Choy Po Chun and Another v. Au Wing Lun

HCAP 7/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 7 OF 2010

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BETWEEN

Before: Hon To J in Chambers (Open to Public)

Date of Hearing: 5 May 2011

Date of Decision: 14 July 2011

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D E C I S I O N

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INTRODUCTION

The applications

1.This is an application by the Plaintiffs to enter final judgment under order 14 of the Rules of the High Court (“RHC”) against the Defendant for, inter alia:

(1)   pronouncement in solemn form of law for the force and validity of the will of the late Au Kong Tim(區幹恬)(“Deceased”);

(2)   further and in the alternative to (1), the Defendant’s Reply to Defence to Counterclaim be struck out as having been filed without leave of the Court; and

(3)   further or in the alternative to (1), paragraphs 9(vii) and 13(a) of the Defendant’s Defence and Counterclaim, all references to the 1^st Plaintiff intermeddling with the Deceased’s estate and all references to her colluding with Au Yuk Lun as well as all references to “Au Yuk Lun” or “YL Au” therein be struck out on the ground that they do not fall within the ambit of Order 76 rule 1(2) of the RHC for they may prejudice, embarrass or delay the fair trial of the action and/or are otherwise an abuse of the process of the Court and/or under the inherent jurisdiction of the Court.

2.In response to item (2) above, the Defendant took out a summons on 29 April 2011 to apply for leave to serve his Reply to the Plaintiffs’ Defence to Counterclaim out of time under Order 18 rule 4.  He had attempted to file the Reply marginally out of time on 23 December 2010 without leave.  The application caused no prejudice to the Plaintiffs and was therefore granted with costs to the Plaintiffs.

Background

3.The Deceased was a man of substantial wealth. He passed away on 7 July 2009 at the age of 93, survived by his wife; two sons, namely, Au Yuk Lun Anthony (“Anthony”) and Au Wing Lun William (“William”); a daughter, Gloria Seltzer (“Gloria”) and six grandchildren.

4.Anthony was married to the 1^st Plaintiff and has one son, the 2^nd Plaintiff herein and three daughters.  One of the daughters is Charleen Au (“Charleen”).

5.William was married and has one son and one daughter.

6.Gloria was married and has been living in Canada for the last forty-two years.

7.On 19 July 2002, the Deceased executed a will in English (“2002 Will”), which had been duly interpreted to him by his solicitor and witnessed by two solicitors.  There is no dispute as to the authenticity of that will and that the Deceased had testamentary capacity at the time of execution of that will.  Under the 2002 Will, the Deceased devised and bequeathed all his properties to his six grandchildren in equal shares and appointed the 1^st, 2^nd Plaintiffs and Charleen as executors and trustees of the will.  Effectively, under the 2002 Will, Anthony’s family has control of the Deceased’s estate and is entitled to two-thirds of the estate.  William and Anthony are not beneficiaries under the 2002 Will.

8.On 24 September 2009, William applied for grant of probate under HCAG 10859 of 2009 and claimed to be the executor of another will executed by the Deceased on 5 September 2008 (“2008 Will”).  The 2008 Will is a Chinese will purportedly executed by the Deceased after it had been duly explained by Yeung Wai Chung (“Yeung”), a solicitor of Messrs Tso Au Yim & Yeung (“Messrs TAYY”) and witnessed by Yeung and Lau Wah Shun (“Lau”), a trainee solicitor.  Under the 2008 Will, the Deceased devised and bequeathed all his properties to his four male descendants, namely William and his son, Anthony and the 2^nd Plaintiff, in equal shares and appointed William and Anthony as executors and trustees of the will.  Effectively, under the 2008 Will, William and Anthony have joint control of the Deceased’s estate and each family is entitled to a half share of the estate.  William and Anthony are beneficiaries under the 2008 Will.

9.On 29 March 2010, the Plaintiffs commenced probate action in HCAP 7 of 2010 (“HCAP 7”) against William seeking to pronounce for the validity of the 2002 Will and against the validity of the 2008 Will.  They alleged, inter alia, that the 2008 Will was not duly executed by the Deceased; that the purported signature of the Deceased on the 2008 Will was a forgery and that at the time of the purported execution of the 2008 Will the Deceased was not of sound mind, memory and understanding.  They also alleged that William wrongfully purporting to act as the lawful executor of the Deceased’s estate intermeddled with and caused loss to the Deceased’s estate.

10.In his Defence and Counterclaim, William pleaded that the 2002 Will was revoked by the 2008 Will.  In paragraph 9, he pleaded instances in support of his assertion that the Deceased had testamentary capacity.  In paragraph 9(vii), he pleaded that the 1^st Plaintiff intermeddled with the Deceased’s estate by signing tenancy agreements in respect of a list of landed properties of the Deceased.  In paragraph 13(a), he sought pronouncement in solemn form of law for the validity of the 2008 Will.

11.On 19 April 2010, William commenced probate action in HCAP 9 of 2010 (“HCAP 9”) against the 1^st Plaintiff as 1^st Defendant and Anthony as 2^nd Defendant seeking to pronounce for the validity of the 2008 Will and damages for their misappropriating funds belonging to the estate of the Deceased.

12.On 1 November 2010, upon the application of the 1^st Plaintiff and Anthony, Master Levy struck out paragraphs 1 to 8 and 13(a) and (b) of William’s Statement of Claim in HCAP 9 relating to pronouncement for the validity of the 2008 Will, thereby confining that action to misappropriation of the estate of the Deceased and leaving the issue of validity of the 2008 Will to be determined under HCAP 7.

13.On 28 January 2011, the Plaintiffs took out the present summons, pursuant to Order 14(1) of the RHC seeking summary judgment against William, effectively, pronouncement for the validity of the 2002 Will.

Legal principles applicable to Order 14 applications

14.The legal principles applicable to an application for summary judgment under Order 14 of the RHC are well-known.  If the case comes within the scope of Order 14 and the plaintiff has satisfied the preliminary requirements for the proceedings, he is entitled to summary judgment unless the defendant can show he has a meritorious defence.  Order 14 applies to every action begun by writ other than an action which includes a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction or a claim by the plaintiff based on fraud or an admiralty action in rem and to actions to which Order 86 or Order 88 applies: Order 14 rule 1(2) and (3).  Order 86 applies to specific performance of a contract and Order 88 applies to mortgage actions.  The preliminary requirements are that the statement of claim must have been served on the defendant; the defendant must have given notice of intention to defend and the plaintiff must have filed an affidavit in support of the application which complies with the requirement of Order 14 rule 2: see Hong Kong Civil Procedure 2011 Note 14/1/3 and 14/4/1.  The machinery of Order 14 works on the basis that if the plaintiff’s application is properly constituted, he is prima facie entitled to judgment unless the defendant shows cause to the contrary or the application is dismissed: see Hong Kong Civil Procedure 2011 Note 14/4/1.

15.To resist such an application, a defendant only needs to satisfy the court that he has a good defence to the claim on the merits, or that a difficult point of law is involved, or a dispute as to the facts which ought to be tried, or a real dispute as to the amount due which requires the taking of an account to determine, or any other circumstances showing reasonable grounds of a bona fide defence: see Hong Kong Civil Procedure 2011 Note 14/4/2; Banque de Paris et des pays-bas (Suisse) SA v Costa de Naray [1984] 1 Lloyd’s Rep 21 at 23, per Ackner LJ; Toy Major Trading Co Ltd v Plastic Toys Ltd [2007] 3 HKLRD 345, per Ma CJHC, as he then was.  What the defendant says does not have to be believed but has to be capable of belief.  The test as laid down by Bokhary JA, as he then was, in Re Safe Rich Industries Ltd [1994] HKLY 183 is:

“The test at the summary stage is indeed as simple as whether the defendant’s assertions are believable. But it must be recognized – because failure to recognize it would create a debt-dodger’s charter – that whether the defendant’s assertions are believable is a question to be answered not by taking those assertions in isolation but rather by taking them in the context of so much of the background as [is] either undisputed or beyond reasonable dispute.”

But it must also be borne in mind that Order 14 procedure is for clear cases, i.e. cases in which there is no serious material factual dispute and if a legal issue, then no more than a crisp legal question as well decided summarily as otherwise: Crown House Engineering v Amec Projects Ltd 48 B.L.R. 32, per Bingham LJ.  The court must not embark on a mini trial on affidavits: see Mass International Ltd v Hillis Industries Ltd & Another [1996] 1 HKC 434 at 439, per P Chan J, as he then was.  As is often put, unless it is obvious that the defence put forward is frivolous and practically moonshine, summary judgement should not be granted.

16.If the plaintiff’s case is verified and the court is satisfied that the defendant has no defence or no fairly arguable point to be argued, the court shall give judgment for the plaintiff: see Anglo-Italian Bank v Wells (1878) 38 L.T. 197 at 201, per Jessel MR.  If satisfied that the defendant has a defence or an arguable defence, the court may grant unconditional leave to the defendant to defend or leave subject to such conditions as the court sees fit.  A condition of paying some or all of the money or damages claimed into court, or giving security, is imposed where there is a good ground in the evidence for believing that the defence set up is a sham defence or the court “is prepared very nearly to give judgment for the plaintiff”.  In Unic Company (a firm) and Centus Development Limited [1988] HKC 643, per Godfrey J, as he then was, said: 

“… it is appropriate, in some cases, to give leave to defend only upon condition of making a payment into Court. A good example of this is the sort of case in which there is good ground for believing that the defence advanced is a sham defence, the sort of case (as it is sometimes said) in which the Master is prepared very nearly to give judgment for the plaintiff. Put another way, leave to defend, conditional on the full amount paid being paid into Court, may be ordered where there is little or no substance in the defence, or the case is almost one in which summary judgment should be ordered. And where the defence can be described as more than shadowy but less than probably conditional leave to defend may be given.”

DEFENDANT’S OBJECTIONS TO THE ORDER 14 PROCEDURE

17.William objected to the application on the technical ground that, firstly, Order 14 procedure is inapplicable to probate action and, secondly, the Plaintiffs are precluded from making the Order 14 application by reason of their delay.

Whether Order 14 procedure is applicable to probate action

18.William argued that Order 14 procedure is not applicable to probate action.  The answer to that argument is to be found in Order 14 rule 1(2) and (3) which I have referred to above.  Probate action does not fall within any of the exceptions under Order 14 rule 1(2) and (3). Indeed, summary judgment was granted by Deputy High Court Judge Poon, as he then was, in Sum Wan Piu Paul and Lau Siu Hong, HCAP 3/2004. 

The Plaintiffs’ delay

19.William objected to the application on the ground of delay as the Plaintiffs did not issue the Order 14 application until more than eight months after they had served their Statement of Claim on him and that they offered no explanation in their affidavit filed in support of the application.  There is no express provision in the rules as to the time when an Order 14 application may be made.  It is of course a good practice for the application to be made promptly and to offer an explanation in case there is delay in invoking the procedure.  Delay as such is not a ground for refusing the application.  However, it has some bearing if the delay reflects a lack of genuine belief that the defendant has no meritorious defence.  The court will have to examine the plaintiff’s case with more circumspection.  If the delay has occasioned prejudice to the defendant, for example, the defendant has incurred costs in the preparation of defence, there will be more force in the argument that the action should be allowed to take its course.  The policy behind Order 14 procedure is to prevent a defendant from delaying the plaintiff from obtaining judgment in a case in which the defendant clearly has no defence to the plaintiff’s claim.  Delay on the part of the plaintiff is inconsistent with this policy.  The longer the delay, the less is the purpose to be served by this summary procedure.  However, if in fact the defendant has no meritorious defence, it serves no purpose for the action to go on.  It will be in the interest of justice that the action should be brought to a conclusion despite the delay on the part of the plaintiff.  Thus, delay by itself, is not a ground for refusing the application.  It is all a matter of balancing the interest of the parties and finding where the interest of justice lies.

20.On the facts of the present case, the Plaintiffs filed their Statement of Claim on 12 May 2010.  William filed his Defence and Counterclaim on 14 June 2010.  The Plaintiffs then filed their Reply and Defence to Counterclaim on 22 November 2010.  Then two months later, they took out the present application.  In the meantime, William had not done anything other than preparing a Reply to the Plaintiffs’ Defence to Counterclaim, which he had neglected to file within time.  He has not incurred significant costs.  He has not argued he suffered any prejudice.  The parties’ position has not changed. The Plaintiffs did not obtain any technical advantage by delaying the application.  The delay is not significant.  In the circumstances, I give little weight to the delay in the exercise of my discretion in dealing with this application.

WHETHER THE DEFENDANT HAS A CREDIBLE DEFENCE

21.There is no dispute that the 2002 Will was duly executed by the Deceased in the presence of two witnesses and that at the time of execution the Deceased had the necessary testamentary capacity to do so.  William’s defence is that the 2002 Will was revoked by the 2008 Will.  The Plaintiffs’ assertion that William has no defence to the action is based on their belief that the 2008 Will was not executed by the Deceased and that at the time of execution the Deceased had no testamentary capacity as he was suffering from dementia.  The Plaintiffs have satisfied the requirements under Order 14 rule 1.  The burden is on William to show a credible defence in that the 2008 Will was executed by the Deceased and at the time of execution the Deceased had testamentary capacity.  If William fails to show he has a credible defence based on either of the above grounds, the Plaintiffs are entitled to judgment.   

Execution of the 2008 Will

22.In the face of the 2002 Will which was not disputed, the spring board of William’s argument on the validity of the 2008 Will is that the Deceased was a traditional Chinese man with a strong sense of male chauvinism and had a change of mind after execution of the 2002 Will.  He relied on the fact that in 1976 the Deceased made a will bequeathing all his real and personal properties to him and Anthony with nothing to Gloria.  He said that between 2002 and 2006, he and his wife had made regular visits to the Deceased who was then living in Provident Centre in North Point.  During those visits, the Deceased told William that he had no intention to give any share of his estate to his granddaughters.  William argued that the 2008 Will was to give effect to that intention.

23.I do not think William’s argument based on the Deceased’s chauvinism credible when tested against the indisputable surrounding circumstances.  It was true that in 1976, the Deceased excluded Gloria from his will.  But Gloria had left the family as early as 1968 to live in Canada, perhaps to pursue her married life or for whatever reason.  Therefore, exclusion of Gloria from the will in 1976 was, in my view, neither here nor there.  On the other hand, the mind of the Deceased, were he chauvinistic, must have drastically changed during the twenty-six years since 1976 as reflected in his 2002 Will when he excluded both of his sons from his 2002 Will and bequeathed all his estate to his two grandsons and four granddaughters in equal share.  His sons were to receive nothing from his estate, the majority of which were to go to his female descendants.  He must have good reasons to exclude his sons from the 2002 Will.  There were some allegations about William’s unbecoming conduct.  But I do not wish to speculate.  Whatever were the reasons, the Deceased’s thinking must have fundamentally changed.  The 2002 Will cast serious doubts on the veracity of William’s evidence.  In the absence of any reason offered by William, such as all the granddaughters’ behaviour or whatever, it is difficult to believe that as soon as or soon after making such a drastic change in his thinking and philosophy as reflected in the 2002 Will, the Deceased would have turned around and told William that he had no intention to give any share of his estate to his granddaughters and would change his will later.  If the Deceased had really changed his mind again, there was no reason why he did not change his will soon after but waited until six years later.  I reject William’s argument based on the Deceased’s chauvinism, but I take note of his evidence about what the Deceased had allegedly told him during 2002 through to 2008.

24.As to the purported signature of the Deceased on the 2008 Will, the Plaintiffs disputed it was signed by the Deceased for the following reasons.  The Deceased almost invariably signed his name in English throughout his lifetime, but the signature on the 2008 Will was done in Chinese.  No reason was proffered by William as to why the Deceased would chose to put on a signature totally different from what    he had always been using on such an important legal document.  The Plaintiffs exhibited two signatures of the Deceased done in Chinese from documents the authenticity of which was not in dispute and William’s signature done in Chinese.  They invited the Court to compare those signatures with the purported signature of the Deceased in the 2008 Will and to note the dissimilarities between that signature and the undisputed signatures of the Deceased and the similarities between that signature and the signature of William.

25.In my view, such a comparison would be a futile exercise for any of the following reasons.  The Court is unassisted by any handwriting expert.  The number of control signatures was clearly inadequate even for an expert to form any reliable opinion.  The control signatures were not done within a reasonably contemporaneous period.  I have examined   other signatures of the Deceased done in English.  They showed gradual deterioration in the signatures.  In my view, towards the later years of his life, the Deceased’s signature changed drastically and lost what appeared to me to be its characteristics.  That may probably be contributed by the large left chronic subdural haematoma found in his brain on 3 May 2008, half a year before the date of execution of the 2008 Will.  In my view, there is insufficient evidence for me to form even a provisional view on  the authenticity or otherwise of the signature on the 2008 Will.  And in any event, the Court should not engage in speculation, let alone to conduct a mini trial on affidavit evidence.  I decline the Plaintiffs’ invitation to compare the signatures and to form any view on the authenticity or otherwise of the purported signature of the Deceased on the 2008 Will.

26.As to the execution of the signature, William said in his affirmation that he assisted the Deceased in signing the 2008 Will in that he “lifted the elbow of the Deceased so that he could put his hand on the detachable table to sign the last Will”.  The Plaintiffs argued that it was a half-hearted denial conceding the signature was not done by the Deceased and echoed the different account of how the signature was made as related by William to Gloria.

27.According to Gloria, she visited the Plaintiffs in early 2010 and learned about the 2008 Will.  She considered the purported signature of the Deceased curious.  She met with William and questioned him. William replied that he held the Deceased’s hand to write the signature. William denied he had told Gloria such.  He said what he told Gloria was that he lifted the elbow of the Deceased so that the Deceased could put   his hand on the detachable table to sign the will.  Again, I do not wish to engage in a mini-trial on affidavit.  For the purpose of assessing whether   a credible defence is shown, I shall proceed on the basis of William’s evidence.

28.William argued that the execution of the 2008 Will was not invalidated by the assistance he rendered as section 5(1)(a) of the Wills Ordinance expressly provides that no will shall be valid unless it is in writing and signed by the testator, or by some other person in his presence and by his direction.  He submitted, quoting Williams, Mortimer and Sunnucks on Executors at pages 124 and 125, that it is sufficient signing if a testator put his mark on his will, even though he could write and even where his hand is guided.  He also referred to Wilson v Beddard (1841) concerning a will signed by a very sick testator a day before his death.   The testator signed with a mark with his hand guided.  Sir Shadwell,   Vice-Chancellor, said:

“… For the Statute of Frauds requires that a will should be signed by the testator or by some other person in his presence and by his direction; and I wish to know if a dumb man, who could not write, were to hold out his hand for some person to guide it and were then to make his mark, whether that would not be a sufficient signature of his will. In order to constitute a direction, it is not necessary that anything should be said. If a testator, in making his mark, is assisted by some other person and acquiesces and adopts it; it is just the same as if he had made it without any assistance.”

I accept these legal propositions.  Thus, on Gloria’s evidence, even if the signature was done with the assistance of William to the extent of guiding the hand of the Deceased, it nevertheless was a signature of the Deceased, provided it was done with the necessary intention.  On William’s evidence, the signature was signed by the Deceased.

29.William fortified his evidence with a letter dated 8 October 2009 from Messrs TAYY in reply to the Plaintiffs’ solicitors’ enquiry. The letter confirmed that the content of the 2008 Will had been read over and explained by Yeung to the Deceased who confirmed his understanding of the will before execution; that Yeung and Lau were both satisfied as to the mental capacity of the Deceased at the time of the execution and that the Deceased executed the will with the assistance of William in the presence of Yeung and Lau.  Now, Yeung is a partner of Messrs TAYY and Lau is a qualified solicitor.

30.Mr Hon, counsel for the Plaintiffs, argued that Messrs TAYY’s letter should be read in the light of the subsequent correspondence between them and the Plaintiffs’ solicitors and viewed with circumspection.  The Plaintiffs’ solicitors wrote to Messrs TAYY    on 11 June 2010 administering a series of questions in the form of interrogatory relating to the circumstances of execution of the 2008 Will and asked for production of supporting documents.  In their reply on the same day, Messrs TAYY declined to answer the interrogatory and said that Yeung and Lau were prepared to testify as to the circumstances of the execution at trial.  Mr Hon submitted that the attitude of Messrs TAYY was evasive.  I disagree.  Messrs TAYY were not a party to the proceedings.  They were not even William’s solicitors on record for the purpose of this litigation.  They have no obligation to answer the interrogatory or to produce documents.  In fact they should not, at least not without the direction of William.  I refuse to draw any adverse inference against Messrs TAYY, Yeung or Lau for that matter.  Had the interrogatory been directed at Williams, it would have been otherwise.  That said, it is of course, highly unsatisfactory for William not to have filed an affirmation from Yeung or Lau if he wished to rely on their evidence to boost his credibility and to support his case that the signature was signed by the Deceased as well as for the purpose of his other defence that at the time of execution the Deceased had testamentary capacity.

31.In conclusion, in respect of this defence, I think William has shown he has an arguable defence.

The Deceased’s testamentary capacity

32.The Plaintiffs also challenged the validity of the 2008 Will on the basis that the Deceased had no testamentary capacity at the time of execution of the will.  The Plaintiffs relied on two medical reports from two different medical practitioners in September 2007 and March 2008 and two reports from the Hospital Authority extracted from its records, other non-medical documentations and three episodes involving the Deceased.    I shall analyse the medical reports and the other evidence in due course.  For the time being, I shall first deal with the issue of burden of prove.  William argued that those reports and documentations were not sufficient to prove that the Deceased was suffering from dementia.  He argued that the Plaintiffs have the burden of proving that the Deceased was suffering from dementia at the time of execution of the 2008 Will and had the obligation to call the makers of the reports for him to cross-examine.  He submitted that he could rely on the evidence of the letter dated 8 October 2009 from Messrs TAYY to prove that the Deceased was of sound mind at the time of execution of the 2008 Will.

33.There is no dispute about due execution of the 2002 Will.  It is common ground that the Deceased had testamentary capacity in 2002.  It is William’s case that the capacity continued at least until making of the 2008 Will and it was William who sought to raise the 2008 Will as a defence.  But a major challenge to the validity of the 2008 Will is that the Deceased had no testamentary capacity to execute the will.  To raise the 2008 Will as a defence, William has to prove its validity.  He has to discharge the legal burden of proving due execution and testamentary capacity.  I have dealt with the question about execution in the above section.  Usually, an adult person is presumed to have the necessary mental capacity for his acts. However, there is an abundance of evidence presented by the Plaintiffs that since 2006 the Deceased had been suffering from dementia.  These include two medical reports from two different medical practitioners in September 2007 and March 2008, two reports from the Hospital Authority extracted from its records of the Deceased, other non-medical documentations and evidence from the Plaintiffs relating to three episodes involving the Deceased.  In my view, those evidence are sufficient to discharge the Plaintiffs’ evidential burden of proving the Deceased’s lack of testamentary capacity.  The legal burden of proving testamentary capacity rests fairly and squarely on the shoulders of William.  Having settled the question of burden of proof, I now turn to examine the Plaintiffs’ evidence and then William’s.

34.The first medical report was given by Dr Ko of Standard Medical Associates dated 2 September 2007.  It was a two-line report. In that report, Dr Ko certified as follows:

“It is to certify that the above named gentlemen is suffering from dementia which would affect his ability in judgment.”

William challenged the report for its lack of basis for the opinion.  The report is not a very helpful one.  Dr Ko’s qualification and his specialty were not shown on the report.  He also gave no basis for his opinion.  Nevertheless, he purported to be a medical practitioner, which is not challenged by William.  There could be no doubt that he had been specifically asked to examine the Deceased and give an opinion on his mental condition and he gave the opinion that the Deceased was suffering from dementia.  Unsatisfactory though the report may be, I consider it sufficient to discharge the Plaintiffs’ evidential burden.

35.The second medical report was a medical examination report prepared by Dr Au dated 4 March 2008 upon admission of the Deceased into Lord Kindness Elderly Rehabilitation and Care Centre. Apparently, Dr Au was under a duty to examine the Deceased for the purpose of admitting him in the elderly centre.  In Part II of the report, Dr Au took a medical history of the Deceased, noting that the Deceased had a history of “senile dementia” and was being treated with daoxil and aricept.  He must be satisfied that the Deceased was suffering from senile dementia in view of the medication the Deceased was receiving.  He conducted a physical examination on the Deceased and recorded in Part III of the report that he had examined the Deceased’s central nervous system and noted that the Deceased was suffering from dementia and general weakness.  In Part IV of the report about functional assessment of the Deceased, Dr Au noted that the Deceased had normal vision and hearing but suffered from mild dementia.  William argued that the degree of dementia noted was only mild and the Deceased was noted to have normal vision and hearing.  The report was prepared by a medical practitioner under a duty to examine and report on the physical and mental health condition of a patient to be admitted to the elderly home under his care.  He noted that the Deceased had a history of dementia and found that he was in fact suffering from dementia, albeit of a mild degree.  That falls far short of proving that the Deceased had testamentary capacity.   

36.Next, the Plaintiffs relied on two reports prepared by the Hospital Authority in February 2010 based on the records of the Queen Mary Hospital and Tung Wah Hospital.  The report from Dr Taw of        the Department of Neurosurgery of Queen Mary Hospital noted the Deceased’s admission to Queen Mary Hospital on 27 April 2008, less than two months after he commenced residence in Lord Kindness Elderly Rehabilitation and Care Centre.  It was not clear what was the reason      for that admission.  The report noted that the Deceased was presented   with decreased general condition and showed right sided weakness.  A computed tomograph scan revealed a large left chronic subdural haematoma with significant midline shift.  Urgent burr hole drainage of left chronic subdural haematoma was performed on 28 April 2008.  The report noted that the Deceased had a history of dementia and that he gradually improved post-operation to having spontaneous eye movements with confused speech but was able to follow commands.  The Deceased was then transferred to Tung Wah Hospital on 3 May 2008 and then discharged on 9 May 2008.  The doctors of Tung Wah Hospital also noted that the Deceased had dementia.

37.Though no formal investigation of the Deceased mental condition was conducted, the doctors who treated the Deceased in the two hospitals noted that he had dementia.  The doctors who took note of that were under a duty to examine and prepare an accurate record of the patient under their care.  They must have satisfied themselves that the Deceased was suffering from dementia.  Weight could reasonably be given to these two reports.  In my view, they are sufficient to discharge the Plaintiffs’ evidential burden of moving that the Deceased was suffering from dementia a few months prior to execution of the 2008 Will.

38.In addition, the Plaintiffs also rely on a referral to a geriatric consultant prepared by a houseman, Dr Chan of Queen Mary Hospital dated 29 April 2009 for the purpose of treating the Deceased’s hypertension condition.  In the referral, Dr Chan remarked the Deceased as “barely communicable” and as suffering from dementia for which the Deceased was receiving follow up treatment with aricept prescribed by a private medical practitioner.  This referral was prepared eight months after the execution of the 2008 Will.  It indicated that the Deceased had been receiving treatment for dementia.  Probably that information came from the family members of the Deceased.  It nevertheless was a contemporaneous piece of evidence which corroborated the two medical reports mentioned in the above paragraph.

39.Besides these four medical reports and a referral, there are other non-medical documentations which also support the Plaintiffs’ case that the Deceased was suffering from dementia.  One bundle of documents included the Deceased’s application for welfare assistance and disability allowance and an authorisation dated 13 June 2008 issued by the field unit of the Social Welfare Department authorising the 1^st Plaintiff to process the application on behalf of the Deceased as the Deceased was incapable of expressing himself.  Though the authorisation was not issued by a medical practitioner, it was nevertheless issued by a public officer under a duty to look after the welfare of applicants for welfare assistance.  The officer must have satisfied herself that the Deceased was incapable of expressing himself before giving the 1^st Plaintiff authorisation to make application for welfare assistance on the Deceased’s behalf.

40.Another non-medical documentation is an assessment form prepared by a health care assistant of Lord Kindness Elderly Rehabilitation and Care Centre in relation to the use of controlled medication by the Deceased.  That assessment was made on 16 February 2009, five months after the alleged execution of the 2008 Will.  The health care assistant noted that the Deceased had dementia.  That was not a medical report and was not prepared by a qualified medical practitioner.  The health care assistant might have made the remark based on his observation of the Deceased’s behaviour or from the records of the care centre.  Nevertheless, it is some evidence of the behaviour of the Deceased as observed by a third non-interested party who was under a duty to make observation of the Deceased.

41.Lastly, the Plaintiffs also relied on three episodes involving the Deceased.  According to the 1^st Plaintiff, on 20 August 2007 the Deceased left his home in Provident Centre in North Point. Neither the Deceased’s wife nor their Philippine maid could stop him.  The 1^st Plaintiff searched for the Deceased in the vicinity of North Point.  She reported the incident to a patrolling police officer who offered her a lift on a police vehicle to look for the Deceased.  During the course of the search, the police officer was informed that a male matching the description of the Deceased was found wandering in Caine Road and then detained in Central Police Station.  The 1^st Plaintiff then found the Deceased in Central Police Station.  The Deceased was wearing pyjamas and had no document of identity with him.  According to the police, the Deceased was found wandering around in Caine Road Garden.  When approached by the police, the Deceased had no idea where he was going, where he lived and why    he was there.  He was hence taken to Central Police Station.  According to the 1^st Plaintiff, the Deceased was under the misapprehension that his wife was arrested and was being tried and he was waiting for his wife so that they could go home together.  The 1^st Plaintiff’s account of this incident was corroborated by a letter from the police dated 5 May 2010 to the       1^st Plaintiff, in which the police gave the following account of the incident:

“We received a report on 2007-08-20 from the public that an old man, later known as AU Kwong-tim, 91 years old, was found wandering inside Caine Road Garden, Caine Road, Central. The old man was then located and brought back to Central Police Station for enquiry. Upon checking with the record from Hospital Authority, we could finally contact his son and send the old man back home with your assistance.”

William disputed that the incident showed the Deceased was suffering from dementia.  He said that he was living in Caine Road and the Deceased was visiting him that morning, but then the Deceased took a walk in the vicinity as he came too early in the morning.  He challenged the Plaintiffs’ evidence and put the Plaintiffs to strict proof that the Deceased had no idea where he was going.

42.William’s challenge was hopeless and demonstrated the total lack of good faith and credibility in his defence.  The 1^st Plaintiff’s account was independently corroborated by the police letter which must be credible evidence from an independent and credible source.  According to that letter, the Deceased was seen by the public wandering inside Caine Road Garden.  If the Deceased could give an account of himself, the police would not have found it necessary to take him to Central Police Station and make enquiry with the Hospital Authority.  Apparently, it was through the Hospital Authority that the police came into contact with William.  If the Deceased intended to visit William but took a stroll in the garden, he would have told the police and the police would have verified that and handed him to William in Caine Road without taking him to Central Police Station and without handing him over to the 1^st Plaintiff who later arrived at the police station.  It was beyond dispute that the Deceased left his home in Provident Centre in his pyjamas and wandered all the way to Caine Road, found by the public wandering in a strange manner and then reported to the police.  It was also beyond dispute that the Deceased could not give an account of himself, where he lived, where he was going, what he was doing and why he was in Caine Road.  The 1^st Plaintiff’s account that the Deceased left home for no reason and then was under the illusion that his wife was being tried and was waiting for her in the police station must be truthful.  This episode showed clearly that on 20 August 2007, two weeks before Dr Ko’s report, the Deceased demonstrated symptoms of dementia.  It also corroborated the medical finding of Dr Au six months later that the Deceased had dementia and the same finding in the other medical reports.  In August 2007, the Deceased was disorientated in time and space and was wandering about in Caine Road where he and his family lived in long forgotten time.

43.Gloria also mentioned two similar episodes which happened earlier in January 2006 when she was visiting Hong Kong.  She happened to see the Deceased wandering in Des Voeux Road Central where his office used to be.  The Deceased had lost his way home.  Again, on another occasion, the family was having meal at a restaurant, after the Deceased had been to the washroom, he forgot where he was and sat at another table.

44.On the basis of the four medical reports, the referral, the    non-medical documentations and the three episodes, I have no difficulties in holding that the Plaintiffs have more than discharged their evidential burden of proving that the Deceased was suffering from dementia before the alleged execution of the 2008 Will which cast the legal burden on William to show he had an arguable defence that the Deceased had testamentary capacity when he executed the 2008 Will.  I now turn to William’s evidence.

45.William mentioned nothing about the circumstances of the execution of the 2008 Will in his four affirmations filed for the purpose of this application.  He said in his affirmation dated 29 April 2010:

“[The Deceased] signed upon the last Will in the presence of a solicitor and a then trainee solicitor of [Messrs TAYY] on 5^th September, 2008.  The said witnesses can testify as to its due execution.  There is now produced and shown to me marked “AWL-9” a copy of the receipt issued by the said solicitors to my father for professional services provided to him in respect of the last Will”

William said in the course of his submission that the Deceased asked William to find a solicitor for the purpose of making a will for him.  William did not know Yeung and Lau of Messrs TAYY personally and he paid Messrs TAYY $2,000 for preparing and witnessing the execution of the 2008 Will.

46.In his affirmation dated 17 March 2011, which was in reply   to the 1^st Plaintiff’s 5^th affidavit dated 28 January 2011 disputing the Deceased had mental capacity to execute the 2008 Will, William only referred to the letter dated 8 October 2009 from Messrs TAYY to the Plaintiffs’ then solicitors as evidence that the Deceased had mental capacity at the time of the execution of the 2008 Will.  The letter reads:

“We refer to your letter of 8^th October 2009 and would like to reply as follows:

(1) the said Will dated 5^th September 2008 was executed by Au Kong Tim, deceased at [Lord Kindness Elderly Rehabilitation and Care Centre of ... on 5^th September 2008 in the presence of our partner Mr Yeung Wai Chung and our trainee solicitor Mr Lau Wah Shun Edwin.

(2) the content of the said Will had been read over and explained to Au Kong Tim, deceased, by our partner Mr Yeung Wai Chung and he verbally confirmed to Mr Yeung of his understanding to the said Will before execution.

(3) Mr Yeung and Mr Lau were both satisfied as to the mental capacity of Au Kong Tim, deceased, at the time of his execution of the said Will.

(4) Au Kong Tim, deceased, executed the said Will by signing his surname onto the said Will with the assistance of Mr Au Wing Lun in the presence of both our Mr Yeung and Mr Lau.”

The letter confirmed that Yeung and Lau were present with William during the execution of the 2008 Will, that Yeung had read over and explained the will to the Deceased who verbally confirmed that he understood the will, that the Deceased executed the will and that Yeung and Lau were satisfied as to the mental capacity of the Deceased.

47.When considering the issue of execution, I find in favour of William that he has demonstrated an arguable defence that the 2008 Will was signed by the Deceased.  I commented that Messrs TAYY as a       non-party and not representing William had no obligation to provide particulars to the Plaintiffs’ solicitors’ enquiries about the circumstances of execution of the 2008 Will.  What was sufficient in proving an arguable defence based on execution (not due execution) may not be sufficient  when it comes to the issue of showing an arguable defence based on the Deceased’s testamentary capacity. To resist an Order 14 application, the defendant has to show not just a defence but that the defence is believable.  He has to condescend to particulars as the circumstances so require.  In   the light of the very compelling evidence raised by the Plaintiffs in challenge of the Deceased’s testamentary capacity, William’s evidence in his affirmation dated 29 April 2010 and Messrs TAYY’s letter dated         8 October 2009 were inadequate.  There was a glaring lack of particulars and the circumstances of execution of the 2008 Will and how Yeung and Lau were satisfied of the Deceased’s testamentary capacity. 

48.Yeung and Lau were not medical practitioners. They were    in no position to certify that the Deceased had mental capacity. The Deceased had not been their client before.  They did not even know the Deceased before the execution of the 2008 Will.  Apparently, they had not taken instructions from the Deceased as to the making of the 2008 Will and the instructions came indirectly from William.  The Deceased was an old man, aged 92.  A solicitor instructed to prepare and witness the execution of a will is not performing a clerical or mechanical function but a professional function.  Particularly if the testator is such an old man who had never been his client before, a solicitor has a heavy burden to make sure that the testator has mental capacity and that he understands the will he is making.  He has to take full instructions from the testator or confirm with him the instructions received from another source.  Yeung and Lau had not given any witness statement or affirmation.  William who was present at the time of execution mentioned nothing of the enquiries Yeung and Lau had made to satisfy themselves that the Deceased had testamentary capacity.  Messrs TAYY declined giving particulars of the circumstances of the execution.  I ask myself rhetorically, what can a solicitor make out of a $2,000 dollar will?  It was not enough to pay Yeung and Lau for half an hour of their time.  I do not wish to say too much as to what they should have done, just in case a trial may become necessary.  Suffice it is to say, there was a glaring lack of particulars as to what Yeung and Lau have done to satisfy themselves that the Deceased had testamentary capacity. In the light of the nature of evidence of the Deceased’s dementia which the Plaintiffs have revealed in their affidavits, William’s evidence as it stands is wholly inadequate.  William utterly failed to condescend to particulars.  It is true that he had no opportunity to arrange a medical examination of the Deceased by his own expert as the Deceased had already passed away.  But there was nothing to prevent William from adducing evidence from Yeung and Lau, or at least from himself, as to what Yeung and Lau had done to satisfy themselves that the Deceased had testamentary capacity. 

49.For the above reasons, I conclude that William has failed to show he has a credible defence that the Deceased had testamentary capacity at the time of execution of the 2008 Will.  He may perhaps have credible evidence that the Deceased had testamentary capacity, but he    has chosen not to show me.  In the light of the two medical reports from  Dr Ko and Dr Au, the two medical reports from the Hospital Authority,   Dr Chan’s referral and the three episodes involving the Deceased, I do not really think William can show a credible defence.  His argument about the episode on 20 August 2007 demonstrated a lack of good faith in his conduct of this litigation.  His assertion about the Deceased’s change of mind in not giving any part of his estate to the granddaughters is incredible.  His assertion about the 2008 Will is highly suspicious.  His defence is most probably a sham defence.

50.However, out of respect for Yeung and Lau, who are solicitors and officers of the court, I am prepared to give William conditional leave to defend.  The probate action is likely to be very costly.  William is not a beneficiary under the 2002 Will.  Obviously, he will not be able to pay his costs if he loses and the estate will suffer.  I therefore would only grant him leave to defend on condition that he pays security for the Plaintiffs’ costs initially in the sum of $500,000 within one month and that there      be liberty to apply should the amount of security become inadequate and the costs of this application with certificate for counsel shall be in the cause of the main action.  In default of payment of the security, William’s defence shall be struck out and judgment shall be entered in terms of    sub-paragraphs (1), (2), (3) of paragraph 1 of the Plaintiffs’ summons dated 28 January 2011, that paragraph 13(a) of the Defendant’s counterclaim be struck out and that the Plaintiffs shall have costs of the application with certificate for counsel on an indemnity basis, to be taxed if not agreed.   

CONCLUSION

51.Accordingly, I grant the Defendant leave to defend under Order 14 rule 4 on condition that he pays security for the Plaintiffs’ costs initially in the sum of $500,000 within one month, that there be liberty to apply should the amount of security become inadequate and that costs of this application with certificate for counsel shall be in the cause of the main action. 

52.However, in default of payment of the security, the Defendant’s defence shall be struck out and judgment shall be entered automatically in terms of sub-paragraphs (1), (2), (3) of paragraph 1 of   the Plaintiffs’ summons dated 28 January 2011, that paragraph 13(a) of  the Defendant’s Defence and Counterclaim be struck out and that the Plaintiffs shall have costs of the application with certificate for counsel on an indemnity basis, to be taxed if not agreed.  

53.The Defendant’s application for leave to file and serve his Reply to the Plaintiffs’ Defence to Counterclaim out of time under     Order 18 rule 4 is allowed with costs to the Plaintiffs.

Mr Kevin Hon, instructed by Messrs Gloria Chan & Co., for the Plaintiffs

Defendant: act in person, present