In the Estate of Kwan Ho (or Hoo) Wing and Another v. Chan Mui

HCAP000001/1974

IN THE SUPREME COURT OF HONG KONG

PROBATE JURISDICTION

ACTION NO. 1 OF 1974

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Coram: Trainor, J. in Court.

Date of Judgment: 23rd June, 1975.

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JUDGMENT

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1. On the 12th of December 1972, Kwan Ho Wing made what was purported to be his last Will and testment. By that he bequeathed all his estate and effects whether realty or personalty whatsoever and wheresoever situate unto his wife Chan Mui.

2. He died on the 12th of March 1973.

3. On the 17th of April, 1974 a writ of summons issued out of the Probate Division of this Court on behalf of Kwan Shiu Tim, son of the deceased; Chan Mui, the beneficiary under the Will, being the defendant. In the summons the plaintiff claimed to be the only lawful and natural son of the deceased and the person entitled to administration of his estate and also to be beneficially entitled to the said estate. The defendant was sued as the sole executrix and beneficiary named in the will to which I have just referred.

4. In the Statement of Claim which was amended and then reamended the plaintiff claimed: (a) that the Court pronounce against the validity of the alleged will dated the 12th December, 1972; (b) that Letters of Administration be granted to the plaintiff solely, or to the plaintiff and one other person nominated by him and approved by the Court; or, in the final alternative, to the plaintiff and the defendant jointly (c) costs and such further or other relief as to the Court might seem fit.

5. The plaintiff challenged the validity of the will on the grounds: (a) that the deceased at the time of the execution of the purported will was not of sound mind memory or understanding; (b) further or, alternatively, the execution of the will was obtained by the undue influence of the defendant; (c) further, or in the alternative, the execution of the will was obtained by the fraud of the defendant; (d) further, or in the alternative, the deceased at the time of the execution of the will did not know or approve the content thereof; and (e) further, or alternatively, that the alleged will was not a testamentary document in that it was not executed with the intention to effect the disposition of the deceased's property to the defendant at all after his death.

6. The Statement of Claim proceeded to give particulars of the allegations set out in (a) to (e) above.

7. The 1st stated that the deceased, whose age was 64 suffered from acute cancer and by reason of sickness and infirmity was unable to leave his bedroom. It then proceeded to say that he was prevented by the defendant from going out and from seeing the plaintiff alone.

8. The 2nd alleged that the will was prepared by Messrs. Peter No & Co., solicitors, who had no record of any instructions from the deceased. It said that one, Shum Lap Kee, who was a witness to the said will, was a clerk of the said Peter Mo & Co. and a close friend of the defendant, the sole beneficiary under the will. The 3rd said that the defendant had been managing the properties and chattels of the deceased ever since he was told that he suffered from cancer, which was in or about the beginning of 1972, and as a result she had at all material times been in the position of trustee and/or confidant of the deceased in relation to all his properties and chattels and in a position to exercise undue influence over him.

9. The 4th alleged that by the end of October 1972 the deceased had become a drug addict, in that he regularly swallowed prepared opium as a pain killer; and on one occasion, the 10th of November, 1972, he was admitted into a hospital for treatment because of an overdose of opium.

10. The 5th said that about the beginning of December, 1972 the physical condition of the deceased worsened to the extent that he was unable to move by himself, could not give audible replies to questions put to him and did not seem to react in any way to such questions.

11. The 6th said that the deceased approximately one month after he executed the will purported to execute a conveyance of No. 17 Caroline Hill Road to the defendant.

12. The 7th alleged that at all times the defendant knew of the said will but when, on the 11th of March 1973, 3 clansmen of the deceased visited the defendant with the plaintiff to ask whether the deceased had made a will or not she answered that she did not know, and when her son-in-law started to mention something about the will he was immediately stopped by the defendant.

13. By her Defence the defendant denied that the execution of the said will was obtained by fraud and/or undue influence. She denied that the deceased at the date of making the will was of unsound mind, memory or understanding, and that he did not execute the will with the intention of effecting the disposition of his property after his death as set out in the will. As to the particulars set out in the Statement of Claim the defendant denied that the testator was unable to leave his room due to illness or that he was prevented by the defendant from seeing the plaintiff alone. She further denied that he could not give audible replies to questions and that he did not react when questions were put to him. She denied that the firm of Messrs. Peter Mo & Co. had no record of instructions from the deceased to make a will. The defendant admitted collecting rents on behalf of the deceased but said that she did so from the beginning of 1972 but not in any way as a trustee or confident or in any other fiduciary capacity. She denied that she was in a position to exercise undue influence over the deceased as had been alleged by the plaintiff. She denied that the deceased had been admitted to hospital for an overdose of opium as alleged by the plaintiff and further denied that the deceased was an opium addict. She admitted that the deceased had executed a conveyance of No. 17, Caroline Hill Road to her and she admitted that she told clansmen of the deceased, or or about 11th of March, 1973, that she did not know whether the deceased had made a will or not. Finally, she said the will appeared to have been properly attested and witnessed and the contents thereof were interpreted to the deceased prior to the execution.

14. At the conclusion of the evidence and having heard Counsel for both sides I ruled for the validity of the will and promised to give my reasons which I now propose to do.

15. Perhaps the best way to deal with this case is to start with the evidence of Shung Lap Kee who is a clerk employed by Messrs. Peter Mo & Co., solicitors, who was one of the witness to the will. He is the person referred to by the plaintiff in the Statement of Claim.

16. He said that he knew the deceased from about 1962, his firm, as I understood him, having acted for the deceased on many occasions. He said that in 1972 he had a telephone call from the deceased, the date of which he could not remember but he thought it was about the 20th of November. He said that the deceased's purpose in making the telephone call was to have a will drafted. Mr. Shung invited the deceased to his office and the deceased came the next day, and the witness took instructions from him. The witness said he told the testator that the will would be prepared and when ready he would contact him and have him come in and execute it.

17. The witness said that on the 12th December, 1972, the will being then ready he had the deceased come to his office where he explained to him the contents of the will, point by point. Having done that he then took him to the office of Mr. Yeung Ka Wing, one of the solicitors in the firm, and in the presence of Mr. Yeung he again explained the contents of the will to the testator. He said he did not know at that time the testator had cancer, but he appeared to understand the will and was, in the opinion of the witness, very alert. In the office of Mr. Yeung, the witness said, Mr. Yeung again explained the will to the testator and that having been done the testator signed, Mr. Yeung signed as did the witness. The witness said he was quite certain that the testator understood the contents of the will. It might perhaps to be noted here that the witness is a solicitor's clerk of some 18 years experience.

18. In cross-examination by Mr. Bernacchi the witness said that the defendant was present when the instructions for the will were given and when it was executed. He was further cross-examined to some considerable extent by Mr. Bernacchi but I do not intend to dwell unduely on that cross-examination. It was put to him that he was a friend of the deceased and the defendant for considerable number of years. He agreed that he was a friend of the deceased for a number of years but not of his wife, the defendant. He was asked when he first met the defendant and he said it was when the deceased came to buy a flat. It was again suggested to him that in 1972 he was friendly with the deceased and the defendant. Again he repeated he was friendly with the deceased but said he seldom saw the defendant. He was cross-examined in particular about instructions given for the assignment of the premises 17, Caroline Hill. These instructions were given subsequent the execution of the will, and the point being made by Counsel, as I understand it, was that it was a most peculiar thing for the deceased to affect an assignment to the defendant of property which he had already left to her by his will. The explanation offered by the witness was to the effect that this was done in case it should be necessary for her to raise money to meet testamentary expenses.

19. He was further cross-examined about the document on which the instructions for the will were recorded and the document used on which to record the instructions for the preparation of the assignment of the property to the defendant.

20. Mr. Michael Yeung is an assistant solicitor in the firm of Messrs. Peter Mo & Company. He said that after a slight amendment he approved the draft will drawn by Mr. Shum. He said that on the 12th December, 1972 he saw the deceased in his office. He described where he, the testator and Mr. Shum sat but he could not remember the defendant being there. He said Mr. Shum translated the will sentence by sentence and then he, the witness, did the same, checking the will at the same time for clerical errors and explaining the will to the testator. He said he asked the testator if he wished to leave everything to his wife and he said he did. He said the testator signed and the witness and Mr. Shum signed as attesting witnesses; he the witness having inserted the date.

21. Mr. Yeung said the testator seemed quite normal and appeared to understand; he was not senile and showed no signs of any disability; he did not say very much but there was nothing wrong with his speech. The witness said he was not aware of any undue influence. He further said if he had noticed anything wrong with the testator he would not have permitted him to sign.

22. Again this witness was submitted to a lengthy cross-examination on the procedure for taking instructions and the payment of costs.

23. Between these two witnesses there was substantial accord as to the circumstance under which the will came into existence. There was a difference between them as to whether or not the defendant was present during the execution but otherwise they were absolutely consistent in that the testator showed no disability and appeared fully to understand what he was doing. I had no hesitation in accepting their evidence on that.

24. There is no doubt whatever that the testator was a sick man at the time he executed the will. He was suffering from cancer, and he probably knew that his end was approaching.

25. Dr. Choa. gave evidence that he first saw the testator on the 26th October, 1971 and found a mass over the angle of the jaw. He said he took a piece of tissue for examination which showed the mass to be malignant. He said he advised his patient to see Dr. Khoo for radio therapy.

26. He said he next saw the testator on the 27th December, 1972, that is fifteen days after the execution of the will. He said he found that the patient had not received radio therapy and in the meantime the mass had enlarged. He said the result of this would have been that the patient would have had some discomfort, and a little pain in swallowing which would later increase. Doctor Choa said the patient definitely could talk coherently and was mentally sound. Counsel for the defendant told the doctor that it was suggested that this patient was not capable of making a will because of an affection of the brain, to which the doctor replied "not when I saw him". To me he said there was no evidence that the cancer had spread to the brain to prevent him from acting rationally. He said it was unlikely that he was in any way different prior to the 27th December.

27. In cross-examination he said that although he believed the deceased was accompanied on the visit he was of the opinion that he was capable of coming alone.

28. Dr. Khoo said he saw the testator on the 28th December, 1972 and found a cancerous growth. He said he ordered radio therapy which commenced in January but the condition was too far advanced for the treatment to be effective. He said that apart from the cancerous growth the general condition of the testator was good, and he was mentally alert, intelligent and co-operative. He said the pain the patient suffered was not great and the analgesic used was only slightly stronger than aspirin. He said the testator's brain was not affected by cancer.

29. Dr. Khoo was told in examination that the testator had been admitted to hospital in November, 1972 in a semi-conscious state and agreed that such a state could be produced by taking a toxic dose of a pain killer or taking an excessive amount of opium but he saw nothing on the 28th December to explain the semi-conscious state of the testator on admission to hospital a month earlier. He said that opium in excess of a therapeutic dose could produce unconsciousness. He also agreed that if the testator had been taking opium regularly that could camouflage the extent of pain and the condition of a patient.

30. Doctor Tam who saw the testator when he was admitted to hospital on 10th November 1972 was called by the plaintiff. He did not say what caused the semi-conscious state of the testator but agreed it could have been due to an excessive dose of a pain killing drug or opium. He said the patient was discharged on the 14th November. He said he could walk unaided, and was rational, alert and talking sensibly at the time of his discharge.

31. The plaintiff said that since April 1972 the testator, who was a dentist, went to his clinic only irregularly. He said he complained of pain and had difficulty in eating.

32. He gave evidence of seeing his father on the 10th November. He said his father was unconscious, saliva was dribbling from his mouth and he was sweating. He said he asked the defendant what had happened and she told him she had given opium to his father to ease his pain (something which the defendant had denied in her evidence). He said the defendant told him that the testator had been taking opium for several nights and as it did not relieve the pain he might have taken more than normal.

33. The plaintiff said when his father came out of hospital he spent most of his time sleeping, and complained of pain in his jaw and of difficulty in eating. He said he visited his father frequently and found him mostly in bed with his eyes closed. He said he would give him a slight push and his father would open his eyes and stare at him. He said he never saw his father go out although he visited him every day.

34. The plaintiff's wife gave evidence. She said that the testator went to Canton in October 1972. She said on his return she used visit him and he was always in bed. She told of going to the testator's house on the 10th November where she heard the defendant "wondering aloud" if the testator had taken an overdose of opium. She said the defendant said she had heard that opium paste eased pain and she had let him take it and that he had been taking it for 3-4 days. She said the testator was removed from hospital, although he could not get up, on the insistance of the defendant who said it was inconvenient for her to nurse him in hospital. The witness said she was very cross at this inhumane approach but said nothing.

35. The witness said she visited the testator after his return home from hospital almost daily. She said he deteriorated visibly every day and his speech was scarcely intelligible. She said he had difficulty in eating and she had to feed him. She said he communicated with her by signals: hand signals or signals with his eyes.

36. The question that I have firstly to decide is was the testator of testamentary capacity when he executed the will of the 12th December; 1972; was he of sound mind, memory and understanding.

37. Where, as here, the validity of a will is put in question the onus of establishing its validity is the responsibility of the person propounding the will. As the learned President of the Probate Division said to the jury in Smee v. Smee (1879-80) 5 P.D. 84 at 91, "But you should specially bear in mind that anyone who questions the validity of a will is entitled to put the person who alleges that it was made by a capable testator upon proof that he was of sound mind at the time of its execution. The burden of proof rests upon those who set up the will".

38. I have already dealt in extenso with the evidence called to establish the soundness of mind of the testator: A solicitor's clerk who took instructions and who saw the testator execute the will after it had been explained to him; the solicitor who explained the will and witnessed its execution; a doctor who saw him in November and two other doctors who saw him shortly after the execution of the will, all of whom considered him to be mentally alert and fully capable of understanding what he was doing. There was the incident of the 10th November, 1972, the origin of which has not been established, which might give rise to a certain amount of hesitation but the evidence of the doctor who attended him was that when he left hospital he was alert and could talk sensibly.

39. The time with which I am primarily concerned is from the taking of instructions to the execution of the will; and particularly the time of the execution. I had no hesitation in deciding that when the testator gave the instructions and during that time the testator was fully capable, both physically and mentally, of dealing with his affairs. So far as the plaintiff's wife's evidence is concerned, that he could only communicate by signals, I do not believe it. I am satisfied that when the testator signed the will he was of sound mind memory and understanding and fully understood what he was doing.

40. The issues raised by the plaintiff in the case are that the execution of the will was obtained by undue influence exercised by the defendant and also, or alternatively, by fraud.

41. The plaintiff said he was the only son of the testator. He said the testator had one other child, the daughter of him and the defendant.

42. He said he first knew his father had cancer when his father told him, after returning from a visit to Canton, in early 1972. He said his father told him he owned three flats, 20 oz. of gold, and certain shares, and an insurance policy for $5,000 and that he was going to give him one of the flats. He gave evidence of his father's deteriorating health and of the incident on the 10th November. He said while his father was in hospital during that period his, the plaintiff's, wife looked after him during the day and the defendant looked after him during the night. He said because of the inconvenience of that the defendant insisted on the testator being removed from hospital. He gave evidence of his father's condition at home and in hospital where he died on the 12th March, 1973.

43. The plaintiff said that on the 11th March he and three clansmen visited the defendant after being to see the testator in hospital. He said he asked the defendant what she proposed doing after the testator's death. He said he was interrupted by one of the clansmen who asked if the testators had left "some words" or a will and the defendant said no. The clansmen said as the testator had a lot of property something should be done about it. The plaintiff said a clansman, Chan Pak Cheong, asked his opinion and he said it was for the defendant to give an opinion but she said she had none and would leave it to the plaintiff. The plaintiff said he then suggested that the property should be divided in half. He said the defendant's son-in-law interrupted and said "we will know everything when we see the will" where upon the defendant raised her hand and told him to keep quiet.

44. The plaintiff said on the 13th March they were all assembled in the funeral parlour and the defendant telephoned the solicitors and asked for Mr. Shum. He heard her say "He's dead" and then she said "Don't let anyone see the will yet". He said she did not ask if the testator left a will. This was relevant in that the defendant had said in evidence that she was unaware until that telephone call that the testator had made a will. He said he went to see Mr. Shum but was not shown the will but was told he did not benefit under it.

45. In cross-examination he agreed relations with the defendant were cordial until proceedings commenced. He said he was very attached to the testator but the defendant was not so. She used scold him and use foul language. He was asked about a certain letter, to which I shall later refer, and was asked if he agreed to a reference in it to the defendant: "greedy, selfish and ungrateful." He replied "more or less." He said his father told him he did not trust the defendant.

46. The plaintiff's wife gave evidence. She said her husband told her of the conversation when he and the clansmen called on the defendant. She said as a result she telephoned Mr. Shum on the 12th March, the day the testator died. She said she told Mr. Shum that she was a relative of the deceased and Mr. Shum asked: "He's dead already"? She said when she said he was Mr. Shum then said "Are you trying to grab the estate"? The witness said she told Mr. Shum she only wanted to know if deceased "had written down something at your solicitors firm". His reply was "Chan Mui has given instructions not to let anyone read it. Yes there is a will". This was a rather interesting piece of evidence as the plaintiff said he became aware that there was a will as a result of hearing the defendant telephone Mr. Shum on the 13th. Is it not unusual that he should be ignorance on that date his wife having telephoned Mr. Shum the day before, i.e. the day the testator died. She did however correct her evidence and say the conversation took place on the 13th.

47. One Kwan So Wai gave evidence. The total of it so far as it was relevant at all was that he was present with other clansmen in the home of the defendant when some one asked her if her husband had left "any dying words" and she said no. He said it was suggested that it was an ideal opportunity for the son and wife to discuss the matter, and it was agreed that if there was a will everything should be done according to it; if none then everything should be divided equally. He said the defendant's son-in-law said "We will know about it when we see the will". He said the defendant turned and looked at her son-in-law but said nothing. This witness said that on one occasion prior to the war he saw the testator who had a strange stare in his eyes and who suggested something about opening a "tourist guide company." This, he said, he understood to mean some sort of sex establishment.

48. Another clansman of the deceased Chan Pak Cheng, was called who had a vague recollection of what transpired at the meeting with the defendant at her house on the 11th March. He said he asked the defendant if there was a will and when she said no he enquired about testamentary expenses. Apart from hearing the defendant's son-in-law say "We should see what the will said" he could add nothing else. He did say, however, that every time he saw the deceased he was normal.

49. I mentioned earlier a letter to which the plaintiff was referred. This was from the people with whom the deceased and the defendant stayed in China in 1972. It was admitted under the Evidence (Hearsay) Ordinance. In my opinion it added little to the evidence of the plaintiff's witnesses. It was largely an attack on the personality of the defendant. It did say that the deceased had told the writers about "how his immovable property should be managed", and a lot about Mrs. Kwan. It said "he told us very clearly that he did not trust Mrs. Kwan. So, he was not willing to hand over to Mrs. Kwan all the money and properties. Mrs. Kwan told us quite a few times she was not happy with this .....".

50. Later the letter said " ..... Dr. Kwan made it very clearly (sic) that one of the buildings is for Mrs. Kwan to live in, the other is for Ah Tim (the plaintiff). The 3rd one would be let out so that the rent received could be used for curing his disease". Again "Furthermore, Dr. Kwan had said that he had not written any will (i.e. not for the time being). This is to guard against Mrs. Kwan, and Mrs. Kwan herself had told me several times that (she has) to urge Dr. Kwan to finish writing his will, and also that (she) need our help to achieve the purpose. But unfortunately Dr. Kwan could not write down what he said about the houses before his death. This shows that before his death, Dr. Kwan had not made any will and the will produced by Mrs. Kwan is false or was obtained by some unlawful means". There is a lot more but I do not intend to dwell on it.

51. This letter was written in reply to a letter from the plaintiff's wife and is dated the l6th May of this year. I attach no probative value to it at all. In my opinion the letter is suspect from start to finish.

52. A final matter from which the plaintiff endeavoured to extract some benefit was that after the execution of the will the testator assigned one of the flats to the defendant. It was suggested that this indicated the dominating and will - reducing power of the defendant over the deceased.

53. I accept completely the evidence of Mr. Yeung the solicitor and his clerk on this point. The clerk said he received instructions from the defendant and the deceased to prepare the assignment. He said he entered the name of the defendant only as the client on the attendance docket because where his firm acts for an assignor and assignee this is usual. He said that he prepared the assignment and he and Mr. Yeung went to the home of the deceased. Both of them said the deceased was up and around and, indeed, personally served them tea. (Mr. Yeung said he did not drink it when he saw the signs of ...(illegible) adiation on the deceased's neck). Both said it was not at all unusual for a Chinese who had made a will subsequently to assign part of the property in order to facilitate obtaining money or accommodation to meet funeral and testamentary expenses.

54. As to whether or not the defendant was present when the will was executed I am not unduly concerned. She says she was not; Mr. Yeung does not remember her, but the clerk says she was. Whether she knew of the existence of the will or not before the testators death is of little importance. Her denial of such knowledge might be if I had any evidence of undue influence or fraud but I had none. It would require a lot more than her mere presence when instructions were given for, and at the execution of the will and her denial of its existence, even if I believed such to be the case to persuade me that she had exercised an undue influence over her husband. To cite Sir J.P.W. ilde in his address to the jury in Hall v. Hall (1865-69) 1 L.R. P.D. 481 at 482 "To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude or the like - these are all legitimate, and may be fairly pressed on a testator". I have had no evidence that would persuade me that the defendant exercised even the influences suggested by Sir J.P. Wilde let alone the undue influence alleged. Of fraud there was nothing to persuade me of its existence.

55. I therefore dismiss the claim of the plaintiff and I award the costs of the proceedings to the defendant. In my opinion these proceedings were instituted on the flimsiest of grounds and I cannot see the slightest reason why the ordinary rule of practice, that costs follow the event should not be followed.

56. Mr. Bernacchi referred me to the cases of: Smee v. Smee, 5 LR (P.D.) 84; In re Cunliffe, 1959-60 P.D.6; In re Morris deed 1971 P.D. 62; In the Estate of Fuld, 1965, 3 A.E.R. 776 when I first announced my decision in this case on the question of costs. He had again referred me to Wilson v. Bassil, 1903 P.D. 239 prior to delivery of this judgment. In arriving at my decision as to costs I had taken into consideration the cases first cited. Nothing in Wilson v. Bassil inclines me to change my mind.

Representation:

Mr. Bernacchi, Q.C. and K. Shuen (W.K. Poon & Co.) for Plaintiff.

Mr. Murphy (Gunston & Chow) for Defendant.