Kan Mui v. Lai Chung Hei and Others

HCAP7/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO.7 OF 2001

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BETWEEN

AND BETWEEN

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Before : Hon Poon J in Court

Date of Hearing : 18 February 2008

Date of Judgment : 18 February 2008

Date of Reasons for Judgment : 25 February 2008

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REASONS FOR JUDGMENT

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Introduction

1.This is a probate action.

2.Mr Lai Fook made a will on 8 April 1988 (“the 1988 Will”) making provisions for his children, relatives, friends and various employees including the plaintiff by original action (“the Plaintiff”).  He purportedly made another will on 20 October 1992 (“the 1992 Will”) naming the Plaintiff as the sole beneficiary and executrix of his estate.  On 4 February 1995, Mr Lai died.

3.The Plaintiff then commenced this action seeking to propound the 1992 Will.  Mr Lai’s children, namely, the 1^st to 3^rd defendants by original action (collectively “the Defendants”) disputed the validity of the 1992 Will, inter alia, on the ground that he lacked the testamentary capacity.  They sought to propound the 1988 Will.

4.Shortly before trial, the parties reached a settlement, which resulted in a consent order dated 18 February 2008.  Pursuant to the settlement, the plaintiff no longer pursued her claim.  She accordingly did not appear at the trial.

5.What remained for the trial was the Defendants’ counterclaim for propounding the 1988 Will.

6.Pursuant to Order 76 rule 12, Rules of the High Court, I ordered the trial on affidavit evidence.  Having considered the evidence and heard counsel for the Defendants, I made an order dismissing the Plaintiff’s action and propounding the 1988 Will in solemn form.

7.These are my reasons.

Propounding the 1988 Will

8.The mere fact that the parties had reached a compromise does not free the Defendants from satisfying the court that the 1988 Will, and not the 1992 Will, was the last will and testament of the testator, Mr Lai.  For it is the duty of the probate court to give effect, if it can, to the wishes of the testator as expressed in testamentary documents and it should not, therefore, pronounce against what it knows to be the last will in date without making inquiry as to its validity : see Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, 18^th edn, para.39-08 at p.441.

9.The Defendants relied on the affidavit evidence of Mr Tsang Wing Wah, the solicitor who prepared the 1988 Will and witnessed the execution of the same by Mr Lai.  He said :

“	3.	The late Mr Lai Fook had since 1971 been a client of Messrs Yu, Tsang & Loong.  I had know him for more than 25 years before he passed away in February 1995.  His account was handled by me personally or by my staff under my supervision.
	4.	Sometime in early 1988 I attended a conference with the late Mr Lai when he gave me instructions to prepare a will for him.  In the conference, he gave me details as to the distribution of his assets to the beneficiaries.
	5.	Based on his instructions, I prepared a draft will.
	6.	On or about 8th April 1988, the late Mr Lai attended my office.  I then interpreted and explained the contents of the draft will to him.  After I completed the interpretation and explanation, he indicated to me that the contents were true and correct and correctly reflected his intention, I then invited my secretary, Ms Cindia Yuen, as an additional witness to witness the execution of the will by him.
	7.	At the time of executing the will by the late Mr Lai, both of Cindia Yuen and I were present.  We witnessed him to sign on the will.  Ms Cindia Yuen and I then signed in the capacity of witnesses on the will as well.  I also signed on the interpretation clause.  Now produced and shown to me marked TWW-1 is a true copy of the will executed by the late Mr Lai on 8th April 1988.
	8.	At the time of executing the said will, it appeared to me that the late Mr Lai was sober and of sound mind and was normal in any aspect.  There was no slight indication that he had any mental capacity problem.  Had I had any doubt about his mental capacity, I would not allow him to execute the will without the confirmation from a medical practitioner that he had the mental capacity to do so.”

Mr Tsang’s evidence was not contradicted by any other evidence before me.  I accepted his evidence in full.

10.I noted that in her pleadings, the Plaintiff alleged that “if (which is denied) the 1992 Will was not valid because [Mr Lai] was already suffering from diagnosed dementia the 1988 Will, then and in such event the 1988 Will equally could not have been valid because of the very same ground”.  I rejected this allegation for four reasons.

11.First, it was not supported by any evidence.

12.Second, it was unsustainable because on the evidence before me, Mr Lai only suffered from dementia a few months after the execution of the 1988 Will.

13.Third, it did not sit well with the fact that under the 1988 Will, Mr Lai made provisions for all his children, as well as a grandson and a number of his long serving employees, who were undoubtedly nearest to him in kindred and who had been the objects of his affection.  The only reasonable inference to be drawn is that Mr Lai must have acted rationally with a sound and sober mind when he executed the 1988 Will.

14.Finally, Mr Tsang confirmed that Mr Lai was sober and of sound mind when he executed the 1988 Will.

15.In the circumstances, I was satisfied that the 1988 Will was a valid will.

16.Turning to the 1992 Will, I was satisfied that Mr Lai did not have the testamentary capacity when he executed the same.  For it is the undisputed evidence of the Defendants’ medical expert, which I accept, that Mr Lai suffered from vascular dementia with delirium and disturbance since June 1988 until his death and his testamentary capacity was impaired when he executed the 1992 Will.

17.For the above reasons, I found the 1988 Will was the last will and testament of Mr Lai.  I therefore gave judgment in favour of the Defendants on their counterclaim.

Messrs Anthony Kwan & Co., assigned by the Legal Aid Department, for the Plaintiff (by Original Action) and 1^st Defendant (by Counterclaim) : excused from attendance

Mr Nelson Mui, instructed by Messrs Chui & Lau, for the 1^st and 2^nd Defendants (by Original Action) and Plaintiffs (by Counterclaim)

Mr Tommy Lo, instructed by Messrs Liu, Chan & Lam, for the 3^rd Defendant (by Original Action) and 3^rd Defendant (by Counterclaim)

The 2^nd and 4^th to 12^th Defendants (by Counterclaim), in person, absent