Kwok Shuk Kuen Maria and Another v. Li Wun and Another
Read the full judgment text of HCAP 8/2011 on BabelCite. This High Court CFI judgment was delivered on 17 June 2014.
1. The plaintiffs are the executors of the will of the late Kwok Wing Fai, who passed away in Hong Kong in June 2010 (aged 86) (respectively (“ the subject will ”) and (“ the dec’d ”)); the subject will was dated 26 April 2010. The plaintiffs commenced this action in March 2011 seeking the court’s pronouncement for the subject will in solemn form because caveats were entered earlier.
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HCAP 8/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PROBATE ACTION NO 8 OF 2011 ____________
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_______________ J U D G M E N T _______________ INTRODUCTION 1.The plaintiffs are the executors of the will of the late Kwok Wing Fai, who passed away in Hong Kong in June 2010 (aged 86) (respectively (“the subject will”) and (“the dec’d”)); the subject will was dated 26 April 2010. The plaintiffs commenced this action in March 2011 seeking the court’s pronouncement for the subject will in solemn form because caveats were entered earlier. 2.The claim is opposed by the defendants, who contend in their amended defence and counterclaim in gist that:
3.By virtue of the above matters, the defendants not only deny the claim, but also counterclaim for the subject will to be pronounced against, and for the 1st defendant (“Mdm Li”) to be granted a letter of administration (on the dec’d’s intestacy). BACKGROUND 4.The dec’d and Mdm Li were married to each other. There are 6 children born out of the wedlock: two sons and four daughters. The plaintiffs are respectively the first (eldest daughter) and third (second son) children. The 2nd defendant is the second child (eldest son) (“D2”). 5.It is obvious the family (besides the dec’d) has regrettably broken into two camps (and the parties do not dispute the break): Mdm Li and D2 on one side and the other children on the other side. 6.The dec’d came from a humble background. He received a few years’ Chinese-style tuition (私塾教育), then left the Mainland for Hong Kong in the 1950s, and began his work here as a labour carrying rice. It was probably because of the dec’d’s life-time hard work the egg business he operated, one “Shun Hing Hoo”, becomes one of the leading operators in the trade (“the dec’d’s business”). While there is dispute as to the extent of Mdm Li’s contribution to the dec’d’s business, it is common ground P2 has for some time before the dec’d’s death been helping the dec’d in that regard. Because of this, P2 was trusted by the dec’d. THE DEC’D 7.Although the dec’d has relatively little formal education, that he was a person of strong-will and shrewdness is at least partly reflected by his business success, and the accumulation of some wealth. 8.He suffered from chest pain in September 1998, and was unfortunately diagnosed with terminal lung cancer in November 2009. From then on, he alternated between staying at home (where he lived with Mdm Li) and in hospital until his death. The dec’d was undergoing chemotherapy shortly before his death, and has to rely on external oxygen supply before, at the time of, and after, the subject will until he passed away. THE SUBJECT WILL 9.Who came up with the idea of making the subject will (the dec’d or P2) is disputed in this action. What is undisputed is that in late-April 2010 P2 approached a solicitor who he became acquainted with through property deals, one Mr Lau (“Lau”), to prepare a will for the dec’d (which led to the subject will). 10.Shortly later, on 26 April 2010, Lau engrossed the subject will and had it executed and witnessed at the hospital (where the dec’d was staying at the time). 11.In relation to the distribution of the dec’d’s estate, the contents of the subject will are in essence:
12.Save that the subject will was drafted by Lau (with the assistance of his staff), the manner in which the dec’d’s instructions were obtained, and the other circumstances under which the subject will came to be drafted and executed form part of the factual dispute in this action. They will therefore be discussed in the paragraphs below. THE DEC’D’S OTHER ASSETS 13.For the purpose of this action, they are:
14.The dec’d’s business was transferred from the dec’d to P2 by way of a business transfer agreement dated 24 April 2010 (“the business transfer agreement”). 15.The documents concerning the dec’d’s Mainland real properties which have been referred to in this action are:
WITNESSES’ CREDIBILITY 16.As can be seen from the above paragraphs, the main disputes are factual in nature. 17.Further, over many events two conflicting factual versions have been put forth by the parties herein. The conflict is so drastically different that it cannot sensibly be attributed to mistake. Thus, reliability is not in issue (reliability here refers to a witness’ ability to observe, recall and recount the relevant factual events accurately); instead, the issue to be resolved is essentially one pertaining to credibility. An assessment of the witnesses’ credibility is thus crucial to a proper resolution of these factual disputes. 18.For ease of reference, the approach I adopted in earlier decisions when assessing the credibility is repeated:
19.Finally, I have also borne in mind the approach disapproved by the decision in The Popi M [1985] 1 WLR 948 (see also Ide v ATB Sales [2008] EWCA Civ 424 (28 April 2008), para 1 to 6; Datec Electronic Holdings Ltd and Others v UPS Ltd [2007] 1 WLR 1325, para 46 to 50). The impermissible approach was described in the ATB Sales judgment as follows:
(a) Plaintiffs’ witnesses 20.The plaintiff called a total of 9 witnesses, including:
The above doctors assessed the dec’d’s mental condition on 26 April 2010. Of the other 4 witnesses, 3 were the sisters of P2 and D2. 21.As a general observation, I find the plaintiffs’ witnesses to be truthful and credible. 22.The defence launches its main attack against P2. He was extensively cross-examined on various matters. One topic emphasized by the defence is the way in which:
The defence relies on these as evidence of P2’s undue influence on the dec’d (but note also para 76(d) below). 23.During the cross-examination of P2, the defence put forth a case that P2 began “eyeing at” the dec’d’s estate since 2009, and that P2 used a “drip-drip” approach to achieve his objective of securing the dec’d’s assets for himself. The matters set out in para 22(1) and (2) above were put forth as evidence showing the step-by-step implementation of that scheme. P2 was said to have influenced the dec’d by:
24.It was then pointed out to the defence that such a case (which suggested a considerable degree of pre-meditation and planning (and probably also some sophistication)) does not appear to sit well with a term in the subject will which reads:
25.In their written closing submissions, the defence rather paints P2 as someone who:
and that:
The written closing submissions continue:
(para 4(2) thereof) (it should be noted the first quote still implies P2 to be scheming enough to have conceived, and implemented, a plot for years, if not decades). 26.Because the case summed up in para 25 above only appears in the written closing submissions, it was not put to the plaintiffs’ witnesses (including P2) during cross-examination. As a result, it has not been made clear when (and how) P2’s “scheme” was “exposed”. Because the subject will (the document through which P2 supposedly distanced himself) was executed on 26 April 2010, logically the “discovery” of P2’s “scheme” should have taken place sometime before then. 27.Here the case summed up in para 25 above falls into difficulty again, because it has been the defence case the improperly obtained testamentary documents (especially the Mainland will, the undated will and the subject will) only became known to the defendants (which must be what the defence means by “being exposed”) much later than 26 April 2010. 28.The other point relied upon by the defence regarding the assets set out in para 22(1) and (2) above as evidence of P2’s misdeed is the secrecy of the related documents. The explanation given by some of the plaintiffs’ witnesses regarding the subject will is that the subject will was personal to the dec’d (and hence no one else is entitled to know about it). I find no valid reason to disbelieve this part of their testimony (especially taking into account para 29 below). 29.As regards the Mainland properties (and how they were dealt with by the Mainland will and the undated will), it is true no particular reason has been given as to why the Mainland will and the undated will were kept unknown to the defendants. Several matters should however be noted. First, the totality of the evidence suggests that the dec’d could not have been too fond of either of the defendants: Mdm Li was a wife who, though living with him under the roof, asked that the dec’d’s eating utensils be separated from hers for alleged health-related reasons, while D2 was admittedly a son who not only decided not to put his efforts into the dec’d’s business, but was also never quite commercially successful in his own business pursuit. 30.Further, the following matters may provide equally innocent reasons for such secrecy:
Such being the case, nothing sinister can properly be inferred out of the non-disclosure by the dec’d and/or P2 about these matters. 31.One of the sister witnesses testified to the effect the dec’d earlier did not like the topic of preparing a will for himself being raised. This could well be a (or even, the) reason why the subject will (and perhaps also the business transfer agreement) were only executed after the dec’d’s treatment has been assessed to be ineffective to cure his cancer. Thus, the defence criticism in their written closing submissions to the effect that they were hastily “pushed through” appears to have ignored that aspect, and is an exaggerated, or distorted, view of the real situation (see para 5(3) and (4) thereof). 32.The defence also criticizes P2 for having fabricated some parts of his testimony (such as, when P2 contact Lau for the business transfer agreement (and whether it has been interpreted by Lau), the date when some of the documents relating to the Mainland properties were fax transmitted to the Mainland, and whether the Mainland workshop of the dec’d’s business belonged to P2 or the dec’d’s business: para 10, defence written closing submissions). There is no need to discuss each point in detail, suffice it to say I do not find them (whether individually or collectively) to affect my assessment of P2’s credibility by reason of these being the result of error of memory, or were trivial and/or too remote from the issues in this action. 33.The sisters have practically no role in relation to the Mainland will, the undated will or the subject will. In the defence written closing submissions, they were described as:
34.That the sisters sympathize with the plaintiffs have been noted (para 5 above). However, the important issue of whether the sister witnesses have given credible testimony has not been expressly addressed in the defence written closing submissions. Upon being asked of that issue, the defence accused them of being dishonest witnesses who gave false testimony to assist the plaintiffs’ case. No basis has been provided however to support such an accusation. 35.Of the various matters they testified to, it is important they agree with the plaintiffs in effect that:
I do not find any valid reason to accept the defence accusation of dishonesty (and reject it as unfounded). 36.The two doctor witnesses have been accepted to be independent and honest witnesses. Besides testifying to the dec’d’s mental state at the time of the subject will, they testified to, and were cross-examined about, the dialect used by the dec’d. They both confirmed that their verbal communications with the dec’d used the local dialect, and none of them have experienced difficulties in that regard. Another issue raised by the defence is the adequacy of the doctors’ assessement; because this is not credibility-related, it will be discussed under a separate heading below. 37.Lau and his assistant, one Ms Wong (“Wong”), were the witnesses who attested the subject will; they were also responsible for drafting the same. Criticisms have been directed by the defence particularly against Lau:
38.The criticisms set out in para 37(1) to (3) above are a red-herring. As can be seen in para 45(f)(1) below, even on the defence own case, the dec’d intended that the dec’d business should be passed to P2. This is only natural in view that (there is no dispute about this) P2 has been assisting the dec’d’s business for a long time, and has been trusted by the dec’d. 39.Para 37(4) above is unmeritorious because Lau has in fact personally visited the dec’d before the subject will was drafted, and explained the subject will to the dec’d before the dec’d executed it. 40.Para 37(8) above is irrelevant to the issues of this action. Even if it is a correct legal proposition (which does not fall for determination herein), it can only reflect on Lau’s faulty legal knowledge in drafting wills. Para 37(9) above is too general and unspecific. 41.As regards para 37(5) to (6) above, it is true that more careful probate practitioners may have also enquired a testator about these matters. However, they do not by themselves necessarily assist (or not assist) either party’s case herein. To avoid doubt, I have borne them in mind when considering the dec’d’s testamentary capacity and intention. 42.In view of para 39 above, there is no evidential basis for saying that there was no specific instruction for inserting clause (1) of the subject will (para 37(7) above). Similar to what has been about para 37(5) to (6) above, para 37(7) above has been taken into account when considering the dec’d’s testamentary capacity and intention. (b) Defence witness 43.Only D2 testified for the defence. Mdm Li also attended court, but her legal representatives finally decided she should not testify. No point has been raised by the plaintiffs arising out of her failure to do so. 44.I have no hesitation to find that D2 is an untruthful witness. His testimony is riddled with concessions and contradictions which make his testimony (which purports to support the defence case) incredible. I will not set them out exhaustively. Below are some examples. 45.Contrary to what the written closing submissions assert, the defence case is not put forth on the basis of putting the plaintiffs to proof. Instead, the defence puts forth a positive case that the dec’d’s true testamentary intention is to be found in the Hok Lo instructions. The details of this are:
There is also an allegation of undue influence (para 2(c) and (e), 22 and 28 to 30 above, and 67(2) to 68 and 76(d) below). 46.It is undisputed the contents of the subject will were announced to the dec’d’s immediate family (including the defendants (D2 through Mdm Li)) in late-June 2010. Despite this knowledge (and knowledge of the Hok Lo instructions), the defendants instructed Messrs WK To & Co (which are also the solicitors for the defendants herein) (“WK To”) to write on 3 September 2010 (about 2 months after the will announcement) as follows:
It should be noted the said letter was not marked “without prejudice” nor did it reserve any of the defendants’ rights of succession. 47.Two points can be made out of the contents of the said letter: one, the validity and enforceability of the subject will was expressly accepted; two, further to such acceptance, D2 in fact relied on its terms to assert his share ownership. 48.It is only to be expected that D2 was cross-examined at trial about the above. This part of his testimony can only be categorized as a lame attempt to explain away an inconsistency which is inexplicable (other than as evidence of untruth):
49.The fact that:
militates against any possible deficiencies in WK To’s handling of the defendants’ case at any stage up to now. 50.Other parts of D2’s testimony also expose the untruth. During cross-examination, at times he claimed that initially (referring to around July 2010) neither defendant had any suspicion, but they later:
51.The only reasonable inference is hence that the defendants did not inform WK To of the Hok Lo instructions until much later. In this connection, it is pertinent to note the two documents below:
It can be further inferred from the earlier failure to mention the Hok Lo instructions to their own solicitors that the same was the defendants’ afterthought. 52.Before leaving the Hok Lo instructions aspect, I pause to note this would also create some dilemma for the defence: if the defence claims that the dec’d lacked testamentary capacity and intention on 26 April 2010 (the date of the subject will), it is likely their case concerning the Hok Lo instructions will suffer the same problem. D2’s purported explanation that the dec’d mental condition might have suffered because he removed his breathing apparatus from time to time is another lame attempt to mend a poor story, and cannot assist the defence about this point either. 53.The next matter where there is ample evidence to show D2’s untruthful testimony is the assertion made in his witness statement that:
He changed the above in his supplemental witness statement as follows:
But the dec’d’s dialect when he was hospitalized otherwise remains as stated in D2’s witness statement (quoted above) (para 7, supplemental witness statement). 54.First, it is inherently implausible the dec’d (who, according to D2’s supplemental witness statement, could speak both Hok Lo and Cantonese) should speak only Hok Lo while he was hospitalized (where the hospital staff must have been mostly Cantonese-speaking). No reason has been given for such alleged behaviour. 55.Secondly, all the other witnesses (in particular the doctor witnesses) deny that the dec’d did so; if any of those witnesses have heard the dec’d speaking Hok Lo while in hospital, only short and brief words were uttered on one or two occasions. 56.There is no need to find out why D2 should contend the dec’d only used Hok Lo while he was in the hospital. Perhaps he was hoping this would assist his case that possibly there has been mis-communication (or communication breakdown) between the dec’d and the solicitors and/or doctors. 57.There are other parts of D2’s testimony where he contradicts himself over relatively less important factual matters he relies on; such as the amount of rent which the Sheung Wan property was capable of generating, and the purpose of Mdm Li to ask a relative to go to the dec’d’s home on 20 May 2010 (in D2’s cross-examination, he denied that it was for attesting another will, but in re-examination, he said that it was for that purpose), I do not propose to set them out in detail suffice it to say they are consistent with my conclusion of D2’s credibility. THE DOCTORS’ TESTIMONY 58.The criticisms levied against the doctors focused on the adequacy of their examination of the dec’d’s mental state (and hence the weight which can be attached to the assessment). 59.Reliance is placed in this connection on Chiu Man Fu and Others v Chiu Chung Kwan Ying, HCAP 9/2005 (31 January 2012), para 162:
The court in the Chiu Man Fu decision nonetheless went on to observe that the doctor’s 18-year observation of the testator’s mental condition to be extremely useful and relevant to whether the testator possessed the requisite testamentary capacity. 60.I will make two observations concerning the above. One, as has been often emphasized, judicial comments in judgments and decisions (especially factual ones) normally have to be understood in the proper context in which they were made; seldom were they meant to lay down rules or principles. Judicial comments such as whether a medical examination should be recorded fall within that category. Secondly, I understand the above comments about “proper record” of a medical examination to be nothing further than the settled principle about expert evidence that:
Full Wisdom Holdings Ltd and Others v Traffic Stream Infrastructure Co Ltd and Others [2004] 2 HKLRD 1016, para 23. While the above focused on expert evidence on foreign law, the same principle should apply to other areas of expert evidence (including, in the context of this action, expert evidence of the dec’d’s mental condition). 61.In addition, the more important facts involved in the Chiu Man Fu decision should be noted:
62.It is immediately apparent those facts are quite different from what is involved in this action. It is true the dec’d was old and seriously ill at the time of the subject will. However, one must remember there is no evidential basis (let alone evidence) for suggesting that the dec’d’s mental agility has materially impaired:
63.Bearing in mind the above, I disagree with the defence that the doctor witnesses’ testimony should not be treated as expert evidence about the dec’d’s mental condition. The following ought also to be borne in mind:
In so concluding, I have taken into account the general principles that:
(Phipson on Evidence (2013) 18th Ed, Ch 33) 64.I therefore regard the defence suggestion that the doctor witnesses should have:
to be far-fetched (or, at the very least, asking for counsel of perfection). This is particularly so for sub-para (2) to (4) above, when there is no evidential basis to suggest any of these were properly needed. 65.As regards the suggestion that the doctor witnesses should have specifically asked the dec’d whether he was aware of:
I do not find these to be of importance in the light of the circumstances set out above (especially para 62 to 64 above) and 75 below. 66.Consequently, I find the doctor witnesses’ assessment to be helpful to my assessment of the dec’d’s testamentary capacity and intention. FINDINGS OF FACT 67.As stated above, the two main issues are:
68.I have rejected D2’s testimony as being incredible. Of the “circumstantial” matters relied upon by the defence to show para 67(2) above, I do not find them (whether individually or collectively) to be able to advance this part of their case (the matters set out in para 76 below have also been considered for this purpose). Hence, I do not find any valid basis for finding that the dec’d has been unduly influenced. 69.Quite a few authorities have been referred to in the parties’ written opening and closing submissions relating to para 67(1) above. They include:
See also Williams on Wills (2008) 9th Ed, Vol 1, para 4.11, 4.17, 5.3; Theobald on Wills (2010) 17th Ed, para 3-002. 70.For the purpose of this judgment, I shall adopt the legal principles summed up in the parties’ written submissions. 71.Where a will proposed to be propounded is contested, the one seeking to uphold the will should show the testator:
72.A testator’s sound disposing mind means he must understand:
Further, he must not be affected by delusions. 73.As regards a testator’s knowledge and approval of the contents of the contested will:
In particular, affirmative evidence of knowledge and approval would be required where the one who prepared the contested will:
The same applies to a person who actively procured the execution of the contested will under which he took a substantial benefit (examples of this include suggesting the terms of the contested will, or instructing a solicitor to procure the contested will). 74.The above legal principles have been borne in mind when the findings of fact below are made. 75.In relation to the dec’d’s testamentary capacity, by reason of para 7 and 62 to 64 above, I consider that there is good reason to find that he possessed the requisite capacity. In particular, the fact that the subject will has expressly:
supports such a finding. 76.In relation to the dec’d’s knowledge and approval of the subject will’s contents, the defendants argue that this is a case where the court should find suspicion circumstances because:
77.Para 76(a) and (b) have no merits. The contents of the subject will by themselves do not show any one beneficiary being particularly favoured (para 11 above is repeated). Further, the plaintiffs draw attention to the overall entitlement being fair to all beneficiaries as well:
78.From the dec’d’s viewpoint, the net effect of the above estate distribution would thus be:
79.Admittedly the dec’d’s business was “given” to P2. However, the following has to be noted:
Connected with the above is that, although there is no direct evidence about it, Mdm Li must have her own assets/savings. This can be inferred from:
80.With para 77 to 79 above in mind, I find that the alleged suspicious circumstances set out in para 76(c) and (d) above are nothing more than points contrived by a testator’s close relatives whose testamentary expectations have not been met by the terms of the will. Gill v Woodall and Others [2011] Ch 380 described it vividly:
The Gill decision warned that, in such cases:
In such cases, the Gill decision observed:
81.Further to para 80 above, as regards para 76(d) above, the matters set out in para 29 and 30 above should “neutralise” the suspicion contended for by the defence. 82.In the light of the totality of the admissible evidence, I conclude that there was nothing suspicious about the subject will. Due execution of the subject will has been proven. Consequently, apart from testamentary capacity (para 75 above), I also find the dec’d to possess the requisite testamentary intention. CONCLUSION 83.Judgment is entered in the plaintiffs’ favour. 84.The defendants’ counterclaim is dismissed. OTHER MATTERS 85.The defendants took out a summons dated 16 March 2012 (among other things) for the plaintiffs to be passed over as executors of the subject will. The parties reached an agreement in principle at the beginning of the trial about this, and indicated that a formal order would be submitted for approval after they have sight of this judgment. 86.The parties’ written submissions also mentioned various other points. These have not been expressly set out or dealt with above. This is so only because of the need to balance between the length of the judgment and its comprehension. It does not mean those other points are thought to be irrelevant (or have been overlooked). To avoid doubt, those other points have also been considered. COSTS 87.The parties ask that this aspect not be dealt with until after they have sight of this judgment. 88.For this purpose, the following directions are given:
89.Decision on costs will be made without a hearing for this purpose unless any party should argue otherwise (in the said written submissions (with supporting reasons)). Whether there should be a hearing in such event will be determined “on paper”.
Mr Jose Maurellet & Mr Kerby Lau, instructed by Wilkinson & Grist, for the plaintiffs Mr Jenkin Suen, instructed by WK To & Co, for the defendants | ||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCAP 8/2011