Kung Wong Sau Hin v. Kung Kwok Sun and Another

HCAP000002C/1982

BETWEEN

Coram: Jones J.

Date: 9th August, 1983

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JUDGMENT

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INTRODUCTION

1. The plaintiff is the widow of Kung Yuek Man (the deceased) who died on the 4th October 1981. These are three sons of the marriages Kung Kwok Ching (2nd defendant) who is the eldest, Kung Kwok Sun (1st defendant) and Kung Kwok Wai (David). David the youngest son is not a party to the action. However he lives with the plaintiff and is the sole beneficiary under her latest will dated the 2nd January 1982.  It has been alleged that the plaintiff is to a large extent influenced by David.

2. By this action the plaintiff seeks a decree for probate in solemn form of a will made by the deceased dated the 29th October, 1970. The plaintiff was appointed to be the sole executrix of this will under which she is entitled to the estate as the sole beneficiary.

3. Both defendants dispute the plaintiff's claim and counterclaim for a decree in solemn form of a later will made in Chinese dated the 20th August, 1980. Subject to certain conditions, this will divides the estate of the deceased in the following proportions : 30%   to the plaintiff, 15% to each of the three sons, 15% to charity and 10% to the grandchildren. A plea in the alternative that the deceased died intestate or partially intestate was not pursued by the defendants at the trial. The 1st defendant also counterclaims for a decree in solemn form of a document in Chinese, described as a will or codicil made by the deceased which is dated the 23rd July, 1981. I shall refer to this document as the codicil.

EVIDENCE FOR PLAINTIFF

4. Mr. C.P. Lin a solicitor said that he prepared mutual wills in English on the instructions of the deceased for the deceased, and the plaintiff in October 1970. The wills were executed by the deceased and the plaintiff after the contents had been interpreted and explained to them in the presence of Mr. Lin and his clerk Mr. Leung Wing Kwong who signed their names as attesting witnesses. I am quite satisfied that the deceased had testamentary capacity when he made the will and that the will is valid in accordance with the provisions of Section 5 of the Wills Ordinance Cap. 30.

5. The plaintiff is aged 83. She is in poor health and is confined to a wheel chair suffering from hypertension and heart disease. She gave evidence that she had a very good relationship with the deceased and was not aware of the existence of a later will. During his lifetime the deceased informed the plaintiff on more than one occasion that she was to inherit his entire estate and when he went into hospital before he died he mentioned that Mr. Lin had custody of his will.

6. In cross-examination the plaintiff testified that the deceased did not have a very good opinion of the three sons to whom none of the estate would devolve. However, she also said that the deceased was a loving father. She said that she had not made another will, but this was later found to be incorrect. I found nothing sinister in this error which I am satisfied was due to a lapse of memory. The plaintiff was understandably confused at various times during her evidence. However she made every effort to recall events which happened several years ago. In spite of her age and infirmity she is a lady of much spirit. Inconsistencies in her evidence were attributable to her poor memory her advanced age and state of health. I was impressed with the way she gave her evidence and I found her to be an honest witness.

EVIDENCE FOR 1ST DEFENDANT

7. Mr. Fong Ming testified on behalf of the 1st defendant that in August, 1980 he prepared five draft wills for the deceased in Chinese. He said that the first three drafts were destroyed by the deceased. Copies of the fourth draft dated the 7th August 1980 and the fifth draft dated the 20th August 1980 were produced as exhibits. Neither draft bears the signature of the deceased. The deceased expressed himself to be happy with the fifth draft and asked Mr. Fong to sign the document, but Mr-Fong declined because he was mentioned as a beneficiary. As a result the deceased kept the original draft and later gave a photo copy to Mr. Fong informing him that he could refer to this document if it became necessary to make any further amendments.

8. It is significant that when Mr. Fong asked the deceased why he did not instruct a lawyer to prepare the will the deceased said that as he did not understand English he wanted drafts to be prepared and that he would make a formal one when he considered that the contents were to his satisfaction.

9. Mr. Tam Kam Yuen was called as a witness by the 1st defendant. He claimed that he had seen a will in English signed by the deceased. However, he said that he neither understands English nor was aware of the contents of the document. He was a garrulous and evasive witness who was not concerned with telling the truth. His testimony which I reject was of no evidential, value in this action.

10. Mr. Kung Pui Ying, who prepared the codicil on the deceased's instructions, worked as an accountant at the deceased's firm. The Sam Kwong Weaving Factory from 1952 until the deceased's death. The codicil reads as follows :

THE SAM KWONG WEAVING FACTORY

WHOLESALES DEPARTMENT

N0.9 WING KUT STREET, TEL. H-447554

HONG KONG

11. I, Kung Yeuk Man, know that I am aging and may soon pass away. Because my son Kung Kwok Sun is very straight forward and not good at elaborate planning and he has been working for Tin Chong Ho since 1950 and was promoted as the Managing Director of the Sam Kwong (1952) Weaving Factory in 1952. For several tens of years he has been working very hard and keeping his principle. Therefore I have decided that after my death, apart from what he is entitled to from my estate, I also specifically allocate to him deposit Certificate No. 133299 HK$4,353,827.66 of the fixed deposit, whole amount, as a gift to my second son Kung Kwok Sun and hope he uses it for good cause.

12. Your bank Shaukiwan Branch, Manager Mr. Kung Chuan Wah is my village-related nephew and I wish Chuan Wah can carry out his promise to me to put into practice the above various decisions after my death.

To

B.N.P. Executive Manager

The codicil was signed by the deceased and by Mr. Kung Pui Ying as a witness. Mr. Kung was asked by the deceased to keep the codicil and the fixed deposit receipt and not to mention the matter to anyone. It is not in dispute that the signature of the second witness Mr. Kung Chuan Wah who is the son of Mr. Kung Pui Ying was added on the 8th October 1981 four days after the death of the deceased. It was not until that date that Mr. Kung Pui Ying informed the 1st defendant about the codicil.

13. No evidence was called by the 2nd defendant.

14. Mr. Sakhrani who appeared for the 1st defendant concedes that there is no evidence that the deceased executed a later will. However, he submitted that I should draw an inference from the evidence that the deceased executed the fifth amended draft will. This was because the deceased intended to make a will at the time, that the provisions with which he expressed himself to be satisfied are consistent with the character of the deceased and that he had requested Mr. Fong Ming to sign the document. Mr. Sakhrani further argued that David who stands to gain if the plaintiff succeeds in this action has had the opportunity and motive to conceal or destroy the later will. This very serious allegatioin was not supported by a tittle of evidence.

15. I accept that over a period of about three weeks in August 1980 the deceased instructed Mr. Fong Ming to prepare the five draft wills. The further and better particulars of the defence aver that the deceased told Mr. Fong that he was not going to make any more amendments. However, this was not borne out by the evidence of Mr. Fong who said that although the deceased was happy with the draft and asked him to sign as a.witness, he was also given a photo copy of the draft which he was told he could refer to if further amendments became necessary.

16. There is no doubt that the deceased intended to make a will at that time. However, there is no evidence that the fifth amended draft or any other draft was executed. No one saw the deceased execute a will nor has anyone seen a will signed by the deceased. Although Mr. Fong said that he was asked to sign the fifth amended draft I consider that part of his evidence to be unlikely. However, be that as it may I accept his evidence that it was the deceased's intention to have a formal will executed when he was satisfied with the final draft. Having regard to the fact that the deceased had previously instructed a solicitor to prepare his will I see no reason to doubt that he would have done so again. What became of the original fifth amended draft is unknown, but in all probablity it was destroyed by the deceased. The burden is upon the defendants to establish on a balance of probabilities that a later will was made. Upon the evidence I do not accept that the deceased executed the will dated the 20th August, 1980 nor do I draw any inference that the deceased did so. In fact the evidence compels me to draw the inference that the deceased did not execute the will.

17. Section 5(2) of the Wills Ordinance provides :

18. The definition of will in section 2 includes a codicil and any other testamentary instrument or act. Accordingly the codicil in this case may be admitted to probate for the deceased was Chinese, the document was written wholly in Chinese, and according to Mr. Kung Pui Ying it was signed by the deceased. As the deceased's signature was not required to be witnessed the addition of Mr. Kung Chuan Wah's signature after the death of the deceased would not invalidate the codicil. However, it is pertinent to refer to the evidence of Mr. Kung Pui Ying. In cross-examination in answer to a question put by Mr. Ching who appeared for the plaintiff that is son signed as a witness, his first reply before he eventually agreed was 'I'm ignorant of the law'. However, it is clear that he believed, although incorrectly as it transpired, that the document in order to be valid required the signature of two witnesses. It was his decision that the document should be signed by his son. He agreed that his son signed with reluctance. Although he did not deceive the Court Mr. Kung Pui Ying's actions were calculated to deceive persons who sawn the document into believing that the deceased had signed in the presence of two witnesses.

19. There were other unsatisfactory features concerning the codicil. In particular Mr. Kung Pui Ying placed a cross in pencil to indicate to the deceased where he should sign when he could as easily have pointed to the place for his signature, the position of the signature does not follow the text but is much lower down, and certain parts of the contents are in different shades of ink.

20. Mr. Kung testified that the deceased had instructed him to renew the fixed deposit with interest every three months yet the codicil refers to a specific sum of $4,353,827.66.

21. The reasons set out in the codicil for making the gift are not convincing, and in my opinion do not reflect the character of the deceased. Exactly why Mr. Kung Chuan Wah as branch manager of Banque Nationale de Paris at Shaukiwan should be entrusted with handling this matter and what duties he was expected to perform was not explained. Apart from the testimony of Mr. Kung Pui Ying there was no evidence to establish that the signature on the codicil is that of the deceased. I did not find Mr. Kung Pui Ying to be a convincing or a reliable witness. He was shifty, devious and at times verbose. I did not accept his evidence.

22. The lst defendant has therefore failed to establish on the balance of probabilities the validity of  the codicil. I find that the will made on the 29th October 1970 was valid and was the last will and testament of the deceased. Accordingly I pronounce in favour of the plaintiff that the will be proved in solemn form. The counterclaims of the defendants are dismissed. Costs to the plaintiff.

Representation:

Mr. Charles Ching, Q.C. & Mr. Michael Bunting (C.P. Lin & Co.) for plaintiff

Mr. Arjan H. Sakhrani, Q.C. & Mr. 4laven C.H. Chan (Fairbairn & Kwok) for lst defendant

Mr. Kenneth H.W. Kwok (C.Y. Kwan & Co.) for 2nd defendant

Mrs. Catherine Chan (Legal Department) for A.G.

Miss Sze Kin (T.L. Ip & Co.) on watching brief for 3rd son of deceased,

Mr. David Kung