Case Document

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HCAP7/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO.7 OF 2007

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IN THE MATTER of TAO YING (杜英), late of 8 Kung Lok Road, Kwun Tong, Kowloon, Hong Kong, widow, deceased (“the Deceased”)

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BETWEEN
	TAO KWOK WAH (杜國華)	Plaintiff
	and
	CHAN WAI WAI (陳懷偉)	Defendant

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Before : Hon Poon J in Court

Dates of Hearing : 30–31 March 2009

Date of Judgment : 6 April 2009

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JUDGMENT

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1.These proceedings concern the validity of a Chinese will purportedly executed by Madam Tao Ying on 27 February 2004 (“the Will”). The background circumstances may be summarized as follows.

A. Background

2.Madam Tao was born in 1926. In 1980, her husband, Mr Yip Kam Shing (“Mr Yip”) died. In November 2001, Madam Tao was admitted to Buddhist Sum Ma Shui Ying Care and Attention Home for the Elderly (“the Elderly Home”). On 27 February 2004, she purportedly made the Will, which was attested by two social workers of the Elderly Home, Ms Ho Yuk Kuen and Mr Leung Ho Tan (respectively “Ms Ho” and “Mr Leung”). She died of lung cancer on 7 June 2006, leaving no issue or children.

3.The plaintiff is Madam Tao’s nephew. Had Madam Tao died intestate, he and eight other nieces and nephews of Madam Tao would have been entitled to share in her estate.

4.The defendant is the son of Mr Yip’s sister. He is named as the sole beneficiary of Madam Tao’s estate and executor under the Will. But for the Will, he would not have been entitled to share in her estate.

5.Disputes between the parties as to their entitlement to Madam Tao’s share subsequently arose.

6.The plaintiff pleaded that Madam Tao had died intestate. He disputed the validity of the Will by requiring the defendant to put to strict proof due execution and alleging that Madam Tao suffered from dementia and mental illnesses at the time when she made the Will. He sought a grant of the letters of administration of Madam Tao’s estate. The defendant sought in effect to propound the Will in its solemn form.

B. The main issues

7.The main issues are :

(1) Did Madam Tao execute the Will?

(2) Was Madam Tao of testamentary capacity when she made the Will?

(3) Did she know and approve of the contents of the Will?

C. The applicable principles

8.In Nina Kung v. Wong Din Shin (2005) 8 HKCFAR 387, Ribeiro PJ said :

“171. A person who propounds a will has the legal or persuasive burden of satisfying the court that it is the will of the deceased: Barry v Butlin (1838) 2 Moo PC 480; Robins v National Trust Company Limited & Others [1927] AC 515; Wintle v Nye [1959] 1 WLR 284 (HL).

172. The standard of proof is the balance of probabilities. The proponent of the will must show on a preponderance of the evidence that it is the will of the deceased: Worth v Clasohm & Another (1952) 86 CLR 439 at p.453; Fuller v Strum [2002] 1 WLR 1097 at p.1120.

173. This means that the proponent of the will has the persuasive burden of proving on a balance of probabilities that :

(a) there was due execution of the will;

(b) the testator was of testamentary capacity; and,

(c) the testator knew and approved of the contents of the will. (Barry v Butlin (1838) 2 Moo PC 480; Re Harmes Estate [1946] 3 DLR 497 (PC))

…

176. If someone wishes to dispute the validity of a will on the grounds that there is want of due execution, or of testamentary capacity, or of the requisite knowledge and approval, that person bears an evidential burden of putting the relevant ground of challenge in issue. If the evidence adduced by him or otherwise arising in the case is of a sufficient cogency to raise such an issue, the court, when assessing the evidence as a whole at the end of the case, decides whether the proponent of the will has discharged the persuasive burden in relation to the relevant fact in issue on the balance of probabilities.”

9.With these principles in mind, I now turn to the evidence.

D. Evidence

D.1. The relationship between Madam Tao, the defendant and his wife

10.According to the undisputed documentary evidence, the defendant and his wife, Ms Tsang Shuk Ha (“Ms Tsang”) did have a good and harmonious relationship with Madam Tao. They also cared for her.

11.First, as early as in 1999, Madam Tao and Ms Tsang opened a joint saving account with Hang Seng Bank, which had since been in use up to Madam Tao’s death on 7 June 2006. This shows inferentially that there was a considerable amount of mutual trust between the two ladies.

12.Second, it was Ms Tsang who accompanied Madam Tao when she was admitted to the Elderly Home. Ms Tsang also signed a guarantee dated 20 November 2001 as guarantor, thus making herself personally responsible for the expenses incurred by Madam Tao for staying in the Elderly Home. She also agreed to co-operate with the Elderly Home to take care of Madam Tao. Her love and care for Madam Tao is quite apparent.

13.Third, in a letter dated 4 October 2007 (“the Letter”), the warden of the Elderly Home certified that the defendant and Ms Tsang had a harmonious relationship with Madam Tao and often visited her.

14.It is against this backdrop that Madam Tao made the Will.

D.2. How Madam Tao executed the Will

15.The defendant did not give evidence. Presumably, it is because he was not present when the Will was executed. He called the two attesting witnesses, Ms Ho and Mr Leung.

16.Ms Ho was the social worker assigned to take care of Madam Tao since her admission to the Elderly Home. Ms Ho left the employment of the Elderly Home in 2005. Ms Ho had this to say in her witness statement :

「3. 杜女仕生前居於佛教沈馬瑞英護理安老院。我知道杜女仕有一外甥，陳懷偉先生，亦經常到安老院照顧及探訪杜女仕。我也多次與陳先生在安老院碰面。

4. 在二零零四年二月，杜女仕曾表示想做一份遺囑，而我知道安老院方面有一份『院友平安囑書』提供給院友使用。於是在二零零四年二月二十七日，我們便在安老院的會議室內為杜女仕準備囑書。

5. 杜女仕要求我替她塡上資料，如：姓名，香港身份證號碼及地址等。杜女仕更清楚地吩咐要將遺產交予給陳懷偉先生為遺產受益人。杜女仕說這是因為陳懷偉先生經常探望及照顧杜女仕。

6. 當資料塡好後，我向杜女仕讀出及解釋整份囑書內容。她點頭確認，並在囑書上『立遺囑人』的空白位置簽署確認。日期則由我負責塡上。

7. 我見証杜女仕簽名後，我亦在囑書上『見證人』的位置簽名及塡上我的姓名，職業及地址。

8. 當時在安老院的會議室內還有另一位同事作為見証人，梁浩丹先生，見証整過囑書簽署過程。梁先生亦在囑書上簽名確認見證。

9. 由我替杜女仕塡寫囑書上的資料、解釋囑書內容至見証杜女仕簽名，過程需時大概三十分鐘。杜女仕都在精神良好及神志清醒狀況下簽名。

10. 杜女仕的囑書簽妥後隨即放入信封內及封口，並由我交給安老院方面保存及叮囑院方小心處理囑書。」

17.In her oral testimony, Ms Ho added a number of points. First, she raised the matter in a daily morning meeting, which she called “交更會”, with the warden and other staff and obtained the warden’s approval before proceeding to help Madam Tao execute the Will. Second, she was just following the standard procedure of the Elderly Home for what she did for and during the execution of the Will. Third, she denied that Madam Tao was unable to recognize others or had dementia or was mentally unfit when she executed the Will. On the contrary, Madam Tao was able to recognize others including the staff of the Elderly Home. If Madam Tao was mentally unfit, she would not have helped her execute the Will. Fourth, some time after the execution of the Will, Madam Tao began to show signs that she was unable to take care of herself whereupon she was transferred to the 3/F or 4/F of the Elderly Home.

18.Ms Ho was not shaken under cross-examination. I find her an honest and credible witness and accept her evidence in its entirety.

19.Mr Leung gave evidence to corroborate Ms Ho on how Madam Tao executed the Will. Basically, he acted as an attesting witness. Like Ms Ho, he was not shaken under cross-examination. I also find him an honest and credible witness whose evidence I accept in full.

D.3. The evidence adduced by the plaintiff

20.The plaintiff and his witness, Madam Choy Fung Guang (“Madam Choy”), who was a friend of Madam Tao for over 40 years, had visited Madam Tao at the Elderly Home from time to time. But neither of them was present when the Will was executed.

21.Madam Choy said in her witness statement that in her view, the signature of Madam Tao on the Will was not hers, thus implying forgery. This is a serious but unsubstantiated allegation. Indeed, the plaintiff has called no handwriting expert to prove that Madam Tao’s signature on the Will was forged. I have no hesitation in rejecting Madam Choy’s unfounded allegation.

22.The plaintiff has not called any medical expert to prove that Madam Tao suffered from dementia or any other form of mental illness at the time when she executed the Will. What he sought to rely on to prove that Madam Tao did not have the testamentary capacity is the allegation that she was unable to recognize him and Madam Choy occasionally when they visited her.

23.As I understand the plaintiff’s evidence, he said Madam Tao began to show her inability to recognize others towards the end of 2004. That was well after the execution of the Will. So even if his evidence were to be accepted, it does not show that Madam Tao lacked the testamentary capacity when she executed the Will in February 2004.

24.Madam Choy remained adamant in her oral testimony that Madam Choy began to show her inability to recognize others in the beginning of 2003. According to Madam Choy, Madam Tao had already moved to the 4/F of the Elderly Home by then. However, on the evidence before me, which I accept, Madam Tao was transferred to 3/F or 4/F some time after and not before the execution of the Will. Further, if Madam Choy’s evidence were to be accepted, the Elderly Home and Ms Ho would have become aware of Madam Tao’s mental incapacity well before February 2004. On the evidence before me, I fail to see any reason why the warden of the Elderly Home would still allow Ms Ho to proceed with the execution of the Will or why she would do so. For these reasons, I reject Madam Choy’s evidence.

25.In any event, even if I were to accept the plaintiff’s allegation that before she executed the Will, Madam Tao had on occasions been unable to recognize others, he had adduced no medical evidence to support his contention that such occasional slips were indicative of dementia or lack of testamentary capacity on Madam Tao’s part when she executed the Will.

D.4. Conclusion

26.For the above reasons, I am satisfied that the defendant has discharged the burden of proving :

(a) due execution of the Will by Madam Tao;

(b) Madam Tao had the necessary testamentary capacity when she executed the Will; and

(c) Madam Tao knew and approved of the contents of the Will.

27.On the other hand, I find that the plaintiff has not even begun to discharge the evidential burden of putting either want of execution or lack of testamentary capacity in issue.

E. Orders

28.I will dismiss the plaintiff’s claim and enter judgment for the defendant on his counterclaim.

29.The parties have already made their submissions on costs. Costs should normally follow the event except :

(a) where the conduct of the testator or the residual beneficiary was the sole or dominant cause of the litigation, the costs would come out of the estate; or

(b) where circumstances led reasonably to an investigation of the will’s validity, there would be no order as to costs.

See Nina Kung v. Wong Din Shin (No. 2) (2006) 9 HKCFAR 800.

30.In my view, exception (a) does not exist. As noted, Madam Tao had had a good and harmonious relationship with the defendant and his wife, who had been taking care of her. It is hardly surprising that Madam Tao would make the Will in favour of the defendant. The defendant was unaware of the Will at the time. It was only given to him by the Elderly Home after Madam Tao had passed away. And there is no reason for him to query the validity of the Will, which was attested to by two independent witnesses. In the circumstances, it cannot possibly be said that the conduct of Madam Tao or the defendant was the sole cause of this action. Exception (b) does not exist either. In light of the cogent and credible evidence of the two attesting witnesses, there can be no room for any suggestion that the circumstances led reasonably to an investigation of the Will’s validity.

31.Costs should therefore follow the event. I will order that the plaintiff do pay the costs of the action, including all costs reserved, to the defendant, to be taxed if not agreed.