Liu Siu Mee v. Liu Kwai

HCAP000001/1967

IN THE SUPREME COURT OF HONG KONG

PROBATE JURISDICTION

ACTION NO. 1 OF 1967

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Coram: Briggs J.

Date of Judgment: 26 July 1968

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JUDGMENT

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1. Liu Ko Sau Ying (hereinafter called 'the deceased') died on June 30th 1966. At the time of her death she had been living for a great number of years with Liu Kwai. They passed for husband and wife though no ceremony of marriage had actually been performed. Liu Kwai is the defendant in this action. Liu Ko Sau Ying and Liu Kwai had each been married before. Liu Ko Sau Ying had a daughter by her previous husband, Liu Siu Mee, who has adopted the surname of the defendant. She is the plaintiff in this action. Liu Kwai had two sons by his previous marriage, Liu Kwong Chi and Liu Kwong Choi. Liu Ko Sau Ying and Liu Kwai also adopted a son and a daughter, Liu Kwong Kin and Liu Mee Mee, who are both under twenty-one. The plaintiff, Liu Siu Mee is married to Doctor Chau.

2. The plaintiff claims to be the executrix of the will of Liu Ko Sau Ying dated December 14th 1961. The defendant does not dispute the genuineness of that will but his case is that it was revoked by another later will dated May 10th 1966 of which he is the executor and by his counterclaim he asks the court to decree probate of this 1966 will.

3. On September 26th 1967 the plaintiff filed a reply putting the defendant to strict proof of the 1966 will. But on June 19th 1968 she filed an amended reply in which she alleges that the 1966 will was never signed by the deceased and that that will was never properly attested.

4. Under the will put forward by the plaintiff, the plaintiff is the executrix and receives No. 3 Nan King Street Kowloon. The rest of the property of the deceased is devised to the plaintiff on trust to divide into three equal shares: one share is for the plaintiff and one share is for each of the two adopted children, Liu Kwong Kin and Liu Mee Mee. This will makes no provision for the defendant or for his two sons by his former marriage.

5. Under the will put forward by the defendant the defendant is the executor and sole beneficiary. However according to the defendant there is a secret trust attaching to the property which is to be divided up into five shares: one each going to the plaintiff, the two sons of the defendant by his former marriage and the two adopted children. So the defendant himself again receives nothing: the plaintiff receives less than under the will propounded by herself.

6. What I have to decide is whether the signature on the 1966 will is genuine and if that is so whether the testatrix signed the will in the presence of the two witnesses whose names appear on its face.

7. Evidence of two distinct kinds was called. First there was evidence of handwriting experts and secondly there was evidence of the circumstances surrounding the time at which the will was supposedly made.

8. I will deal with the handwriting experts first. Three witnesses were called. The plaintiff and the defendant each called one witness and, at the request of the plaintiff the Court called a Court expert.

9. The witness called by the defendant was emphatic that the signature on the 1966 will was genuine. He was given various documents which it was agreed contained the genuine signatures of the deceased for comparison. This witness is a man of great experience being in charge of the Chinese signatures of current accounts in the Hong Kong and Shanghai Bank. Before money is paid out on a check signed in Chinese this officer of the bank must check the signature on the check with the specimen signature held by the bank.

10. The plaintiff called the assistant manager of the Bank of East Asia and he gave evidence to the opposite effect. In his opinion the signature on the 1966 will was not genuine. As part of his employment he has the task of examining Chinese signatures on checks to evaluate their genuineness.

11. The signature consists of four characters and of course it is more difficult to tell whether a mere four characters are forged than a whole document. Though the 1966 will is partly written in Chinese yet it is agreed that apart from the signature the rest was not written by the deceased. Further the genuine signatures which were examined by these two witnesses by way of comparison with that on the 1966 will were made irregularly over a period of more than 10 years.

12. Two documents were handed to the witness called by the defendant in cross-examination. One appeared to be an application to the Tenancy Tribunal and one a receipt for documents. Both were dated 1964 and both bore a signature "Liu Ko Sau Ying". The witness was asked whether he thought that these two signatures were genuine. He unhesitatingly said 'Yes'.

13. When the plaintiff's witness was in the witness box he was also handed these two documents and he was asked the same question and gave exactly the same answer. It turned out that these two signatures were made by one of the partners in the firm of solicitors acting for the plaintiff. One might say therefore that the two expert witnesses called by the parties cancel each other out. They carry the matter no farther.

14. The Court Expert Senior Inspector David Chow is a document examiner in the Identification Bureau in the Criminal Investigation Branch of the Police Foce. He submitted a useful report to the Court and was cross-examined by the parties.

15. He said that he was unable to come to a definite conclusion whether or not the signature on the 1966 will was genuine or not. The reason was that the signature consists only of four characters written normally. It is not a skilful signature and does not contain individualised features for identification purposes.

16. There was exhibited not only the 1966 will but a copy of it which according to the defendant was made at the same time. Mr. Chow pointed out differences between the two signatures on these two wills as an illustration of this.

17. He added that such a signature is capable of being imitated without much difficulty. In the witness box Mr. Chow explained the method of comparison he used. It was especially important he said to compare genuine signatures made at about the same time as that on the 1966 will because a person's signature changes with the years. In the witness box he pointed out only three dissimilarities between the signature on the 1966 will and the genuine signatures and he said that these -which he called "minor discrepancies" did not indicate that it was a forgery in his opinion.

18. As to the two signatures made by the solicitor he said that there were enough discrepancies between these and the genuine signatures of the deceased for him to reach a conclusion that they were forgeries. When he examined these he presumed as a fact that they were written in 1964 and not in 1968, because of the dates written on the face of the documents on which they appear. He said that if he had known the correct date on which they were written he would have been even more suspicious of them.

19. The evidence of experts in handwriting is seldom 100% satisfactory but from Mr. Chow's evidence the inference may I think be drawn that the signature in the 1966 will is almost certainly genuine: using as the yardstick the balance of probabilities.

20. The defendant himself gave evidence and he said he witnessed the deceased sign the will of 1966.

21. On May 9th the defendant said the deceased gave him a draft of the 1966 will which, like the document itself, was written in English and Chinese. He said he took it to his office and gave it to a typist Miss Ng to make a fair copy. He knew that the deceased and Miss Ng had communicated over the phone about this.

22. That evening the defendant and the deceased discussed the matter and she mentioned the contents of the will which is put forward by the plaintiff and said she wanted a change made. She no longer wished to benefit only the three persons mentioned in the 1966 will. She wanted the defendant to arrange things for her and to distribute her property equally among the five children. And she adopted the device known to lawyers as a secret trust.

23. The deceased had been unwell for a long time and had been looked after by the wives of the two sons of the defendant and she said she wished to reward them by giving them a share in her property.

24. The typist Miss Ng also gave evidence. She said that the deceased had phoned her on May 9th and that she would receive a draft from the defendant, which she did. She typed the English in duplicate using a carbon paper. She found that the date was left blank so she phoned the deceased who in effect said she would let Miss Ng know what date to insert later. Later she did phone and asked Miss Ng to put the "tenth". Miss Ng handed the completed draft in duplicate to the defendant on the next day, May 10th, and he took it back to his wife.

25. The defendant described the signing of the will. He said that the deceased signed it at what he called a desk in her bedroom in his presence and in the presence of the two witnesses whose names appear upon its face.

26. One of these two witnesses Leung Hing Din was called by the defendant. He confirmed what the defendant had said in his evidence. He said that he and a Mr. Tze the other witness whose name appears on the document, were both present and saw the deceased sign. He said that the deceased told them that she was to enter the hospital the following day. She explained that she had sent for them to witness her will, one [Mr. Leung] as a friend, the other [Mr. Tze] as a relative. She knew at the time she was very will and might not recover. She mentioned the secret trust and her hope that her property would be distributed among all the five children of the family. She also mentioned that part of her property was heavily encumbered and there appeared to be a difficulty over the development of another part. She said that it needed a man to put these matters in order and that the defendant would do this for her. He said she signed the two documents but that he and Mr. Tze had only signed the top copy - a carbon paper being used so that their signatures appear on the two documents.

27. Neither side called Mr. Tze as a witness.

28. On the 10th of May the deceased was admitted into St. Theresa's Hospital. On 16th of June she was visited by her solicitor Mr. Walter Hon who gave evidence. He came in order that the deceased might make a will dividing up her property among the five children. Indeed I heard a great deal of evidence of what happened on that day round the sick bed of the dying woman. It is obvious that the plaintiff realised when she saw a solicitor there that he was there to make a will. One would have thought that in such circumstances a daughter would ask her mother if she wanted to make a will and if so what it should contain. She did not do so. She made, in Mr. Hon's words 'quite a scene'. It is a legitimate inference from her conduct that she was determined that no new will would be made. She knew of the contents of the 1961 will for she had the control of it. And she did not want a change. I feel as a fact that she knew that her mother had formed same intention to leave her property among the five children - I accept the evidence of the defendant and his witnesses on this point and I do not accept the evidence of the plaintiff and her witnesses that it was the intention of the defendant that such a disposition of property should be made. Mr. Hon, the only independent witness present said he remembers the plaintiff saying that her mother should not make a will or she would be destitut He also heard the deceased address her daughter as "bad girl".

29. In any event the plaintiff succeeded in upsetting the deceased so badly that Mr. Hon wisely withdrew. I heard a mass of evidence from parties of what occurred on that occasion and on other occasions. It is quite unnecessary for me to analyse it in detail.

30. What does emerge is that the plaintiff because perhaps of her relationship by blood to her mother, evinced a determination to have as much control of the estate of her mother as she could. She even went to her mother's safe deposit box amd abstracted therefrom her mother's gold jewellery without consulting her mother at all. Later after her mother's death she sold this without consulting the defendant. She obviously has the most bitter feelings against the defendant and her evidence when it touches upon his conduct cannot be relied upon. Indeed where they conflict I much prefer the evidence of the defendant and his witnesses to that of the plaintiff and her witnesses. I am aware of course that the parties to a family dispute tend to exaggerate and to use pungent language of each other and the evidence in this case is no exception to this.

31. The fact that the will of 1966 had been made by the deceased was not disclosed by the deceased herself nor by the defendant until after the death of the deceased. It may be that its contents, the leaving of all the property to the husband, were thought to be so drastic that the deceased would be even more upset than she was by the plaintiff's attitude. The defendant has not given a reasonable explanation of why he did not tell the plaintiff of the contents of the 1966 will untill she took action herself to manage her mother's affairs under the 1961 will.

32. Be that as it may, I have no doubt that the will of the deceased of 1966 is her genuine will and I pronounce in its favour. I accept the evidence of the defendant, of the witness Mr. Leung and of Miss Ng. In reaching the conclusion I have taken into consideration not only the evidence of these three witnesses but also the evidence of Senior Inspector Chow.

33. For the plaintiff it was urged that Miss Ng said she gave the completed draft to the defendant at about 6 p.m. on May 10th. While he said she gave it to her after returning to work at 3 p.m. when he put it in a drawer taking it home later that evening.

34. There are discrepancies in the evidence of the three witnesses and I think it was a mistake perhaps not to have called Mr. Tze. But minor differences in an account of what occurred more than two years ago which has been raked over in cross-examination so thoroughly always do appear. For example there was a discrepancy between Mr. Leung and the defendant as to how the second copy of the will was signed by the deceased. However I am satisfied that Miss Ng, Mr. Leung and the defendant were truthful witnesses and that the discrepancies were unimportant.

35. I am of the opinion that the deceased signed the will of 1966 and further that she signed it in the presence of the two persons whose names appear thereon as witnesses.

36. There will be judgment for the defendant on the defence and on his counterclaim; I pronounce against the will propounded by the plaintiff; and I decree probate of the will of Liu Ko Sau Ying dated May 10th 1966 in solemn form.

37. I will now hear the parties on costs.

Representation:

O.V. Cheung Q.C. & C. Ching (Woo & Woo) for Plaintiff.

B. Bernacchi Q.C. & B. Liu (C.Y. Kwan & Co.) for Defendant.