Chan Shu Lam v. Chan Chau Wah

HCAP 6/2020

[2025] HKCFI 2338

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 6 OF 2020

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J U D G M E N T

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A.  Introduction

1.Madame Wong Lai Kuen (hereinafter the “Deceased”) passed away on 26 September 2019 at the age of 90.

2.The Deceased was married to the late Mr Chan Ko Lok (hereinafter “Father”)[1]. The Deceased commenced divorce proceedings in 1995. Although the couple had separated, the divorce proceedings had not been completed[2].

3.The Plaintiff and the Defendant were respectively the son and the daughter of the Deceased and Father.

4.The subject matters of these proceedings concern:

(1)  the validity of the will dated 8 August 2019 (the “2019 Will”) whereby the Deceased (i) appointed the Plaintiff as the sole executor of her estate; and (ii) bequeathed all her assets to the Plaintiff; and

(2)  the beneficial ownership of Flat D, 8^th Floor, Kiu Yip Mansion, No 18 Yuet Wah Street, Kowloon (the “Property”), which was a residential flat registered under the Deceased’s name.

B.  The Plaintiff’s Case

B1.  The Property

5.The Plaintiff came to Hong Kong in 1982. He worked at Father’s factory from 1980 to 1992.

6.Whilst the Property was purchased in the Deceased’s sole name on 6 October 1983, the Plaintiff alleges that he paid the deposit in respect thereof in the region between HK$70,000 and HK$90,000.

7.The Plaintiff also alleges that he financially supported the Deceased by giving her (i) around HK$3,000 to HK$4,000 per month between 1983 and 1986; and (ii) HK$1,000 per month from 1989 until 1998. The Plaintiff says that part of the monies were utilized to repay the pre-existing loan owed to China and South Sea Bank Ltd under the mortgage dated 6 October 1983.

8.As a matter of public records, in around 1986, the Deceased added Father as a joint owner of the Property under a deed of gift.

9.In this connection, the Plaintiff does not dispute the Defendant’s suggestion that:-

(1)  The arrangement in 1986 was to enable Father to obtain a new loan from China and South Sea Bank Ltd under the mortgage dated 19 December 1986 to the extent of HK$200,000 in support of his factory business.

(2)  In around 1994, Father and/or his factory business started to default in repaying the said mortgage loan.

(3)  Pursuant to the order dated 4 December 1999, the Family Court ordered that the Property be assigned to the Deceased subject to a charge of 20% of the interest in the Property in favour of Father. However, the said order provided that Father could not enforce the charge when the Deceased resided in the Property.

10.According to the Plaintiff’s first witness statement[3], in around 2001, the Deceased, with the Defendant’s assistance[4], withdrew HK$250,000[5] from various bank accounts, of which around HK$200,000 was utilized to repay the outstanding mortgage loan.

11.According to the Plaintiff’s second witness statement[6], upon selling the interest in his factory in 1994, Father gave the Deceased a sum of HK$200,000 odd. Thus, the Deceased instructed the Defendant to utilize the sum for repaying the outstanding mortgage loan.

12.In his third witness statement[7], the Plaintiff further suggested that Father was willing to repay the outstanding mortgage loan back in 1994 because the Deceased was willing to reconcile with him.

13.In the premises, the Plaintiff denies that the Defendant had made any financial contribution towards the repayment of the mortgage loan and that she had beneficial interest in the Property.

B2.  The 2019 Will

14.The Plaintiff claims that he and his wife, namely Madame Wong Chai Chuen (hereinafter “Madame Wong”), had a close relationship with the Deceased. Apart from supporting the Deceased financially, they also took care of her and accompanied her to see doctors from time to time.

15.The Plaintiff said that whilst he and his family were close to the Deceased, the relationship between the Deceased and the Defendant was aloof.

16.He further said that:-

(1)  After the Defendant used various excuses to trick the Deceased to make the will dated 5 January 2005 (the “2005 Will”) (which named the Defendant as the executor and sole beneficiary of her estate), the Defendant began to ignore the Deceased.

(2)  In around March 2013, the Deceased showed the 2005 Will to him, Madame Wong and his son. The Deceased said that she did not understand the contents of the 2005 Will at all. Meanwhile, she also complained that the Defendant sought to claim the sums for repaying the mortgage loan, though she had already given her the sum.

17.In the circumstances, the Plaintiff arranged the Deceased to execute a new will at Messrs Leung & Lien on 12 April 2013 (the “2013 Will”).  In this connection, the Plaintiff said that the wish of the Deceased and Father was that their only son, ie himself, should inherit the Property.

18.In around late 2016, the Plaintiff and Madame Wong went to the Mainland to handle some family matters. Upon returning to Hong Kong, they failed to locate the Deceased. When the Plaintiff and his family members attended the Property to visit the Deceased, they discovered that the lock was changed, and the Defendant (who was in the Property) refused to allow them to enter the Property.

19.It transpired that in June 2017, the Defendant procured the Deceased to make a will dated 27 June 2017 (the “2017 Will”), whereby the Deceased purportedly appointed the Defendant as the sole executor of her estate and purportedly bequeathed all her assets to the Defendant.

20.In around mid-May 2019, the Plaintiff, through a friend of Madame Wong, found out that the Deceased was arranged to reside in an elderly home. Eventually, the Plaintiff’s third son, namely Chan Hiu Yam, found out that the Deceased was in an elderly home operated by Po Leung Kuk in Lam Tin, namely保良局蕭明紀念護老院 (hereinafter “PLK Elderly Home”).

21.Thus, on 3 June 2019, the Plaintiff, Madame Wong, Chan Hiu Yam and a friend of the Deceased/Madame Wong (namely Chung Yin Wah (“Madame Chung”) attempted to visit the Deceased at PLK Elderly Home. However, the staff there told them that the Deceased’s guardian, namely the Defendant, gave instructions that no one might visit the Deceased. As such, they were denied access to the Deceased.

22.In the circumstances, the Plaintiff called the Police. The Plaintiff said that the Deceased wished to see the Plaintiff and his family. Thus, under the Police’s intervention, the Plaintiff, Madame Wong, Chan Hiu Yam and Madame Chung were allowed to visit the Deceased. After this incident, the staff of PLK Elder Home no longer obstructed the Plaintiff and his family members from visiting the Deceased.

23.According to the Plaintiff, there was an occasion where the Deceased told him that she wished to make a new will, such that the Property could be given to him again.

24.Accordingly, the Plaintiff’s son, ie Chan Hiu Yam, approached Ms Ho Sea Man of Messrs Ho & Associates (hereinafter “Ms Ho”). However, when Ms Ho and the Plaintiff attended PLK Elderly Home on 28 June 2019, the staff there prohibited the Deceased from signing any document.

25.When the Plaintiff, Madame Wong and Madame Chung visited the Deceased on 8 August 2019, the Deceased indicated that she felt unwell. As such, she was sent to the United Christian Hospital. The Deceased told the Plaintiff that she did not want to return to PLK Elderly Home again and that she wanted to execute a new will as soon as possible.

26.In the circumstances, the Deceased was taken to Ms Ho’s office in Admiralty in the evening on 8 August 2019 for the purposes of executing a new will.

27.In light of the advanced age of the Deceased, Ms Ho was instructed to engage a qualified psychiatrist, namely Dr Hung Bing Kei Gabriel (hereinafter “Dr Hung”), to assess the Deceased’s testamentary capacity.

28.During the assessment, Dr Hung asked the Deceased various open-ended questions. Dr Hung was of the view that the Deceased was alert, conscious, aware of her surroundings and fully engaged. According to Dr Hung, during the conversations, the Deceased mentioned about, inter alios, her bad relationship with the Defendant, her good relationship with the Plaintiff and the fact that the Defendant once grabbed her hand and forced her to sign a document (ie presumably the 2017 Will).  The Deceased also indicated that she wanted to cancel her previous will, that she wanted the Plaintiff to manage the affairs of the Property and that all her assets should be given to the Plaintiff upon her death.

29.Dr Hung was satisfied that the Deceased had testamentary capacity. Thus, Ms Ho explained the contents of the 2019 Will and the contents of a power of attorney (the “Power of Attorney”) (whereby the Deceased authorized the Plaintiff to handle the affairs of the Property). Thereupon, the Deceased approved the contents of these documents and executed the same.

30.Apart from Dr Hung’s opinion, the Plaintiff also seeks to rely on the opinion of Dr Wong Chung Kwong (hereinafter “Dr Wong”), who conducted a retrospective psychiatric diagnosis.

31.Having reviewed, inter alios¸ the Deceased’s medical history, the assessment made by Dr Hung and the two videos that were taken during the occasion on 8 August 2019 at Ms Ho’s office, Dr Wong was of the view that the Deceased retained sufficient memory function and cognitive function to understand what she said. Dr Wong opined that on the occasion on 8 August 2019, the Deceased:-

(1)  retained mental capacity to understand the nature and effects of making a will;

(2)  retained sufficient long-term memory function for her to remember the Property;

(3)  retained sufficient long-term memory function for her to make the decision of bequeathing the Property to the Plaintiff;

(4)  was not affected by any disorder or disease of mind that might impair her mental capacity to make a will; and

(5)  retained sufficient ability to assess her relationship with the Plaintiff and the Defendant. 

32.In the premises, the Plaintiff contended that the 2019 Will is the last will of the Deceased and that probate should not have been granted to the Defendant based on the 2017 Will. He asked the court to:-

(1)  revoke the probate granted in favour of the Defendant based on the 2017 Will;

(2)  propound the 2019 Will; and

(3)  declare that the 2019 Will is the true last will of the Deceased.  

C.  The Defendant’s Case

C1.  The Property

33.As mentioned, it is not in dispute that:-

(1)  The Property was purchased in the Deceased’s sole name on 6 October 1983.

(2)  In around 1986, the Deceased added Father as a joint owner of the Property. The purpose of the arrangement was to enable Father to obtain a mortgage loan in the amount of HK$200,000 for the purpose of supporting his business.

(3)  Under the mortgage dated 18 December 1986, Father, as a borrower, obtained a loan from China and South Sea Bank Ltd. The indebtedness was secured against the Property.

(4)  In around 1994, Father and/or his factory business started to default in repaying the said mortgage loan.

(5)  Pursuant to the Family Court’s order dated 4 December 1999, the Property was transferred to the Deceased on 31 December 2002[8].

34.According to the Defendant, in around May 1994, the Deceased and herself had the following exchange:-

(1)  The Deceased resorted to the Defendant for financial assistance. She requested the Defendant to repay the outstanding mortgage loan owed to China and South Sea Bank Ltd, such that she could continue to live in the Property.

(2)  In return for the Defendant’s financial contribution or assistance, the Deceased promised the Defendant that she would become the owner of the Property upon her death. The proportion of her interest in the Property was to be determined on the basis of her financial contribution towards the repayment of the outstanding mortgage loan.

35.Acting in detrimental reliance on the Deceased’s promise and assurance, during the period from 19 May 1994 to 19 April 1995, the Defendant repaid the entirety of the outstanding mortgage loan in the aggregate amount of HK$199,726.65.

36.The payments made by the Defendant are evidenced and corroborated by:-

(1)  the entries in the bank passbook in respect of the Defendant’s mortgage account maintained with China and South Sea Bank Ltd, which show that the following payments were made from 19 May 1994 to 19 April 1995:-

Dates	Amounts
19 May 1994	HK$40,000
10 June 1994	HK$13,000
12 July 1994	HK$13,000
10 August 1994	HK$13,000
12 September 1994	HK$13,000
12 September 1994	HK$13,000[9]
11 October 1994	HK$13,000
10 November 1994	HK$13,000
12 December 1994	HK$13,000
11 January 1995	HK$13,000
11 February 1995	HK$13,000
14 March 1995	HK$20,000
19 April 1995	HK$9,726.65
	Total: HK$199,726.65

(2)  the invoices or receipts issued by China and South Sea Bank Ltd dated 14 March 1995 and 19 April 1995, which contain remarks suggesting that the Defendant repaid the outstanding mortgage loan on behalf of Father.

37.The market value of the Property was HK$1,310,000 as of May 1994 (ie the time when the Defendant began repaying the outstanding mortgage loan).

38.On this basis, the Defendant claims that she has 15.25% beneficial interest in the Property (ie HK$199,726.65 / HK$1,310,000) under a common intention constructive trust.

39.However, as pointed out by Ms Queenie Ng (for the Plaintiff), it appears that one of the two payments of HK$13,000 on 12 September 1994 was ascribed to a banking error.  This was the reason why there was a corresponding deposit on the same day that was marked “REV” (which probably meant “reversal”).  I accept Ms Ng’s suggestion that there was a duplication and the same sum has been counted twice. Bearing in mind the Defendant’s pattern of making a monthly payment of HK$13,000 from June 1994 to February 1995, there appeared to be no reason why the Defendant would, out of the blue, make two repeated payments of HK$13,000 on 12 September 1994.

40.In the premises, putting the Defendant’s case to the highest, the outstanding mortgage loan that she repaid was only HK$186,726.65 (ie HK$199,726.65 less HK$13,000). Thus, her alleged entitlement of the beneficial interest in the Property was only 14.25% (ie HK$187,726.65 / HK$1,310,000).

B2.  The 2017 Will and the 2019 Will

41.Contrary to the Plaintiff’s assertions, it is the Defendant’s case that she was the one who shouldered the primary responsibility of taking care of the Deceased throughout the years. Meanwhile, the relationship between the Deceased, the Plaintiff and the Plaintiff’s family was aloof. 

42.As of the late 1990s, the Deceased no longer took up any gainful employment and was in financial difficulty. In the circumstances, in 1998, the Defendant assisted the Deceased in applying for social security. In the application form dated 7 January 1998, an investigating officer of the Social Welfare Department stated that the Deceased had lost contact with the Plaintiff. 

43.In 2003, the Defendant and her husband (i) took care of the Deceased when she injured her hand during an accident; and (ii) assisted the Deceased in engaging workers to renovate the Property. The Defendant said that as the Plaintiff completely ignored the Deceased, the Deceased appreciated her love and care for her.

44.In the circumstances, on 5 January 2005, the Deceased, on her own volition, made the 2005 Will (whereby she appointed the Defendant as the sole executor of her estate and bequeathed all the assets to the Defendant). In this connection, the Deceased even effectively said that she had disowned the Plaintiff. 

45.In 2009, the Plaintiff began to visit the Deceased from time to time. However, after the Plaintiff obtained the title deeds of the Property (which was previously kept by the Defendant), he began to treat the Deceased badly.

46.Meanwhile, the Plaintiff and Madame Wong threatened the Deceased that if she had contact with the Defendant, they would abandon her. In order not to put the Deceased in a difficult position, the Defendant, with reluctance, distanced herself from the Deceased.

47.In around 2016, the Defendant’s son got married. She delivered the invitation card in respect of the wedding to the Deceased at the Property. To her surprise, she discovered that the Deceased was being neglected. The Plaintiff and Madame Wong (who went to the Mainland at the time) merely left a box of cake in the refrigerator, and the Deceased was not provided with proper food. Further, the Defendant also discovered that the Property was in an unsatisfactory condition and there was spalling concrete at the ceiling.

48.In the circumstances, the Defendant took up the responsibilities of taking care of the Deceased again.

49.As of 2017, the Deceased, who had been ageing, was no longer capable of taking care of herself. As such, the Defendant engaged a domestic helper to assist the Deceased in managing her daily affairs.  As evidenced by the employment agreements dated 19 June 2017 and 24 June 2018, the employer of the domestic helpers was the Defendant’s son, namely Cheng Kwok Yeung[10].

50.In around June 2017, the Deceased indicated that she wanted to transfer the Property to the Defendant. However, with a view to avoiding stamp duty, it was decided that the Deceased should simply make a new will providing that the Property be bequeathed to the Defendant upon her demise. It was in these circumstances that the Deceased made the 2017 Will on her own volition.

51.In around late 2018, it became clear that the Deceased could not get along with the domestic helpers engaged by the Defendant. Since the Deceased’s condition was not satisfactory, the Defendant arranged the Deceased to be cared for in a private elderly home in Tai Kok Tsui named “永安老人健康中心”. As evidenced by the agreement dated 31 December 2018, the Defendant was the Deceased’s guardian.  

52.As the Deceased’s condition kept deteriorating, in April 2019, the Defendant made arrangement for the Deceased to be transferred to PLK Elderly Home. Again, the Defendant acted as the Deceased’s guardian.

53.The Defendant said that as early as 5 March 2018, an occupational therapist of the United Christian Hospital had already diagnosed that the Deceased suffered from cognitive impairment. Thus, when the Deceased was in PLK Elderly Home, she often took away the personal items of other elders and wrongly accused others of stealing her food and money.

54.Insofar as the Deceased’s mental condition and cognitive abilities are concerned, the Defendant relies on the following matters and medical evidence:-

(1)  When the Deceased was admitted to the United Christian Hospital on 5 March 2018, she underwent a Montreal Cognitive Assessment. She scored only 8 out of 30.  It was assessed that the Deceased was cognitively impaired.

(2)  On 5 December 2018, the Deceased underwent a cognitive assessment with Christian Family Service Centre. For the mini-mental state examination, she scored 16 out of 30. She was found to have (i) suspected mild grade dementia; and (ii) impairments in orientation, short-term memory, attention and calculation, visuospatial and executive function.

(3)  When the Deceased was admitted to the United Christian Hospital on 12 December 2018 after an accidental slip, she was found to be cognitively impaired and in a state of confusion.

(4)  When the Deceased was admitted to the United Christian Hospital on 16 January 2019, she was found to be in a state of confusion.

(5)  When the Deceased was admitted to the United Christian Hospital on 21 April 2019, she was found to be cognitively impaired.

(6)  On 23 May 2019, Dr Jasmine Chan of Po Leung Kuk diagnosed that the Deceased had depression, dementia and suicidal ideas.

(7)  On 27 July 2019 and 7 August 2019, the Defendant was informed by the staff of PLK Elderly Home that the Deceased was in a state of confusion (神志不清).

55.In the premises, the Defendant contended the Plaintiff failed to show that when the 2019 Will was executed on 8 August 2019, the Deceased (i) was of testamentary capacity; and/or (ii) knew and understood the contents of the 2019 Will.

56.In this connection, the Defendant pointed out that on 8 August 2019 the Deceased was discharged from the United Christian Hospital against medical advice.

57.The Defendant also pointed out that:-

(1)  The Plaintiff signed the discharge document as a witness.

(2)  In the afternoon on 8 August 2019, the Deceased was taken to (i) report the alleged loss of her Hong Kong Identity Card; and (ii) report the alleged loss of her ATM card and apply for a new one.

(3)  In the evening on 8 August 2019, the Deceased was arranged to attend the office of Messrs Ho & Partners for executing the 2019 Will and the Power of Attorney.

(4)  Less than two weeks thereafter, on 20 August 2019, the Plaintiff attempted to sell the Property by entering into a preliminary sale and purchase agreement.

(5)  Three weeks after the 2019 Will was executed, the Deceased was admitted to the United Christian Hospital again. She was diagnosed to be in a state of disorientation with poor memory.

(6)  About 6 weeks after the 2019 Will was executed, on 26 September 2019 the Deceased passed away.

58.In the premises, the Defendant contended that:-

(1)  The 2019 Will is invalid and of no effect.

(2)  The 2017 Will (in respect of which probate was granted in her favour on 13 November 2019) is the last will made by the Deceased.

D.  Legal Principles

D1.  Assessment of Credibility 

59.In Lee Fu Wing v Yan Paul Po Ting [2009] 5 HKLRD 513 at 524, DHCJ Au (as Au JA then was) set out the well-established approach to assessing credibility. In the course of assessing the credibility of a party’s case, the court shall consider the following matters:

(1)  whether the party’s case is inherently plausible or implausible;

(2)  whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;

(3)  where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests, this is relevant to the assessment of his overall credibility; and

(4)  the demeanour of the witnesses.

60.In the context of adjudicating a dispute in relation to an alleged oral agreement or understanding, in Joint and Several Trustees of Yeung Wing Sing v Yeung Wing Sing & Anor [2021] HKCFI 2018 at para 26, Recorder Yvonne Cheng SC (as Cheng J then was) pointed out that:

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

(2)  in deciding whether to accept a witness’s account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events;

(3)   care should be taken in regard to the consistency of the witness’s evidence with undisputed or indisputable evidence, and the internal consistency of the witness's evidence;

(4)  care should be taken in drawing conclusions about truthfulness and reliability solely or mainly from the appearance of a witness or from the assessment of a witness’s character; and

(5)   witnesses’ credibility should be tested by reference to the objective facts proved independently of their testimony, and regard should be had to their motives and to the overall probabilities.

D2.  Common Intention Constructive Trust

61.The following legal principles on common intention constructive trust are well-established:-

(1)  The task of the court is to ascertain the parties’ intention, and this is to be done objectively: Mo Ying v. Brillex Development Ltd [2015] 2 HKLRD 985 at para 5.16 (per Cheung JA); Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9 at para 47 (per G Lam J, as he then was); Leung Hang Lin & Anor v. Lam Mei Yung [2019] HKCFI 2819 at para 8(3) (per DHCJ Alexander Stock SC).

(2)  The court would adopt a holistic approach, and take into account the whole course of conduct of the parties. The court will also take into account that the domestic context is very different from the commercial context: Stack v. Dowden [2007] 2 AC 432 at paras 60 and 69 (per Baroness Hale); Mo Ying (supra) at para 5.13-5.14 (per Cheung JA); Primecredit Ltd v. Yeung Chun Pang Barry [2017] 4 HKLRD 327 at para 1.6 (per Lam VP, as he then was).

(3)  The starting point is that beneficial ownership follows legal ownership, and the onus is vested upon the party who seeks to show that the beneficial ownership is different from the legal or registered ownership: Stack v Dowden (supra) at para 56 (per Baroness Hale); Mo Ying (supra) at para 5.16 (per Cheung JA); Leung Hang Lin (supra) at para 8(1) (per DHCJ Alexander Stock SC).

(4)  The onus can be discharged by showing that: (i) there was a common intention that the beneficial ownership was to be different from the legal ownership; (ii) the plaintiff altered his or her position in detrimental reliance upon the common intention; and (iii) it is unconscionable for the property owner to assert ownership in reliance on the legal title: Luo Xing Juan v. Estate of Hui Shui See (2009) 12 HKCFAR 1 at para 38 (per Ribeiro PJ); Liu Wai Keung (supra) at para 46 (per G Lam J as he then was); Leung Hang Lin (supra) §8(2) (per DHCJ Alexander Stock SC).

(5)  The court may find the parties’ common intention based on the parties’ express discussion as to how the property is to be held: Leung Hang Lin (supra) at para 8(4) (per DHCJ Alexander Stock SC); Mo Ying (supra) at para 5.8 (per Cheung JA).

(6)  The court can also rely on the parties’ conduct to infer the common intention, and direct financial contributions will readily justify an inference that the parties’ common intention is such that the plaintiff is to have an interest in the property: Mo Ying (supra) at para 5.8 (per Cheung JA); Primecredit Ltd (supra) §2.4 (per Lam VP, as he then was); Leung Hang Lin (supra) at para 8(4) (per DHCJ Alexander Stock SC).

D3.  The Approach to Proving Testamentary Capacity

62.The legal principles regarding the burden of proof and standard of proof in probate disputes were set out by Ribeiro PJ in Nina Kung v Wan Din Shin (2005) 8 HKCFAR at paras 171-178. In summary:-

(1)  The party who propounds a will has the legal or persuasive burden of satisfying the court that it is the will of the deceased.

(2)  The standard of proof is the balance of probabilities. The proponent of the will is required to show on the preponderance of the evidence that it is the will of the deceased.

(3)  The proponent of the will has the burden of proving on a balance of probabilities that (i) there was due execution of the will; (ii) the testator was of testamentary capacity; and (iii) the testator knew and approved the contents of the will.

63.In Re Estate of Lung Yee Fun [2024] HKCFI 1025 at paras 30 to 38, DHCJ Leung (as Leung J then was) comprehensively set out the legal principles relevant to testamentary capacity. The learned judge stated:-

“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 (19^th 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.”

(emphasis added)

64.Recently, in Cheung Ting Kau Vincent v Koo Siu Ying & Anor [2025] HKCFI 1401 at paras 63-64, Wilson Chan J stated:-

“63.  The test for testamentary capacity is well-established.  The locus classicus is Banks v Goodfellow (1870) LR 5 QB 549, where Cockburn CJ held at 564-565 that:

‘The English law leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances, caprice, or passion, or the power of new ties, or artful contrivance, or sinister influence, may lead to the neglect of claims that ought to be attended to, yet, the instincts, affections, and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead … than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law. …

… to the due exercise of a power thus involving moral responsibility, the possession of the intellectual and moral faculties common to our nature should be insisted on as an indispensable condition. It is essential … that a testator (1) shall understand the nature of the act and its effects; (2) shall understand the extent of the property of which he is disposing; (3) shall be able to comprehend and appreciate the claims to which he ought to give effect; and, (4) with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.’ (emphasis and numbering added)

64.  Before addressing each of the four criteria in greater detail, several preliminary points regarding this test should be noted:

(1)  First, the Banks v Goodfellow criteria do not require actual understanding but only the ability to understand.  As stated by Lewison LJ in Simon v Byford [2014] WTLR 1097 at §§39-40:

‘… it is important to emphasise that at this stage what we are dealing with is capacity, in other words with potential. … testamentary capacity must not be conflated with knowledge and approval of the contents of the will. The latter requires actual knowledge and approval. But the former ‘requires proof of the capacity to understand certain important matters…

In other words, capacity depends on the potential to understand.  It is not to be equated with a test of memory…’

(2)  Second, the question of testamentary capacity is a practical question to be assessed holistically by reference to the whole of the evidence (not merely the medical evidence), and with the application of “judicial common sense”: Re Estate of Lau Heung [2020] 2 HKC 19, §19 (Lam VP, as he then was).

(3)  In other words, while medical evidence is of course relevant, relevant evidence may often come from factual witnesses (for example, who speak of their dealings with the deceased), and sometimes such evidence may override the medical evidence of the experts.  In Simon v Byford, Supra at §17, Lewison LJ cited with approval the following passage from Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197:

“The criteria in Banks v Goodfellow are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for commonsense judicial judgment on the basis of the whole of the evidence. Medical evidence as to the medical condition of a deceased may of course be highly relevant, and may sometimes directly support or deny a capacity in the deceased to have understanding of the matters in the Banks v Goodfellow criteria. However, evidence of such understanding may come from non-expert witnesses. Indeed, perhaps the most compelling evidence of understanding would be reliable evidence (for example, a tape recording) of a detailed conversation with the deceased at this time of the will displaying understanding of the deceased’s assets, the deceased’s family and the effect of the will. It is extremely unlikely that medical evidence that the deceased did not understand these things would overcome the effect of evidence of such a conversation.” (emphasis supplied)

(4)  Third, in assessing whether the testator had testamentary capacity, the court may properly have regard to the rationality or irrationality of the dispositions in the will.  However, the focus of the inquiry must be on testamentary capacity, and not general questions of perceived morality.  This is because an irrational, unjust and unfair will must be upheld if the testator had capacity to make a rational and just one.  The court must not be “led astray by the drift of the evidence propelled by the underlying current of family rifts and sentiment and becomes lost at the sea of allegations and debates about morality and irrationality without a rudder”: Re Chiu Yau Chuen HCAP 9/2005 (unrep, 31/01/2012), §§76-79 (Poon J, as he then was).

(5)  Fourth and relatedly, the courts are mindful that many wills are made by people of advanced years, and that “slowness, illness, feebleness and eccentricity will sometimes be apparent – more so than in most persons of a younger age.  But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will… Nor will partial unsoundness of mind, which does not operate on the relevant capacities to appreciate the extent of and dispose of the estate, necessarily deprive the testator of testamentary capacity if it is shown that the will was signed during a lucid interval”: Re Estate of Griffith (1995) 217 ALR 284, 295 (Kirby P, as he then was).

(6)  Fifth, a person who lacks capacity due to defects in memory and comprehension may nonetheless acquire sufficient testamentary capacity if assisted by way of reminder and explanation: Hoff v Atherton [2005] WTLR 99, §§35 (Peter Gibson LJ), 58 (Chadwick LJ).”

(emphasis added)

E.  Deliberation: the Beneficial Interest in the Property

65.Having considered the inherent probabilities, the apparent logic of events, the contemporaneous documents, the parties’ objective conduct, the parties’ evidence as well as counsel’s submissions, I accept the Defendant’s case based on common intention constructive trust.

66.For the reasons elaborated below, I find that:-

(1)  the common intention or understanding asserted by the Defendant existed, and the Deceased did promise or assure the Defendant that she should have an interest in the Property in proportion to her financial contribution if she repaid the mortgage loan left behind by Father;

(2)  acting in detrimental reliance on such common intention or understanding, the Defendant did, with her own financial resources, pay the outstanding mortgage loan of HK$199,726.65.

(3)  it would be unconscionable for the Deceased’s estate to renege from the said common intention or understanding.

67.First of all, the entries in the bank passbooks in respect of the Defendant’s bank accounts maintained with China & South Sea Bank Ltd, Bank of China (Hong Kong) Ltd, National Commercial Bank Ltd and Hang Seng Bank Ltd[11] as well as the invoices/receipts dated 14 March 1995 and 19 April 1995[12] issued by China & South Sea Bank Ltd are incontrovertible evidence showing that the Defendant did pay the outstanding mortgage loan of HK$186,726.65[13] out of her own financial resources during the period from 19 May 1994 to 19 April 1995. At the material times, the Defendant worked as a part-time sewing worker and a cashier at Seven Eleven earning a monthly salary between HK$9,000 and HK$10,000. She had to rent out the rooms in her residential flat in order to generate additional monthly income between HK$5,000 and HK$6,000. In the circumstances, the payment of HK$186,726.65 was a considerable amount for the Defendant[14]. There is no suggestion that the Defendant was involved in Father’s factory business or that she had any prior or pre-existing interest in the Property. In my view, the only reason why the Defendant would make the financial contribution of HK$186,726.65 was that she acted on the Deceased’s express promise or assurance.

68.Second, the Plaintiff’s case is completely hollow. As Mr Stephen Siu (for the Defendant) pointed out, the Plaintiff had failed to adduce a shred of objective or documentary evidence to show that (i) he paid the deposit for purchasing the Property in the region between HK$70,000 to HK$90,000; (ii) he regularly paid a monthly sum to the Deceased from 1983 to 1998; (iii) the Deceased had HK$200,000 as of 2001 or 1994; (iv) the Deceased had withdrawn any money from her bank account for repaying the outstanding mortgage loan of HK$186,726.65; and (v) Father had paid HK$200,000 (or a substantial amount of money) to the Deceased.  

69.Third, whilst I accept that family members do not necessarily record their dealings in writing, I am simply not persuaded by the Plaintiff’s case, which is inherently improbable. The Property was the home for the family[15]. At the material times, the Plaintiff merely worked for Father at his factory. I do not believe that the person who funded the acquisition of the Property was the Plaintiff rather than Father.  Bearing in mind that Father was the head of the household, the Plaintiff’s suggestion was inherently unlikely. In this connection, the Plaintiff’s bare assertion that the purchase monies were ascribed to his salary is most artificial and incredible.

70.Fourth, the Plaintiff’s case has undergone a sea change:-

(1)  In his first witness statement[16] (which was made on 8 April 2022), the Plaintiff alleged that as of around 2001, there was still an outstanding mortgage loan of around HK$190,000. As Father refused to pay the outstanding mortgage, in around 2001, the Deceased, with the Defendant’s assistance[17], repaid the outstanding mortgage and the repayment funds came from the Deceased’s savings.

(2)  In his second witness statement[18] (which was made on 28 November 2022), the Plaintiff alleged that upon selling the interest in his factory in 1994, Father gave the Deceased a sum of HK$200,000 odd to the Deceased and the Deceased, with the Defendant’s assistance[19], utilized the same to repay the outstanding indebtedness under the mortgage in favour of China and South Sea Bank Ltd.

(3)  The two different versions of events alleged by the Plaintiff are self-contradictory and irreconcilable. The Plaintiff’s story has undergone a sea change as to:-

(a)  the time when the outstanding mortgage loan was repaid;

(b)  the source of funds; and

(c)  the question whether Father was willing and able to repay the outstanding mortgage loan.

(4)  Unsurprisingly, Mr Siu vigorously cross-examined the Plaintiff in regard to the sea change. Apart from making some bare assertions that his knowledge was based on what the Deceased allegedly told him in 2013 and that he had a misunderstanding in light of the public records of the Land Registry[20], the Plaintiff had no answer at all. The Plaintiff’s explanations are hardly convincing.  I am not of the view that the Plaintiff was able to explain the irreconcilable differences.

(5)  In my view, the Plaintiff’s knowledge as to the arrangement in respect of the mortgage repayment was limited. After all, he was not the person who repaid the mortgage loan. He simply sought to run a new case upon discovering that his initial case did not sit comfortably with the documentary evidence and the objective circumstances. I am not impressed by the Plaintiff’s litigation conduct. He told lies after lies.

71.Fifth, in any event, the Plaintiff’s new allegations are contradicted by the objective circumstances and the evidence of his own witness:-

(1)  As pointed out in paragraph 36 above, the incontrovertible bank records show that the Defendant repaid the outstanding mortgage loan owed to China and South Sea Bank Ltd via 13 tranches during the period from 19 May 1994 to 19 April 1995. Had the truth been that (i) Father provided HK$200,000 to the Deceased upon selling the interest in the factory and (ii) the Defendant merely assisted the Deceased in making the repayment, the Defendant would not have made the repayment via 13 tranches throughout a period of 12months. This did not make sense. I do not believe the Plaintiff’s bare assertion that the Defendant simply assisted the Deceased in making the repayment. In my view, the truth was that the Defendant repaid the outstanding mortgage out of her limited financial resources. This was the reason why it took her 12 months to repay the entirety of the outstanding mortgage loan.

(2)  More importantly, the Plaintiff’s case is flatly contradicted by the evidence of Madame Chung (who gave evidence for the Plaintiff). It is not in dispute that Madame Chung worked for the Father at the factory as an accountant or bookkeeper until 1994 when it ceased operation. When Madame Chung testified, she was adamant that Father’s factory failed and collapsed (倒閉). As will be elaborated below, Madame Chung was an impressive witness who had no reason to lie. I accept her evidence. There is simply no truth in the Plaintiff’s suggestion that Father sold the interest in the Factory in 1994 thereby generating a fund of HK$200,000 for the Deceased to repay the outstanding mortgage loan. I do not believe that someone would acquire the interest in a failed business.

(3)  I also find it difficult to believe the Plaintiff’s bare assertion that the relationship between Father and the Deceased improved around 1994. There is not a shred of evidence showing that this was the case. As pointed out by Mr Siu, the objective facts were that:-

(a)  The Deceased commenced divorced proceedings against Father. As of 9 January 2001, the divorce proceedings had not yet been resolved[21].

(b)  The relationship between Father and the Deceased was so bad that despite the order made by the Family Court, Father refused to render cooperation by signing the assignment for transferring the title of the Property in favour of the Deceased. As a result, the assignment dated 31 December 2002 for transferring the title in favour of the Deceased was executed by the Registrar of the High Court on the Father’s behalf.

72.Sixth, when Ms Queenie Ng (for the Plaintiff) cross-examined the Defendant, she pointed out that in the schedule of assets and liabilities in respect of the probate granted in the Defendant’s favour based on the 2017 Will, the Defendant failed to point out that the Deceased was only a partial beneficial owner of the Property and that part of the interest in the Property was held on trust for herself.  In this connection:-

(1)  I accept Ms Ng’s suggestion that the Defendant might not have informed her former solicitors about the trust arrangement. However, I am unable to accept Ms Ng’s submissions that the trust arrangement was an ex post facto concoction.

(2)  It was obvious that the Defendant’s purpose of applying for probate was to acquire the title of the Property[22]. As the Defendant emphasized during her oral evidence, she believed that the Deceased had already bequeathed the Property to her pursuant to the 2017 Will. As such, it was simply unnecessary for her to inform her former solicitors about the trust arrangement. No practical purpose could be served at all.

(3)  I accept the Defendant’s explanation, which makes sense from a layman’s perspective. After all, the Defendant is an unsophisticated person who has not received much education. In this connection, as pointed out by Mr Siu, the schedule of assets and liabilities did not even mention that the Property was subject to Father’s 20% interest under the charge. This shows that the Defendant was not a sophisticated person. I am not of the view that she could have appreciated the legal niceties.

73.Seventh, Ms Ng pointed out that as of the time when the Defendant repaid the mortgage loan of HK$186,726.65 back in 1994/1995, Father was still a co-owner of the Property. Ms Ng challenged the Defendant by asking whether she attempted to bring up the matter in the divorce proceedings. In response, the Defendant said that she did inform the Deceased’s matrimonial solicitor[23] about the matter.  However, the Deceased’s matrimonial solicitor indicated that she merely represented the Deceased in the divorce proceedings. As the Defendant emphasized, she entirely trusted her mother, and the litigating parties were her parents. I accept the Defendant’s explanation. I fully understand why the Defendant (who was not a scheming person in my view) did not wish to (i) be involved in the divorce proceedings between her parents; and (ii) cause complications to the divorce proceedings.

74.Eighth, Ms Ng took issue with the way in which paragraph 3 of the Defendant’s witness statement was drafted. She queried whether the Defendant’s common understanding with the Deceased was such that the Defendant should be repaid HK$186,726.65 in the future when the Property is sold.  In her oral evidence, the Defendant made it loud and clear that this was not the common understanding. She stressed that based on her common understanding with the Deceased, her entitlement was based on the proportion of her financial contribution and thus the amount to which she was entitled depended on the eventual sale price of the Property. In my view, the Defendant was an honest witness, whose answers were direct and to the point. I fully accept her oral evidence. In light of her low education level, I understand why her witness statement was not drafted eloquently in a clear manner. In any event, I do not believe the parties’ understanding was such that the Defendant’s financial contribution of HK$186,726.65 was a loan to be repaid when the Property is sold upon the Deceased’s demise. As Father refused to make any repayment, the Deceased must have been in desperation at the material times. In my view, it was likely that the Deceased would agree to share the interest in the Property with the Defendant based on the proportion of her financial contribution. This arrangement makes sense to me.

75.Ninth, Ms Ng challenged the Defendant as to why she returned the title deeds in respect of the Property in 2009. She pointed out that without the title deeds, the Defendant did not have any protection. I am not of the view the events in 2009 showed that the common intention or understanding did not exist at all. I accept the Defendant’s evidence that she fully trusted her mother. As will be elaborated below, the Defendant was indeed a filial daughter. It was understandable as to why she would abide by the Deceased’s instructions. In my view, it would be unreal to expect the Defendant to bargain with the Deceased as if they were commercial entities who did business with each other. This was not the case.

76.For all the above reasons, insofar as the beneficial interest in the Property is concerned, I prefer the Defendant’s case to the Plaintiff’s case.

77.In my view, but for the Defendant’s financial contribution of HK$186,726.65, China and South Sea Bank Ltd would have taken steps to foreclose the Property. In light of the detrimental reliance suffered by the Defendant, there is no reason why the court should not give effect to the common intention/understanding amongst the parties. It is plain that it would be unconscionable for the Deceased and/or her estate to renege from the common intention/understanding

78.In the premises, I find that a common intention constructive trust has arisen.

79.I also accept the Defendant’s case and expert evidence that as of May 1994, the market value of the Property was HK$1,310,000.

80.Accordingly, the Defendant’s financial contribution amounted to 14.25% of the market value of the Property at the time (ie HK$186,726.65  / HK$1,310,000).

81.On this basis, I find that 14.25% of the interest in the Property has been held on a common intention constructive trust in favour of the Defendant.

F.  Deliberation: the 2019 Will

F1.  The Relationship between the Deceased and the Defendant

82.Throughout his evidence, the Plaintiff kept seeking to demonize the Defendant.  For instance, he suggested that:-

(1)  The Defendant abandoned the Deceased, and as such the Defendant and her family had an aloof relationship with the Deceased.

(2)  The Defendant misappropriated the personal belongings (such as jewelry) and cash from the Deceased.

(3)  The Defendant unreasonably hijacked the Deceased's affairs. Whilst she concealed her whereabouts from 2016 to 2019, she also terminated her social security and took away her Hong Kong Identity Card as well as ATM card.

83.I do not accept the Plaintiff’s accusations.

84.As evidenced by the contemporaneous documents, the Defendant was the person who shouldered the primary responsibilities of taking care of the Deceased when she became weak and fragile. She assisted the Deceased to apply for social security in January 1998. She arranged contractors to repair the Property (where the Deceased lived). She engaged domestic helpers to take care of the Deceased. As the Deceased’s condition worsened and she could not get along with the domestic helpers, she made the arrangement for the Deceased to be taken care of in 永安老人健康中心 and later PLK Elderly Home.

85.I reject the Plaintiff’s suggestion that the Defendant located the Deceased to an unknown place and concealed her whereabouts.  According to the Plaintiff, from 2016 to 2019 he approached the Deceased at the Property on many occasions but of no avail. However, as evidenced by the employment contracts of the two domestic helpers dated respectively 19 August 2017 and 24 June 2018, the Deceased must have been living in the Property at the material time. With a view to bolstering the assertion that the Defendant had located the Deceased to an unknown place, the Plaintiff also said that his son, Chan Hiu Yam, who regularly played soccer somewhere around the area where the Property is located, would go near the Property to check whether the lights therein were turned on. However, for no explicable reason, Chan Hiu Yam (who accompanied the Plaintiff to attend court throughout the trial) did not testify. In the absence of any satisfactory explanation, I am of the view that Chan Hiu Yam was not arranged to testify because of the concern that had he testified, unfavourable facts would have been exposed. I am prepared to draw an adverse inference against the Plaintiff: see South China Securities Ltd v Lam Kwen Yuen [2012] 5 HKLRD 524 at para 7 (per DHCJ Lisa Wong SC, as Lisa Wong J then was); and Tullet & Tokyo International Securities v. APC Securities Co. Ltd [2001] 2 HKKRD 356, at 365B-J (per Le Pichon JA).

86.For completeness:-

(1)  I reject the Plaintiff’s suggestion that the Defendant had misappropriated the valuable personal items belonging to the Deceased. It is not in dispute that the Defendant kept some of the Deceased’s items (such as golden necklaces, golden wrist chains, gold rings, earrings, bracelets, etc) at home. As evidenced by the records of the Police, a burglary took place at the Defendant’s home back in January 2005, and the matter was reported.

(2)  I reject the Plaintiff’s suggestion that the Defendant terminated the Deceased’s social security out of spite. As evidenced by the contemporaneous document from the Social Welfare Department, the Deceased was no longer entitled to social security after she was admitted to PLK Elderly Home. The reason was that PLK Elderly Home was subsidized by the Government, and as such the Defendant could not claim “double benefit”.

(3)  I reject the Plaintiff’s suggestion that the Defendant took away the Deceased’s Hong Kong Identity Card. I accept the Defendant’s suggestion that the Deceased’s Hong Kong Identity Card was kept by the staff of PLK Elderly Home who had the duties of escorting the Deceased to hospital whenever she felt unwell.

87.I am of the view that the Defendant was objectively a filial daughter who had adequately discharged her moral obligations owed to the Deceased.

88.However, it does not necessarily follow that the Deceased subjectively appreciated the Defendant’s efforts. As pointed out by DHCJ Leung (as Leung J then was) in Re Estate of Lung Yee Fun (supra) at para 38:-

“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.”

89.As will be elaborated below, the Deceased undoubtedly showed a preference in favour of the Plaintiff. It appears that the Deceased was discontented with her situation in PLK Elderly Home. Whilst she blamed the Defendant for “imprisoning” her and not visiting her often, she was eager to see the Plaintiff and his family. She even believed that the Defendant wanted her to die soon. 

90.As evidenced by the audio recordings from a mobile phone that belonged to the Defendant[24], there were occasions when the Deceased and the Defendant had heated quarrels with each other during which they berated each other with rude words. I fully understand that it was burdensome and stressful to take care of a disgruntled elder and have no intention to criticize the Defendant.

91.However, the reality was such that the relationship between the Deceased and the Defendant was tense, and (as will be further elaborated) it cannot be said that the Deceased was fond of the Defendant in the final stages of her life.  Regrettably, the Deceased even expressed animosity and hatred towards the Defendant.

F2.  The Relationship between the Deceased and the Plaintiff

92.There is much to say about the Plaintiff’s conduct. For the reasons elaborated below, I would not go so far as to conclude that the Plaintiff wholly disregarded the well-being of the Deceased. Nonetheless, I have no doubt his foremost concern was his own financial interest.

93.The contemporaneous interview records from the Social Welfare Department showed that when the Deceased was arranged to apply for social security back in January 1998, the social workers were told that the Plaintiff was not in contact with the Deceased at all. This piece of contemporaneous document contradicted the Plaintiff’s assertion that he supported and took care of the Deceased throughout the years.

94.Further, for the reasons elaborated in paragraph 85 above, I do not believe that the Plaintiff and his family regularly attempted to locate the Deceased during the period from 2016 to 2019. Had they attempted to approach the Deceased, they would have known that the Deceased continued to live in the Property together with a domestic helper. In my view, the Plaintiff simply did not bother to visit the Deceased, and he put the blame on the Defendant when he approached the Deceased again in June 2019.

95.For completeness, I am also unimpressed by the Plaintiff’s evidence regarding the sum of HK$125,000:-

(1)  What happened was that pursuant to the Power of Attorney executed by the Deceased during the occasion on 8 June 2019, the Plaintiff entered into a preliminary sale and purchase agreement dated 19 August 2019 to sell the Property at HK$4,880,000.

(2)  However, it transpired the purchaser failed to complete the transaction, and she agreed to pay a compensation sum of HK$125,000.

(3)  It was the Plaintiff’s evidence after depositing the said sum of HK$125,000 into the Deceased’s bank account, he instructed his son, Chan Hiu Yam, to use the Deceased’s new ATM card to transfer the sum of HK$125,000 into his own bank account. Chan Hiu Yam then effected the transfer via a few tranches on various dates. He eventually withdrew the sum from his bank account and handed the same to the Plaintiff. According to the Plaintiff, he gave the sum of HK$125,000 to the Deceased a few days after 31 August 2019, and this event took place in the Property.

(4)  I have no hesitation in rejecting the Plaintiff’s allegations.

(5)  First of all, for reasons best known to the Plaintiff, the Plaintiff has failed to (i) produce the bank records showing that Chan Hiu Yam withdrew the sum of HK$125,000 from his bank account; and (ii) adduce evidence from Chan Hiu Yam (who accompanied him to attend court throughout the trial). Apart from harping that it was unnecessary for him to adduce evidence from so many witnesses, the Plaintiff was unable to put forward any explanation when he was cross-examined by Mr Siu.  I reject his explanation.  I am of the view that had the relevant bank records been produced and the evidence of Chan Hiu Yam been adduced, the unfavourable fact that the sum of HK$125,000 was still sitting in Chan Hiu Yam’s account would have been exposed.  This was the reason why the Plaintiff did not produce the relevant bank records and did not adduce evidence from Chan Hiu Yam: see South China Securities Ltd v Lam Kwen Yuen (supra) at para 7 (per DHCJ Lisa Wong SC, as Lisa Wong J then was); and Tullet & Tokyo International Securities v. APC Securities Co. Ltd (supra) at 365B-J (per Le Pichon JA).

(6)  Second, during cross-examination, Mr Siu, based on the contemporaneous medical records, demonstrated that the Deceased was hospitalized in the Heaven of Hope Hospital until 9 September 2019. Thus, the Plaintiff could not have handed the sum of HK$125,000 to the Deceased in cash in the Property a few days after 29 August 2019.

96.In the premises, it appears that the Plaintiff and/or his son Chan Hiu Yum simply pocketed the sum of HK$125,000, which belonged to the Deceased. This incident demonstrated that the Plaintiff acted out of greed.

97.However, there is no evidence showing that the Deceased appreciated the illaudable conduct on the part of the Plaintiff and/or his son. As such, Deceased could not have taken issue in respect thereof. In any event, the matters regarding the sum of HK$125,000 took place after the 2019 Will was executed on 8 August 2019.

98.More fundamentally, the task of this court is not to judge the Plaintiff’s morality or character. The task of this court is to give effect to the Deceased’s testamentary wish and to ascertain whether she had the requisite testamentary capacity at the time when the 2019 Will was made on 8 August 2019.

99.In this connection, it is pertinent to reiterate the following proposition in Cheung Ting Kau Vincent v Koo Siu Ying & Anor (supra) at para 64(4) (per Wilson Chan J) referring to Re Chiu Yau Chuen (HCAP 9/2005, 31 January 2012) at paras 76 to 79 (per Poon J, as Poon CJHC then was):-

“…in assessing whether the testator had testamentary capacity, the court may properly have regard to the rationality or irrationality of the dispositions in the will.  However, the focus of the inquiry must be on testamentary capacity, and not general questions of perceived morality.  This is because an irrational, unjust and unfair will must be upheld if the testator had capacity to make a rational and just one.  The court must not be “led astray by the drift of the evidence propelled by the underlying current of family rifts and sentiment and becomes lost at the sea of allegations and debates about morality and irrationality without a rudder”

100.Bearing in mind that the Deceased was a traditional elder who came from a rural area in Chiu Chau (潮州)[25], it was explicable as to why she (i) preferred her son (ie the Plaintiff) to her daughter (ie the Defendant); and (ii) wanted her son (ie the Plaintiff) to inherit her assets. As admitted by the Defendant during a recorded conversation with a staff of PLK Elderly Home on 23 July 2019, the Deceased did prefer her son to her daughter (重男輕女). The Defendant also lamentably said that (i) it appeared that the Deceased no longer wished to see her after the Plaintiff approached her; and (ii) she was used to the unfair treatment.

101.As will be elaborated below, the incidents that took place in June and August 2019 also showed that whilst the Deceased expressed a strong preference in favour of the Plaintiff, she expressed hatred and animosity towards the Defendant.

F3.  The Incident on 3 June 2019

102.As mentioned, Madame Chung worked together with Madame Wong (ie the Plaintiff’s wife) at Father’s factory until 1994. She maintained a friendly relationship with Madame Wong and the Deceased throughout the years. She had meals with them about two times a year. Madame Chung’s evidence in this regard was not seriously challenged.

103.According to Madame Chung, on 3 June 2019, she visited the Deceased at PLK Elderly Home together with the Plaintiff, Madame Wong and Chan Hiu Yam.

104.In her witness statement, Madame Chung said that the Deceased was glad and excited to see them. During the exchange, the Deceased did say that she wished to cancel her previous will.

105.When Madame Chung was cross-examined, she mentioned that during the conversations, the Deceased made it crystal clear that she wanted her son (ie the Plaintiff) to inherit her Property. This was the reason why she reiterated this point on the occasion on 8 August 2019 when she chatted with Ms Ho, the Deceased, the Plaintiff, Madame Wong and Chan Hiu Yam[26]. When asked why during the occasion on 8 August 2019 she would, on her own volition, say that the Deceased was (so to say) imprisoned by the Defendant at an elderly home, Madame Chung said that this was something that the Deceased said to her.

106.I fully accept Madame Chung’s evidence. Without any interest in the outcome of these proceedings, she had no reason to lie. This explains why she was fair and candid. As mentioned, she was willing to give evidence that flatly contradicted the Plaintiff’s case regarding the beneficial interest in the Property: see paragraph 71(2) above. Further, whilst Madame Chung’s answers were direct, succinct and reasonable, she was also willing to make concessions. I am of the view that Madame Chung was an honest and impressive witness.

107.In the premises, I find that:-

(1)  As of 3 June 2018, the Deceased was capable of engaging in normal conversations. She was capable of expressing her wish.

(2)  The Deceased was fond of the Plaintiff and his family members. She was glad and excited when they visited her on 3 June 2018.

(3)  As of 3 June 2018, the Deceased was not fond of the Defendant and she expressed animosity towards her. She took the view that the Defendant “imprisoned” her in PLK Elderly Home. It did not appear that she was content with her life at PLK Elderly Home.

(4)  On the occasion on 3 June 2018, the Deceased unequivocally indicated that she wanted the Plaintiff to inherit her Property.

F4.  The Incident on 7 August 2019

108.As evidenced by the recorded telephone conversations between the Defendant and a staff of PLK Elderly Home, on 7 August 2019, the Deceased made a fuss. She demanded to see her son (ie the Plaintiff) and complained that three women tried to kill her. In the circumstances, she threatened to call the Police.

109.When Mr Siu cross-examined Dr Wong (the details of which will be elaborated), it was suggested that the Deceased underwent a hallucination. I disagree that this was the case. In my view, it could be the case that the Deceased was discontented with the way in which she was treated. As such, she exaggerated her complaint by suggesting that her caretakers tried to kill her.

110.In any event, what was important was that the Deceased demanded to see the Plaintiff immediately. This showed the Deceased’s love for and emotional attachment to the Plaintiff. As the Defendant acknowledged during the telephone conversations, the Deceased would be even more furious if she came to visit her. This showed that the Deceased was hostile to the Defendant at the time.

F5.  The Events on 8 August 2019 and Dr Hung’s Opinion

111.It is not in dispute that in the morning of the next day (ie 8 August 2019), the Plaintiff, Madame Wong and Madame Chung visited the Deceased at PLK Elderly Home.

112.What happened on 8 August 2019 was as follows:-

(1)  When the Plaintiff, Madame Wong and Madame Chung were chatting with the Deceased at PLK Elderly Home, the Deceased indicated that she could not breathe smoothly or properly. In the circumstances, the Deceased was sent to the United Christian Hospital by ambulance.

(2)  The Plaintiff, Madame Wong and Madame Chung attended the United Christian Hospital. So did the Defendant. It transpired that the Plaintiff and the Defendant had a heated quarrel with each other. As the Deceased indicated that she only wanted the Plaintiff to accompany her, the Defendant left.

(3)  According to the Plaintiff, the Deceased’s condition improved after receiving treatment, and she did not want to be hospitalized. As the doctor who treated the Deceased had no objection that the Deceased be discharged, the Deceased was arranged to execute the relevant document, and the Plaintiff also signed the same as a witness.

(4)  According to the Defendant, the Plaintiff forcibly insisted that the Deceased be discharged. This was against the doctor’s medical advice.

(5)  After the Deceased left the United Christian Hospital, the Plaintiff, Madame Wong, Madame Chung and Chan Hiu Yam accompanied her to (i) attend the Immigration Department in Kwun Tong to report the alleged loss of her Hong Kong Identity Card[27]; (ii) have lunch at a Chinese restaurant; and (iii) attend HSBC’s branch in San Po Kong to report the alleged loss of her ATM card[28].

(6)  In the late afternoon or evening, the Plaintiff, Madame Wong, Madame Chung and Chan Hiu Yam accompanied the Deceased to attend the office of Ms Ho’s law firm in Admiralty. There, the Deceased was examined by Dr Hung and she then executed the 2019 Will and the Power of Attorney.

113.Mr Stephen Siu extensively cross-examined the Plaintiff, Madame Wong and Madame Chung in regard to the events that took place on 8 August 2019. As I understand, the purpose of Mr Siu’s cross-examination was to demonstrate that (i) there was a premeditated plan to arrange the Deceased to make the 2019 Will and execute the Power of Attorney on 8 August 2019; and (ii) the Plaintiff forcibly implemented such a premeditated plan, despite the unsatisfactory condition suffered by the Deceased.

114.I accept that the appointment with Ms Ho was pre-arranged prior to 8 August 2019[29]. Otherwise, Ms Ho could not have prepared the documents before the appointment[30] and Dr Hung would not have been available.

115.However, I do not accept the suggestion that the Deceased’s condition was unsatisfactory at the material times.

116.First of all, as pointed out by Dr Hung[31] when he was cross-examined by Mr Siu and as evidenced by the contents of the discharge form, a patient would not be allowed to be discharged from a hospital unless the responsible doctor was satisfied that he or she was conscious and capable of understanding the contents of the discharge form. Had the Deceased suffered from Delirium or appeared to be confused, it was unlikely that the doctor at the United Christian Hospital would have allowed her to execute[32] the discharge form.

117.Second, more importantly, I have carefully considered (i) the video showing that the Deceased had lunch at the Chinese restaurant; and (ii) the two videos showing that the Deceased had casual conversations with Ms Ho, the Plaintiff, Madame Wong and Chan Hiu Yam before Dr Hung arrived. In these videos, the Deceased acted like a normal person. She was capable of eating by herself. She was able to follow the conversations. She was alert and responsive. She appeared to be in a good mood. I cannot detect any sign of sickness on the part of the Deceased.

118.In the premises:-

(1)  I am not of the view that the Deceased continued to suffer from any condition after she received treatment in the United Christian Hospital.

(2)  I accept the Plaintiff’s suggestion that the Deceased requested to leave the United Christian Hospital, and the doctor did not raise a strong objection, though this was not the most advisable course to take. Thus, out of an abundance of caution, the Deceased and the Plaintiff were required to sign a discharge form indicating that they appreciated the risks involved.

(3)  In light of the evidence from Madame Chung (which I accept: see section F3 above), I also accept the Plaintiff’s suggestion that an arrangement was made for the Deceased to execute the 2019 Will on 8 August 2019 because the Deceased requested that this be done.

119.As to the events that took place at Ms Ho’s office in the late afternoon or evening on 8 August 2019, the abovementioned videos show that before Dr Hung arrived, the Deceased said that her daughter (ie the Defendant) wanted her to die and deceived her. This was unfortunate. Be that as it may, the focus of the discussion was to advise the Deceased that instead of speaking the Chiu Chau dialect, she should speak Cantonese slowly, such that Dr Hung could understand her. The Deceased apparently understood the conversations (which were in Cantonese). Although the Deceased was reluctant to speak Cantonese, she was willing to try.

120.When Dr Hung’s arrived, he examined the Deceased in the presence of Ms Ho and Madame Chung[33]. According to Madame Chung, no less than 60% of the conversations took place in Cantonese without her interpretation, and the Deceased could express herself in Cantonese. According to Ms Ho, almost 80% of the conversations took place in Cantonese. She also took the view that the Deceased was capable of expressing herself in Cantonese. According to Dr Hung, the Deceased “spoke a dialect mixed with Cantonese and it was possible to understand a substantial part of what she said without interpretation necessary”[34]. When Dr Hung was cross-examined, he emphasized that he asked the Deceased the same questions a few times in order to ensure that (i) there was no misunderstanding on his part; and (ii) the answers from the Deceased were consistent.

121.Dr Hung, Ms Ho and Madame Chung were fair, honest and cooperative witnesses. Based on their evidence (which I accept), I find that a substantial part of the conversations during the examination were in Cantonese, and interpretation was unnecessary. I also find that whilst Madame Chung interpreted some of the words said by the Deceased in the Chiu Chau dialect, she did not hijack the conversations; nor did she put words into the Deceased’s mouth. As pointed out, Madame Chung has no interest in the outcome of the present matter. Having observed how she gave evidence, I am of the view that she is a person with integrity.

122.For the above reasons:-

(1)  I do not believe that Madame Chung would seek to mislead Dr Hung.

(2)  I am also of the view that Dr Hung (who repeated his questions to the Deceased) was vigilant enough to ensure that (i) the Deceased understood his questions; (ii) he understood the Deceased’s answers; and (iii) the Deceased’s answers were consistent.

123.Dr Hung’s assessment and observations were as follows:-

(1)  The Deceased was alert, conscious and aware of her surroundings. She had good eye contact and was fully engaged in the conversations. She even made appropriate jokes.

(2)  Upon Ms Ho’s explanation:-

(a)  The Deceased was able to understand the nature of a will. The Deceased said that she executed a will many years ago, though she forgot when it was executed. She wanted to cancel the previous will.

(b)  The Deceased was also able to understand that the new will to be executed (ie the 2019 Will) would take effect after her death and that the same would replace the previous will that she made (ie the 2017 Will).

(3)  The Deceased knew and was able to confirm that she had a property in Kwun Tong. In this connection, she even asked Ms Ho whether such a property (ie the Property) had been registered in the Defendant’s name[35].

(4)  The Deceased said that she had a bad relationship with the Defendant, who did not treat her as her mother.  The Deceased reiterated that the Defendant wanted her to die. She also accused the Defendant of taking away her old age allowance, not visiting her at the elderly home, instructing the staff of the elderly home (ie PLK Elderly Home) not to let her go out, and not informing the Plaintiff as to the location of the elderly home. She even said that had the Defendant treated her well, she would not have needed to change the documents here at the solicitors’ office.

(5)  The Deceased said that she had a good relationship with the Plaintiff, who would visit her at the elderly home. 

(6)  The Deceased said that she wanted to bequeath all her assets to her son, ie the Plaintiff, upon her death. In this connection, the Deceased was adamant that she did not want to leave a single penny to her daughter (ie the Defendant) who did not recognize her as her mother.

(7)  The Deceased said that she wanted the Plaintiff to manage her landed property (ie the Property). Whilst she understood that the rental income belonged to her, she wanted to give the same to the Plaintiff. In this connection, the Deceased also said that if she kept the money, the people at the elderly home might steal the same while she was asleep.

124.In the premises, Dr Hung opined that (i) the Deceased did have the requisite testamentary capacity to execute a will; and (ii) she did have the ability to appreciate the nature and effect of a will.

125.Accordingly, upon Ms Ho’s explanation of the contents[36]:-

(1)  The Deceased executed the 2019 Will, and Ms Ho and a legal executive (namely Chan Hau Cho) also signed their names on the 2019 Will in the capacity of witnesses.

(2)  The Deceased also executed the Power of Attorney.

126.Both Dr Hung and Ms Ho jotted contemporaneous notes, which have been produced to the court. Dr Hung and Ms Ho were respectable professionals and cooperative witnesses. I accept that their contemporaneous notes (the contents of which were not challenged) substantially recorded the discussion during the examination. 

127.However, based on the contents of these contemporaneous notes as well as the words spoken by the Deceased as recorded in the aforesaid videos, Mr Siu tactfully cross-examined Dr Hung on, inter alios, the following matters:-

(1)  Mr Siu pointed out that as evidenced by the contemporaneous notes, the Deceased was wrong to suggest that the Plaintiff “took home HK$4,000 per month to pay the mortgage on the [Property]” and that he contributed around HK$100,000. In light of my findings set out in Section E above, there were two possibilities. The first possibility was that the Deceased, out of spite, concealed the Defendant’s financial contribution and she did this in order to denigrate or belittle the Defendant. This had nothing to do with the Deceased’s testamentary capacity. The second possibility was that the Deceased had genuinely forgotten the Defendant’s financial contribution of HK$186,726.65. In this connection, as pointed out by Dr Wong (whose opinion will be elaborated below), forgetfulness is a common phenomenon, and a person who is forgetful does not ipso facto have no testamentary capacity. More importantly, Dr Hung pointed out that the Deceased voluntarily proffered the information regarding the mortgage payments, and for present purposes, such information was only a peripheral matter. Dr Hung emphasized that the material reasons why the Deceased bequeathed the Property to the Plaintiff was that she favoured the Plaintiff and that she believed the Defendant treated her badly. In other words, the questions regarding mortgage repayment did not form part of the Deceased’s material reasoning. I accept Dr Hung’s opinion as well as Dr Wong’s opinion. Even if the Defendant had an incorrect recollection regarding the matters relating to the mortgage repayment, it does not ipso facto follow that the Defendant lacked testamentary capacity at the material times. As evidenced by the videos and the contemporaneous notes, the Deceased was plainly able to articulate her perception as to how she was treated by her children. I am not of the view that the Deceased was confused when she executed the 2019 Will on 8 June 2019.

(2)  Mr Siu pointed out that the Deceased was discharged from the United Christian Hospital against medical advice in the morning of 8 June 2019 and she had a long medical history of suffering from respiratory diseases. On this point, Dr Hung was adamant that the Deceased did not suffer from Delirium at the time. Dr Hung pointed out that Delirium meant reduced consciousness due to an underlying course (such as infection), and it would be very apparent to a trained professional. However, so long as the underlying cause was cured, Delirium would be extinguished. I accept Dr Hung opinion. Having carefully considered the videos, I am of the view that the Deceased was perfectly sober and responsive during the occasion on 8 June 2019. I am not of the view that she acted under any delusion or was insane. I am also not of the view that she underwent Delirium at the material times.

(3)  Mr Siu took issue with the Deceased’s suggestion that Father “died a few years ago leaving the [Property] in Kwun Tong to her”.  He pointed out that 20% interest in the Property was subject to a charge in favour of Father[37]. In my view, the Deceased’s suggestion was equivocal. What she could have meant was that Father was the one who purchased the Property. Since he had passed away already, the Property was hers. Based on this interpretation, it cannot be said that the Deceased’s statement was entirely incorrect. Since Father (who had faded out from the Deceased’s life) had passed away, he was not in a position to enforce the charging order imposed by the Family Court. In any event, Dr Hung pointed out that for the purposes of making a will, the crucial questions are (i) who owns the assets in question; and (ii) who would be the beneficiaries. The question as to how the testator acquired the assets is just a peripheral matter. I accept Dr Hung’s opinion. Since Father had passed away, he could not be a potential beneficiary. In any event, the Deceased was correct to point out that Father had passed away. There is no suggestion the Deceased would consider bequeathing the interest in the Property to him.

(4)  Mr Siu pointed out that the Deceased could not recite the full address of the Property. However, Dr Hung pointed out that even though some elders could not recite the address, they have no problem in returning home. As Dr Hung emphasized, in the present case, the Deceased knew that the Property was in Kwun Tong and that the same was hers. There is no question that the Deceased was able to identify the Property, and she knew that she was the owner of the Property. These were the important matters for present purposes.

(5)  Mr Siu pointed out that as evidenced by Ms Ho’s contemporaneous notes, the Plaintiff could not remember whether the Defendant had children. Dr Hung emphasized the important points were that (i) the Deceased understood that she owned the Property; and (ii) the Deceased was adamant that the Property be bequeathed to the Plaintiff upon her death. Dr Hung further pointed out that the Deceased would not consider bequeathing any asset to the Defendant and/or her family members due to her bad relationship with the Defendant (which was a matter of overall impression). In the premises, the question of whether the Defendant had children or not was not important for present purposes. I agree with Dr Hung’s analysis, which makes sense.

(6)  Mr Siu pointed out that as recorded by the videos, when the Deceased was advised to speak Cantonese to Dr Hung, she said that she had just come to Hong Kong[38]. Whilst it appears to me that this was a Freudian slip, Dr Hung was of the view that the Deceased made up an excuse as she felt embarrassed. In any event, the Deceased was not specifically asked when she came to Hong Kong, and this was not part of the examination. In this connection, I agree with Ms Ng’s observation that the Deceased had not yet finished her sentence when she spoke, and it was uncertain as to what she intended to say next. In the circumstances, the Deceased’s response was simply equivocal. I am not of the view it can be shown that the Deceased was actually confused as to when she came to Hong Kong.

(7)  Mr Siu pointed out that the Deceased suffered from Neurocognitive Disorders (which was often colloquially referred to as dementia) at the material times. In this connection, Dr Hung was quick to point out that a person who suffers from Neurocognitive Disorders (or dementia) does not necessarily have no testamentary capacity. This is because making a will is a “task-specific” exercise. As such, depending on the condition of the patient, he or she could still be capable of understanding (i) the nature of a will; (ii) the extent of the property of which he or she is disposing; and (iii) the claims to which he or she ought to give effect. These are matters to be assessed on a case-by-case basis. In the present case, having carefully observed how the Deceased responded to his questions, Dr Hung was firmly of the view that the Deceased did have the requisite testamentary capacity.  I fully accept Dr Hung’s opinion, which makes sense.

(8)  Lastly, Mr Siu submitted that the Deceased’s accusations against the Defendant were wrong. However, there is no medical evidence showing that the Deceased underwent a hallucination (definition of which is having thoughts that are not induced by external stimulation) during the occasion on 8 August 2019. In my view, this was a matter of perception that depended on the subjective feeling on the part of the Deceased. After all, the Deceased was discontented with her life at PLK Elderly Home, and she put the blame on the Defendant. I cannot conclude that the Deceased was of an unsound mind simply because she subjectively took the view that the Defendant treated her badly.

128.For the above reasons, I am not of the view Mr Siu was able to undermine the analysis and opinion of Dr Hung.

129.Having carefully observed how the Deceased interacted with those who were present during occasion on 8 August 2019 (the process of which was recorded in the two videos), I wholly agree with Dr Hung’s opinion that (i) the Deceased did have the requisite testamentary capacity to execute a will; and (ii) the Deceased did have the ability to appreciate the nature and effect of a will.

130.Indeed, whilst Dr Hung’s opinion made ample common sense, what the Deceased said to Dr Hung was consistent with the preference that she previously indicated before the occasion on 8 August 2019.

131.In light of the Deceased’s preference in favour of the Plaintiff, I am not of the view that the Deceased’s decision under the 2019 Will was irrational or inexplicable.

132.I am of the view that the Deceased knew and duly approved the 2019 Will, the contents of which were (i) properly explained by Ms Ho and (ii) perfectly consistent with the Deceased’s preference in favour of the Plaintiff.  I am not of the view that the Deceased’s mind was unsound when she executed the 2019 Will.

F6.  Dr Wong’s Opinion

133.Based on, inter alios, the Deceased’s medical records and the materials relating to the occasion on 8 June 2019 (including the two videos and Dr Hung’s assessment), Dr Wong conducted a retrospective psychiatric diagnosis.

134.Dr Wong accepted that the Deceased suffered from Delirium when she was hospitalized in early 2019 (which was ascribed to respiratory failure). He also accepted that as of 5 December 2018, the Deceased had been in a state between a severe degree of Minor Neurocognitive Disorders and a mild degree of Major Neurocognitive Disorders due to Alzheimer’s Disease.

135.Nonetheless, Dr Wong was of the view that the Deceased should have retained (i) robust memories of events about herself and her children up to late 2016 or early 2017; and (ii) memories about the events afterwards, albeit with some memory gaps.

136.Dr Wong was also of the view that as evidenced by the two videos that were taken during the occasion on 8 August 2019:-

(1)  The Deceased retained sufficient memory function and cognitive function to understand what she said.

(2)  The Deceased was not in a state of Delirium at the time.

(3)  It did not appear (and there was no evidence showing) that the Deceased suffered from any other psychiatric or psychotic disorder at the time.

137.Dr Wong opined that on the occasion on 8 August 2019, the Deceased:-

(1)  retained mental capacity to understand the nature and effects of making a will;

(2)  retained sufficient long-term memory function for her to remember the Property;

(3)  retained sufficient long-term memory function for her to make the decision of bequeathing the Property to the Plaintiff;

(4)  was not affected by any disorder or disease of mind that might impair her mental capacity to make a will; and

(5)  retained sufficient ability to assess her relationship with the Plaintiff and the Defendant. 

138.When Dr Wong gave oral evidence, he made, inter alios, the following pertinent points:-

(1)  Due to memory loss or imperfect memory, a patient could miscomprehend a state of affairs. For instance, a patient may forget that he keeps his money in his pocket and wrongly accuses others of misappropriation. This phenomenon is not hallucination (ie thoughts that are not induced by external stimulation). It also does not necessarily have anything to do with the patient’s testamentary capacity, which concerns his abilities to (i) appreciate the nature of a will; (ii) understand the property of which he is disposing; and (iii) appreciate the claims to which the will ought to give effect.

(2)  When a patient suffers from Delirium, his speech is irrational and incoherent as he is mentally confused. It would be very easy for a trained professional to detect Delirium. This echoes Dr Hung’s opinion, which I accept.

(3)  Delirium develops over a short period of time, and once the underlying cause is cured, the patient is no longer affected by Delirium. Again, this echoes Dr Hung’s opinion, which I accept.

(4)  The information in the “generic nursing care plans” does not show that the Deceased was capable of making rational speech when she underwent Delirium. In order to detect whether the Deceased suffered from Delirium, one had to consider the specific remarks or observations made by the doctors or nurses[39]. The “generic nursing care plans” are simply standard documents, and the assessment standard applied by the nurses varies. Hence, for present purposes, the value of the general information contained in the “generic nursing care plans” is limited.

(5)  Like Dr Hung, Dr Wong was also of the view that making a will is a task-specific exercise. As such, one could not adopt a dogmatic approach to interpret a patient’s score in the “mini-mental state examination”. Instead, one should analyze the patient’s performance in respect of the specific questions on a qualitative basis. Insofar as the performance of the Deceased was concerned, Dr Wong opined the Deceased demonstrated that her immediate memory and short-term memory were good (or at least functional). Hence, she was alert and capable of responding to questions asked of her. Dr Wong also pointed out that the Deceased’s poor performance on calculation significantly dragged down her overall score[40]. Dr Wong was of the view that for present purposes, the questions on calculation were not of significance. After all, the Deceased was a 90-year-old elder who did not receive much education. Bearing in mind that will-making is a task-specific exercise that has nothing to do with calculation and figures, the Deceased’s poor performance in this regard does not shed much light on her testamentary capacity.

139.Dr Wong demonstrated sound knowledge in the field of psychiatry. His opinion and explanation make sense to me. I fully accept his expert evidence.

F7.  Sum Up

140.For all the above reasons, I find that:-

(1)  Although the Defendant was a filial daughter and had taken up the primary responsibilities of taking care of the Deceased from 2016/2017 onwards, the Deceased did not appreciate the Defendant’s efforts.  There were occasions where the Deceased and the Defendant had heated arguments with each other and their relationship was tense.

(2)  The Deceased was discontented with her life at PLK Elderly Home. She put the blame on the Defendant. She took the view that the Defendant falsely imprisoned her at PLK Elderly Home, that the Defendant did not visit her often, that the Defendant took away her old age allowance, that the Defendant did not allow the Plaintiff to visit her and that the Defendant did not treat her as her mother.

(3)  The Deceased, who was a traditional elder from Chiu Chau (潮州), preferred his son to his daughter (重男輕女). She loved and was emotionally attached to the Plaintiff (who was his only son).

(4)  In the circumstances, the Deceased decided to bequeath all her assets (including the Property) to the Plaintiff.  Before the 2019 Will was executed, there were occasions (including the occasion on 3 June 2019) where the Deceased unequivocally indicated that she wanted to give the Property to his son.

(5)  When the Deceased was hospitalized in late 2018 and early 2019, there were moments when she was in a state of confusion. This was ascribed to Delirium, which was caused by respiratory failure.

(6)  However, when the Deceased attended Ms Ho’s office on 8 June 2019, she did not suffer from Delirium; nor did she suffer from any other medical condition. She was perfectly sober, alert and conscious. She was able to interact with those who were present. She was also able to answer questions in a direct manner and was not confused at all.

(7)  The examination on 8 June 2019 took place in the way in which Dr Hung described. In this regard, I fully accepted Dr Hung’s evidence. During the interview, the Deceased made it clear to Dr Hung and Ms Ho, inter alios, that:-

(a)  She had a good relationship with the Plaintiff and a bad relationship with the Defendant who (in her view) did not treat her well.

(b)  She appreciated that she was the owner of the Property.

(c)  She wanted the Plaintiff to inherit all her assets, including the Property, upon her death.

(d)  She did not want the Defendant to inherit a penny.

(e)  She understood that her will would only take effect upon her death.

(8)  Although the Deceased was in a state between a severe degree of Minor Neurocognitive Disorders and a mild degree of Major Neurocognitive Disorders, she retained sufficient mental capacity and memory function to (i) understand the nature and effects of making a will; (b) remember the Property; and (iii) make the decision of bequeathing the Property to the Plaintiff.

(9)  The Deceased was not affected by any other disorder and/or disease of mind that might impair her capacity to make a will.

(10)  In the premises, the Deceased did have (i) the requisite testamentary capacity to make the 2019 Will; and (ii) the ability to appreciate the nature and effect of the 2019 Will.

(11)  In particular, the Deceased did understand (i) the nature of the 2019 Will; (ii) the assets that were covered by the 2019 Will; and (iii) the claims to which the 2019 Will ought to give effect.

(12)  Hence, the Deceased must have known and approved the contents of the 2019 Will, which Ms Ho duly explained to her in the presence of Dr Hung and Madame Chung.

(13)  For completeness, the 2019 Will was also duly executed and in compliance with the statutory requirements under section 5 of the Wills Ordinance, Cap 30.

G.  Order and Disposition

G1.  The Beneficial Interest in the Property

141.In the premises, insofar as the beneficial interest in the Property is concerned, I make the following orders:-

(1)  It is declared that 14.25% of the interest in the Property has been held on a common intention constructive trust for the Defendant, and the Defendant is a 14.25% beneficial owner of the interest in the Property.

(2)  The Plaintiff do take all necessary steps to cause the estate of the Deceased’s estate to transfer 14.25% of the interest in the Property to the Defendant.

(3)  There be liberty to apply.

G2.  The Estate of the Deceased

142.Insofar as the Deceased’s estate is concerned, I make the following orders:-

(1)  The grant of probate in favour of the Defendant based on the 2017 Will be revoked.

(2)  It is declared that the 2019 Will is the true last will of the Deceased.

(3)  The 2019 Will be pronounced in solemn form of law.

(4)  There be liberty to apply.

G3.  Costs

143.Considering all the circumstances in the round, I am inclined to the view that the fair costs order to make is that the Plaintiff’s costs and 65% of the Defendant’s costs be paid out of the Deceased’s estate. I take this tentative view for the following reasons:-

(1)  The Defendant is the successful party in respect of the dispute regarding the beneficial ownership of the Property. In light of the available evidence, the Deceased as well as the Plaintiff should not have denied her 14.25% beneficial interest in the Property.

(2)  The Plaintiff is the successful party in respect of the dispute regarding the Deceased’s estate. He successfully propounds the 2019 Will.

(3)  Nonetheless, for the reasons set out in, inter alios, paragraphs 69, 70, 71, 82 to 86 and 93 to 96 above, I am not impressed by the Plaintiff’s general conduct as well as litigation conduct. In particular, the Plaintiff should not have conjured up blatantly untrue allegations that support a false case regarding the beneficial ownership in the Property; nor should he have, out of spite, raised false accusations that aimed at denigrating the Defendant’s character. These false accusations and false assertions have unnecessarily and considerably lengthened the proceedings. I am of the view that the costs order should reflect the court’s disapproval of the Plaintiff’s conduct.

(4)  Although the Defendant failed to challenge the 2019 Will, I do understand why she was eager to have her days in Court, such that the matters relating to the 2019 Will could be investigated. In my view, it was understandable as to why the Defendant did not succumb to the Plaintiff’s claims. Whilst the Deceased never informed the Defendant that the 2017 Will in her favour had been revoked, the Plaintiff stonewalled the Defendant from the affairs of the Deceased. She was not even informed of the Deceased’s death and had no opportunity to attend her funeral. In the circumstances, there were genuine doubts and concerns on the part of the Defendant regarding the state of affairs. In my view, the Deceased and the Plaintiff were responsible for creating these doubts and uncertainty, which needed to be investigated and resolved by the court.

(5)  Instead of adopting a “kitchen sink” approach to advance her own financial interest, the Defendant, by and large, focused on the matters in respect of which she justifiably had doubts and concerns (such as the events on 8 August 2019). I am of the view that the Defendant conducted these proceedings in a reasonable and proportionate manner.

144.In the premises, I make a costs order nisi that:-

(1)  the Plaintiff’s costs and 65% the Defendant’s costs be paid out of the estate of the Deceased to be taxed on a party-to-party basis if not agreed (with certificate for one counsel); and

(2)   the Plaintiff’s costs be taxed in accordance with the Legal Aid Regulation.

G4.  Other Matters

145.Despite the animosity between the parties, Ms Queenie Ng, Ms Michelle Wong and Mr Stephen Siu conducted these proceedings in a professional, amicable and helpful manner. I express my gratitude to them.