Han Yi v. Ngan Shun Wah and Others

HCAP 8/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 8 OF 2008

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BETWEEN

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Before: Hon Lam J in Court

Dates of Trial: 23 to 27; 30 & 31 May 2011 and 14 June 2011

Date of Judgment: 5 August 2011

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J U D G M E N T

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1.Because a will only takes effect upon death, after a person makes a will he or she can always alter or revoke it before his or her death. Under section 13 of the Wills Ordinance Cap.30, one of the modes of revocation of a will is by the burning, tearing or otherwise destroying of it by the testator with the intention of revoking it. Thus, when the original of a will cannot be found after the death of a testator, one possibility is that it has been revoked by the testator. Destruction of the original by itself is not revocation. It has to be coupled with the intent to revoke

2.But there is a rebuttable presumption to such effect. In Welch v Phillips (1836) 1 Moo PCC 299, Parke B said at p.302,

“Now the rule of the law of evidence on this subject, as established by a course of decisions in the Ecclesiastical Court, is this: that if a will, traced to the possession of the deceased, and last seen there, is not forthcoming on this death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it. It is as presumption founded on good sense; for it is highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety, and would not be either lost or stolen; and if, on the death of the maker, it is not found in his usual repositories, or else where he resides, it is in a high degree probable, that the deceased himself has purposely destroyed it. But this presumption, like all others of fact, may be rebutted by others which raise a higher degree of probability to the contrary.”

3.Of course there are other possibilities. A testator could have misplaced his will (or kept it at a place where his descendants had failed to search) or have it destroyed by accident without any intention to revoke it. If the court is satisfied upon the evidence of one of these possibilities, it will act upon secondary evidence as to the contents of the lost will: see Re Estate of Lioe Ka Khie [2009] 2 HKLRD 115.

4.Another scenario is the fraudulent abstraction of the will by some third parties who do not want the estate to be distributed according to the will. In such a case, since the testator does not have any intention to revoke the will, the court would give effect to it if the evidence points to abstraction as the cause of the disappearance of the original of the will. Like other serious allegations, the court will require cogent evidence commensurate with the charge before coming to such a conclusion.  

5.The present case concerns the estate of the late Yien Chi Ren [“the Deceased”] who passed away on 4 March 2008 at the age of 88. He was a major shareholder of a famous Chinese restaurant in Hong Kong called Lin Heung Lau. He was an intelligent man and well-educated. He read literature at Southwest United University and he was fluent in Chinese as well as English. He liked art, history and literature and he read extensively. He was also a shrewd businessman who had many businesses.   

6.He had made a will on 10 March 2003 [“the Will”]. The Will was prepared by a solicitor firm on his instructions. However, after his death, the original of the Will could not be found. This led to the dispute between the Plaintiff and the Defendants as to whether the Will had been revoked. Though the 1^st and 2^nd Defendant gave evidence for the 3^rd and 4^th Defendants, they adopted a neutral stance in the pleadings.

7.The Deceased had married only once. His wife had born him 4 children: the 1^st to 4^th Defendants. The Deceased and his wife had been separated for many years before her death in 2004. The youngest child of that marriage is the 4^th Defendant who was born in 1951. The 5^th and 6^th Defendants are also children of the Deceased. They were born of a different mother in 1964 and 1967 respectively. She is still alive but she did not live with the Deceased after early 1980’s. I shall need to come back to her relationship with the Deceased in the later years when I consider the relationship of the Deceased with the parties in the present action.

8.The Plaintiff was the cohabitant of the Deceased. She was born in 1956 and she met the Deceased in 1983. She had been living with the Deceased since 1984. Amongst his many business interests, the Deceased had a garment manufactory company called Saint Tropez Fashion Makers Limited [“STFM”]. Shortly after it had been set up, the Plaintiff ran the operation of STFM. Since 1993, the garment business operated a factory in the mainland. The Plaintiff held 30% shareholding in STFM whilst the Deceased held the remaining 70%.

9.Under the Will, the Deceased appointed the Plaintiff and the 1^st Defendant to be the co-executrix of his estate. The net estate is, according to the Will, to be distributed  as follows,

(a)   30% to the 1^st Defendant;

(b)   25% to the 2^nd Defendant;

(c)   25% to the Plaintiff;

(d)   20% to the 5^th Defendant.

There is no provision for the other children, viz. the 3^rd, 4^th and 6^th Defendants.

10.In this action, the Plaintiff asks the court to propound the Will for probate whilst the 3^rd to 6^th Defendants resist that on the basis that the Will had been revoked.  There is no direct evidence on revocation: viz. there is no witness testifying directly about an occasion when the Deceased revoked the Will by destroying it in the presence of such a witness. The 3^rd to 6^th Defendants rely on the presumption mentioned at the beginning of this judgment and some circumstantial evidence. On the other hand, the Plaintiff relies on other circumstantial evidence to rebut the presumption.

11.Before I consider the evidence pertaining to the question of revocation, I shall refer to the circumstances surrounding the making of the Will.  There had been a dispute as to whether the original of the Will had been in the custody of the Deceased. However, by the time of closing submissions, all the parties agreed that the Will was handed by the solicitor to the Deceased after it was executed. As explained later, the evidence also has bearing on the issue of revocation.   

The making of the Will in 2003

12.The Will was prepared by a solicitor firm and attested by two solicitors. Both attesting witnesses gave evidence at the trial as witnesses of the court. The court is grateful for their co-operation.

13.Ms Connie So [“So”] was the solicitor handling the file and she took instructions from the Deceased for the preparation of the Will.  She was employed as assistant solicitor in the conveyancing and probate department of Messrs. W. I. Cheung & Co. and the Deceased had been a long time client of the firm. She was with the firm from 2000 to 2003. She had handled other transactions for the Deceased before the making of the Will. On 7 March 2003, she met the Deceased at her office and he came by himself. She spent about one hour in taking instructions from him for the preparation of the Will. She was aware that the Deceased did not make provision for all his children and she had specifically checked with the Deceased if he had omitted anything. The Deceased confirmed his instructions and said he had already given a lot to those other children and some had squandered away what he had given. The Deceased was very clear and firm as to his instructions. He also requested So to keep the contents of the Will confidential.

14.So prepared the Will according to the Deceased’s instructions and arranged for it to be executed on 10 March 2003. She had interpreted the Will to the Deceased before it was executed. She advised him to keep safe custody of the Will. She told him to keep it in the brown envelope provided by the firm and not to fold or punch it with holes nor to put clips on it. She told him that such acts might suggest either there was a supplemental document or attempts in tearing the will and might render the Will void. She did not tell him that a will could be revoked by destruction. She said to him that he could make a new will as many times as he wished. In addition to So, another solicitor of the firm Mr Desmond Cheung [“Cheung”] acted as the attesting witness. Cheung was the son of the senior partner of the firm.

15.After the Will had been executed, So put it in a brown envelope and delivered it to the Deceased. She said her practice was not to keep original wills for clients though the firm had no set policy in this regard. In her testimony, she was quite firm that she had given the Will to the Deceased on 10 March 2003.

16.Cheung only acted as the attesting witness on that occasion. He also confirmed that after the death of the Deceased, at the request of the parties, he had made a search in the firm and could not locate the original of the Will. The firm had a copy of the Will in its file. He supplied a copy of the Will to the Plaintiff on 27 February 2008, a copy to the 3^rd Defendant on 5^th March and a copy to the 1^st Defendant on 6^th March 2008. I shall need to come back to these events later.

17.Based on the evidence of So (whom I find to be a credible and reliable witness), I find that the Will was in the possession of the Deceased after its execution on 10 March 2003. I accept her explanation for not having a receipt from the Deceased acknowledging his collection of the Will from her. She said it was due to the fact that the secretary forgot to prepare such a receipt and she had also missed that at that time. 

18.There is no suggestion that the Deceased had entrusted the custody of the Will to any third party during his lifetime. Thus, the presumption of revocation is engaged and the burden is on the Plaintiff to satisfy this court that the Will was not revoked. However, as I held in Re Estate of Lioe Ka Khie [2009] 2 HKLRD 115, the strength of the presumption depends on the circumstances of the case. The relevant consideration included the character of the testator, the character of the custody, the relationship of the testator with the beneficiaries under the will and other potential beneficiaries from the making of the will to the date of his demise, the provisions in the will, whether the testator had any cause to change his testamentary intent. Ultimately, it is a question of fact.

19.Before I leave the discussion on the making of the Will, I wish to deal with different suggestions as to the rationale of the Deceased in making the provisions as he did under the Will.

20.Whilst So had asked the Deceased about the other children and he had given the answer as mentioned above, she acknowledged that the answer might not be the full reason and she had not asked the Deceased to elaborate. According to the attendance record, So only spent one hour in taking instructions with the Deceased for the preparation of the Will and from what she had said in her evidence she had not gone into much details about the assets of the Deceased and his relationship with the beneficiaries and other children. The Deceased had made a will in the 1980’s making provisions for, inter alias, the mother of the 5^th and 6^th Defendants. So had not enquired with the Deceased whether he had made a previous will and she did not know about the earlier will. She therefore did not know the reasons why the Deceased changed his testamentary intent.

21.On the evidence available to this court, what the Deceased had told So cannot be the full reasons for making the Will. In view of the cursory nature of the interview by So, I cannot even be sure if the answer given by the Deceased to So was the true reason instead of being merely an answer of convenience. Even taking the Plaintiff’s evidence at the highest, there is no reason why the Deceased would regard the 6^th Defendant as having squandered away what had been given to him. The 6^th Defendant had fulfilled the Deceased’s wish by entering into the medical profession.

22.Originally, allegedly basing on what the Deceased had told her, the Plaintiff sought to contend that the Deceased regarded the unauthorized retention of his half share of the sale proceeds of a property at Guildford Road as the reason for not making provision for the 6^th Defendant. When Mr Pow SC made an application for leave to produce documents showing that there was no such retention, Mr Fung SC conceded on behalf of the Plaintiff that she would not rely on that to account for the lack of provision for the 6^th Defendant under the Will.

23.The Plaintiff put forward other explanations for the Will. Mr Fung suggested on her behalf that the Deceased made no provision for the 6^th Defendant because of his dislike of the wife of the 6^th Defendant and the bad relationship between her and the mother of the 6^th Defendant.

24.As regards the 3^rd and 4^th Defendant, Mr Fung submitted that the Deceased was disappointed with them. With reference to the 4^th Defendant’s business ventures funded by the Deceased, counsel invited this court to find that the 4^th Defendant was “a spoiled child who had no determination to pursue a successful career of his own” and that the Deceased “was disappointed by the 4^th Defendant squandering all the opportunities and assets previously provided to him”. As for the 3^rd Defendant, counsel asked the court to find that he had a bad relationship with the Deceased and the latter was determined to disinherit him.

25.These are at best speculations on the part of the Plaintiff. There was no specific discussion between the Deceased and the Plaintiff before he made the Will. With the exception of the case of the 3^rd Defendant[1], she only offered these explanations based on what she allegedly perceived to be the relationship between the Deceased and them. 

26.I find her evidence to be biased and coloured by her own relationship with these children. All three of them did not shy away from testifying that they disliked the Plaintiff. The 3^rd Defendant made it a point that he had never visited the Deceased at Villa Monte Rosa and he had not even phoned him there to avoid conflicts between the Plaintiff and the Deceased. The 4^th Defendant said in his oral testimony that he would avoid conversation with the Plaintiff and he rarely talked to her. The 6^th Defendant said in his witness statement that all along he had maintained a distance from the Plaintiff. It is not difficult to see that the feeling was mutual and I do not think the Plaintiff’s evidence provides a reliable basis for understanding the relationship between the Deceased and these three children.

27.From the evidence of these three Defendants, it appears that there were aspects of their relationship with the Deceased which the Plaintiff was ignorant of. They had meetings or (in the case of the 3^rd Defendant) conversations with the Deceased in the absence of the Plaintiff.

28.Further, according to the Plaintiff, the Deceased favoured those children who did not reside in Hong Kong in 2003. Though the 1^st and 2^nd Defendants visited Hong Kong from time to time, before the demise of their mother in 2004 they only spent half of their time here with the Deceased. The 5^th Defendant did not return to Hong Kong until May 2006 though he also made working trips to Hong Kong before then.

29.Whilst the Deceased did not see the 3^rd Defendant that much, he often had meals and dealings with the 4^th and 6^th Defendants. In assessing the weight to be attached to the Plaintiff’s evidence, I am mindful of the possibility that she attempted to provide her own ex post facto view of the relationships of the children with the Deceased to match the provisions in the Will.  

30.In respect of the relationship between the 6^th Defendant’s wife and his mother as well as the Deceased, the most specific incident deposed by the Plaintiff was an event allegedly took place at Flat C202 Villa Verde. The Plaintiff said she recalled being told by the Deceased how he retorted the wife of the 6^th Defendant. According to the 6^th Defendant there was no such incident as his mother had never lived at that address. His brother, the 5^th Defendant, lived there and the property was sold in 1996 in the same year that the 6^th Defendant married. Mr Fung then suggested that the Plaintiff might have got the address wrong but the event did take place.

31.The 6^th Defendant is a medical doctor and he is an Associate Consultant of the Department of Surgery of the Ruttonjee Hospital and an Associate Consultant of the Department of Vascular Surgery at the Pamela Youde Nethersole Eastern Hospital. According to his evidence, he had been treating the Deceased or procuring medical treatments for the Deceased since 1997. Though the Plaintiff tried to convey an impression of the 6^th Defendant’s neglect of the medical care of the Deceased in her witness statement, she conceded in her oral testimony that he did take care of the Deceased. She could not dispute the account given by the 6^th Defendant as regards his treatments of the Deceased from 2004 to 2007. Nor did she dispute the account given by the 6^th Defendant in his supplemental witness statement as to the treatment of the Deceased after his stroke.

32.As between the Plaintiff and the 6^th Defendant, I prefer the evidence of the 6^th Defendant. I find there is a tendency on the part of the Plaintiff to put a negative spin on the conducts of the Defendants. This is illustrated by her evidence as to how the Deceased was badly treated by the Defendants after his stroke in 2008. As explained by the 6^th Defendant in his Supplemental Witness Statement, the treatments were in accordance with sound medical advices given by experts at the Ruttonjee Hospital and the criticism of the Plaintiff was misconceived. 

33.The 6^th Defendant gave birth to a son in August 2002. The Deceased suggested the Chinese name for his grandson. In 2004 (after the making of the Will), the Deceased bought clothes for the grandson. The Plaintiff said the 6^th Defendant and his wife angered the Deceased by rejecting the gift. On the other hand, the 6^th Defendant said they only told the Deceased that they did not want to spoil the child with expensive clothing and the Deceased understood. As I said, I prefer the 6^th Defendant’s evidence. In April 2007, the 6^th Defendant gave birth to his second son and the Deceased again named him. He gave him a red packet of $20,000.

34.Mr Fung submitted that because the wife (who had not made any witness statement) and the mother[2] of the 6^th Defendant did not give evidence at the trial, the court should draw the adverse inference that there was substance in the Plaintiff’s allegation of the bad relationship between the 6^th Defendant and the mother. I do not agree. Though the court may draw adverse inference in some cases when a party deliberately refrains from calling a material witness, whether the court will draw such inference depends on the context and the state of the evidence.  I have discussed some of the relevant cases about drawing of inference in Natuzzi Spa v De Cora Limited HCA 4166 of 2003, 16 June 2006 and I shall not repeat what had been said in that judgment.

35.In the present context, I accept the submission of Mr Pow that the Plaintiff’s evidence on the alleged bad relationship is weak and as such adequately answered by the evidence of the 6^th Defendant and the photos produced by him. The 6^th Defendant was justified in forming the opinion that his aged mother should not be troubled needlessly. The Plaintiff only had hearsay evidence and cross-examination by Mr Pow had demonstrated that she was wrong about the alleged incident in 1996. Mr Fung’s cross-examination of the 6^th Defendant failed to discredit his evidence on the relationship between his wife and his mother. Under such circumstances, I do not see much to be gained by calling the mother. Nor do I see the need to have the wife as a witness in view of the strength of the Plaintiff’s evidence.

36.Turning to the 4^th Defendant, he had run some businesses for the Deceased, including STFM for some short periods of time. The Plaintiff suggested that he had caused a loss of $2 million in running STFM for half a year in 1983. The 4^th Defendant said he had only been there for 3 months and was not fully in charge of the operation. He denied he had caused such a loss. He said he left as a result of personal conflict with the Plaintiff. The Plaintiff did not condescend into particulars as to the loss of $2 million and there is no other evidence of such loss.  I do not feel able to attach weight to such bare allegation.

37.The 4^th Defendant denied he had caused a loss of $200,000 in 1984 (as alleged by the Plaintiff) when buying goods for the fashion import and export firm called Can-Asia in which the Deceased had an interest. He said he was only in the company at the initial stage and he had no idea about its finance. Again there is no concrete evidence from the Plaintiff as to the loss of $200,000.

38.However, on the totality of evidence, I think the Plaintiff did make a fair point that the 4^th Defendant was not good at managing business. In a way, this is implicitly acknowledged by the 4^th Defendant who said his passion was in painting. It seems that the Deceased had once had expectation in the 4^th Defendant when he named STFM after a small village town in Southern France where the 4^th Defendant married. When the 4^th Defendant could not help him in the running of his business, it was inevitably a disappointment.

39.But the Deceased had not completely lost his confidence and trust in the 4^th Defendant. In 2003 the Deceased still asked the 4^th Defendant to take part in the management of the café at Tsim Sha Tsui. Unfortunately, that business failed due to SARs outbreak. In that connection, the 4^th Defendant refuted the suggestion of the Plaintiff that he had taken all the monies left behind without settling the severance payments of the staff. In this respect, I prefer his evidence to that of the Plaintiff.

40.I believe the 1^st and 2^nd Defendants gave truthful evidence capturing the Deceased’s sentiment towards the 3^rd and 4^th Defendants. According to the 1^st Defendant, in 2003 the Deceased did decide not to make provision for the 4^th Defendant in his will. However, that does not mean the Deceased did not care or concern about the 4^th Defendant. In 2005 or 2006, the Deceased had indicated to the 1^st Defendant that he wished to provide for the 4^th Defendant but he was worried about how the provision could be secured from being squandered away. The 1^st Defendant proposed a trust. The Deceased said it was expensive.

41.In the same vein, the 2^nd Defendant gave evidence that in 2006 and 2007, the Deceased mentioned to her his worry for her siblings and he uttered the remark that after all they were his children.

42.Such evidence of the 1^st and 2^nd Defendants only came out from cross-examination. However, the drift of their evidence had already been mentioned in their witness statements and I find their evidence credible. In coming to this conclusion, I bear in mind Mr Fung’s submissions as to their veracity. As explained below, I do not agree with counsel’s contention that they were dishonest in giving their evidence.

43.As regards the relationship between the 3^rd Defendant and the Deceased, the Plaintiff said the Deceased disliked him so much that he had told her one of purposes of making a will was to disinherit the 3^rd Defendant. She said the 3^rd Defendant was arrogant and eccentric and always acted against the Deceased behind his back and the Deceased regarded him as a recalcitrant son. Mr Fung also referred to the lack of cross-examination of the Plaintiff in this respect.  

44.On the other hand, the 3^rd Defendant gave evidence as regards how he had maintained contacts with the Deceased over the years. He said due to his own ill-health he had not been seeing the Deceased that much.  However, he still showed his concern through a mutual friend Mr Au. He and the Deceased found their common interest in Sinology. According to the 3^rd Defendant, the Deceased appreciated his achievement in this respect. He also said the Deceased heeded his advices on several occasions and he saw the Deceased more often since 2006 after the doctor cleared him of any tuberculosis virus.      

45.As mentioned above, the 3^rd Defendant did not hide his dislike of the Plaintiff. Apart from his own evidence, this is also confirmed by the evidence of the 4^th Defendant. It is also quite plain that both the Deceased and the 3^rd Defendant were persons of strong character. Also, the Deceased was an authoritative man used to being obeyed and he had no qualms in airing his views in strong terms[3]. According to the 4^th Defendant, the 3^rd Defendant openly disapproved the Deceased’s association with the Plaintiff. Thus, as long as the Deceased maintained a good relationship with the Plaintiff, it is probable that he would have difficulties in his relationship with the 3^rd Defendant.  

46.But I do not accept the Plaintiff’s evidence that the Deceased was disappointed with the 3^rd Defendant because of his lack of achievement. In his evidence, the 3^rd Defendant referred to some instances where the Deceased acknowledged his learning in Sinology. Further, when cross-examined by Mr Fung as to the relationship between the Deceased and the 3^rd Defendant, the 2^nd Defendant said the Deceased spoke more of him in his later years and he regarded the 3^rd Defendant as the only one in the family who was good at doing business. The Deceased also spoke favourably of the learning of the 3rd Defendant to the 2^nd Defendant.

47.I think the 2^nd Defendant’s observation was an accurate one when she said the relationship between the Deceased and the 3^rd Defendant had fluctuated over time. As she said, the estrangement of the 3^rd Defendant from the Deceased was due to their difference in attitude towards the Plaintiff.     

48.The 3^rd, 4^th and 6^th Defendants also put forward their views as to the reason why the Deceased made the Will as he did. In a nutshell, they believe that the Will was not meant to the last testament of the Deceased. Rather it was an instrument to appease the Plaintiff. However, there is insufficient evidence to establish this.

49.Notwithstanding so, on the whole I believe the relationship between the Deceased and the Plaintiff had a great impact on the provisions made by him under the Will, including the absence of provision for these three sons. It is noteworthy that the Deceased gave instructions to So to prepare the Will on the same date when he collected a declaration of trust [“the Declaration”] in respect of the property at Villa Monte Rosa [“VMR”]. The Declaration cannot be found after the death of the Deceased and Mr Fung placed some significance on it in his closing submissions. I shall therefore turn briefly to the Declaration and the relationship between the Plaintiff and the Deceased.

The Declaration of Trust and the relationship between the Plaintiff and the Deceased

50.VMR was acquired in 2002 in the name of the Plaintiff. The Deceased paid the purchase price. The Plaintiff said it was purchased as the matrimonial home. Prior to that, the Plaintiff and the Deceased had resided together at other places. By the Declaration, the Plaintiff declared that she held VMR on trust for herself as to 35% and for the Deceased as to the remaining 65%. At the trial, the Plaintiff accepted that her beneficial interest in VMR was 35%. The title deeds were kept by the Plaintiff in a bank safe deposit box.

51.The Declaration was collected by the Deceased on 7 March 2003. The Plaintiff said she had forgotten about it. She said the Declaration had never been in her possession and after the death of the Deceased she could not find it despite diligent search being conducted at VMR and the office of STFM.

52.I do not accept the Plaintiff’s evidence as to her lack of recollection about the Declaration. Her own conduct after the death of the Deceased betrayed her concern about the document. I shall come back to this topic later. At this stage, I would just explain the relevance of the Declaration in the context of this action. First, Mr Fung submitted that the Declaration was likely to be kept by the Deceased together with his other important documents (including the Will). Given that the Deceased had no reason to destroy the Declaration (as it was a document to protect his own beneficial interest in VMR), the failure of the parties to locate the Declaration suggests that important documents of the Deceased (including the Will) could have been kept by the Deceased at places unknown to them. Thus, counsel said, the fact that the parties could not produce the Will does not mean that it had been destroyed by the Deceased.

53.On the other hand, Mr Yau and Mr Pow invited the court to pay attention to the demand by the Plaintiff through her solicitor to Cheung to keep the documents regarding her purchase of VMR confidential. Counsel suggested that the Plaintiff wished to conceal the Declaration from the Defendants.

54.I will deal with these submissions later. At this juncture, I shall turn to the examination of what I regard as the most controversial issue (and also one of the most important issues) in the present case: the relationship between the Plaintiff and the Deceased between 2003 and 2008.   

55.Whilst there is no dispute that the Plaintiff had been cohabiting with the Deceased since 1984, the Defendants did not accept that the Plaintiff could in any way be regarded as the spouse of the Deceased. They gave evidence that the Deceased told them to address the Plaintiff as Miss Han. The Plaintiff agreed that this was the case in her own testimony though she said it was not how the Deceased called her that matters. She said in her evidence that the Deceased had actually asked her to marry him on two occasions: once in 1986 and again in 1990. In preparing the Will, So had enquired with the Deceased as to the capacity in which the Plaintiff should be addressed in the will. The Deceased instructed So to refer the Plaintiff as his cohabitant.

56.I do not regard how the Deceased addressed the Plaintiff as important for the purpose of this judgment. No matter how one sees it, it was a relationship of 24 years. The crucial question is whether there was any change in the relationship during the relevant period, viz. between 2003 and 2008.  

57.In 2003, the Deceased was 83 years old whilst the Plaintiff was 47 years old. His health was on the decline. From time to time, he had to have medical treatments for his physical problems and on the evidence (in this respect I prefer the evidence of the defence to that of the plaintiff) the 6^th Defendant was always the first port of call[4]. Since about 2006, he suffered from incontinence and in June 2007 he had a fall at Flat 801, Block 23 Heng Fa Chuen [“Unit 801”] and injured himself. As a result he was hospitalized for 3 days. He had to be attended by maids in his daily routine. Even before the accident at Unit 801, he had to be assisted by maids in his showers. After the accident, he had to walk with the aid of a walking stick and sometimes used a wheelchair. However, his mind was still very sound and he did not reduce his visits to Lin Heung Lau and STFM. Even though these were his businesses, it is fair to say that his visits were more social than commercial in nature.

58.On the other hand, the Plaintiff played a very active part in the management of STFM. As she said in her own evidence, except the first few months in its operation, she had all along been the person who ran the company. Apart from attending the office of STFM in Hong Kong, she often had to go to the factory in the mainland (and stayed overnight in the mainland). When she did not go to the mainland, she worked at the STFM office Monday to Friday up to 6:00 pm.

59.Her concern for STFM is illustrated by the advice she sought from Cheung after the stroke of the Deceased. In this respect, I prefer the evidence of Cheung to that of the Plaintiff as to what happened at the meeting in February 2008. According to Cheung, he met the Plaintiff on 27 February instead of 12 February as claimed by the Plaintiff. After the Plaintiff learnt about the Will providing for a trust for sale in respect of the residuary estate, she enquired with Cheung as regards how it would affect the business operation of STFM. The Plaintiff said in her evidence that her concern stemmed from the threat of injunction proceedings by the 1^st and 2^nd Defendants. However Cheung’s evidence did not support her. He said she asked him about the possible disruption of STFM in the context of the trust for sale in the will. Because of such concern, she set up a new company in similar name as a contingency plan.

60.The business did not generate significant profit and neither the Deceased nor the Plaintiff depended on its income for their living. She agreed that the Deceased had suggested her to leave the running of the business to others several times. She responded by asking him to wait until they had sold STFM. The Deceased had tried to sell the business but without success. The Plaintiff did not participate in the negotiations but she was told by the Deceased that the price offered by the intended purchaser was not right.

61.The Defendants put forward a case that the relationship between the Deceased and the Plaintiff had become so bad that he changed his testamentary wishes. In broad terms, they relied on the following,

(a)   The deterioration of the relationship as demonstrated in incidents witnessed by them;

(b)   The indications by the Deceased that he would disinherit the Plaintiff in his conversations with them individually;

(c)   The evidence of a maid that the Deceased had told her he had changed his will;

(d)   The plan of the Deceased to move to Unit 801 to live by himself (viz. without the Plaintiff) before the accident in June 2007;

(e)   The proposal of the Deceased to marry the mother of the 5^th and 6^th Defendants.

62.On the other hand, the Plaintiff said the Deceased had remained as a loving and caring partner till his stroke. She had made a will in 2004 leaving to the Deceased 70% of her estate. She denied she had neglected the Deceased or treated him badly. She said in 2007 and 2008, the Deceased had informed her about the Will and assured her that she would be taken care of. She denied that the Deceased had planned to move to live at Unit 801 alone. She said he only acquired Unit 801 as a daytime rest place in view of the renovation of VMR.

63.I shall first deal with the move to Unit 801. There is a flaw in the Plaintiff’s account. The timing of the events does not match her version. The evidence shows that the Deceased acquired Unit 801 in November 2006 and its decoration was only completed shortly before the accident in June 2007. On the other hand, the renovation of VMR commenced in August 2006 and it had been completed by Chinese New Year of 2007.  The acquisition and decoration of Unit 801 simply could not serve the purpose of daytime resting place during the renovation period.

64.The Plaintiff said the plan of the Deceased started with his acquisition of another unit at Heng Fa Chuen, unit 701 at Block 49. That unit was acquired in July 2006. Subsequently, the estate agent introduced the Deceased to Unit 801 and he liked that unit more. Even assuming that the Deceased did initially plan to use unit 701 as a daytime rest place, it could not account for his acquisition and decoration of Unit 801. By December 2006, it should be quite obvious to him that decoration of Unit 801 could not be completed before the renovation of VMR. The first quotation for decoration of Unit 801 was dated 5 December 2006 and the scope of decoration was extensive.

65.Anyway, after the completion of the renovation of VMR, the Deceased continued to prepare Unit 801 for his residence. In this connection, the evidence of the Plaintiff to the effect that he was only decorating the unit to facilitate its sale must be rejected. As set out in the quotations for decoration, and as explained by the 5^th Defendant in his evidence, some of the items were specifically catered for the personal needs (like railings at the bathroom) of the Deceased in view of his physical condition. Walls were knocked down to change two bedrooms to one bigger bedroom. The size of the bathroom was also altered. Such alterations in layout were again made in accordance with the personal needs of the Deceased.  The maid also testified that before the accident, they were buying kitchen utensils and preparing to move into Unit 801.

66.The 1^st, 2^nd 4^th, 5^th and 6^th Defendants gave evidence that the Deceased had told them on different occasions that he intended to move to live at Unit 801. The maid also testified to such effect. The 4^th and 5^th Defendant also testified that the Deceased told him he wanted to live separately from the Plaintiff. Mr Fung criticized their credibility. However, I preferred their evidence to the evidence of the Plaintiff in this respect as they are consistent with the objective account of the events as set out in the preceding paragraphs. 

67.My finding is that the Deceased did intend to use Unit 801 as his residence. Given that he continued with the preparation of Unit 801 after the completion of renovation of VMR, the intended use could not be attributable to having it as a daytime resting place during such renovation. Further, as observed by counsel, the furniture put into Unit 801 included a bunk bed for the maids. I cannot see why that would be needed if Unit 801 was meant to be a daytime refuge.  

68.It is also clear that the Deceased had not included the Plaintiff in his plan to relocate to Unit 801. The bed was simply too small. According to the 4^th Defendant, the Deceased expressly told him that he wanted to live separately from the Plaintiff when they were shopping for gas stove for Unit 801. The 2^nd Defendant and the maid also testified that the Deceased had told them so.

69.Mr Fung asked rhetorically why would the Deceased move to live in such a tiny place as compared with the residence at VMR. He submitted that given the strong character of the Deceased, if he had decided to live separately from the Plaintiff, he would ask the Plaintiff to move out from VMR instead of he himself moving elsewhere. However, as testified by the 1^st and 2^nd Defendants, the Deceased had previously lived at Heng Fa Chuen. Further, VMR was registered in the name of the Plaintiff and it seems unlikely that the Plaintiff would move to Unit 801 on her own. I do not find the proposition of the Deceased moving to live at Unit 801 to be so inherently incredible that I should reject the clear evidence from the defence to such effect.

70.Mr Fung also made the point that as the Deceased had inspected the progress of the decoration of Unit 801 with the Plaintiff, it was unlikely that Unit 801 was intended to be his separate residence. I do not think so. It depends on how much the Deceased revealed his plan to the Plaintiff and the state of their relationship at the time of these joint inspections.  In any event, I do not think one can gainsay what the objective evidence clearly points to.  

71.What had led the Deceased to such intended move? The Plaintiff testified that she had maintained a good relationship with the Deceased over the years. She said about one week after he was discharged from the hospital in June 2007 the Deceased told her about he having made a Will leaving 25% of his estate to her and she would be taken care of even if he passed away.  Though he did not tell her about the distribution of the remaining 75%, he told her he would not leave anything for the 3^rd and 4^th Defendants.

72.She further testified that on 26 January 2008 the Deceased told her he always worried about her future should he pass away. He assured her again that he had left 25% of his estate to her and he hoped he could live longer to protect her. He further told her in case of any mishaps, she could seek help from Cheung and an accountant named Cheng.

73.I cannot accept the evidence of the Plaintiff. The alleged assurance in June 2007 is inconsistent with the Deceased’s intention to move away from the Plaintiff to live at Unit 801. There is nothing to suggest that the relationship between the Plaintiff and the Deceased had changed dramatically after the accident though the Deceased’s plan to relocate was aborted.

74.Moreover, if the Deceased were so concerned about the Plaintiff’s future in the event of his demise in January 2008, there was no reason why he did not at least inform her as to the whereabout of the Will. In the light of the advice of So, the Deceased appreciated the importance of the safe custody of the original. If he were worried about the Plaintiff and wished to protect her by the Will, the most natural thing to do would be to make sure that she had access to the original.

75.I do not believe the Plaintiff only learnt about the Will in 2007. According to the 1^st Defendant, in 2003 the Deceased told her about having made provisions for his estate after his death. In his usual manner, he did not tell her much in terms of details. On one occasion, he told her to go to Cheung if anything happened to him. On another occasion (in July 2003), he mentioned about his estate and he was about to show her something kept in his safe. But then he decided not to do so. The Will was made in March 2003. As both the 1^st Defendant and the Plaintiff were named as co-executrix in the Will, I believe it is likely that the Deceased had informed the Plaintiff about the Will much earlier than 2007 if not around the same time when he mentioned its existence to the 1^st Defendant.

76.If the Deceased did tell the Plaintiff that he had disinherited the 3^rd and 4^th Defendants in the Will, it is inherently unlikely that he refrained from mentioning about disinheriting the 6^th Defendant as well. In the light of the above analysis of the relationship between the Deceased and the 6^th Defendant in 2007, the disinheritance of the latter did not make any sense. It was probably due to her recognition of this inherent difficulty in her case that the Plaintiff omitted any reference to the 6^th Defendant in the purported conversation with the Deceased.

77.Coming back to the reason why the Deceased wished to move away from the Plaintiff, the Defendants gave evidence as to the ill-treatments of the Deceased by the Plaintiff and his avowed intention to get back what she had taken (in his view, unduly) from him. Apart from witnessing quarrels between the Deceased and the Plaintiff, the Defendants testified about some specific incidents which, according to them, were indicative of the relationship between the Plaintiff and the Deceased. The 1^st and 2^nd Defendants referred to different occasions when the Plaintiff yelled at the Deceased due to his incontinence. She blamed him for dirtying the carpet and her clothes. This was obviously a very upsetting experience for a man like the Deceased. He had told the 6^th Defendant about it. The 6^th Defendant also referred to the disappointment of the Deceased with the Plaintiff’s rejection of proposals to alter the bedroom to cater for his declining physical condition. The 4^th Defendant referred to an incident where the Deceased told him to ignore the wishes of the Plaintiff as to the material to be used for the flooring of VMR.

78.The Defendants also testified that on different occasions, the Deceased had told them (sometimes individually and sometimes at family gatherings when the Plaintiff was absent) that he had already given a lot to the Plaintiff and he would not give her more. Instead he wanted to get back something from her. The 5^th and 6^th Defendants alluded to an occasion in June 2006 when the Deceased told them that the Plaintiff would not have a share in his estate. Though she did not say so in her witness statement (except alluding to the Deceased’s hint of changing his testamentary provisions), the 1^st Defendant alluded to an occasion in 2006 when the Deceased told her that he would definitely not give anything to the Plaintiff out of his estate. It was on the same occasion when the Deceased informed her that he learnt from a half-brother of the Plaintiff that she wanted to squeeze everything from him.

79.Mr Fung invited this court to reject the evidence of the Defendants. He submitted that the Defendants had shifted their grounds when they gave evidence in the witness box. Whilst in their witness statements (counsel said) the focus of the deterioration of the relationship between the Plaintiff and the Deceased was her reaction to his incontinence, in their evidence at the trial the Defendants alluded to the complaints of the Deceased as to the Plaintiff’s squeezing of money from him.

80.With respect, I do not agree that the Defendants have shifted their grounds. Though some of the details as to the Deceased’s complaints about the Plaintiff on money matters emerged under cross-examination, there were already references to the Deceased’s perception that he had already provided a lot for the Plaintiff in the witness statements when the 5^th and 6^th Defendants alluded to the Deceased’s intimation of not leaving a share of his estate to the Plaintiff. The 1^st 3^rd and 4^th Defendants also referred to the provisions given by the Deceased to the Plaintiff in their witness statements.

81.I appreciate Mr Fung’s criticism about such details not being included in the witness statements of the 1^st and 2^nd Defendants. However, I do not understand them to be suggesting belatedly that the main cause for deterioration of relationship was money matters. None of them testified to the effect that the Deceased had explained to them what caused his change of attitude towards the Plaintiff and why he wanted to move away from the Plaintiff. All they did in their evidence was to provide some snapshots to illustrate the deterioration of relationship as observed by them. Inevitably in such context the details and the degree of specificity of a particular observation that could be set out in a witness statement are limited and very much a matter of judgment. Thus, I do not regard the omission of such details as sufficient reason for rejecting their evidence.

82.A similar point was made by Mr Fung about the focus upon the Plaintiff spending too much time on the business of STFM instead of staying at home with the Deceased. Again I do not understand the Defendants to be pinpointing this as the primary cause of the change in the relationship. But it was something that forms part of the whole factual background.

83.Mr Fung also placed emphasis on the fact that after the accident in June 2007 the Deceased stayed at VMR upon his discharge from hospital. Counsel said the Deceased could still implement the alleged plan of living separately notwithstanding the accident. The hard fact that the Deceased continued to stay at VMR with the Plaintiff is, according to counsel, a strong and clear indication that there had been no deterioration of their relationship. I agree this is a relevant matter that I should take into account and I did take it into account in my weighing of the evidence. The suggestion from Mr Yau was that after the accident the Deceased regarded the intended relocation to Unit 801 as an unlucky move and it was therefore aborted. There is an element of speculation in this suggestion as there is no evidence that anyone had enquired with the Deceased about his plan for Unit 801 after the accident. But even disregarding such speculation, I do not find it inherently implausible that the Deceased decided to withhold the plan for the time being after the accident. The undisputed fact is that Unit 801 was not sold. Since October 2007, the Deceased let the 5^th Defendant to use it as his residence.

84.In assessing the credibility of the Defendants, in particular their evidence as to the intimations by the Deceased that he would not leave any share for the Plaintiff, I find the evidence of Cheung to be of some importance. He gave evidence that after the death of the Deceased, the 1^st Defendant went to see him at his office on 6 March 2008. That was the first time Cheung met the 1^st Defendant. The 1^st Defendant asked if the Deceased had made a will. Cheung answered her in the affirmative and gave her a copy of the Will. When the 1^st Defendant saw it she remarked spontaneously that the provisions in the Will did not match what the Deceased had told her. This is consistent with the 1^st Defendant’s evidence that the Deceased had told her the Plaintiff would not get anything out of his estate. Mr Fung asked this court to dismiss the remark of the 1^st Defendant as her wishful thinking. I do not consider it right to do so. 

85.The evidence of the Defendants as to the change of testamentary intent on the part of the Deceased is corroborated by the evidence of the maid. She testified that on an occasion before the accident in 2007, the Deceased had told her that he had changed his will and testament. Mr Fung challenged her credibility. With reference to the evidence of the chauffeur, Mr Fung tried to persuade this court that the Deceased was not a man who would discuss such personal matters with his servants. But the relationship between a master and a chauffeur could be very different from the relationship between the same master and a maid who took care of him all the time. Moreover, if the court were to believe the evidence of the Defendants, the Deceased did talk about his testamentary intent to those around him.

86.Mr Fung also attacked the credibility of the maid by suggesting that she made up a story to assist the 4^th Defendant who is her current employer. He highlighted two aspects of her evidence which, according to counsel, the maid gave different versions of evidence in her declaration, her witness statement and her oral evidence at the trial. The first aspect is the Deceased’s intention to move to Unit 801 without the Plaintiff. Mr Fung submitted that the maid vacillated between testifying that it was a matter of her inference and that it was something that the Deceased told her. He said when the difference was pinpointed in his cross-examination, the maid said she could not recall whether she was told. With respect, that is not quite accurate. The question asked by counsel was when did the Deceased tell her so and she said she could not recall when. But she was adamant that the Deceased did tell her as she disagreed with counsel’s suggestion that the Deceased did not tell her.  

87.The second aspect is the words used by the Deceased when he told her that he had changed his will. Mr Fung suggested that the maid was not credible because she added the word “testament” in her evidence at the trial. I agree that the maid had once added the word ‘testament” and subsequently retracted that when she gave evidence at the trial. However, having regard to the totality of evidence, I do not think she made the mistake out of an intention to mislead the court.

88.Mr Fung also invited the court to reject the maid’s evidence because she was not frank in respect of her testimony as to whether she had discussed with the 4^th Defendant the evidence she were to give before he took her to see the lawyers. The maid did not shy away from the suggestion that it was the 4^th Defendant who asked her to give a declaration to the lawyers. She said the 4^th Defendant knew she could give relevant evidence because he knew she was with the Deceased every day. But she said before she went to the lawyers the 4^th Defendant did not ask her specific questions as to what happened on any particular occasion and neither did he ask (nor did she tell him) whether the Deceased had told her he had changed his will. She also said she did not give any information to the 4^th Defendant. On the other hand, she did not say there was no conversation between the 4^th Defendant and her before she was brought to see the lawyers. She said the 4^th Defendant had told her the dispute was about the Will though she was not told by him about the dispute as to whether the Deceased intended to relocate to Unit 801. She said the lawyers elicited her evidence by asking her questions.

89.Though Mr Fung did not advance the proposition explicitly, the underlying thrust of counsel’s criticism in this regard is that the maid was influenced by the 4^th Defendant as to the evidence she gave and she assisted him by giving untruthful evidence. Thus Mr Fung asked the court to reject her evidence as she sought to conceal from the court the identity of the persons who had spoken to before her meeting with the lawyers and the contents of her conversations with those persons. But I do not think she had tried to conceal the fact that she had spoken to the 4^th Defendant before she was brought to see the lawyers. As regards the contents of the conversations, I have reviewed her evidence by listening to the digital recording again. I do not see any basis for inferring that the 4^th Defendant (or any other defendants or persons) had coached the maid as to the evidence she gave.  Suborning witness is a serious charge. When the 4^th Defendant gave evidence, Mr Fung did not even suggest to him that he had discussed with the maid about the evidence before she went to see the lawyers. Rightly so because there is simply no basis for making such serious suggestion.

90.It seems to me perfectly plausible that, having considered the matter with his lawyers, the 4^th Defendant thought the maid might give relevant evidence as she was with the Deceased all the time. He then sought the agreement of the maid to be a witness and brought her to see the lawyers.

91.I have considered the evidence of the maid in the light of all the other evidence before me, I find her evidence to be consistent with other objective evidence and the evidence of other witnesses whom I find to be credible. On the whole, I find the maid to be an honest and reliable witness and I accept her evidence.           

92.Mr Fung further asked the court to examine the pleadings and the witness statements and submitted that the evidence of the 1^st and 2^nd Defendants under cross-examination went beyond what they stated in writing. For reasons already canvassed, I do not find this to be a matter of great significance in the present context.

93.Mr Fung then pointed to the lack of recollection by the 4^th Defendant as to the remark of the Deceased in family gatherings on not making provision for the Plaintiff to discredit the evidence of 5^th and 6^th Defendants.  Counsel did not explore at the trial whether the family gatherings referred to by the 6^th Defendant was the same occasions that the 4^th Defendant was referring to. In any event, I do not find anything surprising that different persons have different recollection on such a topic, bearing in mind that the conversations took place in casual setting and at the time of the event no-one had any particular reason for memorizing the same.  

94.Counsel also suggested that there was discrepancy between the evidence of the 5^th and 6^th Defendants in terms of the details set out in their respective witness statements. With respect, counsel appears to have overlooked what the 5^th Defendant had said at para.7 of his witness statement. Further, counsel had not suggested in the course of cross-examination that there was discrepancy between the account of the 5^th and 6^th Defendants.

95.The Plaintiff gave her own account as to her relationship with the Deceased during this period. She also rebutted the Defendants’ allegations of ill-treatment of the Deceased at some length in her supplemental witness statements. She said these allegations were a smearing campaign against her. She said the Deceased was her closest kin and she referred to her own 2004 will (giving 70% of her estate to the Deceased) as evidence of her good relationship him.

96.I have weighed her evidence against the evidence of the defendants and their witnesses. On balance, I prefer their evidence to hers. Her evidence could not explain the decoration of Unit 801 and is inconsistent with the evidence of Cheung as to the purpose of her visit to him in February 2008. Her evidence as to the assurances given to her by the Deceased is, as explained above, inherently implausible. 

97.Given that Madam Chu did not give evidence at the trial, I do not attach too much significance to the 5^th and 6^th Defendants’ evidence as to the relationship between her and the Deceased in my overall assessment of the relationship between the Plaintiff and the Deceased. However, it is indisputable that the Deceased had maintained frequent contacts with Madam Chu. I do not believe the Plaintiff’s evidence that the Deceased was reluctant to see Madam Chu or to be with her alone. It is common ground that the Deceased purchased a unit at Tower 8 Belcher’s Tower in September 2007 as residence for Madam Chu. The Plaintiff said the Deceased did so because the 6^th Defendant wished to lease out her original residence at Tower 5 (held in the joint names of the 6^th Defendant and Madam Chu). But that seems to me to be inconsistent with the Plaintiff’s case that the Deceased was not happy with Madam Chu since she had married another man in 2001 (and divorced in 2005). In respect of the change of Madam Chu’s residence, I accept the 6^th Defendant’s evidence that the Deceased purchased the unit at Tower 8 because Madam Chu did not like the aspect of the unit at Tower 5 (facing the west).

98.On the totality of evidence, I find that between March 2003 and June 2007 the relationship between the Deceased and the Plaintiff deteriorated to the extent that he wanted to move away to live separately from her at unit 801.   

99.Having made this finding on the most controversial issue in this case, I can now turn to analyse the relevant consideration in respect of the likelihood of revocation of the Will by the Deceased.

The character of the Deceased

100.There is little dispute between the parties as to the character of the Deceased. He was an intelligent man as well as an authoritative head of the family. He did not like to talk much and sometimes those around him had to work out for themselves what his terse expression of thoughts meant. He also did not like to answer questions. Thus, the 1^st Defendant testified that even if he had raised a matter and did not elaborate further, she could not ask him for more information. One would just have to wait to see if he was willing to tell you more. He did not appreciate unsolicited advice. So testified that he would fight back and even scold the person who contradicted him. However, he might still reflect on what other said and if he considered it to be sensible, he might change his mind. 

101.This explains why the children of the Deceased did not feel able to offer advice or suggestion to the Deceased even though he complained to them about the Plaintiff. 

102.Because of such character of the Deceased, there is not much direct evidence on the testamentary intent of the Deceased and its changes over the years. Certainly there is no direct evidence as to the rationale behind the provisions in the Will. However, it does not mean that there is no evidence as to the testamentary wishes of the Deceased. Actually each of the Plaintiff and the Defendants gave evidence about utterances by the Deceased as to different aspects of his testamentary plan though their evidence contradicted each other. The Plaintiff gave evidence on the Deceased telling her as to the disinheritance of the 3^rd Defendant and the provision for herself. The Defendants gave evidence about the Deceased’s remarks on not leaving any share for the Plaintiff. Thus, I do not accept the proposition that being a traditional Chinese man the Deceased would not make remarks about his estate during his lifetime.

103.Mr Fung referred to the Deceased as a man who inclined to keep his private affairs confidential and his consciousness of “rank disparity” to support his contention that it was unlikely that he would reveal to the maid he had changed his will. I have already taken these into account when I weigh the evidence of the maid above. Based on the evidence I have, I am not satisfied that the Deceased was a snobbish man who would not care to chat with those serving him. And there are degrees of privacy. As I have already observed, the maid was the person who took care of his needs every day. In any event, the maid only said he told her about he had changed his will. She did not testify that he had told her what provisions he had made in his will and how it had been changed.

104.Another aspect of the Deceased’s character that Mr Fung drew my attention to is the high expectation of the Deceased of his children. I am prepared to accept this. I also accept that high expectation may lead to disappointment. But I do not accept that disappointment must inevitably lead to disinheritance. I have examined the evidence and reached my conclusions on the relationship between the Deceased and the 3^rd, 4^th and 6^th Defendants. On the evidence, I do not think the Deceased was a person who would disinherit a child simply because he did not excel in the manner he hoped. I accept the evidence of the 1^st and 2^nd Defendants that towards the end the Deceased had resolved his doubts about making provisions for all the Defendants as he came to the view that after all they were all his children. I do not think one should place too much weight on the terms of the Will in view of the difference in the dynamics of relationship in 2003 as compared with the latter years.

105.Mr Fung submitted that the Deceased had the habit of retaining lawyers to handle his legal affairs and he was a faithful client of Cheung’s firm. Counsel alluded to the conveyancing transactions handled by that firm between 2004 and 2007 and a commercial contract in 2005. Both the 1980s will and the Will were prepared by lawyer. Thus, counsel invited this court to infer, even if the Deceased were to change his will, he would engage a lawyer to make a new will for him instead of simply revoking the Will by destroying it.

106.This should be considered together with the fact that the Deceased had told the 1^st Defendant and the Plaintiff to contact Cheung in case of mishap to him. Mr Fung asked the court to regard this as evidence of the Deceased’s instructions to the two executrices named in the Will and such instruction had remained unchanged up to the time of his death. There is no suggestion that Cheung had been informed by the Deceased as to revocation of the Will.

107.I accept these are pertinent matters that I should consider in the overall weighing of the evidence. For the avoidance of doubt, I would mention also that I did take them into account before I reached the above conclusion on the relationships between the Deceased and the parties. At the same time, the following points are also relevant. First, according to Cheung, even though the Deceased was a faithful client of his firm, neither he nor his father maintained much social contacts with the Deceased.

108.Second, there is an important difference between the making of a will on the one hand and the revocation of a will.  Based on what he was told by So, the Deceased knew that a will would be rendered ineffective by damaging it. It does not matter that So did not express her advice to this effect in terms of lawyer’s jargon like revocation. It is perfectly plausible that a testator may decide to revoke an existing will first and then take time to consider whether he should make a new one and if so, what were to be the terms of the new one.  In case he passes away in the interim, the disposition of his estate would be governed by the general law as to intestacy.

109.Whilst it is correct that there is no evidence on the Deceased’s knowledge as to the law on intestacy, equally there is no evidence as to his ignorance thereof.

110.In the present context, it is in my judgment quite plausible that due to the deterioration of the relationship with the Plaintiff, the Deceased decided to revoke the Will to disinherit the Plaintiff whilst he wished to take more time to consider the distribution of his estate amongst the other beneficiaries. Though his health was in the decline, once I rejected the Plaintiff’s evidence on the assurances given to her, there is no other evidence suggesting that the Deceased had a sense of urgency in terms of the making of another will. According to the evidence of the 2^nd Defendant (who was with the Deceased on the day before his stroke), on 1^st February 2008 the Deceased still carried out his daily activities in accordance with his usual routine and discussed the affairs of the Restaurant with the 6^th Uncle. There was simply no warning for the stroke on 2^nd February 2008.

111.As regards the intimations of the Deceased to the 1^st Defendant and the Plaintiff that they should contact Cheung in case of mishaps to him, I do not accept the evidence of the Plaintiff that she was so told in 2008. The 1^st Defendant was told in 2003. There could well be explanation other than the subsistence of the Will as to why the Deceased did not countermand such instruction to the 1^st Defendant: the Deceased might have in mind the Declaration instead of the Will. The Defendants actually had no knowledge about the Declaration until the 1^st Defendant was informed about it by Cheung after the death of the Deceased. Alternatively, the Deceased might have forgotten about the instruction.     

112.It must be stressed that what I say in the preceding paragraphs are not my finding of facts as I am aware that there is no evidence on such possibilities. However, equally there is no evidence to the effect that it was due to his lack of intention to revoke the Will that the Deceased did not countermand the intimations. The point I try to make is that though the contentions advanced by Mr Fung are relevant for the weighing of the evidence, they do not lead to the irresistible inference that the Deceased had not revoked the Will. They must be considered in the light of the other evidence.

113.It is therefore important to have regard to the other evidence on the Deceased’s testamentary intent including the evidence of the Defendants and the maid about what he had said in that respect. 

114.At this juncture, it is convenient to deal with a dispute in the evidence as to whether the Deceased had regained his consciousness after the stroke. The Defendants testified that he did not. The Plaintiff testified that on the night he was admitted to hospital after the stroke, viz. 2 February 2008, the Deceased regained consciousness and he was able to blink his eyes. This piece of evidence first appeared in her 2^nd Supplemental witness statement of 3 May 2010 para.11. She said in that paragraph that she asked the Deceased if he recognized her and suggested him to blink his eyes to indicate he did. He did so and repeated the same three more times. She said he could still use his right hand and he pulled her towards his chest. Then she said this,

“同時，顏信華及顏瞻華本來對我惡劣的態度因先夫的甦醒作出一百八十度的轉變，她們還向我就她們先前對我惡劣的態度道歉，將她們先前劣行歸咎於因先夫出事及入院收到的壓力，並請求我原諒。”

115.At the trial, when the Plaintiff gave evidence about this episode, she confirmed that it was 2 February 2008 that the Deceased regained his consciousness. She further elaborated that the 4^th Defendant gave him a piece of paper to write something and she asked the Deceased to write her name. The Deceased tried to do so but he was only able draw circles. Later on, she said the Deceased also pulled the 2^nd Defendant towards him.

116.This is contradicted by her own pleadings in paragraph 12 of the Amended Statement of Claim where it was pleaded on her behalf,

“The Deceased suffered a stroke on 2 February 2008 and had since then remained comatose and eventually passed away on 4 March 2008.”

117.Moreover, the 1^st Defendant was not in Hong Kong on 2^nd February and she only came back on 5^th February. The Plaintiff herself said so in her statement given to the police on 7 August 2009 and her own witness statement filed in the present case on 1^st September 2009 at para.31. Thus there could not possibly be any ill-treatment of the Plaintiff by the 1^st Defendant between the stroke and the Deceased’s alleged regaining of consciousness and the consequent apology and asking for forgiveness on her part as alleged by the Plaintiff at para.11 of her Second supplemental witness statement.

118.I have no hesitation in rejecting the Plaintiff’s evidence in the latter part of that paragraph. It is clear to me that it was just part of her smearing campaign against the Defendants. As regards the earlier part of that paragraph and her evidence about the regaining of consciousness of the Deceased, I prefer the evidence of the Defendants. I believe the episode was just an invention by the Plaintiff to bolster her case that the Deceased had a good relationship with her right till the end.

Character of the custody of the Will

119.By the time of the closing submissions, it is common ground that the Will had been kept by the Deceased after its execution. The evidence of So was firm and clear that the original was given to the Deceased. She had actually told the Plaintiff so shortly after the death of the Deceased when the former made enquiry with her as to the whereabout of the original. Thus, the presumption mentioned at the beginning of this judgment is engaged.

120.Mr Pow submitted that the evidence shows that the Deceased was a meticulous person careful with his documents. I agree. He had a safe at home and in addition, as described to me at the trial, he kept some files of documents in his bedroom which he also used as his study.

121.The Deceased was told by So as to the importance of keeping good custody of the Will. It is likely that he had kept it in his safe. Though there is no direct evidence as to where the Deceased kept the Will, the 1^st Defendant testified that on one occasion in 2003 the Deceased was about to show her something from his safe as he mentioned about arrangement as to his assets after his death. Though the Deceased paid visits to the Restaurant and STFM, he did not keep an office in those places and he did not work there.

122.Mr Fung relied on the missing of the Declaration to put forward a proposition that the Deceased could have a secret place for keeping his important documents which are not known to the parties. The submission is along this line: the Declaration was an important document from the Deceased’s point of view; it is likely that he kept it together with the Will; there was no reason why the Deceased would destroy the Declaration; hence the missing of the Declaration suggested that it was kept together at a secret place unknown to the parties.  

123.It should be noted that the Plaintiff did not suggest a specified place where the Will could have been kept but she was denied access and she could not conduct any thorough search there. All along, the case has been run on the basis that the Will cannot be found despite diligent search by the parties.       

124.If one were to compare the written Opening of the Plaintiff and the Closing submissions filed on her behalf, there is a substantial change in her arguments. In the Opening, it was said on her behalf that by reason of the search and removal of the documents conducted by the 1^st, 2^nd, 4^th and 5^th Defendants in the bedroom of VMR the Will could have been taken away by them[5]. In the Closing, Mr Fung suggested that “the original had either been mislaid or destroyed by accident (either before or after the death of the Deceased) or kept in a place by the Deceased which even P and the children do not know about.”[6]

125.Mr Fung accepted that there is insufficient evidence to suggest that the Defendants had deliberately removed and destroyed the Will after the death of the Deceased. The concession was made properly. Having heard the evidence, it is clear to me that such a suggestion is preposterous. The evidence shows clearly that not only were the Defendants concerned to locate the original of the Will after the death of the Deceased, the Plaintiff was equally (if not more) concerned as well. She went to see Cheung in February 2008 (before the death of the Deceased) in order to get a copy of the Will. A copy was given to her. She had enquired with Cheung if he could act for her and he had indicated he could not. She therefore had in mind possible litigation well ahead of the Defendants. She enquired with So as to the whereabout of the Will shortly after the death of the Deceased. She had access to the safe of the Deceased and his files kept in the bedroom and therefore could have searched for the original there at any time before 7^th March 2008.  According to the 1^st Defendant, the Plaintiff had removed documents from the bedroom before the death of the Deceased.

126.It is against this background that one should consider the evidence of the events shortly after the death of the Deceased. On 6^th March, the 1^st Defendant for the first time got a copy of the Will from Cheung. That started the search for the original on the part of some of the Defendants. The Plaintiff said in her own evidence that the 1^st, 2^nd and 5^th Defendants enquired with her about the original. She said the 5^th Defendant told her that they had got the copy from Cheung. However, the original was needed because without it the Will would not be valid. The Plaintiff did not respond and they left.

127.Thus, if she had not done so by then, the Plaintiff had ample opportunity to search for the original in the bedroom after the three Defendants had left on 6^th March. If she had located the original, no doubt she would testify to such effect at the trial. But she did not.

128.Though the Plaintiff was not happy about the search by the 1^st, 2^nd, 4^th and 5^th Defendants on 7^th March, the evidence reveals that she had given them permission to do so after she had consulted Cheung. She was present throughout the search and the Defendants behaved civilly. In the present context, it is significant to note that the Defendants were aware she had got a copy of the Will (as she had already got it from Cheung in February) and they did not take it away.

129.The Plaintiff also accepted that the original of the Will could not be found in the safe of the Deceased when the search was made on 7^th March though she said she could not tell in respect of the other places searched on that occasion. However, in view of the professed intention of the 5^th Defendant to look for the original of the Will, one would expect that everybody present (including the Plaintiff) would be anxious to see if the original could be located within the bedroom when the search was conducted on 7^th March. And if the original was found, I would expect that it would have generated some excitement and everybody present (including the Plaintiff) would know. No such thing happened.

130.Though the Plaintiff left after the search at VMR (as it turned out she went to see a lawyer and later made a report to the police), the documents were not removed from VMR. They were put into the room of the 1^st Defendant and, as testified by the 1^st Defendant, remained there until the 1^st and 2^nd Defendants moved away on 9^th March. Thus, when the police arrived at VMR that afternoon, there was opportunity for the documents to be checked. However, at no time did the Plaintiff, in the company of her own lawyer (whilst the 1^st and 2^nd Defendants were on their own) and in the presence of police suggested that the original of the Will could have been amongst the documents seized by the Defendants. Nor was such allegation made in the letter of 11 March 2008 from the solicitors for the Plaintiff to the 1^st Defendant.

131.In such circumstances, Mr Fung had to reduce his submission on the alleged tampering of the documents to the proposition that the original of the Will was accidentally mislaid in the process of being taken from VMR to the new residence of the 1^st and 2^nd Defendants. With respect, I can dispose of this submission relatively briefly. Following from what I have said in the preceding paragraphs, it is unlikely that the original of the Will was amongst the documents taken away. Further, if it were amongst such documents, the 1^st and 2^nd Defendants would have handled it with care as it was the focus of their search and it is unlikely that they would have mishandled it accidentally. I therefore have no hesitation in rejecting this submission.

132.Coming back to the submission of secret place of custody associated with the missing Declaration, it is clear to me that it was an afterthought. The evidence in connection with the search for the Declaration was only put in by the Plaintiff shortly before the trial commenced. There was no reference to the possibility of the Deceased having a secret place keeping his documents in the earlier witness statements or pleadings. All these reflect that it did not occur to the Plaintiff that the Deceased could have a secret place of storage for his important documents.

133.On the evidence, the closest persons to the Deceased were the parties to this action. Even taking into account of the character of the Deceased, it is unlikely that he would have a secret place of storage which is not known to any one of them. The evidence shows that in the later years the Deceased had entrusted the operation of his bank accounts with the 2^nd Defendant. It is also noteworthy that Mr Fung had not suggested to any of the Defendants during his cross-examination that the Deceased could have a secret place of storage not known to any one of them.

134.The Plaintiff has only identified the Declaration as the document which, she said, was mysteriously missing in addition to the Will. If there were a secret place of storage, why would the Deceased only choose to keep these two documents there?

135.The Deceased knew that the Will would only be operative after his death. Thus, he would have to ensure those he entrusted to deal with his estate had information as to where it was kept. On the Plaintiff’s case, the Deceased had a good relationship with her and she was the only person who had the key to his safe. Further, if the Deceased had kept the Will in a secret place which the Plaintiff had not been told about, it does not make sense that he withheld such information from her when he allegedly gave her the assurance in 2007 and 2008.

136.Though the Declaration was collected by the Deceased from the solicitor firm, I am not prepared to assume that the Deceased had kept it together with the Will. The Deceased needed not worry about the Declaration being seen by the Plaintiff. However, even on the Plaintiff’s case he had not told her about the distribution of his estate under the Will. Nor do I accept the evidence of the Plaintiff that she had forgotten about the Declaration after its execution. Though she denied it, the letter written on her behalf by her solicitor to Cheung on 10 March 2008 was plainly written with the Declaration in mind. This is reinforced by the demand for confidentiality in respect of the Declaration in a letter dated 12 March 2008 from the Plaintiff’s solicitor to Cheung. As Mr Pow submitted, she had the title deeds with her and VMR was registered under her name. The only transaction which was not apparent from the public records was the Declaration. The Defendants would not know about the Declaration unless Cheung informed them.  

137.When cross-examined about her demand to Cheung to keep the information in the VMR file confidential from the children of the Deceased, the Plaintiff could not offer any satisfactory explanation. Eventually, no doubt on sound legal advice, the Plaintiff had to bow to the inevitable, viz. giving consent for the disclosure of the Declaration to the personal representative of the estate in a letter of 13 March 2008 from her solicitor to Cheung.

138.Having regard to the totality of the evidence, I am not persuaded that the claim by the Plaintiff that the Declaration is missing can assist the Plaintiff. On the evidence, I do not believe the Deceased had a secret place of storage.

Relationship of the Deceased with the beneficiaries and possible reasons for revocation

139.I have already discussed the evidence and my findings on the relationship between the Deceased and the parties. To sum up, I find that there was a deterioration of the relationship between the Plaintiff and the Deceased between 2003 and 2008, so much so that the Deceased had intended to move to Unit 801 to live separately from her.

140.I also find that the relationship between the Deceased and his children, in particular the 3^rd and 4^th Defendants, had changed over the years in the light of the change of the relationship between the Deceased and the Plaintiff.

141.The deterioration of his relationship with the Plaintiff and his improvement in relationship with the children he had not provided for under the Will are sound reasons for revocation of the Will. This is also consistent with the evidence of the Defendants as to the professed intention on the part of the Deceased to disinherit the Plaintiff, which I accept.

Contents of the Will

142.Mr Fung submitted that the Will was a product of mature consideration on the part of the Deceased. He had preferred the 1^st, 2^nd and 5^th Defendants to his other children. Therefore, even if he had reasons to alter his will due to the deterioration of relationship with the Plaintiff, he would not simply revoke the Will. He would have made a new one making different provisions for different children.  

143.That submission is premised on the Deceased harbouring entrenched dislike of some of his children and reflecting the same in the contents of the Will. However, as I have found, the Deceased was not as alienated from the 3^rd, 4^th and 6^th Defendants as depicted by the Plaintiff. I have also found that a major influence in the provisions of the Will, as far as the lack of provision for these three children are concerned, was their relationship with the Plaintiff.  

144.As between the children themselves, I do not think the Deceased had an entrenched resolution to disparate the provisions for them in his will, not to mention a firm determination to disinherit any of them. In this respect, as I said above, I accept the evidence of the 1^st and 2^nd Defendants.

145.In the light of this, with the elimination of their relationship with the Plaintiff as a factor, I do not see any inherent implausibility of the Deceased’s changing his mind with respect to the provisions for the children.

Conclusions

146.In a way, it follows from what I have said that this case resolves itself by the evidence. Even without the presumption, the evidence points clearly to the conclusion that the Deceased had revoked the Will. Of the other possibilities, I have already explained why there is no basis for suggesting that the children have either deliberately or accidentally caused the disappearance of the Will after the death of the Deceased. As regards the possibility of the Will being misplaced by the Deceased himself prior to his death, I have rejected the possibility of a secret place of storage. Given the evidence as to the changes in the relationship between the parties and the professed intention of the Deceased to change his will (as testified by the maid) and to disinherit the Plaintiff (as testified by the children), it is likely that the disappearance of the Will was due to revocation instead of being accidentally misplaced by the Deceased.

147.With the operation of the presumption, this conclusion is reinforced bearing in mind the care of the Deceased in keeping his documents and the character of his custody of the same.

148.My conclusion is that the Will had been revoked by the Deceased before his death by destruction.

149.Thus, the Plaintiff’s claim has to be dismissed.

150.As regards the counterclaim of the 3^rd and 4^th Defendants, I will grant the declarations as per paragraphs (a) and (b) of the prayers.

151.There will also be an order nisi that the Plaintiff shall pay the costs of the 3^rd to 6^th Defendants.

Mr Patrick Fung, SC, and Mr Anson Wong, instructed by Messrs S M Kwok & Co., for the Plaintiff

Mr Albert Yau and Mr Kevin Poon, instructed by Messrs Hobson & Ma, for the 1^st to 4^th Defendants

Mr Jason Pow, SC, instructed by Messrs Fairbairn Catley Low & Kong, for the 5^th & 6^th Defendants

Please refer to CACV168/2011 for the relevant appeal(s) to the Court of Appeal.

Please refer to CACV168/2011 for the relevant appeal(s) to the Court of Appeal.