Re Llc

HCMP2656/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.2656 OF 2006

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Before : Hon Poon J in Chambers (Not Open to Public)

Dates of Hearing :  24–27 February, 2–6 March, 23–27 November and 17 December 2009

Date of Judgment : 30 December 2009

Date of Reasons for Judgment : 13 April 2010

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REASONS  FOR  JUDGMENT

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A.  Introduction

1.By judgment handed down on 30 December 2009 (“the Judgment”), I ordered a statutory will be made on behalf of LLC[1], a mentally incapacitated person, under section 10B(1)(e) of the Mental Health Ordinance (Cap.136) (“MHO”), in terms of the draft submitted by Niece #2’s solicitors by letter dated 21 December 2009 and appointed Niece #2 and Niece #1 to be joint executors.  I further indicated that I would later hand down the reasons, which I now do.

2.The background circumstances leading to this application had already been set out in the Judgment.  For convenience, they are reproduced here :

“Background

2.   LLC was born on […] 1915 in Mainland China.  She is now aged 94.  She is single and does not have any children of her own.  She has 2 elder sisters and 1 younger sister, XYZ.  The eldest sister died at a very young age.  During the Cultural Revolution, LLC was put to jail at the instigation of the elder sister’s children.  Since then, she had severed all relationship with the elder sister and her family.  LLC remained close to XYZ throughout the years until she passed away in 2003.

3.   XYZ was married to EFG and moved to Hong Kong later.  She bore him 2 sons, Nephew #1 and Nephew #2 and 2 daughters, Niece #2 and Niece #1(‘the Children’ collectively).  [XYZ’s family is referred to as ‘the Family’ below.]

4.   In 1981, LLC moved to Hong Kong and lived with XYZ and EFG until 1986 when the apartment provided to EFG was withdrawn upon his retirement.  Thereafter they lived apart but close to each other on Road X.

5.   On 1 June 2001, LLC made a will (‘the 2001 Will’) appointing EFG to be the executor.  She bequeathed HK$100,000 to EFG and XYZ each and the residuary estate to the Children equally.  It is not in dispute that when she made the 2001 Will, LLC had the necessary testamentary capacity.

6.   LLC’s health had deteriorated markedly in recent years.

7.   In October 2006, Niece #2 discovered that LLC might have made a will in late September 2006 shortly after her discharge from hospital.  Niece #2 had much doubts about LLC’s mental condition and seriously concerned if she was capable of making any will.

8.   On 18 December 2006, Niece #2 applied to the court for an order that an inquiry be made pursuant to section 7 of MHO to ascertain if LLC was incapable, by reason of mental incapacity, of managing and administering her property and affairs and that she and her husband, Husband of Niece #2, be appointed as the committee with consequential directions (‘Part II Application’).

9.   On 19 January 2007, Lam J appointed the Official Solicitor (‘OS’) as interim receiver of LLC’s estate.  He also directed OS to conduct investigations concerning the making of the will in September 2006 and report the matter to the court.  OS’s investigations revealed that LLC did purportedly make a will on 25 September 2006 (‘the 2006 Will’) at her home.  Two employees of Hang Seng Bank (‘HSB’), who had been providing banking services to LLC at the time, were involved in its preparation and execution.  They were SC and WML.  (At the time of the hearing, they had already left HSB.)  The solicitors responsible for the preparation and execution of the 2006 Will were AT and HL of SLPYT.

10. By the 2006 Will, LLC appointed the Hang Seng Bank (Trustee) Limited (‘HSBT’) as the executors and trustees of her estate.  She revoked all previous wills and bequeathed all her estate to HSBT on trust, who could invest the same and to pay the income to any charitable organizations in Hong Kong whose object is for relief of poverty, education and medical health care at its absolute discretion.  In other words, LLC had thereby disinherited the Family, who are practically speaking her only and closest relatives.

11. Niece #2 and her siblings took the view that when she purportedly made the 2006 Will, LLC did not have the requisite testamentary capacity.  On 5 July 2007, she took out the present application.

The hearing

12. The matter eventually came to me for substantive hearing on 24 February 2009.

13. HSBT did not appear.  Its position is that it would not accept the appointment as executors and trustees under the 2006 Will.  Nor would it seek to propound the 2006 Will.

14. As the 2006 Will involves charities, the Secretary for Justice joined in these proceedings in his capacity as the Protector of Charities.

…”

B.  The general approach

3.Section 10B(1)(e) of MHO gives the court the discretion to authorize the execution for a mentally incapacitated person of a Will making of any provision which could be made by a Will executed by that person if he were not mentally incapacitated.  The general approach as to how the court should exercise the discretion may be outlined thus.

4.Before the discretion is engaged, the court must have reasons to believe that the mentally incapacitated person is incapable of making a valid Will for himself : section 10B(4)(b) of MHO.  In determining if this threshold is met, the court needs not undertake a full trial on the issue of testamentary capacity.  It will be sufficient if the evidence, which the court accepts, supports a reasonable belief that the patient lacks testamentary capacity : Re CYL [2007] 4 HKLRD 218, per Lam J at para.17.

5.When the threshold is met and the discretion under section 10B(1)(e) is properly engaged, the court next considers if it should order a statutory Will to be made.  Here, section 10A(2) of MHO applies.  The court shall have regard, as a paramount consideration, to the requirements of the mentally incapacitated person : section 10A(2)(a).  In other words, the court will give priority to the interest of the patient : Re CYL, supra, per Lam J at paras.31 and 32.

6.After the court has decided to exercise the discretion to make a statutory will, it then proceeds to determine what the proper contents of the Will should be.  The court must seek to make the Will which the actual patient, acting reasonably, would have made if notionally restored to full mental capacity, memory and foresight and with sound legal advice available.  In Re D.(J.) [1982] Ch. 237, Sir Robert Megarry VC enunciated five guiding principles at pp.243 to 244 :

“(1)    The patient should be assumed to have a brief lucid interval at the time when the will is made.

(2) During the lucid interval, the patient has full knowledge of the past, and a full realization that as soon as the will is executed he will relapse into the actual mental state that previously existed, with the prognosis as it actually is.

(3) It is the actual patient who has to be considered and not a hypothetical patient.

(4) The patient is to be envisaged as being advised by competent solicitors.

(5) The patient is to be envisaged as taking a broad brush to the claims on his bounty, rather than an accountant’s pen.”

The court will look at the matters broadly as they stand at the time of the hearing with emphasis more on recent events than what happened in the distant past.

7.The general principles laid down by Megarry VC have since been consistently applied by the courts in England[2] and Hong Kong : see for example, Re C (a patient) [1991] 3 All ER 866, Re CYL, supra.

C.  Meeting the threshold

8.Applying the approach outlined above, I first see if the threshold under section 10B(4)(b) is met.

9.In the Part II Application, two medical certificates were filed to show that LLC was mentally incapacitated within the meaning of MHO.  In his certificate dated 11 December 2006, Dr Brian Choa (“Dr Choa”), neurologist, referred to his report dated 25 October 2006.  In that report, he found that LLC had a combined severe transcortical motor and sensory dysphasia.  She also had generalized brain damage, as indicated by perseverative responses and impaired executive dysfunction.  She did not have testamentary capacity and had been in such mental condition at least since her stroke in August 2006.  In his certificate dated 14 December 2006, Dr Stephen Ng Wai Man (“Dr Ng”), psychiatrist, concluded that LLC had suffered from profound vascular dementia because of repeated strokes at least since August 2006.

10.On 8 June 2007, having been satisfied by the medical evidence that LLC was incapable, by reason of mental incapacity, of managing and administering her property and affairs, Lam J appointed the OS as committee of her estate.  Sadly, LLC has since not recovered from her mental incapacity.  So the threshold is met and court’s discretion under section 10B(1)(e) of MHO is properly engaged.

D.  Ordering a statutory will to be made

11.Both Niece #2 and the Secretary for Justice submitted that the court should exercise its discretion to order a statutory will to be made in the circumstances of the present case.  I agree.

12.Where two conflicting wills exist, and they will most likely lead to hostile, lengthy and costly probate litigation upon the patient’s death, which may deplete a sizable portion of the estate, the court may, after having regard to all the circumstances, think that avoiding such eventuality by making a statutory will is in the patient’s interests and likely to be something that he would (if he had full mental capacity) himself wish to be done.  See Re C v G & Others [1982] HKLR 523, per Kempster J at p.529; followed in Re CYL, supra, at para.25.

13.It should however be borne in mind that the existence of two competing wills is no more than a relevant factor.  The court of protection has no jurisdiction to determine the validity of any existing will : Heywood & Massey : Court of Protection Practice (2009), at para.20-011.  So the court may well, after considering all the circumstances, decline to exercise its discretion to order a statutory will to be made and leave the validity of the will(s) to be disposed of in a probate action. 

14.Here, the validity of the 2006 Will is hotly disputed.  Although I will not and cannot determine the validity of the 2006 Will, all the substantive issues on validity had already been fully canvassed in the inquiry concerning the contents of the statutory will.  It will be a huge waste of resources and time if I do not order a statutory will to be made now and leave the matters to be sorted out in a probate action, which seems inevitable, where the same evidence and submissions will be repeated.  Further, as demonstrated by the length of the present hearing[3], the probate action will be quite lengthy and expensive.  If LLC had full mental capacity, she would definitely wish to avoid such eventuality so as not to deplete a significant portion of her estate.  Ordering a statutory will to be made on her behalf in all the circumstances plainly serves her interests best.

E.  the pivotal factor for the contents of the statutory will

15.Niece #2 and the Secretary differed on how the court should exercise its discretion as to the contents of the statutory will.

16.Mr Wong, SC for Niece #2, asked me to adopt the 2001 Will but exclude XYZ who had already passed away.  He argued that the 2006 Will did not truly represent LLC’s testamentary wishes.  She did not have testamentary capacity when she purportedly executed the 2006 Will and could not have known or approved its contents.  Since the execution of the 2001 Will, nothing had changed in the relationship between LLC and the Family that would have caused her to make such a drastic decision as disinheriting them.

17.Mr Burns, SC for the Secretary, asked me to have regard for LLC’s testamentary wishes as expressed in the 2006 Will and make a will bequeathing her estate to charities.  He contended that LLC truly intended to disinherit the Family and knew what she was doing when she executed the 2006 Will.  There was accordingly no basis for the court to make a statutory will in terms of the 2001 Will.  It mattered not whether LLC had full testamentary capacity at the time as long as she understood that what she was doing was that her assets would not pass to her relatives.

18.Senior counsel’s submissions focused the discussion about the contents of the statutory will on this crucial, if not pivotal, factor : did the 2006 Will truly represent LLC’s testamentary wishes?

F.   three main issues

19.Germane to this pivotal factor are two main issues :

(1) Did LLC have the necessary testamentary capacity or mental capacity to understand what she was doing when she purportedly gave instructions for the preparation of the 2006 Will executed the same?  I will call it “the Capacity Issue”.

(2) Did LLC know and approve of the contents of the 2006 Will?  I will call it “the Knowledge and Approval Issue”.

20.If the answers to both the Capacity Issue and the Knowledge and Approval Issue are “Yes”, then the 2006 Will truly represented LLC’s last testamentary wishes before she became mentally incapacitated.  The will that LLC, acting reasonably, would have made if notionally restored to full mental capacity, memory and foresight and with sound legal advice available should logically follow the spirit of the 2006 Will.  In short, the statutory will should bequeath her entire estate to charities.

21.However, if the answer to either of the two Issues is “No”, then the 2006 Will did not truly represent LLC’s last testamentary wishes.  The next main issue will arise : when all the relevant circumstances are considered, what testamentary dispositions would LLC, acting reasonably, have made if notionally restored to full mental capacity, memory and foresight and with sound legal advice available?  I will call this “the Dispositions Issue”.

22.At this juncture, I turn to three particular aspects of the case.  Factually, they bear on the determination of the main issues identified above.  The first aspect is about LLC’s character and personality when she was of sound mind.  The second aspect relates to her relationship with the Family.  The third aspect is the circumstances leading to and of the execution of the 2006 Will.

G.  llc’s character and personality when she was of sound mind

23.There is not much controversy over LLC’s personality and character before she became mentally incapacitated.

24.According to Niece #2 and Niece #1, LLC was a sharp person before her mental incapacity.  WML who had been serving LLC as her banking officer for years also took a similar view.

25.LLC was also a careful person.  This is best demonstrated by the fact that shortly before she executed the 2001 Will, she procured a medical certificate to be issued by the Canossa Hospital dated 28 May 2001.  By then, she had already experienced difficulty in signing because of the weakness on the right side of her body[4].  The medical certificate certified that despite her weakness, she had good mental state and was fully orientated in time, space and person.  Plainly she was careful enough to call for such a medical certificate so that any issue on her testamentary capacity would not arise in the future.  She wanted to make sure that the 2001 Will would not be vitiated.

26.LLC guarded her financial affairs jealously.  She was sensitive to financial issues and, to quote Niece #2, had always been “paranoid[5]” about people stealing money from her.  XYZ told Niece #2 to approach LLC with caution as she had always been very suspicious about people getting close to her because of money.  Her “paranoia” is evident from the fact that she always kept a large purse beside her, containing bank statements, bank books, money and documents.  She kept the bag with her even when she slept and was staying in the hospital.  She was generally reluctant to place trust on others in relation to her financial affairs.  According to WWK, a relationship manager of the private banking department of HSB, in around 1999, although LLC had walking problems by then and had to rely on a walking frame, she visited the bank on her own.  She asked Nurse Tsai to leave the flat during the visits by the bank staff.  WML said that LLC would be cautious not to say anything to them until she was assured that Nurse Tsai had left the premises. 

27.That said, it does not mean that LLC did not trust any person at all in dealing with her financial affairs.  In August 1999, LLC suffered a sudden onset of right side weakness, which left her with not only the weakness but also expressive aphasia.  Since around late 2000, she experienced difficulties in writing and signing.  She asked EFG to close her US bank accounts which she opened with during one of her visits to US.  For that purpose, she executed a power of attorney appointing him as her agent so that he could request Wells Fargo Bank to release the funds to him.  In March 2001, she executed another power of attorney enabling EFG to close her account with Bank of America.  It was also in about 2001 that she made Niece #2 an authorized signatory of her HSB account, which had substantial funds.  Her signing difficulties had previously caused some problems on the operation of her account.  That arrangement was of course made to enable Niece #2 to operate her account for her.  And Niece #2 had all along used the account to defray LLC’s hospital expenses and utilities payments.

28.Finally, LLC was not a philanthropic person.  She had not made any donation to any charity in her entire life.

H.  LLc’s relationship with the family

H.1.   Between 1981 and 2001

29.As already noted, LLC came to settle in Hong Kong in 1981.  The evidence, which I accept, shows that she enjoyed a close and harmonious relationship with XYZ and the Family.  LLC was indeed treated as part of the Family.

30.Since 1981, she lived with XYZ and EFG in the same apartment.  In 1986, XYZ and EFG moved to 21 Road X.  LLC moved to 36 Road X.  EFG said that LLC chose that flat because she could stay close to XYZ and him.

31.LLC and XYZ were undoubtedly very close and fond of each other.  Even Nurse Tsai, who had been LLC’s private nurse since late 1999, could felt the love between the two sisters.  According to Nurse Yu of Canossa Hospital, when LLC was hospitalized there in around 1998 and 1999, XYZ visited LLC even though she herself had great difficulty in walking and had to use a walking stick.  On one occasion, XYZ came to visit her even after Typhoon Signal No. 8 had been hoisted.  Nurse Tsai could also recall that in about 2001, she went with XYZ and EFG to Kwai Chung to buy a hospital electric bed for LLC’s use at home.  LLC’s affections and attachment towards XYZ can perhaps be best exemplified by her application for US permanent residence in 1994.  By then, XYZ was already a US citizen.  According to EFG, LLC made that application because she did not want to separate from XYZ and if necessary she could move to the US with XYZ and him.

32.EFG also took good care of LLC.  He is a benevolent person.  Before LLC came to Hong Kong, EFG had already taken care of his mother-in-law for many years.  (According to Niece #1, LLC was grateful to XYZ and EFG for taking good care of late her grandmother.)  Back in 1951, he promised his father-in-law prior to his death, that he and XYZ would take good care of LLC.  In the 1970s, EFG and XYZ bought a piece of land in City Y, California and later built a house there.  They reserved a room there for LLC in case they moved to the US.  (Although they did not move to the US, LLC did stay in their house and occupy that room during her visits to the US later.)  That was even before LLC came to Hong Kong.  Ever since LLC came to Hong Kong, he treated her as part of the Family.  Since 2001, he paid most of all LLC’s maintenance and expenses including Nurse Tsai’s salary when LLC appeared to have difficulties in making the payments.  LLC’s trust and confidence in EFG is evident from the two powers of attorney referred to in para.27 above.  She also named him as the executor of her estate in the 2001 Will, indicating that she reposed trust and confidence in him in administering of her very sizable estate[6].

33.LLC’s relationship with the Family on the whole shows that she was really regarded as a member.  As said, LLC applied for US permanent residence in 1994.  LLC was then seriously contemplating the idea of moving to the US with the Family.  The process was complicated.  The Family duly rendered their assistance to LLC.  For example, Nephew #1 acted as her immigration sponsor.  He swore in the affidavit in support dated 16 June 1994 that he was willing and able to receive, maintain and support LLC.  LLC was also fond of the Family.  She enjoyed dinners and gatherings with them, and paid them visits in the US.  She also trusted Niece #2 to the extent of making her an authorized signatory of her bank account in 2001.

34.The best evidence of LLC’s affections towards the Family is of course the 2001 Will.  Even before she made the Will, LLC had already revealed her intention of effectively bequeathing her entire estate to the Children.  She once told XYZ that the Children “are all good people” and that she intended to give her estate to them to be shared equally.  In May 2000, when Niece #1 visited LLC, she told her the same.  LLC in fact gave a copy of the Will to XYZ after execution.

35.To complete the discussion on LLC’s relationship with XYZ and the Family up to the 2001 Will, I need to deal with two points in Nurse Yu’s evidence.

36.First, Nurse Yu said that probably sometime between 1998 and mid-1999, while LLC was in staying in Canossa Hospital, LLC told her that XYZ was after her money.  She also heard other colleagues say that LLC had made similar complaints against XYZ.  Nurse Tsai also said that probably in 2006 or 2007, while LLC was staying in Canossa Hospital, Nurse Tsai told her that LLC mentioned that XYZ was not good to her and was after her money.  Nurse Tsai however said she had never heard of LLC so complaining against XYZ.  I have grave doubt it LLC had in fact so spoken of XYZ.  It does not sit well with their close and affectionate relationship.  In any event, even if LLC had made those comments, the fact remained that she must have loved XYZ and the Family.  Otherwise, there simply can be no plausible explanation for the 2001 Will at all.

37.Second, Nurse Yu recalled that on one occasion when XYZ visited LLC in the hospital, she saw (which was actually a brief glance) that XYZ was sitting at the bedside watching while LLC was looking the other way.  She felt that LLC was ignoring XYZ.  In my view, Nurse Yu’s conclusion, based on such a fleeting glance, is mere speculation.  It must be rejected. 

H.2.   Since 2001

38.In January 2003, XYZ passed away.  LLC then decided to become a Buddhist so that she could be buried in the same Buddhist cemetery at which XYZ was buried.  The inference is crystal clear.  LLC still loved XYZ dearly and wanted to stay close to her in the next world.

39.After XYZ’s death, EFG and Niece #2 are the only relatives in Hong Kong available to render care and assistance to LLC.

40.EFG continued to visit LLC quite frequently until 2005 when he had a massive colonic bleeding resulting in a major operation.  Since then, he had understandably visited LLC much less frequently.  His doctor also advised against him visiting LLC at hospital because he might get infected of his poor health.

41.Since the decline of EFG’s health, Niece #2 took up the burden of looking after LLC’s welfare in general.  Niece #2 visited LLC about once every two months.  She entrusted the daily care of LLC to the Filipino maid and Nurse Tsai, who would keep her informed of LLC’s daily progress.  Niece #2 took care of LLC’s needs.  She bought her household items for her comfort, such as television, made all necessary medical arrangements, took her to immigration department to change her identity card, and bought her her favourite food.

42.Since XYZ’s death, Niece #1, a medical professor teaching and residing in US, had been coming back to Hong Kong to pay LLC annual visits.  She wanted to “keep an eye” on her and her father as well because she knew that for elderly, their life expectance could be limited.  As a medical doctor, she was always concerned about LLC’s health in particular.  Whenever she visited LLC, she would conduct (though informally) an assessment of her medical condition.  Based on her assessments, she was able to relate in her evidence the change in LLC’s medical condition over the years.  She was also thoughtful of LLC’s need.  For example, when she noticed LLC scratching her skin a lot, she bought her a cool bamboo seat cover and lotion.

43.The bank staff visited LLC about 5 to 6 times a year.  They kept a good bank-client relationship with LLC.  Their contacts were cordial.  And as a client, LLC trusted them in handling her accounts.  She even allowed them to search her bag.  The gist of their evidence is that LLC would behave quite differently when she was alone with them and when she was with Niece #2 and EFG.  LLC would be less responsive in the presence of Niece #2 and was more ready to express herself when she was with the bank staff alone.

44.According to WML, in about 2001 or 2002, when Niece #2 asked for a transfer of a significant sum from LLC’s account to another account in respect of which Niece #2 was an authorized signatory.  LLC remained silent in Niece #2’s presence but when another bank staff followed up the matter with LLC alone, she confirmed that she did not wish to carry out the transfer.  There was another occasion where WML mentioned to LLC that how nice that she had a niece (referring to Niece #2) who took care of her, LLC immediately shook her head strongly and kept on shaking her head.  WML’s impression is that LLC was not fond of Niece #2 or her family and that she did not trust them very much.

45.AM, vice president of the private banking department, recounted an incident when LLC was accompanied by EFG to the bank and he asked to change the singing arrangement in respect of LLC’s account from using a signature to the use of a name chop.  LLC was silent but when EFG walked away, she shook her head and hand and indicated by her facial expression that she did not agree.  EFG recalled such incident but denied that it was he who suggested the change.

46.AM also recalled that LLC once told her that Nurse Tsai was employed by EFG to take care of her and to keep a watch of her daily activities and to report the same to him.  Nurse Tsai however said she never heard of that being said about her.

47.WWK recalled in her witness statement that LLC once told her that she did not want to ask her relatives to look after her as they would search her things at home.  However, under cross-examination, she changed the relatives to someone and she could not tell who the “someone” was.

48.Having carefully considered all the evidence in the round, I find that LLC’s relationship with the Family had not changed much since the 2001 Will.  The once very intimate relationship might have dwindled slightly after XYZ’s death.  That is not surprising.  After all, the bond between the two sisters is irreplaceable.  The instances referred to by the bank staff are consistent with her “paranoia” about her monies and financial affairs.  Even taken to their highest, they did not detract from her close and loving relationship with the Family overall.

I.  The circumstances leading to the 2006 Will and its execution

49.I now come to the circumstances leading to the 2006 Will and how it was executed.

50.LLC’s heath had been deteriorating since 1999.  She suffered repeated strokes and had been admitted in hospital on several occasions.  In August 2006, she fell at home and was sent to Canossa Hospital.  On 20 August 2006, while still staying in the Hospital, she suffered another stroke.  On 12 September 2006, she was discharged and returned home.

51.Dr David Ho (“Dr Ho”), a general practitioner and LLC’s attending doctor at Canossa Hospital for the last 10 odd years, noted that before her admission in August 2006, she was able to speak words or phrases but not complete sentences.  After her admission, her ability to speak deteriorated further and was only able to speak in single words but not complete phrases.  Dr Ho took the view that she had expressive aphasia and progressed to global aphasia at the time[7].

52.According to Niece #2 and Nurse Tsai, LLC became virtually mute after the stroke in August 2006.

I.1.    The bank visit

53.WML, SC and FC (another bank staff of the same branch) gave evidence to the effect that on or about 21 September 2006, Niece #2 and EFG visited the bank to inquire about LLC’s accounts and to request that arrangements be made to add an additional authorized signatory to the accounts.  They further mentioned that LLC’s assets would be given to them eventually.  The bank staff told them that to add an authorized signatory, LLC’s consent was required and asked them to bring her to the bank to carry out such procedure.  Niece #2 and EFG categorically denied that they had visited the bank as alleged.  As will become apparent in a moment, even if this alleged visit did take place as alleged, it does not really matter.  For LLC did not understand what she was told and her response had misled the bank staff.

I.2.    Visiting LLC and taking instructions from her

54.According to the bank staff, the visit by Niece #2 and EFG prompted WML and SC to visit LLC on 21 September 2006.  The purpose of the visit was to inform LLC of the said visit and to ascertain her instructions as to whether she wanted her accounts to be operated by an additional authorized signatory.  In the end, they obtained instructions, so they claimed, from LLC to prepare the 2006 Will.

55.The circumstances under which LLC purportedly gave instructions to prepare the 2006 Will were most unusual because, as noted, she had become virtually mute by September 2006 and could only communicate or (appeared to be able to communicate) with others by body movements such as nods and shakes of her head and utterances of single words.  The evidence of WML and SC is summarized below.

56.They told LLC about the visit by Niece #2 and EFG and asked her if she intended to add Niece #2 as an authorized signatory to her accounts.  LLC shook her head and waved her hand.  She even attempted to speak but to no avail.  They then explained to her that she was getting older and asked questions relating to her testamentary arrangements, which they regarded as one of the general financial needs of customers in respect of which they commonly rendered assistance.  WML asked her if she had made a previous will.  LLC shook her head.  WML and SC suggested to her that her assets could be given to Niece #2 or EFG.  LLC waved her hands and shook head strongly.  (SC said that LLC reacted so strongly that they had to calm her down.)  When they further asked LLC if she wished to give her assets to her close relatives, she again shook her head.

57.WML then mentioned that if no instructions were given for the disposal of her assets upon her death, LLC’s assets would be arranged according to Hong Kong law.  WML then mentioned that some people chose to donate their assets or to donate income generated from such assets to charity and told LLC about a case of another customer who chose to donate the income only.  LLC then uttered the word “donate” (“捐” in Cantonese) and pointed her left finger at SC and WML.  WML then asked LLC which organizations she wished to donate her assets to and suggested a few names such as Tung Wah Group of Hospitals, Orbis and Po Leung Kuk.  LLC did not respond.  WML then asked her if she wished to donate to organizations providing relief of poverty, education and medical health care, LLC then nodded.  When asked if she wished to donate all her assets, LLC either shook her head (according to SC) or remained silent (according to WML).  When asked if she wished to donate the income generated only, LLC nodded.

58.WML and SC told LLC that they could not arrange for such donation unless there was someone who could help arrange her assets after she passed away.  SC and WML asked LLC if she had any friends who could do that for her.  LLC remained silent.  She then pointed her finger at them.  WML and SC said that they could not take up that role.  WML then asked LLC if she wished HSBT to deal with the donations on her behalf, and LLC nodded and uttered the word “yes” (in Cantonese).  WML explained to LLC that the capital of her assets would be preserved by HSBT and that the income generated would go to charities.

59.WML and SC then asked LLC if she knew any solicitor who could prepare her Will.  Again, she made no positive response.  They then asked her if she needed them to refer a solicitor to her for this purpose.  She nodded.

60.Both WML and SC remained adamant in their oral testimony that LLC understood what was going on.  They asked her questions more than once and she gave consistent answers.  She listened attentively to what they were saying and responded clearly to their questions by her body movements or uttering single words.  They further added that they did not see any material difference in LLC’s mental and physical condition as compared with before her hospitalization in August 2006.  The only difference that WML could observe is that LLC had more difficulty in walking and speaking — “it took LLC more energy to utter a word”.

I.3.    WML giving instructions to the solicitors

61.WML jotted down LLC’s instructions on a piece of paper and either on 21 September 2006 or on the next day gave verbal instructions by telephone to AT.  AT also confirmed that WML called to give him instructions not long before 25 September 2006 (Monday) when the 2006 Will was signed, and that it was possible that such instructions were given on 21 September 2006 (Thursday). 

62.According to WML, she told AT that an old lady, a client of hers, who could not walk properly intended to make a will.  She had had a stroke in August 2006, had just been discharged from hospital and was at home.  But she did not think there was any problem about LLC’s ability to understand.  LLC seemed to be able to read English although WML was not sure whether she had that ability at the time.  WML suggested that AT could ask her some smart questions to test her understanding and if there was a problem, AT could choose not to proceed with the proposed will.  She further told AT that LLC wished to have her assets entrusted to HSB and to donate the income generated each year to charitable organizations for the relief of poverty and education services and medical care.

63.According to AT, the instructions that he received from WML were these.  WML told him that she had personally taken care of LLC’s account for more than 6 years.  As her assets were substantial, the monthly income generated could be quite substantial.  So the capital could be fixed whereas the income could be donated to well known charitable organizations to be chosen by the bank.  WML did mention Po Leung Kuk and Tung Wah Group of Hospitals and other well-known charitable organizations.  However, due to the long lapse of time, AT could not recall if WML mentioned to him that the charitable organizations were to be for the relief of poverty and education services and medical care.

64.AT also recalled that WML told him that LLC could not walk properly, was bed-bound and was at home, but had no problem with her mental condition and could read English.  AT however did not recall WML telling him LLC had a stroke and had just been discharged from hospital.  AT thought that as LLC was not in hospital and WML only mentioned that she had problems in walking and talking, there was no need to arrange for a doctor to attend upon LLC on her execution of the will.  If on attending LLC for the purposes of the execution of the will, he found out that she was not of sound mind or did not understand what was going on, he would leave at once.

65.AT then proceeded to ask HL, a trainee solicitor at the time, to draft the will from a sample.  AT then reviewed and approved it.

66.Due to the lapse of time, HL was unable to recall the exact details of some events.  He was only able to give an account of what happened generally.  According to him, AT gave him instructions to draft the will several days before 25 September 2006.  AT told him that LLC could not walk properly and had difficulty speaking but was of sound mind.  AT also told him that they would probably have to pay a visit to LLC’s home for the execution of the will, and that if they found that LLC was not of clear mind, they would not proceed with the execution.  HL was also aware that LLC could read English but he was not sure who told him this fact.  AT further told him that the estate of the client should be given to charitable organizations relating to the relief of poverty and education.  AT also mentioned to him that HSBT should be appointed as the executor/trustee.  Based on AT’s instructions, he then prepared the will from a sample or template and made necessary amendments for AT’s approval.

I.4.    Executing the 2006 Will

67.According to SC, WML, AT and HL, they all went to LLC’s home on 25 September 2006 for the purpose of execution of the 2006 Will.  Nurse Tsai denied that anyone visited LLC on 25 September 2006.  I do not think the difference has any bearing at all.  Just for completeness, I reject Nurse Tsai’s evidence on this point and find that they did visit LLC on 25 September 2006.

68.WML arrived at LLC’s home first and the others came together afterwards.  WML observed that LLC was in good spirits and was happy.  She asked LLC various questions to make sure she understood what she was going to do with her assets.  She repeatedly asked LLC if she wished to give her assets to Niece #2 or her other nieces and nephews and told her that she could change her mind and not execute the will.  WML also asked LLC why she did not wish to give her assets to Niece #2 given she had taken care of her.  LLC shook her head and waved her hands.  WML repeatedly asked LLC “you are not going to give her (meaning Niece #2, presumably), right?”  LLC first uttered “M’m” and then nodded her head.  WML also asked LLC whether she had made a will before and LLC shook her head.  WML then told LLC that if she had then there was no need to make a will.  LLC shook her head.  WML also asked LLC if there was anybody else to whom she wished to give her assets, such as relatives, sons and daughters.  LLC shook her head.

69.SC, AT and HL then arrived.  They also found LLC in good spirits and normal.  AT and HL formed such opinion from her complexion.  AT had a deep impression that LLC was in good spirits and at no time she appeared to be unhappy.  She was also responsive.  Although LLC could not speak properly, she had by gestures and head movements signified her understanding of questions put to her.  It therefore did not occur to AT that a doctor would be required to attend to make sure LLC was mentally fit.

70.Upon their arrival,  WML introduced AT and HL to LLC, and said that they were there to execute a will for her.  AT said he saw LLC nod and he felt that LLC fully understood the purpose of their visit and that she had testamentary capacity.

71.AT then asked LLC a few “smart questions” to test her understanding.  She responded by nodding or shaking of her head.  AT also said to LLC that they came to make the will for her and asked her if she was willing to do so.  LLC nodded.

72.WML supplemented by saying that AT also explained to LLC that they were there to make a will for her and asked her if she had any relatives to whom she intended to give her assets.  LLC shook her head.

73.AT then explained the 2006 Will to LLC in general terms.  He did not do it sentence by sentence or clause by clause.  He read and explained the main contents or clauses of the Will to LLC and asked her to nod if she agreed.  LLC nodded.  AT explained the Will to LLC and said to her that all her capital would be locked up whereas all the income generated would be donated to charitable organizations and that under such circumstances, nobody including her relatives, would get any of the assets.  LLC nodded indicating her agreement according to her expression.

74.According to WML, AT explained to LLC that upon her death, her assets would be transferred to HSBT to be held on trust and the income generated would be distributed to charitable organizations including those for the relief of poverty, providing education services and medical health care.  AT asked LLC if she wished to do that and LLC nodded.  AT further explained to LLC that after the execution of the Will, all her previous wills would be overridden.  He then asked her whether she wished to add any other persons, and LLC shook her head.

75.According to HL, AT explained the clauses in the 2006 Will to LLC in sequence (but not word by word) and LLC nodded as each clause was explained to her.     HL then elaborated on AT’s explanation to LLC.  He recalled that after AT explained to LLC that her estate would be given to charity, he said to LLC that “even if she had relatives they would not be entitled to it”.

76.After the explanation,  LLC stretched out her hand to indicate that she wanted to have a look at the Will.  WML helped LLC turn the pages as she appeared to want to read further.  According to WML, LLC looked at the Will randomly and she was reading some words but not line by line.  It took her less than 1 minute to do so.  AT said LLC took around 1 to 2 minutes to look at the Will.  HL said LLC held the Will in her hands and looked at it for 1 minute or less.  He had an impression that she was reading it, but was not sure whether she read it page by page.  According to HL, LLC turned her head, looked at them and handed back the Will to them after she finished with it.

77.LLC then signed the 2006 Will on her own with her left hand whilst WML held it up for her.  Initially, LLC signed vertically over the interpretation clause, then horizontally at the signature place.

78.HL said that after signing the Will, LLC extended her hand towards him seemingly requesting to shake hands with him.  He then shook hands with LLC.  HL further recalled that LLC was happy and smiled at them after the Will was executed and as they were walking towards the door to leave, LLC said thank you (in Cantonese) to them loudly.  They left at about 8:20 p.m.  The entire visit lasted for about half an hour.

79.In his oral testimony, AT reiterated that taking into account all circumstances and LLC’s demeanor, he had no doubts that LLC knew that he was a solicitor.  LLC was willing to sign the 2006 Will.  She understood and was aware of the contents of the Will, including the fact that the capital of her assets would be fixed and the income would be donated to charitable organizations.  Likewise, HL re-asserted his belief that LLC understood what was happening on that day because she was responsive to their questions and what was going on around her.  She nodded when AT explained the Will to her.  He and LLC shook hands at her initiation.  She said thank you at the end.  And she remained happy and smiled all along.

80.In sum, the bank staff and the solicitors concluded from their observations of and interactions with LLC that she had the necessary testamentary capacity to make the 2006 Will and knew precisely what she was doing.  But as a matter of fact, did she?  This brings me to the Capacity Issue.

J.   THe capacity issue

81.I will begin with the law.

J.1.    The law

82.In the leading authority on testamentary capacity Banks v Goodfellow (1870) LR 5 QB 549, Lord Cockburn CJ said at p.565 :

“It is essential … that a testator shall understand the nature of the act and its effect; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties, that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if his mind had been sound, would not have been made.

83.As further explained in Boughton v Knight (1873) LR P & D 64, by Sir John Hennan at pp.65, the question is whether the testator, when he made the will, was of sound mind, memory and understanding.  The testator’s mind must be sound to be capable of forming the testamentary intentions embodied in the will.  His memory must be sound to recall the several persons who ought to be considered as his possible beneficiaries.  His understanding must be sound so that he may comprehend their various ties with him by blood or friendship and their claims on these or other grounds upon his testamentary bounty.

84.One of the more pertinent matters pertaining to LLC’s testamentary capacity that warrants a closer examination is her memory.  On this aspect, the ability to recall potential beneficiaries and their relationship which enabled the testator to consider and form an intelligent decision as to who to exclude is essential : Harwood v Baker (1840) 3 Moo PCC 282, at pp.290-291; see also Abbott v Richardson [2006] EWHC 1291, per Nicholas Strauss QC, sitting as Deputy Judge, at para.187.

85.The court will consider all the relevant factors to ascertain if the testator possessed the requisite testamentary capacity[8].  That is a practical question that does not depend solely on expert evidence : Boughton v Knight (1873) LR P & D 64, per Sir John Hannen at p.67; and Sharp v Adam [2006] EWCA 449, per May LJ at para.77[9].  Non-medical factual evidence may also shed considerable light on his capacity.  For example, the non-medical factual evidence on how the testator conducted himself and interacted with others may provide important clues as to his cognitive and emotional ability, something which are cogently relevant to his mental capacity.

86.Occasionally, the factual evidence may conflict with the medical view[10].  The court will evaluate and weigh the factual evidence against the medical evidence and vice versa in determining what exactly the mental state of the testator was.  Here, all the experts called by the parties agreed that because of LLC’s peculiar condition, one had to interpret her responses very carefully.  Indeed, according to Dr Edmund Woo (“Dr Woo”), neurologist, called by Niece #2, a layman might be unwittingly misled by her responses.  In his report dated 3 November 2006, Dr Woo said that LLC’s “social smiles, her random head nodding and her ability to [perseverate] are easily misinterpreted by lay people as representing a sound mind”.  He reiterated this point in a further report dated 29 May 2007 : “with her smiling and random nodding, LLC would present the false impression that she understood the questions, especially if such questions were simple.”  In the light of such medical opinion, which I accept, I need to approach the observations by the factual witnesses on LLC’s responses and behaviour with great circumspection, always bearing in mind that for some valid medical reasons unknown to them, their honest views on LLC’s mental capacity might well be mistaken.

87.With that note, I now turn to the factual evidence on LLC’s mental condition which, for convenience, is summarized chronologically.

J.2.    The factual evidence

88.Before early 2005, Nurse Tsai, who had been taking care of LLC since 1999 on every day (except her rest days), observed that LLC did not have any mental problem although she had some physical disabilities on her right side.  According to Niece #1, who had visited LLC annually since 2003, LLC was able to converse with her meaningfully.  Sometimes, she initiated the conversation on her own.  When on one occasion Niece #1’s daughter gave her an Italian bowl as a gift, LLC was able to say in English, “Thank you, it is beautiful.”  She could tell her age and where she was.  She watched news on the television and through discussions with her, Niece #1 knew that LLC understood the contents of the news.

89.It is Niece #2’s case that LLC’s mental health began to deteriorate in about early 2005.

90.During this period, Nurse Tsai noticed that LLC started to display aberrant behaviour which was uncharacteristic of her.  For example, LLC used to be very concerned with hygiene.  But after 2005 Nurse Tsai saw LLC wiping her mouth with the same toilet paper with which she had used to clean herself.  LLC also started to develop a bad temper.  She screamed and shouted at unpredictable hours.  She had stopped watching television.  She would no longer switch on the television on her own volition.  Nurse Tsai would on her own initiative switch on the television for LLC as she thought it would better to have some sound around LLC.

91.In March 2005, Niece #1 visited LLC again.  She observed that LLC’s mental condition changed markedly.  She could no longer speak much.  She smiled and nodded to whatever Niece #1 said.  At times, she would try to answer questions with a word or two but often by repeating words said by Niece #1.  She said she was 44 when asked how old she was.  She was then 90.  Niece #1 was shocked as LLC had never been wrong with her age before.  She said she was living on the 4^th floor when she was actually living on the 21^st floor.  She said she was in City X (her place of birth) when asked where she was.

92.In July 2005, Niece #1 visited LLC again.  She noticed that LLC could no longer follow or understand the programs shown on the television.

93.In April 2006, Niece #1 noticed that LLC would nod indiscriminately whenever people spoke to her.  She gave incorrect answers to simple questions.  For example, LLC could not tell her age and nodded when asked if she was 40 years old.

94.After her discharge from Canossa Hospital in September 2006, Nurse Tsai experienced difficulties in understanding LLC.  She would just utter “Ai, Ai, Ai” when asked what she needed or if she wished to relieve her bowels or urinate.  Nurse Tsai could not comprehend what she meant.  Sometimes Nurse Tsai asked her if she needed to change her diapers.  She indicated by uttering “Ai, Ai, Ai”.  But when Nurse Tsai changed the diapers, it was not always dry.  On some occasions, it was still dry.  Sometimes LLC responded to Nurse Tsai’s questions by nodding or shaking.  But her nodding or shaking was not always consistent or meaningful.  Nurse Tsai’s observation is that even though sometimes LLC nodded or shook her head, it did not mean anything.  She was not sure if LLC could recognise people either.

95.Then there are the observations made by the banks staff, AT and HL in September 2006 as set out in Part I above.  The bank staff did not see the need to seek medical advice on LLC’s capacity at the time.  It is only to be contrasted with what took place on 5 October 2006.  On that day, Niece #2 and LLC visited the bank.  When Niece #2 asked to be added as a signatory, the bank staff insisted that Niece #2 must produce a medical certificate on LLC’s capacity.  SC alleged it was to protect the interest of LLC as well as the bank’s.  It did not mean that she had doubt on LLC’s capacity there and then.  I have no hesitation to reject this allegation.  If she did not have such doubt, where was the need to ask for a medical certificate?  SC’s doubt sharply contradicts her views on LLC’s mental condition reached not long ago in September 2006. 

96.EFG visited LLC on 1 December 2006 to inform her of the Part II Application under MHO.  He was not sure if LLC understood him.  LLC nodded her head when he was explaining the Application to her but shook her head when asked whether she understood.  For other occasions when he met LLC after August 2006, EFG said he did not dare to say that for sure if LLC understood him.

97.Pursuant to Lam J’s order dated 19 January 2007, Ms Sherman Cheung of the OS’s office visited LLC on 1 February 2007.  According to Ms Cheung’s report dated 14 February 2007, LLC appeared occasionally to be attentive to what she told her.  Ms Cheung asked her a number of questions pertaining to the 2001 and 2006 Wills.  LLC shook her head when asked if she remembered she had made the 2001 Will.  She nodded when asked if she wanted to bequeath her estate to XYZ and EFG.  She shook her head when asked if she wanted to bequeath her estate to the Children in four equal shares.  She shook her head when she asked if she remembered WML and if she wanted HSB to handle her money.  She nodded when Ms Cheung asked her if she wanted to handle the money herself.  She shook her head when asked if she recalled AT and HL coming to her home for the 2006 Will; if she had intended to make a new will in 2006; if WML obtained instructions from her in person or by phone; and if she recognized her signature on the 2006 Will, which Ms Cheung showed to her.  She nodded when asked if she went to the bank to give instructions.  She became agitated when Ms Cheung asked her if she had plan as to how to manage her money.  She vigorously shook her head, covered her head with the blanket and yelled.

98.Ms Cheung concluded that it was unclear as to how much reliance could be derived from LLC’s responses.

99.According to Nurse Yu of Canossa Hospital, who had known LLC for more than 10 years, LLC could not recognise her when she saw LLC in the general wards in August 2006.  When she met LLC again on 4 August 2007, LLC even exhibited an unfriendly and guarded attitude towards her, giving Nurse Yu an impression that LLC did not recognise her.  It should be noted that although Nurse Yu knew LLC for more than 10 years, there were many years in between that they did not meet until August 2006.

100.Since 4 August 2007, LLC had remained as an in-patient of Canossa Hospital.  Nurse Siu worked in the out-patient department.  She said that on several occasions in 2008 she came into contact with LLC while performing her ward round duty.  On one of such occasions, she asked LLC if she had sat on the chair on that day and she shook her head.  The patient opposite pointed out that she had sat on the chair in the morning.  Nurse Siu thought it suggested LLC could not remember what she had done only a short time ago.  Nurse Siu further said that on two occasions LLC shook hands with her.  In her witness statement, she said for the first time LLC extended her hand without assistance but for the second time Nurse Siu had to take LLC’s hand out from the blanket.  In oral testimony, Nurse Siu said that she had extended her hand to LLC for both occasions and that she was not sure whether LLC had understood her asking to shake hands or whether she had just instinctively extended her hand as reaction.  Nurse Siu also gave evidence that there were times when LLC did not respond to her greetings.

101.Having carefully considered all the factual evidence with the benefit of the medical evidence, which I will discuss in a moment, my conclusions are as follows.

102.The observations of those factual witnesses relied on by Niece #2 are all consistent with the medical views of the doctors called by her.  LLC did suffer from severe impairment mentally and lacked the mental capacity to understand what was going on at the very latest since August 2006.

103.For those observations which the Secretary sought to rely on, the factual witnesses, in particular, the bank staff and the two solicitors involved in the 2006 Will, had all been misled by LLC.  I reject their views that LLC was of sound mind at the time when she purportedly gave instructions for the 2006 Will and executed the same.

104.To the medical evidence I now turn.

J.3.    The medical evidence

105.Niece #2 called three doctors.  They are Dr Choa and Dr Woo and Dr David Tsai (“Dr Tsai”), a psychiatrist.  (She did not call Dr Ng or Dr Ho.)  The Secretary called Dr Wong Chung Kwong (“Dr Wong”), also a psychiatrist.  They all agreed that LLC suffered from mental impairment but they differed as to the extent.  Niece #2’s experts took the view that she did not have testamentary capacity in September 2006.  Dr Wong thought she did. 

106.I first look at the evidence of the three experts called by Niece #2.

107.On 25 October 2006, Dr Choa and Dr Woo jointly examined LLC, which resulted in their reports dated 25 October 2006[11] and 3 November 2006 respectively.  The following points arose from the joint examination.

108.First, Dr Choa concluded that LLC was suffering from severe combined transcortical motor and sensory dysphasia.  Dr Woo’s conclusion is similar.  According to him, LLC was suffering from severe mixed transcortical aphasia with impaired language functions involving both expressive and receptive speech but with relatively preserved repetition.  Dr Woo supplemented in his oral evidence that the severe mixed transcortical aphasia suffered by LLC is effectively global aphasia but with preserved repetition.

109.Second,  Dr Woo found that LLC’s verbal output was significantly impaired and her responses were random and inconsistent, which reflected a significant impairment of her comprehension.  Dr Choa also found that LLC gave random responses to “yes-no” questions.

110.Third, both doctors observed that LLC would perseverate, that is, repeating the same response and her ability to repeat was relatively good.  Dr Choa pointed out in oral evidence that a patient suffering from transcortical aphasia can repeat without understanding.

111.Fourth, the doctors found that LLC could read some Chinese characters like “will” and “beneficiary”.  But she could read words which she could not understand.  When asked if Dr Choa or Dr Woo was a beneficiary, she indicated that Dr Choa was but Dr Woo was not.  Apparently, she either did not understand what the term “beneficiary” meant or could not remember who her beneficiaries were.

112.Fifth, both doctors agreed that LLC had some very limited degree of comprehension.  She had responded correctly to some simple questions like “What is your name?” or “Are you a girl?”, but incorrectly to questions like “Am I a child?”, “Are there five of us in this room?”, “How many sisters did you have?” or “How many younger sisters did you have?”.

113.LLC was asked to execute various commands by the doctors to test her comprehension.  Her responses to commands for selecting the appropriate bank note from a set of four were random.  LLC could execute “only one-step commands” such as “raise your left hand” or “show me your tongue” but she could not execute more multi-step commands that required “sequential actions” such as tapping the left hand on right thigh.  She also could not respond to written commands such as “clap your hand once”.

114.Under cross-examination, it was suggested to Dr Woo that her limited ability to execute commands might be due to LLC’s impaired motor function or apraxia.  Dr Woo disagreed.  He reiterated that the commands were designed to test LLC’s comprehension.  It was not the case that LLC could not move her left hand or was physically unable to do the action spontaneously.  What she was unable to do was to comprehend the commands so as to execute the same appropriately.

115.Dr Choa held a similar view that LLC’s comprehension of words, spoken or written, was severely affected.

116.Sixth, the doctors tested LLC’s recent and long-term memory function and she failed all.  LLC’s recent memory was tested by asking her to identify the objects which had just been shown to her.  She could not.  Dr Choa tested LLC’s long term memory by asking her the questions such as “How many sisters did you have?”, “How many elder sisters did you have?” and ‘How many younger sisters did you have?”  She gave wrong answers.  She could not tell her address.  Dr Woo recorded that she was apparently unable to remember her age (nodding positively to the suggestion of 80, 90, and 94) or her horoscope.  She was unable to tell how many nieces and nephews she had.  Dr Tsai recorded that LLC was unable to tell where she was born and grew up.  She repeatedly indicated “no” to the correct answer (City X) but indicated “yes” to the suggestion of Sichuan and Hubei.  The doctors concluded that her memory function had been significantly impaired.

117.Seventh, Dr Woo said that LLC’s peculiar condition might be easily misinterpreted by lay people as representing a sound mind.  His view is to some extent shared by Dr Wong, who said in his oral evidence that, given LLC’s transcortical aphasia, her responses would need to be “interpreted carefully”.

118.Finally, both doctors concluded that LLC did not have testamentary capacity since her stroke in August 2006.

119.Dr Choa and Dr Woo saw LLC again on 20 June 2007 and 22 June 2007 respectively.  Sadly, her condition deteriorated.  By then, she was almost completely mute.

120.Dr Choa found that LLC did not respond to verbal commands.  He also found that when simple “yes-no” questions were put to her, LLC only responded by nodding or shaking her head randomly.  She nodded in response to a question but then later shook her head to the same question.  When she was asked what her name was, she shook her head and nodded.

121.Dr Woo found that LLC had progressed to severe global aphasia and she could not comprehend even the simplest commands.  She could not repeat any word or sentence and she could not respond to simple verbal commands such as “raise your left hand” and “show me your tongue”.  Even the ability to repeat was lost.

122.In his report dated 9 July 2008, Dr Tsai opined that LLC had been suffering from vascular dementia with onset probably around 2005 and exacerbated after sustaining the stroke in August 2006.  Dr Woo and Dr Choa said that as a severely demented patient, LLC did not have normal language and cognitive functions including domains such as orientation, calculation, concentration, memory, reasoning, insight and executive functions.

123.As said, LLC suffered a stroke in August 2006.  Dr Woo said that the potential recovery for LLC was extremely limited given her age, previous strokes, diabetes and hypertension.  The prognosis of recovery was slim.  Although the natural history of a stroke is one of gradual recovery in the following months, it was found by Dr Woo and Dr Choa that LLC’s condition had further deteriorated during the period between the examinations in October 2006 and June 2007.  This was probably due to the fact that during this time, LLC had suffered at least two occasions of physical failure when she had to be admitted into hospital in December 2006 and April 2007.  The admission in December 2006 was marked by a brief bout of loss of consciousness consistent with syncopal attack.  The admission in April 2007 was due to poor feeding, dehydration and hypotension.  LLC was by then 90 odd years old.  She had in the doctors’ words a “precarious brain”.  The physical stress and changes would have caused her the further deterioration during the period between her examinations in October 2006 and June 2007.

124.In sum, the three doctors concluded that LLC did not have testamentary capacity in September 2006.

125.I find the evidence of Dr Woo, Dr Choa and Dr Tsai coherent and convincing.  I accept their evidence in full.

126.On the other hand, I find it difficult to accept Dr Wong’s evidence.  I will explain why.

127.Dr Wong accepted that LLC suffered from transcortial dysphasia and that her mental ability had become severely compromised. He therefore set out to explore on what ability she still retained and whether such would be sufficient to give her the necessary mental capacity to make the decision which she did as regards the 2006 Will.  He examined LLC on 18 January 2008.  The main purpose was to make a general observation of LLC and establish a rapport with her.  He found her fully conscious, attentive and responsive.  He did not conduct any detail examination.  He examined LLC again on 14 April 2008.  He asked her a series of questions and tested her responses by showing her photographs.  Based on the examination, Dr Wong concluded that LLC retained intact emotional function and that she was able to express, feel and show her emotions by her behaviour.  He was therefore satisfied with LLC’s ability to concentrate, think and make judgment.  He found that LLC had testamentary capacity because she had intact emotional abilities and the ability to remember and recognize people and relationships.

128.Dr Wong readily accepted that since he only examined LLC in 2008, he had to carry out a retrospective exercise to ascertain if back in September 2006, LLC had testamentary capacity.  I think what the doctors called by Niece #2 did was also essentially a similar exercise.  But Dr Choa and Dr Woo had the advantage of examining LLC at a much shorter time after September 2006, their first interview being conducted in October 2006.  Given the proximity in time, I think their views are more weighty than Dr Wong’s.

129.More importantly, Dr Wong’s examination is deficient in a number of aspects.

130.First, Dr Wong had significantly failed to discuss LLC’s ability to concentrate, think and calculate.  He had not discussed LLC’s language ability either.  Under cross-examination, he said it was not necessary as the focus of the report was not on the scope of aphasia.  But lack of comprehension ability, a factor patently relevant to testamentary capacity, may well be associated with aphasia.  Dr Wong had inexplicably and unduly restricted the scope of his examination.  That is in my view a fundamental flaw in his overall approach to LLC’s mental condition.

131.Second, Dr Wong had missed an important point when he tested LLC’s memory function by showing her various photographs, including strangers, herself, XYZ and EFG.  As rightly observed by Dr Choa, Dr Wong had failed to establish that she knew what she was looking at.  The ability to recall someone from memory and the ability to recognize someone from sight are materially different.  Dr Wong’s test, at best, could only show LLC’s ability to recognize someone from sight but not her ability to recall them from memory.  I full agree with Dr Choa.

132.Third, Dr Wong’s conclusions based on LLC’s responses to the photographs shown to her to assess her emotional abilities is subjective, if not speculative.  Dr Wong concluded that LLC recognised XYZ and her husband and showed anger towards them.  When he showed LLC her own photo, she shook her head, closed her eyes tightly and then kept shaking her head for about ten seconds before she opened her eyes again.  He interpreted that as showing “intense emotion” and being in “emotional pain” and that showed much “sadness” and “bitterness”.  When he showed LLC the photo of XYZ, she shook her head and closed her eyes tightly.  He noticed that her face and forehead “tensed up” and she “grimaced”.  When he showed LLC the photo of EFG, she shook her head strongly, closed her eyes tightly.  Her face and forehead also “tensed up” and she “grimaced”.  She made some grumpy sound as well.

133.However, Dr Wong assumed that LLC had recognised herself, XYZ and her husband despite her shaking of head each time when asked whether she remembered these people.  He could not satisfactorily explained why LLC showed “bitterness” towards herself when she saw her own photograph.  According to Dr Tsai, LLC had shown similar responses (shaking her head strongly and closing her eyes) to “neutral objects” such as a pen.  When asked why LLC showed similar response to a pen, Dr Wong could not give a convincing reason.  His interpretation that LLC was angry towards EFG when his photograph was shown to her does not sit well with LLC’s calm reaction and demeanour when EFG visited her on 1 December 2006 to tell her about the Part II Application.

134.In my view, Dr Wong’s conclusions based on the exercise of showing LLC photographs are unsafe.

135.Fourth, on the effect of the stroke in August 2006, Dr Wong opined that its main effect was right sided weakness and more speech impairment and that there was no evidence that she showed any other mental changes or that she otherwise became confused or disorientated, nor did the stroke result in any change to her personality or her attitude to people around her.  Factually, Dr Wong’s views are not supported by Nurse Tsai’s observations of her behaviour after the stroke.  As a matter of expert opinion, I prefer the views of Niece #2’s experts.

136.Finally, Dr Wong had unduly assumed the role of an advocate.  He analysed different versions of the facts and offered his own opinion why one is more preferable than the other.  He even went so far as suggesting duress.  That is impermissible.

137.In conclusion, I reject Dr Wong’s opinions on LLC’s mental conditions insofar as they are contradicted by or inconsistent with the views of Niece #2’s experts.

J.4.    LLC did not have testamentary capacity

138.Based on the evidence on LLC’s mental condition, both factual and medical, I find that at the time when she purportedly gave instructions for the 2006 Will and executed the same, she was suffering from severe degree of transcortical mixed sensory and motor aphasia and vascular aphasia.  She could not comprehend the questions put to her.  The responses elicited from her were random and inconsistent.  Any instructions purportedly conveyed were meaningless.  The utterances of “donate” by LLC when she purportedly gave instructions to the bank staff for the preparation of the 2006 Will was just perseveration on her part.  They did not amount to any meaningful instructions at all.  She did not understand the nature of a will.  Nor could she recall who the potential beneficiaries would be.  She lacked the mental capacity to enable her to form the testamentary intentions as embodied in the 2006 Will.  In short, LLC was suffering from such severe mental impairment that she did not have testamentary capacity to give instructions for the preparation of 2006 Will or to execute the same.

139.LLC’s lack of testamentary capacity is further evident from this.  The 2006 Will is wholly irrational.  It is inconsistent with her character (not charitable) and personality (always guarding her money jealously).  And given her love and affections for the Family, there is no credible explanation why she would want to disinherit them.  The bank visit referred to in para.53 above, which is an isolated incident, would not have prompted her to react in such a way.  In my view, the only explanation for such an irrational decision is due to the disease of her mind : see Sharp v Adam, supra, para.79.

140.As already alluded to, it is the Secretary’s case that even if LLC did not have full testamentary capacity, she still possessed sufficient mental capacity to know and understand what she was doing by way of the 2006 Will because it was a simple one.  I disagree.  In my view, in order to know and understand fully what she was doing by the 2006 Will, anything short of full testamentary capacity is insufficient.  In any event, contrary to the Secretary’ contention, the 2006 Will is not a simple one.  It involved a very drastic decision of disinheriting the Family with whom she remained close.  She would need to recall the fact that she had made the 2001 Will.  She would have to recall her potential beneficiaries.  She would have to understand the consequences of disinheriting them.  She would need to know the nice distinction between donating her estate to the charities outright on the one hand and keeping the capital and donating the income only on the other.  Mentally, LLC was simply incapable of addressing these fairly complex considerations and coming up with a meaningful decision such as the 2006 Will. 

141.In conclusion, I answer the Capacity Issue with a resounding “No”.

K.  the knowledge and approvAl issue

142.I further find that given LLC’s mental condition, she could not have known or approved the contents of the 2006 Will.  The answer to the Knowledge and Approval Issue is “No”.

143.To complete the discussion on this issue, I would say a few words on the execution of the 2006 Will.  With respect to the solicitors, they had in my view failed miserably in their duties in that regard.

144.In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions to taken : the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfied himself of the capacity and understanding of the testator, and records and preserves his examination and findings : Kenwards v Adam, The Times, 29 November 1975, per Templeman J; see also Buckenham v Dickinson [2000] WTLR 1083.  Although this golden rule is not a rule of law, it is prudent practice which the court expects the practitioners to follow closely in normal circumstances.  The rule was however not observed in the present case.  Instead of calling for a doctor who is qualified to do the job, AT took the matter in his own hands.  Had he followed the rule, it is most probable that LLC’s true mental condition would be readily revealed and that the 2006 Will would not have been executed.  What followed including the present proceedings could have been easily avoided by the observance of the golden rule.

L.  THE DISPOSITIONS ISSUE

145.I finally come to the Dispositions Issue.

146.The starting point is of course the 2001 Will.  I can see no material change in the circumstances since the 2001 Will, including LLC’s personality and character and her relationship with the Family that would have caused her to change her testamentary intentions.  Further, she inherited her wealth from her father.  She is not a charitable person.  She surely would have wanted to pass the family fortune to the Family, her only relatives that she trusted and loved.

147.So the will which LLC would have made if notionally restored to full mental capacity, memory and foresight and with sound legal advice available should follow the 2001 Will with the necessary modification because of XYZ’s death.  EFG is now too old and too sick to be the executor.  The best choice that she would have made is plainly Niece #2 and Niece #1.

M. CONCLUSION AND FURTHER DIRECTION

148.It is for the above reasons that I made the statutory will for LLC as I did.

149.For completeness, I would like to mention this.  I have not discussed every points canvassed in evidence or raised by counsel in their very lengthy submissions[12].  But I have carefully considered them all in coming to my findings and ultimate decision.  I did not discuss all the points because what I have covered above is already sufficient for present purposes.

150.On the question of costs, I will direct the parties to lodge with court their written submissions within 28 days from the handing down of this Reasons for Judgment.  I will then dispose of it on paper.

Mr Horace Wong, SC, leading Mr Wycliffe Ho, instructed by  Messrs Hobson & Ma, for the Applicant

Mr Ashley Burns, SC, leading Ms Sara Tong, instructed by  Department of Justice, for the Secretary for Justice

Official Solicitor, absent

[1] Some of the abbreviations in the Judgment have been replaced by those used here in order to preserve the parties’ anonymity for the purpose of publication.

[2] In England, the court’s powers in relation to statutory wills have since 2007 been governed by Mental Capacity Act 2005 : for a general discussion see Heywood & Massey : Court of Protection Practice (2009), paras.20-006 – 20-013B.

[3] Set down for 7 days, the hearing seriously overran to 15 days.  A total of 13 factual witnesses and 4 experts were called.

[4]   See para.27 below.

[5]   All the medical experts agreed that LLC did not suffer from any medical condition of paranoia.

[6]   [Deleted for the purpose of publication.]

[7]   See his answers in respect of LLC’s mental condition between November 2005 and November 2006 dated 29 May 2008 given in compliance of the court’s order dated 4 June 2008.

[8] A checklist covering matters which a testator should be able to understand with reference to the requirements laid down in the authorities can be found in Assessment of Mental Capacity : Guidance for Doctors and Lawyers, 2^nd Edition, at pp.66-68.  The list is not exhaustive but contains useful and practical guidance on the information to be elicited for the purposes of ascertaining if the testator possessed testamentary capacity.

[9] He described it as a “jury” question.

[10] Doctors should recognize that non-medical evidence may sometimes contradict their own medical view : Assessment of Mental Capacity : Guidance for Doctors and Lawyers, 2^nd Edition, at p.148.

[11] Dr Choa’s report was attached to his medical certificate filed in the Part II Application : see para.9 above.

[12]   Mr Wong’s closing submissions contains 333 paragraphs in 152 pages.  Mr Burns’s is 95 pages long with 203 paragraphs.