Chow Siu Po v. Wong Ming Fung
Read the full judgment text of HCAP 3/1998 on BabelCite. This High Court CFI judgment was delivered on 30 January 2003.
1. Madam Yau Wai Wah ("the Deceased") died on 18 December 1996. Probate of her estate was granted in common form in Probate No. HCAG 002649 of 1997 ("the Grant") to her niece Wong Ming Fung, the Defendant in this action, on 3 June 1997 based on a will dated 19 November 1994 ("the 1994 Will"). She was the sole beneficiary and sole executrix under that will. The Plaintiff was the step-son of the Deceased. He was named as the co-executor to the estate of the Deceased under an earlier will made on 1
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HCAP000003/1998 HCAP 3/1998 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PROBATE ACTION NO. 3 OF 1998 ____________
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____________ Coram: Deputy High Court Judge Lam in Court Dates of Hearing: 18-22, 25 March 2002 and 2-6, 11 December 2002 Date of Last Written Submission: 21 January 2003 Date of Judgment: 30 January 2003 _______________ J U D G M E N T _______________ The Action 1.Madam Yau Wai Wah ("the Deceased") died on 18 December 1996. Probate of her estate was granted in common form in Probate No. HCAG 002649 of 1997 ("the Grant") to her niece Wong Ming Fung, the Defendant in this action, on 3 June 1997 based on a will dated 19 November 1994 ("the 1994 Will"). She was the sole beneficiary and sole executrix under that will. The Plaintiff was the step-son of the Deceased. He was named as the co-executor to the estate of the Deceased under an earlier will made on 10 July 1990 ("the 1990 Will"). The Plaintiff claims that 1994 Will is invalid and seeks to have to the Grant revoked. The Plaintiff also asks the court to pronounce against the 1994 Will and to have the 1990 Will admitted to probate. 2.The Plaintiff further seeks to set aside certain inter vivos gifts made by the Deceased in favour of the Defendant. However, in the course of the trial, the Defendant argued that until the Grant was set aside, the Defendant was the sole person who had authority to act in the name of the estate. At one stage, the Defendant invited the court to dismiss that part of the Plaintiff's claims. After further arguments, the matter was resolved by an order made on 25 March 2002. By consent, prayers (c), (d) and (e) in the Statement of Claim were stayed pending the production of probate by the Plaintiff with liberty to the parties to restore the matter before me after that. This means that if the Plaintiff were unsuccessful in his primary claims in revoking the Grant and proving the 1990 Will, there is no need to deal with those prayers. On the other hand, if the Plaintiff were successful, parties could come back before me for the setting aside of the gifts. The family 3.The Deceased was married to the natural father of the Plaintiff, Chow Wan Man ("the Father") in 1957 in Hong Kong. The natural mother of the Plaintiff died in 1952. The Plaintiff had two elder sisters Chow Siu Ying and Chow Siu Fong. They called the Deceased mother. The Father and the Deceased did not give birth to any child. They have adopted a daughter called Chau Mei Ching ("CMC") who was living in mainland China before she came to Hong Kong in 1988 to live with her adopted parents. 4.Although the Plaintiff and his two elder sisters were born in Hong Kong, they were brought back to live in mainland China during their childhood. The Plaintiff came to Hong Kong in 1973. His wife and son came in 1975. They lived together with the Father and the Deceased at a flat in Canton Road until 1977. The elder sisters are still living in mainland China. 5.The building at Canton Road was demolished in 1977. The Deceased and the Father moved to a flat at 5th Floor, No. 157 Woo Sung Street, Yau Ma Tei. The Plaintiff's own family lived elsewhere and in 1983, they moved into a public housing unit in Pok Hong Estate, Shatin. 6.The Father and the Deceased were members of the Lock Tao Christian Association Tsim Sha Tsui Church ("the Church"). The Plaintiff and his family attended the Church with the Father and the Deceased regularly. They had lunch together after church services. Although they lived apart after 1977, the Plaintiff said he had all along maintained a good relationship with his parents and met them regularly. 7.The parents were hardworking people. The Deceased was a sewing worker who undertook sewing works for others at her own home. The Father was a clerk working at a stockbroker firm. He retired in about 1990 or 1991. They were able to accumulate some wealth. Over the years, they had acquired two properties in the name of the Deceased, one at Mei Foo Sun Chuen, another one at Lucky Building at Ma Tau Wei Road. The properties were let out for rental income. The Mei Foo Sun Chuen flat was sold in 1991. The sale proceed, after some deductions, was converted into a fixed deposit in the sum of $840,000. 8.Apart from these properties, the Father also invested in some publicly listed stocks. Upon his retirement, some were given to the Plaintiff and CMC. The balance was sold. The proceeds, together with his retirement benefits and other savings, were put into a fixed deposit in the sum of $500,000. 9.In addition, there was also a fixed deposit in the sum of $560,000. All these fixed deposits were initially placed under the joint names of the parents and the Plaintiff. In 1992, the name of the Plaintiff was cancelled in respect of the deposits of $560,000 and $840,000. 10.After their retirement, the parents lived on the interest derived from these fixed deposits and the rent collected in respect of the properties. 11.In 1993, the name of a relative of the Deceased, Yau Mo Chi ("YMC"), was added to these two fixed deposits. YMC was a nephew of the Deceased. He borrowed the $560,000 from the parents. He eventually only paid back $120,000 after the death of the Father in August 1994 by a cheque issued in favour of the Plaintiff. The Plaintiff gave that sum back to the Deceased by depositing the same into her bank account. The deterioration in health and the demise of the parents 12.The parents were able to look after themselves before the retirement of the Father. CMC also assisted in household chores after she came to Hong Kong in 1988. She moved out in October 1991. Thereafter, the Plaintiff and his wife assisted the parents with their household works. So did CMC. They were living quite far away and the Defendant was living nearby. Hence, an arrangement was made for the Defendant to assist in the same. The Plaintiff said the Defendant was paid for her services. 13.The Deceased became forgetful and behaved strangely. Several witnesses gave evidence as to this. The Plaintiff also produced as exhibit P-2 a taped telephone conversation to evidence the same. I shall discuss this in greater details later. In May 1995, she was referred to the Yaumatei Psychiatric Centre. The doctor diagnosed that she was suffering from senile dementia. Apart from that, the Deceased also had other physical problems. She suffered from gout and had difficulties in her movements on occasions. She also had double incontinence. In late 1991, she was admitted to the St. Teresa's Hospital due to gastric ulcer and partial gastrectomy was performed. In 1993, she was admitted to the Queen Elizabeth Hospital by virtue of septicemia. It was found that she had chronic parenchymal renal disease with impaired renal function. In the next few years, her renal function progressively declined. 14.A Thai domestic maid was employed in January 1994 to take care of the parents. Unfortunately, in February 1994 the Father had an accident and fractured his leg. He was admitted to hospital. Upon his discharge in April 1994, the maid left without any prior notice. In order to take care of the Father, the Plaintiff took him to his own home at Pok Hong Estate. The Plaintiff said he also invited the Deceased to move there as well but she did not want to move there. In any event, the flat of the Plaintiff was too small. The Plaintiff also proposed to send the Deceased to an Elderly Home. The Defendant suggested that it would be better for the Deceased to remain at the Woo Sung Street flat where she could take care of her. The Deceased accepted that suggestion. 15.The father died on 4 August 1994 at the age of 89. 16.The service of another Thai maid was engaged. Her name was Manoonut Arunphet and she was called Ah Lu in the family. She served for a brief period in May and June 1994 before she went back to Thailand for immigration formalities. Then she came back to serve the Deceased until the latter's death in December 1996. During these periods, the Deceased lived with Ah Lu alone. At the time of her death, the Deceased was 79. The Wills 17.On 10 July 1990, the Deceased executed a Will at a solicitor's office. By that Will, she appointed the Father and the Plaintiff to be the executors. She bequeathed the Mei Foo Sun Chuen flat to CMC and the son of the Plaintiff in equal shares. As for the Lucky Building unit, she gave it to the Plaintiff. Regarding the residuary estate, she divided it into 6 parts: one to the Father, the other four to each of the children (including CMC) and one to the son of the Plaintiff. The 1990 Will was witnessed by a solicitor and a solicitor's clerk. 18.In 1993, the original of the 1990 Will was given to the Plaintiff for his safekeeping. 19.On November 1994, the Deceased executed another Will at another solicitor's firm. The clerk who prepared the will and acted as one of the witness was Wong Pak Huen ("WPH"). WPH was a cousin of the Defendant. The 1994 Will was a very simple one. It revoked all former wills and appointed the Defendant as sole executrix. The Deceased also gave all her properties to the Defendant as sole beneficiary. The other witness of the 1994 Will was a solicitor. 20.The Plaintiff was not told about the making of the 1994 Will and he was not aware of the same until July 1997 when he was informed by his then solicitors that the Defendant had obtained the Grant. No caveat has been filed on behalf of the Plaintiff. The Defendant gave instructions to her then solicitors (the same firm who prepared the 1994 Will) on 11 January 1997 to apply for probate in respect of the estate of the Deceased. The Grant was issued pursuant to the Non-contentious Probate Rules. In July 1997, the Plaintiff's solicitors were in the course of making preparations for application for probate in respect of the estate of the Deceased based on the 1990 Will. The allegations of the Plaintiff and the defence 21.The Plaintiff alleged that the 1994 Will was invalid by reason of lack of testamentary capacity on the part of the Deceased or alternatively lack of free will. It is alleged that when the 1994 Will was executed, the Deceased was suffering from senile dementia and her memory had become defective. It is further alleged that the Deceased was under the control of the Defendant and did not have independent free will. 22.The Plaintiff also relied on undue influence. It is alleged that the Defendant exercised undue influence over the Deceased. 23.The Plaintiff contended that the Deceased should at least have cash deposits in the total sum of $1,220,000 at her disposal. However, as shown in the Schedule of property attached to the Grant, the Deceased only had a total sum of $117,553.89 in her bank accounts when she died. The balance had been taken away by the Defendant. Since 1994, the Defendant was able to withdraw monies from two accounts of the Deceased. One was in fact a joint name account of the Deceased and the Defendant. The other was in the sole name of the Deceased but the Defendant was an authorized signatory. 24.The defence case was that the Deceased was unhappy with the Plaintiff and this prompted her to disinherit him. The Deceased was said to be upset about several matters. Firstly, she was not happy about the sale of the Mei Foo Sun Chuen flat. Secondly, it is alleged that the Deceased considered that the Plaintiff was only filial to the Father but not the Deceased. She felt that the Plaintiff was only interested in her money. Thirdly, after the Plaintiff took the Father to live with him in Shatin, he seldom visited the Deceased. 25.As mentioned, the Plaintiff's name was cancelled from the joint name accounts in 1992 regarding two of the fixed deposits. However, his name was still retained in respect of a fixed deposit of $500,000. After the death of the Father, the Plaintiff proposed in August 1994 to change to mandate regarding this fixed deposit so that no withdrawal of the principal could be made unless both the Plaintiff and the Deceased signed. There were disagreements (which I have to deal with in greater details later) and eventually, the $500,000 was split into two sums of $250,000 each in March 1995, given to the Plaintiff and the Deceased respectively. All the interest accumulated in respect of the deposit was given to the Deceased. Hence a sum of $264,765 was deposited into her saving account. The Defendant said the Deceased was angry about this episode as she regarded the whole of this $500,000 to be her money. 26.As to the depletion of the funds in the accounts of the Deceased, the Defendant said that in December 1995, the Deceased made a gift of $800,000 to the Defendant in return for her promise to look after the Deceased for the rest of her life. 27.On 18 December 1996, the day when the Deceased passed away, the Defendant withdrew two sums from two bank accounts of the Deceased. In Account No. 04348510271228, a joint name account of the Deceased and the Defendant maintained with the Nanyang Commercial Bank, out of a balance of $214,312.50, she withdrew a sum of $214,300 on that date. In Account No. 04348510096285, an account in the sole name of the Deceased with the Defendant as authorized signatory, the Defendant withdrew $7,600 out of a balance of $7,614 on that day. The Defendant said she was not aware of the death of the Deceased when the withdrawals were made. She said those were intended to be funds for a loan to her friend. The loan was not advanced after she learnt of the death of the Deceased. I note that these sums were included in the schedule of property in the Grant. 28.The Defendant said the arrangements enabling her to get the Deceased's money from the bank accounts were to facilitate her getting money for the Deceased without the need of bringing the Deceased to the bank. This would be more convenient as the Deceased had difficulties in walking. She also said she had paid for a lot of the expenses of the Deceased and she only made withdrawals from the Deceased's bank accounts on the Deceased's express instructions. 29.Regarding the 1994 Will, the Defendant said that WPH and the solicitor witnessed the execution of the will had ascertained the wish of the Deceased before it was executed. The Deceased also wrote out a set of written instructions to WPH for the preparation of the will. The allegations of lack of testamentary capacity and free will and undue influence were denied. The factual witnesses 30.Since the 1994 Will was executed in November 1994, the material time for determining the mental capacity of the Deceased was November 1994. At that stage, the Deceased had not yet received any medical attention as to her mental state. On 21 April 1995 the outpatient unit of the Queen Elizabeth Hospital that dealt with her physical ailments referred her to have psychiatric treatments. Hence, we do not have any direct medical evidence as to her mental state as at 19 November 1994. She was first diagnosed to have senile dementia in May 1995. The medical experts called by both sides disagreed as to whether it is possible to deduce valid conclusions as to her mental capacity in November 1994 from her conditions in May 1995. I shall come back to analyse their evidence later. To some extent, the conclusions of the medical experts depend on the factual findings as to the behaviour and disability of the Deceased in November 1994. I therefore need to address these matters by reference to the evidence of the factual witnesses first. 31.Each side called a number of factual witnesses during the trial. The Plaintiff gave evidence and called the following witnesses: Ah Lu, CMC, Julia Yau (a relative of the Deceased), Chan Man, Chan Yuk Yin (these two were friends from the Church) and Lau Sang (a neighbour at Woo Sung Street), Chow Siu Ying and Chow Siu Fong (the two sisters who lived in mainland China). The principal witnesses are the Plaintiff and Ah Lu. Ah Lu lived with the Deceased and took care of her for a month in mid June 1994 and then from 1995 to December 1996. According to his own evidence (corroborated by Ah Lu), the Plaintiff visited the Deceased frequently and regularly. Hence, they should be able to give more cogent evidence as to the daily routine of the Deceased and her behaviour. The other witnesses also gave evidence of instances of character and behavioral changes of the Deceased in early 1990's. Since the material time is November 1994, I would focus on events around 1994 in discussing the evidence of the factual witnesses. In that respect, the evidence of Chow Siu Ying was not particularly pertinent. 32.CMC lived with the Deceased from 1988 to October 1991. She continued to visit the Deceased after she lived separately. She noticed the onset of strange behaviour on the part of the Deceased after 1990. The Deceased blamed CMC about the sale of the Mei Foo Sun Chuen flat whilst she played no part in the sale. In fact, the flat could not be sold without the consent of the Deceased since she was the sole registered owner. The Deceased was also forgetful and had bad memory. An example given by CMC was that in about June 1994, the Deceased phoned her a number of times and repeatedly talked about the same thing as if she did not remember she had called earlier. 33.Chow Siu Fong lived with the Deceased for a short duration between 13 August and 5 September 1994 when she came to Hong Kong to attend the funeral of the Father. She had lived with the Deceased on previous occasions when she visited Hong Kong in 1985 and 1991. In August 1994, she found the health and memory of the Deceased much poorer as compared with the earlier occasions. She testified that the Deceased became laconic and forgetful about many things. She said the Deceased even forgot about the death of the Father and told her to ask the Father to come out for meal. The Deceased asked her to bring her to church to attend services even though it was not a Sunday. When this was explained to the Deceased, she repeated the same request. 34.Although the Defendant alleged that Chow Siu Fong did not live with the Deceased during this period, this allegation has never been put by her counsel to Chow Siu Fong when the latter gave evidence. No explanation has been offered about this. In the circumstances, I cannot attach any weight to this piece of evidence from the Defendant. 35.The two friends from the Church testified as to some instances of forgetfulness of the Deceased. They noticed that from 1993. At the funeral of the Father, Chan Yuk Yin found that the Deceased behaved as if the Father was still alive. The Deceased told her that the Father was cooking meal in the kitchen. That was in August 1994. 36.Lau Sun was the neighbour at Woo Sung Street. He knew the parents since 1977 or 1978. He lived in the flat opposite to that of the parents. He noticed that the Deceased behaved oddly since 1993 and she had quarrels with others. 37.These witnesses who were not related to the Plaintiff, viz. the friends from the Church and the neighbour, supported the Plaintiff's evidence that the Plaintiff did come to visit the parents and the Deceased frequently and went to the Church with them. 38.Julia Yau was a niece of the Deceased. She emigrated to England in 1972. In March 1994, she came back to Hong Kong to attend the funeral of her mother. She talked to the Deceased on several occasions during that time. She discovered that the Deceased was forgetful and not very coherent in her speech. 39.Ah Lu first worked for the Deceased for 21 days in May and June 1994. At that time she already noticed that the Deceased behaved strangely. She was able to communicate with the Deceased in Chiu Chow dialect. In January 1995, she came back to work for the Deceased. She discovered that the Deceased lost her way home after going to the Church. The Deceased always asked her to take her to church even though it was not Sunday. The Deceased thought that the food cooked by Ah Lu were food from hospital. Sometimes, the Deceased asked for food again forgetting she already had a meal. 40.The Plaintiff noticed loss of memory on the part of the Deceased since 1992. She also made accusations against relatives stealing her money and personal belongings. By April 1994, he was aware that the Deceased was not very clear as to what happened around her. Hence, he proposed to send her to Elderly Home when he took the Father to his home in Shatin after the maid left suddenly. That was however not materialized due to the intervention of the Defendant. After the death of the Father, the Deceased sometimes acted as if he were still alive. There were also other incidents which I do not think I need to mention. It was at least partly because of his concern over the mental state of the Deceased that the Plaintiff suggested that mandate for the $500,000 fixed deposit to be changed. Again that failed due to the intervention of the Defendant. That incident alerted the Plaintiff to the fact that the Deceased was under the influence of the Defendant. The Plaintiff relied strongly on the tape of the conversation of 18 November 1994. The Plaintiff said that the conversation clearly demonstrated that the Deceased had forgotten about a significant portion of her assets. The Plaintiff said he wrote down the date (but not the year) on which the tape was recorded immediately after the conversation. The Plaintiff was the person who brought the Deceased for medical treatment and he accompanied her when she was diagnosed by Dr Lee of the Yaumatei Psychiatric Centre to be suffering from senile dementia. He said he had told the doctors attending the Deceased for her other physical conditions about her forgetfulness since 1993. 41.To sum up, the evidence of these witnesses called on behalf of the Plaintiff shows that by August 1994, the Deceased demonstrated symptoms of dementia. She apparently did not appreciate that the Father had died and she had serious defect in her memory. 42.On the other hand, the Defendant called four factual witnesses (including herself). WPH gave evidence about the preparation of the 1994 Will and the execution of the same by the Deceased. I shall discuss the evidence about what happened at the solicitor firm in the next section. The evidence of Kwok Suwanasri mainly dealt with the character of Ah Lu. Although she said she had visited the Deceased on several occasions and she found the Deceased to be in good mental health, I do not think I can attach any weight to her observations. It seems to me that she had no reason to visit the Deceased apart from going to the Deceased's place to visit Ah Lu. She did not know the Deceased prior to Ah Lu's employment by the Deceased. I find it quite puzzling as to why she would visit the Deceased with her husband when Ah Lu was not there (as stated in paragraph 10 of her witness statement, adopted as her evidence) and according to her, it was on such occasion that she came to knew the Defendant. This is inconsistent with the other part of her evidence. She claimed that Ah Lu worked for the Deceased through her introduction. On further probing, she said she met a relative of her previous boss and that person gave her the phone number of the Defendant and that was how she managed to introduce Ah Lu to work for the Deceased. Hence, she already knew the Defendant before Ah Lu actually worked for the Deceased. I also find it hard to believe her story about coincidentally meeting this relative of her previous boss Mr Choi in the street who introduced the job to her. She claimed that this Mr Choi was her employer prior to a Mr Chan. But in paragraph 1 of her witness statement, she said that she came to Hong Kong in 1992 to work for Mr Chan. She did not mention she had worked for a Mr Choi before that. Although she described this relative of Mr Choi as her friend, she could not name her. Her main allegation against Ah Lu was that the latter was fond of spreading rumour and badmouthing others. She alleged that Ah Lu had spread false rumour about her when Ah Lu worked for the Chan family and this caused the Chan family to dislike her. Yet on her evidence, the Chan family called her when they dismissed Ah Lu. This again seems inexplicable to me. Ah Lu was not introduced to the Chan family by this witness. There was simply no reason why they would call her upon the dismissal of Ah Lu, particularly when they disliked her by reason of the things said by Ah Lu. On the whole, I do not find this witness to be credible and I reject her evidence. 43.The other witness called by the Defendant was her sister-in-law, Lee Siu-ping. Her evidence mainly dealt with the relationship between the Plaintiff and the Deceased, a topic I shall discuss later. She also gave evidence about a previous request by the Deceased in about 1993 or 1994 to add the name of the husband of the witness to the bank account of the Deceased so that they could take care of her. According to her evidence (see Paragraph 7 of her witness statement), this incident should have happened prior to YMC's name being added to the account of the Deceased. Hence it could not be in 1994. Whilst her witness statement stated that the request was made by the Deceased over the phone, she said in her oral evidence that the request was made when she went to visit the Deceased. She said the Deceased was alone at that time. At that stage, the Father was still alive and the bank accounts of the Deceased were in joint name with the Father. The witness' evidence somehow did not touch upon the role of the Father and whether he agreed with the proposed arrangement. Moreover, at that stage, the Defendant was helping the parents with their house chores and she would seem to be a more natural candidate if the Deceased wished to add a relative to the mandate of her accounts. Though this incident is not very material to the issues which I have to decide, I find the evidence of this witness on the incident to be rather incredible. This reflected adversely on her credibility. Although the witness visited the Deceased occasionally, I do not derive any assistance from her evidence as to the mental health of the Deceased in late 1994 since she did not give any specific evidence in that regard. 44.The Defendant gave evidence that the Deceased was mentally sound when she executed the 1994 Will. She said the Deceased told her in September 1994 that because the Plaintiff was not filial to her whilst the Defendant had been taking care of her, the Deceased wished to show her appreciation for what the Defendant had done by giving everything to the Defendant upon her death. She asked the Defendant to get a solicitor to prepare a new will to supersede the previous will. After the Defendant asked the Deceased to think the matter over, the Deceased repeated the same request. Hence, the Defendant engaged WPH to prepare the new will for the Deceased. 45.As regards the general mental capacity of the Deceased, the Defendant said that she did not notice anything remarkable until November 1996. She said even when Ah Lu told her about the doctor at Queen Elizabeth's Hospital said the Deceased had mental problem, she thought it was only degeneration in the memory of the Deceased. She did not notice the Deceased had any problems in handling her money. In mid 1996, the Deceased was a bit more forgetful and it was only in November 1996 she felt that the Deceased would not be able to handle her money. 46.On the question as to the general mental condition of the Deceased around late 1994, I prefer the evidence of the Plaintiff and his witnesses to the evidence of the Defendant and her witnesses. As already explained, I do not find the witnesses called by the Defendant offered much help in this regard and I have reasons to doubt their credibility. I would discuss the evidence of WPH in another section. For reasons given later, I do not consider his evidence to be reliable on this question. Neither do I find the Defendant to be a credible witness. I am of the view that she was clearly lying in several respects which I shall set out in the following paragraphs. 47.I cannot believe her evidence about the purpose of the withdrawals on 18 December 1996 which I have summarized in Paragraph 27 above. It was too much a coincidence that the withdrawals which virtually depleted all the monies in the relevant bank accounts were made shortly after the death of the Deceased. The Defendant asked this court to accept her evidence that these were made in ignorance of the death of the Deceased and were intended to be a loan to a friend of the Defendant. An examination of the passbook records showed that these sums were in fact transferred from those two bank accounts (which were accounts bearing the name of the Deceased) into another account in the sole name of the Defendant, account No. 043-48500061934. Prior to the transfers, that account had a balance of $218,021.69. The Defendant initially said her friend asked for a loan of about $300,000. If that were so, there was no need for her to withdraw so much money from the Deceased's accounts. After all, she agreed that the Deceased did not know that borrower. Perhaps she realized this when she corrected herself and said the loan was about $300,000 to $400,000. 48.In any event, if these sums were intended to be lent to others, I cannot understand why the monies were transferred to the Defendant's own saving accounts and remained in there. The Defendant explained that she did not know exactly how much was needed by her friend, so she transferred the monies to her account. If that were so, it was inexplicable why she needed to withdraw the monies from the Deceased's account on that fateful date. It was equally inexplicable why the withdrawals had to be in such amounts which for all practical purposes depleted the funds in those accounts. The Defendant at one point corrected herself by saying that the $7,600 withdrawal had nothing to do with the intended loan but she could not remember what that was for. Even the Defendant herself accepted that the Deceased could not manage her money by December 1996, yet she saw fit to use the Deceased's monies to lend to a person unknown to the Deceased. I have the distinct impression that the Defendant was making these up in the witness box and it was noteworthy that she did not say a single word about this purported plan to lend money to her friend in her witness statement. That, in my view, explains why her evidence about this intended loan was so unsatisfactory and vague. 49.In my judgment, the Defendant did not give this court an accurate picture as to the extent to which the mental health of the Deceased deteriorated between 1993 and 1996. Not only were her evidence set out in Paragraph 45 inconsistent with the evidence of the other factual witnesses, they were also inconsistent with the medical evidence. According to the evidence of Dr Lee Wing King who treated the Deceased for her dementia from May 1995 to her death, the Deceased's condition had all along been in a gradual decline. In May 1995, she was already diagnosed as within the moderate category of senile dementia and her MMSE scores showed she was in the lower end, viz. closer to the severe category. Given the frequent contacts between the Defendant and the Deceased, the Defendant must have detected more defects on the mental capacity of the Deceased than she testified in court. 50.Further, the taped conversation showed that in November 1994, the Deceased had already had a very poor memory as to her money. She forgot about the $120,000 repaid by YMC, the whereabout of her bank passbook, and the $840,000 fixed deposit. This is wholly inconsistent with the Defendant's testimony that the Deceased had no difficulty in the handling of her money until late 1996. 51.I also find the Defendant untruthful about her involvement in the episode relating to the changing of the bank mandate regarding the $500,000 fixed deposit. She said that was a dispute between the Plaintiff and the Deceased she was only trying to mediate between them and played a neutral role. However, the transcript of the taped conversation gave an impression that the Defendant was more in favour of the idea that one signatory could make withdrawal from the account. Comparing the conversation between the Plaintiff and the Defendant with that between the Plaintiff and the Deceased, I got the impression that the Defendant was keener than the Deceased in this respect although she repeatedly said that such was the idea of the Deceased. I do not think she was neutral. 52.In this connection, Chow Siu Fong gave evidence as to what happened on 30 August 1994 at the bank. She testified that originally the Deceased was agreeable to the suggestion of the Plaintiff that the mandate be changed to require the signatures of both the Plaintiff and the Deceased before withdrawal could be made. It was the intervention of the Defendant who made a scene at the bank that confused the Deceased. Due to the strong objection of the Defendant, the Deceased became unable to make up her mind and the bank manager asked the parties to go home to discuss the matter first. I prefer that piece of evidence to the story of the Defendant. The Defendant said that the quarrel at the bank was between the Plaintiff and the Deceased. She said the Deceased was very angry and scolded the Plaintiff at the bank. She said the Deceased took the view that the money was hers and the Plaintiff was only interested in her money. If that were so, the Deceased would not be so moderate in her telephone conversation with the Plaintiff on 18 November 1994 when this deposit was brought up for discussion. In that taped conversation, the Deceased only expressed concern whether the Plaintiff could get the money after her death instead of insisting that the Plaintiff had no right to that sum. Further, the Deceased seemed to be quite concerned about the Defendant's opinion on that matter. Hence, she told the Plaintiff that the Defendant should be informed about the same. Paragraphs 100 and 101 of the transcript of the taped conversation are quite revealing. They tend to suggest that the Defendant was procuring the Deceased to take a certain course behind the scene. 53.In coming to that conclusion, I have not overlooked a letter dated 15 February 1995 written by the Plaintiff to the bank manager concerning the deadlock. The Plaintiff informed the bank that there was unresolved disagreement between him and the Deceased as to the new mandate. I do not think this letter assisted the Defendant. There was no reason why the Plaintiff would deem it necessary to mention to the bank that the Deceased's disagreement was caused by the influence of the Defendant. The Defendant did not have any interest in that account. In any event, the bank would not be interested in the reasons behind the Deceased's disagreement. 54.It is apparent from what I said that I find the taped conversations of 18 November 1994 to be of great significance. Although the Defendant alleged that the tape had been edited, I cannot discern any evidence to support her allegation. On 18 March 2002, when the allegation was raised, the only particulars given by Mr Wong counsel for the Defendant were that there was editing between paragraphs 49 and 49A and a break between paragraphs 52 and 53 of the transcript. It was common ground that it was a second telephone conversation starting from paragraph 53. During the trial, I have listened to that part of the tape with the assistance of the Chiu Chow interpreter several times. As a result, parts of the conversation which might not be readily audible when the transcript was prepared were identified at the hearing. However, even taking those into account, I do not think there was any editing of the tape on the part of the Plaintiff. Those details which were not previously transcribed did not materially change the meaning of the conversation. I also find that paragraphs 1 to 52 were one telephone call although the Deceased only joined in at paragraph 49A. I am satisfied that the taped conversation and the transcript, subject to the clarifications made in the course of evidence, were reliable records of what were said over the phone between the Plaintiff, the Defendant and the Deceased on 18 November 1994. 55.In a sense, the tape is the most reliable piece of evidence in the present case. It gave this court a clear picture as to the state of mind of the Deceased in her own words on 18 November 1994, one day before the 1994 Will was executed. When the conversation took place, the Plaintiff had no idea that the Defendant had brought the Deceased to a solicitor firm for the preparation of a new will and the same would be executed on the next day. The picture one gathers from these conversations was that the Deceased's mental state in 1994 was as poor as the Plaintiff and his witnesses depicted in their evidence. 56.Another reason why I accept the Plaintiff's evidence as to the mental state of the Deceased is that he had reported about the defects of the Deceased's mental health to the doctors at a time when he had no reason to misrepresent her conditions. Further, although his observations were taken into account by Dr Lee, the doctor also conducted his own interview with the Deceased and it does not appear that Dr Lee had any reason to doubt what the Plaintiff told him. According to Dr Lee's records, in May 1995, he was told that onset of the Deceased's mental condition was about 3 and half years ago, viz. starting in about 1992. The preparation and execution of the 1994 Will 57.WPH had been a solicitor's clerk for about 30 years. He did mostly conveyancing works. He gave evidence that he received a telephone call from the Defendant on 9 November 1994. The Defendant asked him to prepare a will for the Deceased. After WPH took them to his office, he invited the Deceased into his own room and asked the Defendant to wait outside. The Deceased told him in his room that she wanted to prepare a will and she did not want to leave her properties to the Plaintiff. She told him that she wished to leave her properties to the Defendant. WPH asked her why would she do that. The Deceased said the Plaintiff did not treat her well and was only interested in her money. WPH did not ask any further questions. He told the Plaintiff to write a Chinese statement of instructions to avoid disputes by others in the future. At this juncture he told the Defendant to go into his office and the Deceased wrote the instructions on his table. He sat across the table on the other side. The Chinese statement of instructions was produced as exhibit D1-a. He said it took the Deceased about 20 minutes to write it and as he had moved in and out of his room when the Deceased wrote the same, he did not know whether the Defendant offered any suggestion to the Deceased as to how to write the document. After that, he prepared the 1994 Will and told the Defendant it was ready for execution. The Defendant brought the Deceased to the office of WPH and the 1994 Will was executed before WPH and a solicitor after the contents were explained to her by WPH and the solicitor asked if she understood the same. 58.I regret that I do not find WPH to be a reliable witness. On his evidence, WPH did not take instructions as to the particulars of properties owned by the Deceased. Nor did he make any enquiry as to the existence of other potential beneficiaries to the estate of the Deceased. He did not paid attention to the age of the Deceased and he did not ask the Deceased whether she had made a previous will. Most surprisingly, he did not even ascertain whether the spouse of the Deceased was still alive at that time. I regard these as the minimal information on which a solicitor must seek adequate instructions before he could properly prepare a will for a client. Proper attendance notes should be kept with regard to these instructions (see Jackson & Powell on Professional Negligence, 5th Edn., Paras. 10-219 to 10-221; MacKenzie v MacKenzie (1998) 162 DLR (4th) 674 at p. 701-2). Although WPH was only a clerk, those supervising him must have been satisfied with his competence before delegating to him the task of taking instructions for preparation of will. WPH said he had handled about 10 to 20 files relating to preparation of wills in the past. I cannot believe that he was ignorant of these elementary requirements. WPH testified in the witness box that there was no need to make further enquiry as that would amount to prying into the privacy of the Deceased and interfering with her testamentary freedom. These are feeble excuses and I have no hesitation in rejecting such evidence. 59.He told the court that he found it strange that the Deceased would wish to give all her properties to the Defendant instead of the Plaintiff. Yet, he only conducted a most cursory enquiry with the Deceased about this. He only asked one question and accepted the purported answer of the Deceased as satisfactory. He made no enquiry about the disinheritance of other potential beneficiaries. The purported answer was not recorded in writing, whether in the instructions written by the Deceased or in an attendance note kept by him (if that could be so described) which was produced as exhibit D-1b. He said it was a matter of little moment. If he were concerned about the possibility of disputes in the future, one would expect him to procure at least some written record about the disinheritance of the Plaintiff. As it is, the written records kept by him did not assist very much. The Chinese instructions (D-1a) did not mention about the Plaintiff. 60.The effect of the proposed will was to give the whole estate of the Deceased to the Defendant. Coupled with the fact that it was the Defendant who brought the Deceased to WPH, this should alert WPH to be cautious, particularly in the light of his relationship with the Defendant. Whilst he had asked the Defendant to wait outside his room initially, I cannot find any satisfactory explanation from his evidence as to why he would tell her to come back into the room when he asked the Deceased to write the Chinese instructions. He said he asked the Defendant to come into the room to help the Deceased. But he could tell the court in what respects could the Defendant assist the Deceased in writing the instructions. On his evidence, he did not even bother to be present throughout the period when the Deceased wrote the instructions. 61.Initially, WPH said he had not assisted the Deceased in the writing of the instructions and he said he did not instruct her to use the words "不動產" and "動產". These are lawyers' jargons and I do not believe the Deceased would choose to use these expressions on her own motion. It was only on further probing that he admitted that he might have suggested these words to be used. 62.I have alluded to part of the Defendant's evidence as to how this will came to be prepared in Paragraph 44 above. She basically corroborated with WPH's evidence although there were some minor discrepancies like whether she had called WPH about this matter prior to 9 November 1994, whether she had told WPH about the existence of an earlier will. However, for reasons already canvassed, I do not find her to be a credible witness. 63.Balanced against the evidence adduced by the Plaintiff as to the mental state of the Deceased in 1994, particularly the taped conversation on 18 November 1994, I reject the evidence WPH and the Defendant as to how the 1994 Will came into existence. The taped conversation was inconsistent with the case of the Defendant that Deceased was so unhappy about the Plaintiff that she decided to disinherit him altogether. The evidence adduced by the Plaintiff as to the general mental condition of the Deceased during that period of time, which I accept, showed that the Deceased could not be so clear minded on 9 November 1994 that she could write the Chinese instructions in D-1a all by herself. I do not believe that the role of the Defendant in the preparation of the Chinese instructions was confined to telling the Deceased how to write certain words when asked about the same. 64.Although the execution of the 1994 Will was attested by a solicitor, she has not been called by the Defendant to testify in this action. According to the testimony of WPH, she only played a minimal role in the matter. It does not appear that she had taken any effective steps herself to verify the mental capacity of the Deceased before the latter was asked to execute the will. In the circumstances of the present case, in the light of the totality of the evidence, I am not prepared to infer from the mere fact that a solicitor acted as attesting witness that the Deceased had testamentary capacity when the 1994 Will was executed. After the 1994 Will was executed, it was kept by the Defendant instead of the Deceased. As I said, the Plaintiff did not learn about it until July 1997. Transfer of funds to the Defendant's accounts and events after 1994 65.I have referred earlier to the cancellation of the name of the Plaintiff in respect of two fixed deposits, the subsequent addition of YMC as a joint name holder of these fixed deposits, the loan of $560,000 to him and his repayment of $120,000. Regarding the $840,000 fixed deposit, it remained under the joint names of the Father, the Deceased and YMC until 20 July 1994. The evidence was that either one of the joint depositors could operate that fixed deposit account. When the deposit matured on that date, it was transferred into another fixed deposit account in the joint name of the Deceased and the Defendant. 66.The Defendant testified that this came about at the request of the Deceased. The Deceased was not happy about YMC not making payment of interest as promised and she therefore did so to cancel YMC's name over this deposit. At that time, the Father was still alive. He was living with the Plaintiff in Shatin. He was not consulted about this and in fact had no knowledge about that. The Defendant said she just followed the instructions of the Deceased and the addition of the Defendant's name to the new deposit was to facilitate her to get the interest for the Deceased. 67.On that same date, viz. 20 July 1994, the Defendant and the Deceased opened another joint name saving account with the same bank, viz. account No. 04348510271228. The interest from the fixed deposit was transferred into this account. Hence, solely for the purpose of facilitating the Defendant getting the interest for the Deceased, there was no need to add the Defendant's name to the fixed deposit. The Defendant said she had not thought of that. 68.The Deceased had another saving account No. 04348510096285 in her sole name. The $120,000 repayment by YMC was deposited by the Plaintiff into this account on 12 August 1994. On 10 December 1994, the Defendant's signature was added to the mandate in respect of this account so that even though it remained an account in the sole name of the Deceased, the Defendant could operate the same by her own signature. She said this was to facilitate her to assist the Deceased in the operation of this account. 69.The disagreement in respect of the $500,000 fixed deposit was resolved in March 1995 and a sum of $264,765 was deposited on 15 March 1995 into the saving account in her sole name. On 18 March 1995, $350,000 was withdrawn from this account and turned into a fixed deposit in the joint name of the Deceased and the Defendant. The fixed deposit was uplifted on 23 December 1995. After using part of it to pay for decoration expenses of the unit at the Lucky Building (the Deceased moved to live at that unit in early 1996), a sum of $321,546.20 was deposited into the joint name saving account of the Defendant and the Deceased on the same day. 70.Withdrawals of smaller amounts were made by the Defendant from these two saving accounts. At this stage of the action, I do not think it is necessary to examine the details of those. Of greater significance is the two withdrawals made on the day of death of the Deceased which I have alluded to earlier. 71.Coming back to the fixed deposit of $840,000, it remained under the joint name of the Defendant and the Deceased until 9 December 1995. On that day, the principal and interest was transferred back into saving account in the sole name of the Deceased. Then a sum of $800,030 was immediately withdrawn. The Defendant said the Deceased made a gift of $800,000 to her on that date and she deposited the $800,000 into a fixed deposit account in her sole name with another bank. She said in the witness box that the Deceased made such a gift because neither CMC nor the Plaintiff took care of her and the Deceased felt that the Defendant treated her nicely. The Deceased therefore made this gift to the Defendant on condition that that the Defendant would take care of her until she died. The Deceased also indicated that if necessary, this sum would have to be used to defray her living expenses. 72.In Paragraph 55 of her witness statement (which was adopted as her evidence in chief), she said as follows regarding this gift of $800,000,
73.I emphasize that at this stage of the action, I need not adjudicate on the validity of this gift and the liability, if any, of the Defendant in respect of the other withdrawals. However, the evidence in respect of these matters have been adduced and I am of the view that they have a bearing on the credibility of the Defendant. The reason behind the $800,000 purported gift also has an indirect bearing on the validity of the 1994 Will. In view of what the Defendant said in her witness statement, particularly the sentence highlighted by me, I have some doubts whether the transfer was a gift as a matter of law. Leaving this aside for the moment, if that were really the instructions of the Deceased, I fail to see the need for the transfer of the $800,000 to the Defendant's own account in December 1995. By the 1994 Will, the Deceased had already bequeathed to the Defendant all her estate upon her death. There was simply no need to transfer $800,000 to the Defendant in advance for that purpose. The Defendant was aware of the 1994 Will and it was handed to her for her safekeeping. The Deceased needed not do anything further to mark her appreciation of the Defendant's taking care of her or to induce the Defendant to continue to do so. On the other hand, such a transfer would make sense if the Deceased was unaware of or forgot about the 1994 Will. In my judgment, taking the Defendant's evidence on the purported gift of $800,000 on its face value, it cast serious doubt on the Deceased's cognizance of the 1994 Will in 1995. Yet, the Defendant asked this court to accept that in December 1995, the Deceased still had the mental capacity to handle her money. 74.Moreover, if that were the instructions of the Deceased, the Defendant should use this sum to defray the daily expenses of the Deceased until her death. Yet what she did was to deposit this into a fixed deposit in her own name and the $800,000 remained there until April 1998. After 9 December 1995, substantial withdrawals were still made from the other accounts of the Deceased by the Defendant for the daily needs of the Deceased. 75.The Defendant asked this court to believe that she had all along been taking care of the Deceased out of her kind heartedness and she had no interest in the money of the Deceased. She kept saying that all these transfers of funds were in accordance with the wishes of the Deceased. I have great difficulties in believing her. I think her actions speak much louder than her testimonies. Her withdrawals of monies from the Deceased's bank accounts on the date of the latter's death pointed very clearly as to where her heart lies. Bared on the evidence of the Plaintiff and Julia Yau, I find that the Defendant was reluctant to pay for the funeral expenses of the Deceased until the intervention of members of the Church. Relationship between the Plaintiff and the Deceased 76.As mentioned, the Defendant referred to the bad relationship between the Plaintiff and the Deceased to account for the making of the 1994 Will (see Paragraphs 24 and 25 above). On the totality of evidence, I do not think the relationship between the Plaintiff and the Deceased at the material time was so bad that she would go to the extent of disinheriting him altogether. The taped conversation showed that on 18 November 1994 the Deceased was still concerning with the Plaintiff getting the money in her bank account after her death. 77.It is not disputed that it was the Plaintiff, not the Defendant, who accompanied the Deceased to attend medical treatments. He continued to do so after the death of the Father. The evidence of Ah Lu and the neighbour, which I accept, showed that the Plaintiff visited the Deceased regularly. Although there is discrepancy between Ah Lu and the Plaintiff as to whether he visited in the morning or in the afternoon, I do not consider this as very important given the lapse of time. 78.The evidence of Chan Yuk Yin was that the Deceased had told others that the Plaintiff was a filial son. 79.The Defendant and her witness Lee Siu Ping suggested that the Deceased harboured the view that the Plaintiff was only interested in her money. However, apart from the disagreement about the $500,000, there is no credible evidence of other incidents where the Plaintiff meddled with the monies of the Deceased. The Plaintiff did not raise any objection to the cancellation of his name from the joint name deposits in 1992. In August 1994, when YMC repaid $120,000 to the Plaintiff, he duly gave that sum back to the Deceased. 80.Regarding the difference in views as to the mandate for the $500,000 deposit, I have alluded to that in Paragraphs 51 to 53 above. In short, I find as a fact that the dissension between the Plaintiff and the Deceased was caused by the Defendant. All along, the Plaintiff was concerned with the Deceased's interest whilst as shown by the matters set out in Paragraphs 65 to 75 above, the Defendant was trying to secure her control over the money of the Deceased. As mentioned in Paragraph 25 above, the Plaintiff let the Deceased have all the accumulated interest in respect of the $500,000 when it was split into two. 81.I therefore did not find any valid reasons for the suggestions that the Plaintiff was only interested in the money of the Deceased. Further, if the Deceased harboured such a view and felt strongly about it, bearing in mind that the evidence showed that after the onset of her disease she had a bad temper, it is unlikely that she would deal with the question of mandate in the taped conversation in the manner as she did. 82.Although Mr Wong made a number of criticisms to the evidence of the Plaintiff and his witnesses, I do not consider those points to be of much assistance in assessing the evidence. I do not accept those points as valid criticisms on the credibility of the witnesses. The medical evidence 83.As explained earlier, the medical evidence in the present case could not be conclusive. The only doctor who had examined the Deceased before her death was Dr W K Lee. He was called by the Plaintiff to give evidence at the trial. He first saw the Deceased in May 1995 and diagnosed her to be suffering from senile dementia. A device used by doctors for assessing cognitive function of a patient is the Mini-Mental State Examination ("MMSE"). That was a test first adopted in the Western countries. After some research in Hong Kong, the MMSE with modifications to suit local population was validated by Dr Helen Chiu in 1994. Since then, it has been widely used in Hong Kong as a screening instrument for cognitive impairment including patient suspected to be suffering from dementia. The full score is 30. Dr Lee conducted a MMSE with the Deceased in May 1995 and her score was 10. According to the expert evidence, dementia patients could be divided into three categories: mild, moderate and severe. Patients with a score of 10 in MMSE fall within the range of moderate dementia. All the doctors who gave evidence before me accepted that patients with a score less than 10 belong to the severe category. 84.According to Dr Lee, the Deceased had undergone a gradual decline in her mental condition. He did not detect any plateau in the Deceased's condition in the course of his treatment of the Deceased. On the other hand, he told the court that as usual, the decline was not a linear one. He had not conducted any specific test on testamentary capacity of the Deceased (as he had no reason to do so) and he accepted that MMSE was not designed to test that. For this reason, Dr Lee did not feel able to express an opinion on whether the Deceased had testamentary capacity in May 1995. For senile dementia patient (as opposed to patients having cognitive problems due to head injury), Dr Lee was of the opinion that the issue of lucid intervals is largely irrelevant. 85.The three other doctors who gave evidence before me had no opportunity to examine the Deceased. They could therefore only give their opinions based on the medical records and notes kept by Dr Lee and what they were told by their respective clients. Dr Edmund Woo was called by the Plaintiff and Dr Yu Yuk Ling and Dr Singer were called by the Defendant. I am grateful for their valuable assistance in helping me to understand the nature of senile dementia and the medical evidence available concerning the mental condition of the Deceased. However, their opinions are subject to the limitations that I have alluded to. 86.A major issue between the experts is whether one can reach any conclusion as to the mental state of the Deceased in November 1994 based on the information available. Dr Woo's opinion was that based on the available material, the Deceased could not have the mental capacity to make a will in November 1994. His view was that for this kind of disease, the condition of the patient was more likely to subject to gradual and progressive decline rather than with plateau and ups and downs. He said that in examining the mental capacity to make a will, one must look at the various domains of cognitive functions including memory, orientation, calculation ability and the ability to judge and reason. Whilst he was of the opinion that there was a correlation between the severity of dementia and the ability of a patient to make a will, Dr Woo accepted one could not say that all patients with moderate dementia did not possess testamentary capacity. He agreed that MMSE was only a benchmark and clinical evaluation based on the particular history and circumstances of the patient was also important. 87.Dr Yu agreed that it was reasonable to infer the dementia of the Deceased started in 1992. He also agreed that for a patient with MMSE score less than 19, one should proceed on the basis that the patient might not have testamentary capacity and further investigations were called for. In respect of a person who forgot about a substantial portion of her asset, Dr Yu agreed that she probably did not have testamentary capacity. Likewise, he would reach the same conclusion in respect of a testator who could not explain why she disinherit some beneficiaries under a previous will made 4 years ago. 88.Dr Yu said the following in Paragraph 11 of his report,
89.Dr Yu placed some significance on the statement of WPH. On the other hand, it is not clear to me whether Dr Yu had the opportunity to read the transcript of the taped conversation. This has not been explored by counsel during the trial. 90.Dr Singer accepted that there was no reason to question the diagnosis of senile dementia on 15 May 1995. He described the symptoms of a patient with moderate dementia as follows at p. 26-27 of his report of 5 May 2001,
91.Dr Singer pointed out that MMSE score has only limited correlation with practical abilities and behaviour and it should only be considered as part of an overall psychiatric evaluation. In respect of the present case, he said at p. 28-29 of his said report,
92.Dr Singer further said at p. 30 of his report that there is no exact correlation between severity of dementia and testamentary capacity. He suggested that testamentary capacity of patient with severe dementia could remain intact. 93.Under cross-examination, Dr Singer expressed an opinion that the 1994 Will was rational since the Deceased was giving properties to a blood-relative. On the other hand, as the Plaintiff was not brought up by the Deceased Dr Singer suggested that the 1990 Will could be made under the influence of the Father. 94.Unfortunately, I find some of the evidence given by Dr Singer to be outside the proper scope of expert evidence. The suggestion that 1990 Will might be made under the influence of the Father is pure speculation. The inference he drew from the absence of reference to the mental state of the Deceased in the follow-up of November 1994 is solely a matter for this court to decide in view of all the evidence. An expert witness should maintain his independence and objectivity in order to have credibility. On my part, I would find it difficult to place much weight on the evidence an expert witness who assumed the role of an advocate. 95.In the present case, I would prefer the evidence of Dr Lee, Dr Woo and Dr Yu to the evidence of Dr Singer insofar as there were conflicts between them. I would disregard the conclusion of Dr Singer based on the possibility of plateaus, fluctuation and sudden deterioration in view of the evidence of Dr Woo and Dr Lee. Based on their evidence, it is unlikely that there was any plateaus or sharp fluctuation in the deterioration of the mental conditions of the Deceased between November 1994 and May 1995. I would however accept one contention of Dr Singer that was in fact supported by the other doctors. One cannot decide whether a patient has testamentary capacity solely by reference to her MMSE score. I do not think Dr Woo disagreed with that proposition. 96.Although their conclusions differ, I do not think there are significant conflicts between the views of Dr Woo and Dr Yu. Different importance was placed by each of them on the statement of WPH. For reasons given above, I have found the evidence of WPH to be unreliable. In view of his evidence set out in Paragraph 87, if he was told to disregard the evidence of WPH, Dr Yu might very well have agreed with Dr Woo's conclusion on the lack of testamentary capacity on the part of the Deceased in November 1994 if Dr Yu was told of the Plaintiff's version as to the conditions of the Deceased and the taped conversation. It seems to me Dr Yu was not saying that it was impossible to express an opinion on the testamentary capacity of the Deceased on the totality of the evidence before me. He only said that based on the limited information supplied to him, he could not do so. He was able to give his opinion on the testamentary capacity of the Deceased as at 15 May 1995 and gave the evidence as stated in Paragraph 87 above. 97.Likewise, Dr Lee's evidence could not be interpreted as saying that one cannot reach a conclusion on the testamentary capacity of the Deceased because there had not been any examination by any doctor on that issue in November 1994. He only said that he did not feel able to express an opinion on that based on the medical information available to him. 98.On the whole, I think the medical evidence which I accept can be summed up as follows,
99.Ultimately, it is a matter of judgment as to whether one can tell the Deceased's state of dementia as at November 1994 was so bad that her testamentary capacity was also affected. That judgment could only be exercised in the light of the whole circumstances and history. Given their limitations, I do not think I can just pick the conclusion of one doctor as being determinative. Instead, I must examine the finding of facts made by me against the opinions offered by the doctors to see whether I could reach a finding on the testamentary capacity of the Deceased as at November 1994 on the balance of probabilities. The law as to testamentary capacity 100.The law is well established and can be taken from the often cited judgment of Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at p. 565-6. I was also referred by counsel to several paragraphs in Williams, Mortimer & Sunnucks on Executors, Administrators and Probate, 18th Edn. I do not find it necessary to cite all these authorities except a short passage in Para. 13-03 of that textbook,
101.Parties, however, seem to have different perceptions as to the burden of proof. Mr Wong submitted that this being an action for revocation of the Grant, the burden of proof rests on the Plaintiff, unlike the ordinary case where the burden is on the party propounding a will to satisfy the court as to the testamentary capacity of the testator. He referred to the general principle that he who avers must prove his case and cited the case of Constantine Line v Imperial Smelting Corporation [1942] AC 154. He argued that the Defendant is not propounding the 1994 Will in the present case as this has been done in the non-contentious probate proceedings. 102.On the other hand, it seems to me Mr Yau has vacillated in his position on this question. At one stage, he seems to agree that the burden of proof is on the Plaintiff to establish that the 1994 Will was invalid. However, by the time when he made his closing submissions, he attempted to rely on a principle set out in Halsbury's Laws of Hong Kong, Vol.27 Para. 425.038 and alleged that because of the presence of suspicious circumstances in the present case, the burden shifted back to the Defendant. Mr Yau had made an application for leave to amend the Statement of Claim for the purpose of alleging suspicious circumstances. However, that application was later withdrawn for tactical reasons. 103.Mr Yau then appeared to fall back on the stance that the law is not clear as to who bears the burden of proof. He referred to Re Jolley [1964] P 262 where Willmer and Diplock LJJ expressly left the question open. He submitted that on the facts of the present case, the issue of burden of proof may not be too important since there were sufficient evidence to satisfy the court, even if the burden is on the Plaintiff, that the 1994 Will is invalid by want of testamentary capacity. However, he also cited the Canadian case of Dieno Estate v Dieno Estate (1996) 65 ACWS (3d) 221. That decision suggested that the ultimate burden of proof is always on the party propounding the will, even in the context where probate in common form has been granted and a challenge to the will was made by way of an action for revocation of grant. 104.Mr Wong submitted that the legislative scheme in Canada is different and the case of Dieno Estate is not applicable in Hong Kong. 105.Whilst at the end of the day, Mr Yau might be correct in his submission that in view of the evidence, it makes no difference where the burden of proof lies, I think I should say something about the arguments of the parties in order to avoid further misunderstanding as to the law. 106.Although Dieno Estate is a Canadian case, the learned judge in that case did refer to the common law position by reference to English authorities. In Paragraph 24 of the judgment, Baynton J said,
107.With respect, I am of the view that this is a correct statement of the common law position. This proposition was established in England by the case of Cross v Cross (1864) 3 Sw & Tr 292 at p. 295 to 296. This case is still cited as good authority in the latest edition of standard works on probate practice: Tristram & Coote's Probate Practice, 29th Edn., Para. 39.11 and Williams, Mortimer & Sunnucks on Executors, Administrators and Probate, 18th Edn. Para. 39-09 n. 36. In Cross v Cross, the suit, like the present case, was for the revocation of probate granted in common form. The allegation was that the will was a forgery. Sir J P Wilde held that even if the plaintiff failed to prove that will was a forgery, the party who wished to rely on the will still had to propound the same and prove its validity. Hence, it does not follow from the fact that a probate in common form had been granted that there was no need to propound the will if the grant was being challenged in a probate action. It is significant to note that in the discussion on burden of proof, Tristram & Coote's Probate Practice, 29th Edn., Para. 39.11 stated that the same considerations apply in a revocation action as in other contentious probate claims and cited this case as authority for such proposition. 108.Although the learned judges in Re Jolley left the point open, I do not think their Lordships intended to query this authority, which was not cited in that case. On the facts of Re Jolley, the Court of Appeal needed not deal with the issue. The reservations were only made by their Lordships to avoid any suggestion they were of the view the burden of proof has shifted to the person challenging the will by holding that the appellant in that case should start a probate action for revocation of grant. 109.I am therefore of the view that the burden of proof still rests on the party propounding the will to establish the testamentary capacity of the testator even in the context of an action for revocation of grant. I am also of the opinion that the Defendant is as much propounding the 1994 Will in this action as a person who asks for a decree to pronounce for the validity of a will. Cross v Cross shows that a grant in common form cannot be relied upon to lessen the burden of a party to propound a will which forms the subject matter of a probate action. 110.It is unfortunate that counsel have not fully researched the law in this respect before the trial commenced and the case of Cross v Cross and the relevant passage in Tristram & Coote only come to my attention in the course of my deliberation. I have to draw the attention of the parties to the same and further written submissions were made by the parties. In his submissions of 21 January 2003, Mr Wong argued that it would be unfair to hold now that the burden of proof was on the Defendant to establish the validity of the 1994 Will because of a concession made by the Plaintiff through his counsel on the first day of trial that he borne the burden in proving the 1994 Will was invalid. Mr Yau accepted that such concession had been made (although, for reasons unclear to me, he had reservation as to the characterization of the same as a concession). Mr Yau said in his submission of 21 January 2003 that the Plaintiff would not seek to resile from the position he had taken on the first day of trial. However, Mr Yau also submitted that in exceptional case where interests of justice require, the court is not bound by the stance adopted by the parties and may allow a party to withdraw from concession previously made. 111.I find the submissions of Mr Yau somewhat ambivalent. He did not make it clear whether he contended that the present case is one of those exceptional cases where the court should not be bound by the positions taken by the parties. It seems to me that he did not apply for leave to withdraw from the concession made by him. Bearing in mind the history of the proceedings, although I do not think the concession was rightly made, I am of the view that I should not depart from the premise agreed between the parties in the resolution of the dispute in this action in the special circumstances of this case. In so holding, I am not saying that a court must be bound by a concession of a party on question of law. That could not be right, see Bermuda Trust International Trust Co Ltd v Threadgold [1974] 1 WLR 1514 at 1525-6. However, having regard to the peculiar facts of the case before it, the court could properly hold that an issue had been withdrawn by the parties from its consideration and it would be unfair to allow a party to retract from such position (see Khan v Goleccha International Ltd [1980] 1 WLR 1482, SCF Finance Co Ltd v Masri (No 3) [1987] QB 1028). As observed by Dyson LJ in Ako v Rothschild Asset Management Ltd [2002] 2 All ER 693 at [40],
112.Hence, in the present case, I have to proceed on the basis that the burden of proof is on the Plaintiff to show that the Deceased did not have testamentary capacity at the time when the 1994 Will was executed. But this should not be interpreted as my acceptance of Mr Wong's argument as to burden of proof. To the contrary, for reasons given, I am of the view that the law is as stated in Paragraphs 106-109 above. Findings as to testamentary capacity of the Deceased in November 1994 113.On the totality of the evidence, I find that the Deceased's mental capacity in November 1994 was so seriously affected by her dementia that she did not have the requisite testamentary capacity. I find that she had difficulties in remembering the assets owned by her as evidenced by the taped conversation. She was also incapable of understanding that the effect of the 1994 Will was to disinherit the Plaintiff. Hence, in the taped conversation, she still referred to leaving her money to the Plaintiff after her death. Hence, she did not understand the extent of the property she was disposing and she was unable to comprehend the implications of making a will giving all her properties to the Defendant. 114.Before coming to such conclusion, I have taken into account of Mr Wong's submissions that in the light of some of the acts of the Deceased around the time of the execution of the 1994 Will, the proper inference was that the Deceased possessed testamentary capacity. For reasons given below, I do not think those acts shed any light on the testamentary capacity of the Deceased. 115.Mr Wong referred to the Plaintiff's evidence as to the handing over of the 1990 Will to him in 1993 for safekeeping. Given the lapse of time between that incident and the making of the 1994 Will, I do not think that incident has much relevance. In any event, the Plaintiff has corrected himself in the course of his evidence and said it was the Father who told him to keep the 1990 Will instead of the Deceased. 116.Mr Wong then pointed to the proposals about the residence arrangement for the Deceased when the Plaintiff brought the Father to his home in Shatin in about April 1994. The Plaintiff had proposed to send the Deceased to an Elderly Home until a maid could be employed to take care of her. Initially, the Deceased accepted the proposal. That proposal was not implemented as a result of the intervention of the Defendant. The Deceased went along with the suggestion of the Defendant that she remained at the Woo Sung street unit and the Defendant would come to look after her. I do not think this incident assisted the Defendant. To the contrary, it showed that the Deceased was susceptible to influence from the Defendant. 117.Mr Wong also referred to the execution of the tenancy agreement regarding the Woo Sung Street unit on 22 July 1994. This was necessary because the landlord had sold the property and new tenancy agreement was executed with the new landlord. It was a Chinese standard form tenancy agreement. The Plaintiff said the agreement was signed in the presence of the Plaintiff and the Defendant. The Deceased signed after the Plaintiff explained to her about the same. The Plaintiff felt that she was not very clear about what she was doing. Again I do not find this to be of any assistance in determining the mental capacity of the Deceased in November 1994. 118.Mr Wong relied on the disagreement as to the bank mandate for the $500,000 deposit. I have already dealt with this above. In view of my findings, the episode could not be of any assistance to the Defendant. The Deceased did not play any active role in the disagreement at the bank on 30 August 1994. It was the Defendant who made a scene there causing confusion to the Deceased. 119.As to the repayment of $120,000 by YMC, the taped conversation clearly shown that the Deceased had forgotten about it in November 1994. 120.It follows that the 1994 Will was invalid and the Grant should be revoked. Relief 121.I therefore grant an order revoking the Grant. The Plaintiff asked this court to pronounce for the 1990 Will. However, no evidence as to the due execution of the 1990 Will has been adduced before me. Neither the Plaintiff nor any witnesses called by him was present when the 1990 Will was made. 122.The 1990 Will was made in a solicitors' firm and its execution was witnessed by a solicitor and a clerk. Williams, Mortimer & Sunnucks on Executors, Administrators and Probate, 18th Edn. Para. 39-08 said,
The Plaintiff did not explain why they were not called as a witness. The failure may be due to inadvertence on the part of the legal advisers. 123.In the circumstances, I am unable to pronounce for the 1990 Will at this stage. However, since the action is not finally disposed of in any event (by reason of the stay referred to in Paragraph 2 above), I think it might be possible for the Plaintiff to argue that he should be allowed to re-open the case on this issue and to adduce evidence as to due execution. I therefore direct a call-over hearing be fixed for that purpose. 124.In view of the special circumstances of the case, I will also hear submissions on cost from parties instead of making any cost order nisi. Parties should consult each other and write to inform my clerk as to the time estimate for the call-over cum cost hearing. Hearing date could then be fixed by parties in the usual manner.
Representation: Mr Albert Yau, instructed by Messrs Hobson & Ma, for the Plaintiff Mr William M F Wong, instructed by Messrs Lo, Wong & Tsui, for the Defendant |
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