被告從未向人民法院申請再審；
(b) 被告申請再審超過法律規定的期限（即2017年3月26日，見上文第54(b)段）。
(c) 根據本案已有的案件材料，暫無發現不可歸責於被告自身的原因令他無法如期申請再審。
67. 基於《檢察院監督規則2021》第27條，人民檢察院不會受理被告申請檢察建議或者抗訴。
68. 綜上，被告未經再審程序而直接申請檢察建議/抗訴將是不可能的。
(v) Mr Xiao’s opinions are supported by the Mainland law which he has cited and discussed. In the absence of competing opinion, I have no reason not to accept them;
(vi) On the expert evidence of Mr Xiao, I find that the Mainland Decision has become final and conclusive.
118.What causes me concerned is whether the issues considered by the Mainland Court were the same as those before this Court:
(a) I have no problem with the issues on the identity of the Deceased and the authenticity of her signatures on the Will. Those are factual issues. In concluding that the Will was valid, the Mainland Court must have found factually that the Deceased had signed the Will;
(b) The same cannot be said about the Deceased’s testamentary capacity;
(c) From the contents of the Mainland Decision, it is obvious that it was Mainland law which the Mainland Court applied. That is apparent also from the relevant statutes set out at page 8 of the Mainland Decision;
(d) That it was Mainland law (but not common law) which the Mainland Court applied is also clear from Xiao Report:
死者的經常居所地為中國上海，因此確認其立遺囑時的行為能力應適用中國法律。(§15)
基於死者王玉珍的經常居住地是上海，遺囑效力適用中華人民共和國的法律。(§18)
基於死者王玉珍的經常居住地是上海，遺囑方式符合中華人民共和國的法律，便為成立。(§19)
本人認為，該内地法院已經就立遺囑的行為能力（第1項事宜）作出了實質裁決。當然，該内地法院不可能以普通的角度去分析“立遺囑的行為能力”這一概念，在被告沒有提供證據的情况下，該内地法院已確認死者在立遺囑時神志清楚。(§36)
本人也認為，該内地法院已經就死者立遺囑的意圖（第2項事宜）作出實質裁決。同樣，該内地法院不可能以普通法的角度去分析“立遺囑的行為能力”這一概念，但該内地法院已確認死者是根據自己的想法訂立遺囑以處分自己的財產。(§37)
(e) Whilst the same issue of testamentary capacity is before this Court, what the consideration of that issue entails are entirely different. It is common law which this Court applies, which was not that Mainland Court considered;
(f) Taking a step back, from the point of administrative of justice, I see no good reason why D should be debarred from seeking to invite this Court to consider the issue under Hong Kong law, which the Mainland Court did not apply.
R.2. Henderson v Henderson doctrine
119.As explained by Ma CJ in Ko Hon Yue v Chiu Pik Yuk (2012) 15 HKCFAR 72 at §§82 and 83, the Henderson v Henderson doctrine is founded on abuse of process.
120.The discussions above on the doctrine of issue estoppel equally apply. I see no good reason why D should be regarded as abusing the process by seeking to invite this Court to consider the issue under Hong Kong law, which the Mainland Court did not apply.
121.These considerations apply equally to D’s Pleaded Issue#3. Whilst D did not raise the issue before the Mainland Court, the problem is that even if it had been raised, it would have been Mainland law which the Mainland Court would have applied. The same problem as concerned D’s Pleaded Issue#2 would have arisen.
R.3. Conclusion on the Abuse Issues
122.For the above reasons, if necessary, I would hold that the Abuse Doctrines would debar D from raising and re-litigating D’s Pleaded Issue#1, but not D’s Pleaded Issues#2 and #3.
S. Conclusion on P’s claim
123.For the reasons set out above, I allow P’s claim. This Court makes the following Order, Grant and Decree:
(a) A Declaration that the Will dated 3 April 2012 is the last valid will of Madam Wong Yuk Chun;
(b) Grant of probate be issued to P as the executor named under the Will; and
(c) Decree probate of the Will in solemn form of law.
T. D’s Counterclaim
124.Given the above, D’s counterclaim must fail, which I dismiss.
U. Costs
125.I make a costs order nisi, absolute within 14 days, that D shall bear the costs of the action (claim and counterclaim included for avoidance of doubt), including any costs previously reserved, with certificate for one counsel, to be taxed if not agreed.
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(Keith Yeung) |
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Judge of the Court of First Instance
High Court |
Mr Ken TC Lee & Mr Beatrix MK Lee, instructed by Wong Poon Chan Law & Co,
for the Plaintiff
The Defendant appeared in person
[1] The only other party being a charitable body, because, as will be explained later, part of the Deceased’s estate is according to the Will to be donated to charitable bodies.
[2] [C/1082-1084].
[3] [C/1105].
[4] [C/1106-1111].
[5] [C/1112].
[6] [D/1323-1326].
[7] [D/1334].
[8] [E/1521].
[9] Most relevant ones at [E/1522-1589].
[10] [C/1061-1065].
[11] i.e. the name of Mr Chiu.
[12] Who I will refer to as “Mr Tam”.
[13] [B1/316].
[14] §§25 – 28 of the report of 26 May 2022 prepared by Mr Xiao (“Xiao Report”), [B/271].
[15] [C/1144-1151].
[16] §20 of the ASOC.
[17] §12A of the AD&C.
[18] §12B of the AD&C.
[19] D relies on the Date of Issue of the Deceased’s Hong Kong Identity Card [C/1173], which he said, and I am prepared to accept, means the date which loss was reported and a replacement applied for.
[20] At [C/1066].
[21] At [C/1182 -1183].
[22] [C/1124].
[23] Specified, but not recited here.
[24] §15 of P/WS1, at [A/140-141].
[25] [C/1241].
[26] [C/1137-1138].
[27] D/Aff, §19 [A/229].
[28] AD&C, §5 [A/39].
[29] D/WS1, §47 [A/243].
[30] Except claiming that “acquaintances and relatives kept saying it is normal for a person her age to be a bit absent-minded and clumsy”, D/Aff, §19.
[31] [A/255-256].
[32] In his words, “Whether [D] is precluded from challenging the authenticity and/or validity of the Will … by virtue of the [Mainland Decision] on the ground of res judicata, issue estoppel, Henderson v Henderson abuse and/or abuse of process.”
[33] Which issue, as framed by P, comprises the following sub-issues: “(a) Whether the Will was signed by the Deceased; (b) Whether the Deceased possessed the requisite testamentary capacity or testamentary intention when executing the Will; (c) Whether the Deceased possessed the requisite knowledge and approval of the contents of the Will when executing the same; and (d) Whether the Deceased executed the Will under duress or undue influence of [P] and/or other party or parties.”
[34] The relevant contents I will set out below.
[35] Again will be set out below.
[36] §9(b).
[37] [C/1224-1227].
[38] §18, [A/181-182].
[39] [E/1533 and 1535].
[40] §41 of his written submissions.
[41] [E/1523, 1533, 1541 and 1553].
[42] [E/1525, 1535, 1543 and 1555].
[43] [E/1522].
[44] [E/1532].
[45] [C/1113].
[46] §18.
[47] [C/1235-1238], transcript at [C/1238-1 to 1238-2].
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