Mok Hing Chung v. Wong Kwong Yiu
Read the full judgment text of HCAP 8/2010 on BabelCite. This High Court CFI judgment was delivered on 3 July 2014.
1. This case involves the estates of two sisters who never married but lived together throughout their shared lives. Wong Yin Ling (“WYL”) was the elder of the two. Born in 1918, she died intestate at the age of 77 in 1996. Wong Yin Sheung (“WYS”) was the younger. Born in 1920, she died at the age of 86 in 2006, leaving a will. Neither WYL nor WYS had any natural children.
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HCAP 8/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PROBATE ACTION NO 8 OF 2010 ___________________
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------------------------- JUDGMENT ------------------------- Introduction 1.This case involves the estates of two sisters who never married but lived together throughout their shared lives. Wong Yin Ling (“WYL”) was the elder of the two. Born in 1918, she died intestate at the age of 77 in 1996. Wong Yin Sheung (“WYS”) was the younger. Born in 1920, she died at the age of 86 in 2006, leaving a will. Neither WYL nor WYS had any natural children. 2.HCAP 8/2010 concerns the estate of WYS. The plaintiff in that action is Mok Hing Chung (“MHC”), a nephew of WYL and WYS. He seeks to prove WYS’ will dated 6 June 2006 (“the Will”) under which he is the sole executor and beneficiary. The defendant to that action is Wong Kwong Yiu (“WKY”), who does not just put MHC to proof of the Will, but asserts a positive case that the Will was executed when WYS was not of sound mind, memory and understanding, and that it did not reflect her true testamentary wishes. 3.HCAP 10/2012 concerns the estate of WYL. In that action the roles of the parties as plaintiff and defendant are reversed. WKY seeks a declaration that he is the lawfully adopted son of WYL and is entitled to the grant of administration of the estate of WYL and is entitled to the entire estate of WYL, to the exclusion of MHC. It is also WKY’s case that the entirety of the estate of WYS was in fact held on resulting trust for the estate of WYL. MHC denies that WKY is the lawfully adopted son of WYL, and denies the resulting trust. 4.Hence it is common ground that the three main issues which arise in this case are:
5.It is also common ground that if WKY fails on the Adoption Issue, he has no locus standi as to the other two issues. Of course, if WKY succeeds on the Adoption Issue, he also needs to succeed on the Resulting Trust Issue if he is to take any monetary benefit from having any entitlement to the estate of WYL (though I would point out at once that WKY was at pains to say that he is not bringing his action for the money). 6.If MHC succeeds on the Resulting Trust Issue and proves the Will, he will take under it as sole beneficiary. If MHC succeeds on the Resulting Trust Issue but fails on the Will Validity Issue, then the estate of WYS will have assets, but they will fall to be distributed in accordance with the rules on intestacy. In effect that would mean that MHC would take a share together with his siblings and cousins (who would include WKY if I found for him on the Adoption Issue). 7.For reasons which will be explained more fully below, the Adoption Issue turns on some factual disputes and a consideration of certain provisions in Section 78 of the Qing Code (大清律例) (Ta Tsing Lue Lee or Daai Ching Lut Lai), on which question the parties called expert opinion evidence. 8.The Resulting Trust Issue and the Will Validity Issue turn on the appropriate and necessary findings of fact. After setting out the background, I will deal with each of the issues in turn. 9.Counsel for MHC is Mr Andy Hung, and Counsel for WKY is Ms Margaret Ng. MHC is legally aided. Background 10.WYL and WYS were two of the five natural children of Wong Yuk Ting (“WYT”), who until his death in 1965 substantially owned and ran a construction business, Kin Yick Lung Construction Company, from the Ground Floor shop/office premises of 368 Castle Peak Road (“368 CP”). WYL and WYS may perhaps have been partners in the business, and there may have been other non-family minor partners. WYT's wife – the mother of his natural children – was Lee Choi (“LC”). 11.WYT had three other natural children, being a son, a daughter who died young, and another daughter, Wong So Han (“WSH”), who married and had children (one of whom is MHC). The son, Wong Gan Yan (“WGY”), died unmarried and without issue at the age of 18 in 1938. It is that unfortunate death of the only male heir of WYT that at least in part set in train the events as have given rise to the disputes between the parties to these actions many decades later. 12.It seems that WYT wished to provide an heir by adoption, and in accordance with custom and practice then prevailing he adopted a son Wong Gan Hing (“WGH”). There has been some suggestion that WGH was adopted posthumously as the son of WGY, but (though it may not matter to the analysis) I do not think that is correct. WGH appears to have been treated as though he was of the same generation as WYL and WYS. 13.Instead, it seems that there was a posthumous adoption of a son for WGY by the transfer in 1939 or 1940 by his sister WSH of one her sons. This was evidenced by a Letter of Gift, which provided that in order to continue the bloodline of WGY who had died without issue, WSH agreed to give her third son Mok Hing Chuen as a gift to WGY for his and the Wong’s family succession. After transfer, the child (born in 1934 and at the time aged 5) was renamed Wong Cheong Wing (“WCW”). 14.Whether WCW was validly adopted and whether he became the Wong’s family successor has become something of an issue in the trial, and is potentially relevant to the Adoption Issue. It is clear, however, that WCW went to live with WYT and LC, as well as WYL and WYS, and did so until he went to study overseas in about 1958. (It was the late addition of WCW as a witness at the trial that was the subject of my Ruling of 5 June 2014, on the first day of the trial.) 15.Returning to the adoption by WYT of WGH, WGH was probably the son of Wong Yuk Loi, who was either a brother or the close agnate relative of WYT. Certainly, if Wong Yuk Loi was the brother of WYT, it would have made sense under the Qing Code that he chose to adopt his nephew WGH as his successor in place of the deceased WGY. 16.There has also been dispute as to whether WGH was the natural son of Wong Yuk Loi, or the natural son of a different agnate relative Wong Gung Tsuen. MHC says, with some support from WCW, that WGH was himself adopted by Wong Yuk Loi at the instigation of WYT (as head of the family), and that WGH came from a family surnamed Liu and was renamed as a Wong upon adoption. This is not a dispute I need to resolve. 17.WYT and LC lived with their daughters WYL and WYS at the First Floor of 368 CP. After his adoption, WGH also lived with the family. WGH married Ng Yuk Ching (“NYC”) in 1946 or 1947, and thereafter the couple lived for a while at the Mezzanine Floor of 368 CP. 18.There was also a property at 366 Castle Peak Road (“366 CP”), in which WSH lived with her husband for at least some time, and in which MHC was born in 1938. 366 CP was held in the registered name of Wong Yung, an alias of WYS. It was sold in 1947 to a third party for $15,000. 19.WGH and NYC eventually had 10 children. For current purposes, I need only mention the first four. The first to be born was a daughter Wong Fung Luen (“WFL”) in 1948, followed by another daughter Wong Fung Yee (“WFY”) in 1951. There followed two sons, WKY born in 1953 and Wong Kwong Hoi (“WKH”) born in 1955. All four of those children spent at least a considerable part of their childhood living with, and in effect being brought up by and at the expense of, WYL. WFL and WKY were living with WYL from a very young age, though it seems that WFY and WKH may have joined at a somewhat later age of about 8 and 5 respectively. 20.Around the time of the birth of WFY, WGH fell out with WYL and WYS (and thereby, possibly, WYT). As a result, he left the family ‘compound’ and went with NYC to live in Tsuen Wan, first in a cubicle then in a wooden hut built by or for him on Texaco Road. WGH and NYC were living there when NYC was pregnant with WKY. 21.It is WKY’s case that he was adopted by WYL very shortly (just 3 days) after his birth in 1953, under a formal ceremony and with the stated purpose being to satisfy WYT’s and WYL’s desire to provide a male successor to the Wong’s family (it being recognized that WYL would likely not marry and have natural children of her own). Though he spent his first three years with his natural parents WGH and NYC, WKY then lived with WYL until at the age of 22 he went to Canada in 1975 to study. WKY has resided in Canada since that time, and in 1976 he married, and now has two sons of his own. 22.When WKY first went to live with WYL in about 1956, she was still living with her parents and WYS at the First Floor of 368 CP. WFL was probably already living there with WYL as well. 23.In 1957, WYT (using his alias Wong Sau) bought the flat at the first floor of 108 Boundary Street (“108 BS”) and the family moved to live there. The purchase documents obtained from the land registry show WYT paid $67,000 for 108 BS. Other documents show that WYT transferred 108 BS to WYL in 1959, at the stated consideration of $55,000. The change in registered ownership did not in any way interrupt the living arrangements. 24.There were 3 bedrooms at 108 BS. WCW had the ‘master’ bedroom, which had an en-suite bathroom. WYT and LC had another bedroom. WYL and WYS shared the third room, and WFL and WKY seem to have slept with them in that room. WCW was not there much, and had not been so much at the previous home in the period just before the move, as he was first at boarding school and then at HKU and then studying overseas from early 1958. 25.In 1963, WYL entered into an agreement to buy the 2/F and 3/F at 368 CP (redevelopment) for $100,000, but in 1964 nominated WYS to accept the assignment on completion. Hence that property was held by WYS until it was sold in 1989 for $730,000. 26.WSH died in 1961. LC died in 1962. WYT died in 1965. 27.After the death of their parents, WYL and WYS continued to live at 108 BS. At least WFL, WFY and WKY, and probably WKH continued to live with them there. It seems WFL and WFY moved out around 1970, when each of them married. As already stated, WKY left to go to Canada in 1975. 28.The Kin Yick Lung business was continued for a while after the death of WYT, but it had some financial troubles and the business was closed in about 1967. It is WKY’s case that the cause of the financial difficulties was the poor management of a project by two of MHC’s brothers who worked in the business. So bad was the problem, it was said, that a family property had to be sold to pay compensation to the government. Even though I do not think WKY’s assertion makes chronological sense, I do not need to resolve the reason for the cessation of the Kin Yick Lung business. However, it is to be noted that the allegation that ‘family’ property was sold was apparently about a property held in the name of WYS. 29.WYL and WYS lived thereafter on rental income or capital. As neither of them was ever employed outside the family business, it seems obvious – and it became uncontroversial in evidence – that whatever money they had came from WYT (whether during WYT’s life or after his death). I accept that WYL may have engaged in some chit fund business, and may occasionally have won sweepstakes, but any income from those sources must have been very minor. 30.One source of funding for WYL’s and WYS’ living came from the 1989 sale of the 368 CP property held in the name of WYS. But even with prudent management and a modest lifestyle, that sum of $730,000 realised was not going to be sufficient for the remainder of their lives. 31.In 1995, WYL sold 108 BS for the sum of $4,560,000. The sale seems to have been intended to release equity value. The sale and purchase agreement is dated 1 May 1995, and it provided for completion on or before 31 July 1995. In fact completion was slightly later as the assignment is dated 10 August 1995. 32.Using part of the proceeds of sale of 108 BS, there was then purchased a smaller flat at 4/F Pobjoy Court, Price Edward Road (“PJ Court”) at the price of $1,720,000. PJ Court was purchased in the names of WYL and WYS as joint tenants. The sale and purchase agreement for PJ Court was dated 22 August 1995, and the assignment was dated 8 September 1995. 33.Between the date of completion of the sale of 108 BS and the date of purchase of PJ Court, WYL and WYS lived temporarily in an elderly persons’ home, for a month or so. There has been dispute on the evidence as to why that occurred. MHC and his sister Mok Lai Tak (“MLT”) gave evidence that WFL and WFY just made WYL and WYS move to the home and then left them. On the other hand, WKY and WFY gave evidence that the elderly home was simply to fill a gap caused by one home having to be given up before the next was ready, and there was no force or abandonment of WYL and WYS. Though it is unlikely to be in any way determinative, I can address this dispute below. 34.The remaining funds from the sale of 108 BS were put into a joint bank account or accounts held in the names of WYL and WYS. The account operating instructions have the standard right of survivorship clauses. 35.WYL and WYS used the monies, and any interest earned from time deposits, to cover their living and medical expenses. After WYL’s death, WYS continued to use the monies for that purpose. By the time of WYS’ death, the account balances were rather low. 36.Indeed, the monetary value left in the estate(s) now comprises really only the value of PJ Court, which is something under $4,000,000. It is obviously deeply unfortunate that there has been such protracted and acrimonious – and probably proportionately rather expensive – litigation between members and branches of a family over such a sum (particularly if the ‘issue’ was not really the money). 37.WYL died on 15 April 1996; the cause of death recorded on the death certificate was old myocardial infarction and diabetes mellitus. WYS died on 3 December 2006; the cause of death recorded was colon cancer. 38.Various applications, caveats and appearances gave rise to these contentious probate proceedings, which were ordered to be tried together. 39.Those are broadly the background facts. I can deal with facts as arise on each of the issues within the sections of this judgment dealing in turn with those issues. The Adoption Issue 40.The Adoption Issue arises in the following way. As its name suggests, the Intestates' Estates Ordinance Cap 73 (“the IEO”) provides for succession to estates on intestacy. 41.Section 4(5) of the IEO provides that if an intestate leaves issue but no husband or wife the residuary estate of the intestate shall be held on the statutory trusts for the issue of the intestate. 42.WYL was never married, and she had no natural children of her own. But section 2(2) of the IEO materially provides:
43.It is WKY’s case that he was adopted by WYL in 1953 within the meaning of section 2(2). It is common ground that the question as to whether or not WKY was so adopted within the meaning of the section is a matter for the Court to decide. But each party has called expert opinion evidence on what is said to have been the material Chinese law and custom in 1953, principally by reference to the Qing Code. 44.WKY has relied on the expert opinion of Professor Hugh Baker, formerly of the School of Oriental and African Studies, University of London and of the Chinese University of Hong Kong, and Associate Professor Athena Liu, of the University of Hong Kong. MHC has relied on the expert opinion of Associate Professor Priscilla Leung, of the City University of Hong Kong. (I note that no challenge was made by either party as to the relevant expertise of any of the experts.) 45.It will be helpful to set out the material parts of the Qing Code Section 78, which is headed (立嫡子) ‘Appointing a Successor to the Family’. The section comprises two parts, namely the Lu and the Li, described as the articles (with penal effect) and the regulations/rules. 46.The Lu (律) materially states:
47.This has been translated by G Jamieson in ‘Chinese Family and Commercial Law’ (1921) as: Whoever appoints his son Successor to the Family, contrary to law, shall be liable to be punished with 80 blows. If the principal wife is over 50 years of age, and has no son, it shall be lawful to appoint the eldest son by a concubine, but the eldest must be appointed under a like penalty, and in either case a wrong appointment shall be corrected. When one has adopted and brought up a child of the same kindred as his son, he himself having no son, and the natural parents of the child having another son, such child may not desert his adoptive parents. If he does, he shall be liable to be punished with 100 blows, and shall be sent back under their control. But if the adopting parents have a son born to them, and the natural parents have no other son, and are desirous of taking their child back again, they may do so. Anyone adopting and bringing up a child of a different surname, thereby confounding Families and kindred, and anyone giving his son to be Successor to a Family of a different surname, shall be liable to be punished with 60 blows, and the child shall revert to his proper kindred. A foundling child under three years of age, although of a different surname, maybe taking in and brought up, and may receive the name of the adopting parents, but shall not be entitled to the succession on failure of the natural-born children. 48.The Li (條例) is broken down into numbered paragraphs and materially states:
49.With one or two corrections to it as agreed between the experts in this case, these paragraphs have been translated by Jamieson as:
50.Against these provisions, it may be helpful to try to identify the battle lines between the parties to these proceedings. All three experts agree that section 78 of the Qing Code is at least primarily concerned with succession, and the appointment of a successor to continue the male family line. However, Professor Leung goes further than either of Professors Baker and Liu, in expressing her opinion that section 78 is only concerned with succession. 51.Hence, Professor Leung expresses the view that if a child is taken into a family, but not for the purposes of the appointment of a successor to the family, that is not an “adoption” within the Qing Code even if it is to be regarded as a “quasi-adoption”. 52.On the other side of the debate, Professors Baker and Liu express the view that if a child is taken into a family not for the purposes of the appointment of a successor to the family, that would not be a formal or ritual “adoption”, but it is to be or may be regarded as an informal or simple “adoption”. They hold the view that the very reference to an i-tze (courtesy child) within the Li, and the fact that a measure of protection is extended to such a child, identify that such a child has a status within the family recognised by the Qing Code. Certainly, the reference is said to show that there is no prohibition to the taking of an i-tze under the Qing Code, and there is nothing to show that it would be contrary to the Qing Code. 53.It seems to me to be clear that if a person is to be appointed successor, it must be done within the requirements of the Qing Code (or any recognised exceptions to it). But it is also clear that a real distinction is drawn between succession and inheritance. Indeed, this distinction was urged upon me by both Mr Hung and Ms Ng. 54.For his part, Mr Hung stressed that the issue to be canvassed by the experts is simply whether WKY is an adopted son under the Qing Code. Therefore, whether or not by virtue of an informal adoption WKY is entitled to succeed to the estate or part of the estate of WYL is neither here nor there. 55.For her part, Ms Ng also stresses that whether a person in WKY's position has the right to inherit under the Qing Code is irrelevant. She submits that the simple question for the experts is whether or not WKY's status as an adopted child is established under the Qing Code; if it is, then any right to inherit is derived from the IEO alone. She further submits that status as an adopted child cannot be so narrowly confined as to the appointment of a male heir or successor of the bloodline, for if that were so no female nor foundling could ever be an adopted person under section 2(2)(c) of the IEO, even though on the facts that child had undoubtedly been treated as a member of the family. 56.This is one of the points at which it is necessary to make careful analysis, for it seems to me that one has to be alert to the possibility of reading into the provisions of the Chinese law other notions of what in other contexts one might regard as the characteristics of the relationship of adoption, when that might not be appropriate. As it was put by Bokhary PJ in Re Lau Wai Chau [2000] 1 HKLRD 924 at 931F: [O]ur jurisprudence leaves no room for Hong Kong law to operate so as to create an instance of a Chinese law and custom institution in circumstances where Chinese law and custom itself does not so operate. That would amount to the Hong Kong courts assembling a hybrid between Hong Kong law and Chinese law and custom, and then applying that hybrid in the name of, but contrary to, Chinese law and custom. I can see no juridical foundation for such an exercise. 57.There is also the fact that in this case WKY has particularly stressed in the evidence which he has called (including from his natural mother NYC) that the express purpose for his adoption by WYL was to provide a male heir and successor to the Wong's family. Mr Hung describes this as a false case. It is, thus, first necessary to consider some of the underlying factual matters before returning to a consideration of the expert opinion debate. 58.In his first witness statement, WKY stated in terms that the background and circumstances of his adoption were deposed to in detail in the affirmations of his natural parents NYC and WGH filed in his application for the grant of administration in respect of the estate of WYL. Those affirmations were produced in the trial bundle, and though NYC also filed two witness statements and gave oral evidence at the trial, WGH has unfortunately developed Alzheimer's disease since making his affirmations in 2007 and 2009, and was unable to speak to them at trial. 59.In her 2007 affirmation, NYC stated that as her father-in-law wished to ensure the continuation of the male lineage, he requested her consent to let WKY to be adopted by his daughter WYL as her son, so that WKY could become the grandson cum the male line descendant of WYT. She said that she and her husband agreed to that request. 60.In his 2007 affirmation, WGH confirmed the content of NYC's affirmation and further stated that as WYL had never married and had no children, WYT wanted WGH to give his first four children (WFL, WFY, WKY and WKH) to WYL for raising and education. Among them, WKY was formally adopted by WYL as her son by worshipping the ancestor and a red envelope was then given according to Hakka customs in the presence of the relatives and friends. Thereafter, WKY addressed WYL as “Mama” or “Mummy” and NYC and WGH as “Auntie” and “Uncle”, and WYL exercised parental rights and duties to the exclusion of NYC and WGH until WKY went to study abroad in Canada at the age of 22. 61.In the same affirmation, WGH also stated that when he was 13 years old in 1938, his own father gave him to WYT to be raised, such an adoption of a nephew to be a son being common in Hakka customs. It was this statement which caused Master Levy some pause when considering the application made by WKY for the grant of administration. 62.By letter of 1 December 2008, Master Levy raised certain requisitions. Some of them related to questions arising from expert evidence in the form of an opinion from Professor Baker dated 6 December 2007, which had been filed with the application. The Master considered that by reason of the content of that report the alleged adoption of WKY by WYL did not appear to conform with section 2(2)(c). To meet that point, a supplemental report of Professor Baker dated 9 December 2009 was filed (and the material in those reports is repeated in his expert opinion filed for these proceedings). 63.But another of the Master’s comments arose from the WGH affirmation. She pointed out that it was stated that the natural father of WKY (mistakenly written as the ‘Deceased’ in the requisition letter) was WGH, who was the adopted son of WYT. Hence, the male line could continue through WGH, and the alleged adoption of WKY by WYL to continue the male line did not seem to be necessary. 64.It is clear that it was in response to that comment that WGH’s supplemental affirmation was filed. In it, WGH stated that as WYL, the daughter of WYT, never married and had no issue, and on the basis of the earlier termination of the adopted relationship between himself and WYT, and thus that WYT had no male heir, WYT would like WYL to adopt WKY to be her son, so as to have a male heir to inherit the family's estate, which was temporarily taken care of and controlled by WYL. 65.It is also clear that the same stance was subsequently taken by WKY in his first witness statement filed for these actions. He referred first to the adoption of WGH, but said that after WGH quarrelled with WYL and WYS, he moved out and “the relationship was broken”. WKY then stated that “in view thereof” WYT nominated and adopted a son of his eldest daughter WSH to be his intended successor, who then moved in to the apartment at 1/F of 368 CP. That was the adoption of WCW, but WKY then stated that WCW could not live in harmony with the family and “the relationship [was] eventually broken” and WCW moved to study overseas and immigrated to Canada. 66.Specifically, WKY then stated in his witness statement that “[a]s the abovesaid two adoptive relationships failed to materialise, and in view of the fact that both my adopted mother [WYL] and [WYS] did not intend to get marr[ied] in future, my grandfather decided to nominate me to become his future male successor by directing [WYL], his natural daughter, to adopt me as her adopted son in about 1953”. 67.When it was pointed out to WKY in cross-examination that his chronology of events simply did not work to permit such an argument – not least because WCW did not leave the family home until 1958, well after the alleged adoption of WKY in 1953, at which point WCW was still a schoolboy – he sought to resile from that argument and that version of events. This was not the only occasion where there were chronological problems with WKY’s evidence. 68.I do not accept his explanation for why this version was included in the witness statement, namely that he had overlooked it when he signed the statement. Rather, it is perfectly plain from his evidence and that of his natural parents that it has always been WKY’s case that his adoption by WYL is explained by, perhaps justified by, the desire on the part of WYT that there should be put in place a male heir or successor because of the absence of any other male heir or successor. 69.I recognize that WKY may well have been putting forward a version of events which he had been told by others, or by argument based on a series of broad suppositions from those facts learned. He is perhaps not to be criticized too heavily for relying on what was told by others, but there is force in Mr Hung’s criticism that large parts of the statement failed to identify what was put forward from personal knowledge and what from other sources. Also, I was deeply unimpressed with the suggestion that certain parts of the witness statement were present as they were drafted by the lawyer and showed his lawyer’s thinking (as, in fact, the liberal use of argument and archaic ‘legalese’ tended to reveal). 70.It is in those circumstances that the effectiveness, or the continuation or not, of the adoption of WCW has become an issue in these proceedings. It is hardly surprising that it has been argued on behalf of MHC that if the stated justification for the adoption of WKY – namely to provide a successor when there was otherwise no successor – is demonstrably not correct, that calls into question the whole factual assertion of the adoption. 71.It is a little more surprising that Ms Ng now argues that whether or not WCW was properly adopted, and whether or not that adoption relationship was broken, is a red herring. She now submits that the question as to whether or not WCW was adopted and whether that adoption was terminated has nothing to do with the entirely separate question as to whether or not WKY was adopted. 72.Obviously, there must at least be some focus on the actual circumstances which are said to evidence the adoption of WKY by WYL. Whatever WKY said about those circumstances was bound to be hearsay, but (in addition to the affirmations of his natural parents to which I have already referred) he was able to call his natural mother NYC, now aged almost 90, to give live evidence. Though perhaps a little confused on one or two matters and events, which is not surprising when she was speaking of events more than 60 years ago, I found NYC to be a convincing and honest witness. I accept Ms Ng’s submission that the intensity of the events probably left a broadly indelible memory of them. 73.NYC explained that she had two daughters, WFL in 1948 and WFY in 1951, before she became pregnant with WKY. Whilst she was pregnant with the WKY, she was accompanied to one check-up by WYT and WYL. They told her that if the baby turned out to be a boy, he should be given to WYL as her son, so that he could become the grandson and male line descendant of WYT. Later, she gave birth to WKY in a maternity home in Tsuen Wan. On the third day after the birth, WYT arranged for his driver and LC to collect her and WKY from the maternity home to be taken to 368 CP for an adoption ceremony. 74.In the ceremony, an oil lamp was lit in front of the ancestors and LC embraced WKY in worship of the ancestors, thereby recognising him as the male heir of WYT. WYL then gave a red packet to NYC, and promised her that she would bring up WKY as her own son. Other relatives (and possibly some family staff) were also present. 75.After the ceremony, NYC and WGH returned to their own home with WKY. When WKY was one month old, a dinner banquet was arranged in a Hakka restaurant called (Jui Yuet Lau) Drunken Moon, to which various relatives and friends were invited for a celebration. There were about 10 tables at that banquet. Later in the same year, a customary heir lamp was lit in front of the ancestors' altar, signifying a male descendant to follow the ancestors' light. 76.In passing, I note and take account of the facts that (a) there was no suggestion by NYC that there was or might have been any Letter of Gift of the sort as was used in the family when WCW was adopted, and (b) NYC was being asked to and agreed to give up her first son. 77.As WKY was a baby and needed to be breastfed, he lived temporarily with NYC and WGH at their home in Texaco Road, Tsuen Wan, but LC and WYL were frequent visitors and provided funds. When WKY was three years old, he went to live with WYL at 368 CP, and subsequently moved with her to live at 108 BS. From the age of three, WKY treated WYL as his mother, calling her “Mama”, and calling his natural parents “Auntie” and “Uncle” respectively. Throughout the time until WKY left Hong Kong to go to Canada at age 22, WYL exercised parental rights and duties in relation to him. 78.In cross-examination, some confusion arose in relation to the first month or moon celebratory banquet. NYC agreed with the suggestion put to that her marriage to WGH had been celebrated by a banquet for 10 tables of guests at the Drunken Moon restaurant. In answer to a later question from me, she confirmed that there was only one such celebratory banquet with 10 tables at that restaurant. This might suggest that she had confused the wedding banquet for the one-month banquet, but the one dinner that she confirmed was expressly the latter. This point was not taken up any further by questions from Mr Hung or Ms Ng. In any event, it seems to me the important feature of the story recited by NYC was the holding of a first month banquet, rather than the precise details of it (such as the size and location). 79.I also accept that the “adoption ceremony” described by NYC may not have been very different from an ordinary activity of ancestor worship, with the lighting of the oil lamp, and so forth; indeed, it was suggested by Mr Hung in cross-examination that the ceremony was no more than the usual ancestor worship where no special activities as might mark an “adoption” had taken place. But the evidence relating to the later lighting of an heir lamp seems to me to overcome any confusion as to what kind of lamp was lit on the original ceremony. Again, in any event, the overall description given by NYC was consistent with her understanding as to what was the purpose of the ceremony, namely the giving up by her of her son to another person for that other person to raise the son as her own. 80.Both Professors Baker and Liu expressed the opinion that what was described by NYC, if accepted as factually correct, would certainly have normally been considered a valid adoption under Chinese law and custom (but for the lack of capacity in WYL as an unmarried woman to be able to adopt a child for the purposes of appointing a successor – see below). 81.I do not think Professor Leung held any markedly different view as to the ceremonial aspects. The crux of her opinion turned on a different aspect, namely that any “adoption” which was not, or could not have been, for the purposes of appointing a successor was not in fact an “adoption” under the Qing Code. 82.It is also correct to note that there are no requirements for the formalities set out in the Qing Code, whether as to formal or informal adoption. In other words, whilst there are requirements prescribed as to what qualifies a person to have been appointed as a successor, there are no requirements prescribed as to what might be called the mechanics of any such appointment, or as to how an i-tze was taken. 83.In case it should matter for the purposes of the consideration of Chinese law and custom, I sought to establish with NYC whether she had willingly given WKY for adoption. It seemed to me that the language used by her in her evidence indicated that she did so because she felt she had no choice. In answer to my direct questions, NYC seemed to be saying that she would not have given WKY for adoption given an entirely free choice. But in re-examination, when asked specifically whether she was willing to allow WYL to adopt WKY, she stated (at first blush, paradoxically) that she had no choice, so she was willing. 84.This may not accord with modern notions of willingness, but I am looking at matters by reference to events in context in 1953. At bottom, and by reference to the family circumstances and NYC's position within the family at the time, I accept that NYC was willing to give WKY for adoption, because she was willing to comply with what she understood was required of her by her seniors within the family. She also pointed out that WYT and WYL loved WKY very much, which fact also obviously came into her thinking. Clearly, WYL (with WYT’s support) was also in a better financial position to look after a child or children. 85.Indeed, it was also clear from NYC's evidence that a similar situation existed in relation to her firstborn daughter WFL. On the evidence, other than the particular details of the ‘ceremony’ for the adoption of WKY – which could never have been apt for any ‘adoption’ of a girl – there was really no difference in the relationship WFL had with WYL and with her natural parents NYC and WGH; she was treated by them and she treated them just as WKY was treated by them and treated them. 86.Those facts raise in my mind the question, if WKY is to be considered as adopted within the meaning of section 2(2)(c) of the IEO, whether WFL is (and whether possibly WFY and WKH are) also to be considered as falling within that definition. The question might also be posed the other way round: if WFL is not to be regarded as falling within that definition, should WKY be considered as falling within the definition when his position was factually the same as WFL's (save in relation to the ceremony, which was not effective for a formal adoption and not necessary for an informal adoption)? 87.These issues lead to a question which has troubled me. As I have stated, WKY's case that he was adopted has always been predicated on the explanation, or justification, that the purpose of the adoption was to provide a male successor to WYT. If that purpose was not in fact achieved, that might suggest that no adoption in fact took place. If the case as to the very purpose of the alleged adoption is a false one, as Mr Hung suggests, that may also call into question why it has been advanced. 88.Returning to the expert opinion evidence, all three experts agree that the appointment of a male successor could not actually have been achieved through the adoption of WKY by WYL. This is because as a single woman WYL did not have the capacity to make a full adoption for the appointment of a successor. 89.In Jamieson's commentary at pages 151-152, referred to by all of the experts, he referred to the “peculiar case in family law” of Yang Yung-sze v. Woo Mai-chi (1910). Jamieson considered that the Magistrate seems to have been right in the case in holding that a woman could not adopt her brother’s child, not however because he was her brother, but because being a femme sole she could not adopt anybody. As Jamieson stated: “The object of adoption is to continue the family line in the male descent, and so secure the continuance of the ancestral worship. But a woman with no husband has no place in any ancestral hall, and is therefore incapable of adopting. She is finis familiae, the last of the line and can have no successor.” 90.Professor Baker identifies that, in that passage, Jamieson was referring to “adoption” in the sense of (laap chi) the appointment of a successor. I accept that is correct, as in another paragraph of the commentary on the same page, Jamieson stated: “It may be noted that though a femme sole cannot adopt a legal heir, there seems no reason why she should not have an i-tze, courtesy child, male or female, that is a child by quasi-adoption…Chinese law recognises that such a child may have some share in the family property when adopted by the male head, and inferentially the same right might accrue to one adopted by a femme sole.” 91.In their written expert opinions, Professors Baker and Liu both referred to the apparent purpose of the adoption, namely so as to create a male heir and successor for WYT. Indeed, both referred to the previous adoptions of WGH and WCW (albeit – and perhaps necessarily – apparently failed or “broken”) as evidencing a consistent and clear intention on the part of WYT and his deceased son WGY that the adoption of WKY should be “valid”, not least because it was the “only option left”. It is that clear intention exhibited by the relevant Wong family members that is said to make reasonably arguable the case of adoption by WYL of WKY. 92.But Professors Baker and Liu (in common with Professor Leung) accept that that intention was utterly misplaced, and the question arises as to what effect that has on the analysis. Mr Hung suggests it is fatal to WKY’s case. 93.Professor Baker suggested that it is possible to achieve one thing, even though it was not the intended achievement. As he put it, the intention to adopt was clearly there, even if the purpose identified for the adoption must have failed. But that seems to me merely to beg the question as to whether or not there was one intended aim, namely to adopt WKY as the appointment of successor, or two intended aims, namely to adopt WKY and separately to hope to appoint him as successor. 94.Into the mix comes the point that one ought to be able to identify the time at which any adoption took place. In this case, the relevant time would appear to be at the time of the ceremony when WKY was just three days old, or possibly at the time that he moved to live with WYL. Both of those occasions are capable of identifying the intended transfer of the parental rights and responsibilities from WKY's natural parents to WYL. On the evidence, at least the later occasion is the time from when WKY himself appears to have considered WYL to have become his mother. 95.I was impressed by the evidence produced by WKY which identifies that WYL regarded herself as his mother, and he as her son. In addition to the forms of address identified by WKY and NYC in their evidence, I was shown photographs where WYL is holding or standing close to WKY in what looks very consistent at least with a family or parent-child pose. I was also shown a series of letters sent to WKY by WYL and WYS over the years from 1975 to 1988. The letters are all handwritten by WYS, but it is noteworthy that they are almost all signed from “Mom and aunt” and the content of the letter makes clear that references to WKY's “Mom” are to WYL. 96.As an example, there is no dispute that WYL visited Canada in 1986. The letters in 1985 and 1986 deal with the preparations and the visit and its aftermath. The person described in the letters as visiting Canada is WKY's Mom (and on the chronology that could not have been NYC). Another example is the reference to Mom’s birthday, which is consistent with the birthday of WYL as can be seen in her formal identification documents. 97.The letters as a whole seem to me to evidence a mother and son relationship between WYL and WKY; perhaps not the closest, but not necessarily surprisingly so, bearing in mind the geographical distance at a time when communications were rather less easy and instant than they now are. 98.I take into account the apparently uncontroversial fact that WKY supported a Canadian immigration application for NYC and WGH, in which he described them as his parents. I also note that the visa application for WYL's own trip in 1986 was filled out on the basis that WKY was her nephew, and there was no reference to him as an adopted son despite a place on the form where that should have been disclosed. Nevertheless, I do not think those pieces of evidence alter the overall picture of the mother and son relationship between WYL and WKY. 99.In passing, I should say that I am not inclined to decide this matter by reference to how other people may have addressed the relevant participants, and whether it accorded with expectations of forms of address within extended family situations. I do not wholly ignore the point, for example in a letter sent by Ellen Mok, a sister of Johnber Mok and niece of MHC, but I think it is of significantly less weight than the immediate dealings between WKY and WYL and WYS. 100.These findings lead back to the crux of the debate between the experts, namely as to whether an i-tze can properly be regarded as an adopted child under the Qing Code. I note first that all experts agreed that WKY can be regarded as an i-tze. The question at issue is to what status, if any, such a person has or had. 101.Paragraph 78.3 of the Li is the main regulation which is relied upon for determining the status, if any, of an i-tze. The last part of the paragraph – viewed in context of section 78 – is dealing with the circumstances under which an i-tze might be entitled to some inheritance. From the wording, it seems that it is not the quality of the relationship which identifies whether a person is or is not an i-tze; rather, if a person is an i-tze the quality of the relationship with the “adopting parents” will determine the discretionary approach to inheritance. 102.It is because of the fact that there is a discretionary approach to inheritance, and because the regulation appears intended to protect that approach towards an i-tze who enjoys the right quality of relationship with the adopting parents, that Professors Baker and Liu say that the regulation recognises the status of an i-tze (even if it does not specifically identify how that status is created). Particular reliance is placed upon the protection against expulsion of an i-tze from the family, as identifying the status within the family, that is, as a member of the family. 103.Reference is also made to a paragraph of the Lu relating to foundlings, which itself appears to recognize that a foundling may be taken in and brought up by, and may even receive the name of, adopting parents (albeit that such a child could not succeed on the failure of natural born children). That too is said to show a recognition of status. 104.To the contrary, Professor Leung considers that, though a person might become an i-tze, and though that person's potential inheritance rights might be protected, that does not make that person an “adopted” person when the material parts of the Qing Code are concerned with succession of the male line. She says that because the i-tze cannot be a legal successor, he cannot be regarded as having been adopted under the Qing Code. 105.In support of her position, Professor Leung refers to the decision in De Wong Au Edith v. Kho Sin Tek Henry and another (unreported, HCAP 12/2000, 17 March 2004), in which Yam J referred to the fact that the old section 2(2) of the IEO had an anomaly in that rights of children adopted under Chinese customary law were abrogated, necessitating the amendment made in 1995 to “reinstate” those rights. 106.Though there has been some argument between Mr Hung and Ms Ng on this point, I think all that was being said by Yam J was that the 1995 amendment brought persons adopted under Chinese law and custom back into the classes of issue as might inherit on an intestacy under the IEO. Previously such type of adopted children would have been excluded, but that was probably by inadvertent omission and anyway not appropriate because that was discriminatory, so their rights to take as issue were recognized and “reinstated” in that sense. 107.Yam J apparently accepted (at §73) the submission that, because that was the intent behind the current section 2(2) of the IEO, the purpose of the legislative amendment was only to fill such a lacuna and not to over-fill the lacuna, so as to create new rights to children who would not have been formerly recognised as children adopted under Chinese law and custom before 1973, such as those who could only point to relationship loosely called adoption with the deceased. 108.The particular passages relied on by Professor Leung from earlier in the judgment (at §§66 and 68) are actually part of Yam J’s recitation of the views of one of the experts in the case. That expert (Professor Chang Chak Yan) opined that an informal adoption of an i-tze courtesy son is totally different from formal adoption and gives rise to different rights and obligations in Chinese customary law; such a relationship is to strengthen sentimental feelings and there is no true father-son relationship, contrary to the case of formal adoption of an heir; an i-tze is not a member of the adopting family and is not within the same agnatic group, and he is not the legal successor or heir and has no legal right of succession. 109.Later in the judgement (at §70), Yam J also recited the views of the other expert in the case. That expert (Professor Anthony Dicks) opined that there is a broad spectrum of i-tze adoptions ranging from adoption in the fullest possible sense where the child becomes part of the adoptive family and loses all contact with his original family to much looser forms of relationship; the essential validity of the various types of informal adoption rest on the agreement made between the natural parents and the adopted parents; those arrangements should be established by evidence of the intention of the parties, rather than as a matter of customary law; that requires a fact-finding exercise. 110.Ultimately, Yam J decided the case on its facts, including that there was lack of recognition during the lifetime of the alleged adoptive father of any father-son relationship with the alleged adopted son; that the natural parents continued to embrace their natural son as their son, and he remained a member of their family; there was no evidence of the mutual assistance and support to each other as might give rise to some discretionary entitlement to some share in the division of property; the alleged adoptive father and adopted son led separate lives apart from a few social or family occasions; and there was no direct evidence to prove exactly what were the arrangements in relation to the purported adoption. On those facts, Yam J held that the claimant was not an adopted son for the purposes of section 2(2) of the IEO. 111.It is correct that Yam J stated (at §109) that the section requires a formal adoption, and an informal adoption would not be sufficient to enable an informally adopted son (i-tze) to inherit the adoptive parent's estate, and that in any event, the distribution of the estate to an i-tze is discretionary. In so saying, Yam J appears to have been referring to matters of inheritance under Chinese law and custom, without specifically drawing any distinction between any question of inheritance and the question of adoption. However, if he was saying that a person cannot be regarded as having been adopted under Chinese law custom unless there was a certainty of inheritance, I would respectfully disagree. Further, such a finding would have been unnecessary to his decision on the facts. Overall, I do not think Yam J’s judgment in the De Wong Au Edith case provides much support for Professor Leung's opinion. 112.Professor Liu has referred me to the 13 April 1973 decision of the US Board of Immigration Appeals in the case of Rodriguez, where it was held that, for the purpose of a US Visa application, the validity of the adoption of a child under Chinese customary law in Hong Kong in 1967 was not vitiated by the fact that the child was adopted by an unmarried woman. Part of the reasoning of the Board included that there was evidence to show a practice in China, where adoption was not carried out with the motive of instituting an heir to carry on the cult of the ancestors. The Board also made reference to an authority on Chinese law, MH van der Valk, for the proposition that as that type of adoption had no connection with the cult of the ancestors it displayed different features, and both men and women could adopt. 113.I have also been referred to Halsbury's Laws of Hong Kong (2nd Ed) Vol 28 at [180.347], which states: Adoption under the Chinese tradition, custom and Chinese customary law was primarily for the purpose of providing an heir to preserve the name, lineage, and the property of the adoptive parents' family and, furthermore, so that ancestral rites could be carried out. A male person without a son was morally bound by Chinese custom to see that his family name was not extinguished. Other than for the purpose of instituting an heir, adoptions of children were made for charity, and for the purpose of companionship. In such instances, if the child was not an abandoned child, his parents would enter into an agreement with the adoptive parents and give their consent to the adoption and to relinquish their rights to the child while the adoptive parents would take the child into their own family and to bring up and education as their own. 114.For completeness, I would record that Professor Liu also sought to identify possible changes in custom as might come into play in my consideration. In short, she suggested that customs and practices concerning adoption were undergoing changes in Hong Kong as social conditions changed in the 1940s and 1950s. Mr Hung cautioned me against accepting such an argument. He pointed to the case of Kan Fat-tat v. Kan Yin-tat [1987] HKLR 516 at 546F, where DHCJ Robert Tang QC (as he then was) appeared to emphasise the need for a custom to be sufficiently certain and continuous and of sufficient antiquity. In this case, I am not persuaded that there is a sufficiently certain or continuous custom different from that previously in place in Hong Kong, and the fact that it might be said that customs were changing only emphasises that point. In any event, on my findings, a consideration of any change in custom is unnecessary. 115.I take into account Mr Hung’s reference to the case of Liu Ying Lan v. Liu Tung Yiu and another [2003] 3 HKLRD 249, at §18 in which Cheung JA gave a summary of the Chinese law of succession (and also drew the distinction between succession and inheritance); and to the first instance decision of A Cheung J (as he then was) in the same case (unreported, HCA 6693/1992, 8 May 2002) where he stated at §20, in a passage not criticised on appeal, how the Court can approach questions turning on Chinese law and custom: The parties are ad idem that in the application of Chinese custom or customary rights, one must first look at the Code to see if there is any relevant and applicable article or regulation; and if the answer is yes, the same will be applied by the Court, subject to the plaintiff's argument over the Court's discretion not to apply unjust or oppressive Chinese law and custom. However, if there is ambiguity in the meaning or application of the Code, or if the Code is silent on a particular matter, one may turn to custom for assistance. The parties and their experts all agree that no custom can contradict the Code; but when the Code is silent or ambiguous, custom may be resorted to, and one should adopt a flexible approach in the matter. 116.In this case, I am satisfied that there is nothing in the Qing Code, which prohibits the taking of an i-tze. On the contrary, I accept that the Code expressly recognises the status of an i-tze as a member of the adoptive family, and part of the provisions are intended to provide appropriate protection to that status, including as to potential family inheritance, depending upon the quality of the relationship between the i-tze and the adoptive parents. 117.In effect, whilst section 78 of the Qing Code is essentially or primarily concerned with questions of succession, and adoption for that specific purpose, the provisions also presuppose a different form of adoption. It is unsurprising that the different form arises naturally, as a matter of fact – where parental rights and responsibilities are taken on by a person or persons who is not or are not the natural parent or parents – and that the creation of such a relationship and its existence require less formality than would be expected for the formal appointment of a legal successor to a family line. 118.The labels of “formal adoption” and “informal adoption” are perhaps not necessarily the most helpful, and I see force in a more proper and accurate distinction between “ritual adoption” and “simple adoption”. Whatever the label, whether the necessary characteristics of adoption have been made out depends upon the evidence in any individual case. 119.I accept the submission that the question of whether or not a person is adopted in accordance with Chinese law and custom before 1 January 1973 is not to be answered by reference to whether that person could or would have become the legal successor to the family line, or could or would have inherited family property under Chinese law and custom. Rather, it is necessary to decide the status of adoption or not, leaving any question of inheritance to be determined in accordance with Hong Kong law and statute. 120.I am also satisfied that the facts of this case – in stark contrast to the facts of, for example, the De Wong Au Edith case – show that there was an intended adoption by the transfer of parental rights and obligations from WKY's natural parents to WYL. Thereafter, those rights and obligations were actually transferred. WKY became a part of the family of WYL, to the practical exclusion of his natural parents and family (other than perhaps the one or more of his siblings who were also living with WYL). 121.WYL brought up WKY and educated him. They treated each other, and addressed each other, as in a mother-son relationship. That continued after WKY emigrated to Canada. 122.Though Mr Hung is correct to point out that WKY visited WYL in Hong Kong only once in the years from 1975 to 1995, and she visited Canada only once and stayed with WCW as well as with WKY, frequent visiting contact is not a pre-requisite of a continuing relationship. Further, if WKY was adopted in the 1950s, the longer-term quality of the parent-son relationship might not matter to the analysis (as any material right to inherit under Hong Kong law arises from the relationship, not its quality). 123.I have, of course, taken into account the fact that WKY’s argument was significantly based upon the suggestion that the purpose of his adoption was to provide for a successor. As was noted by the Master, if there was already an heir or successor, adoption for that purpose was not necessary. But, on my findings, that does not necessarily mean that there was no adoption at all. 124.Therefore, though it was perhaps unfortunate that so much effort and evidence (and presumably expenditure) was directed at the question of the purpose of the alleged adoption and the position of WCW, I also accept Ms Ng’s submission that those matters are on proper analysis essentially peripheral. 125.Nevertheless, as some time has been spent on the point, I would point out that I think the adoption of WCW was genuine, even if it could not strictly have provided for a male successor (as WCW was originally a Mok), and I reject WKY’s case that the relationship between WYT and WCW broke down after heated or stressful arguments about WCW’s choice of education and career path. 126.Rather, I accept WCW’s evidence that he tried to take the university course desired for him by WYT, but had warned WYT in advance of his own views and that he might not fit that line, so that when WCW in fact changed education tack it was supported by WYT both financially and otherwise. Even if WYT was disappointed by WCW’s choice to follow a different path than the one WYT preferred, that did not mean that the bond between them was broken. On the evidence, I think it was not. 127.I also accept that the lack of a break in the bond with WCW is also apparent from the letters later exchanged between WYL/WYS and WKY, where there is not infrequent reference to WCW; further, WYL stayed with WCW for at least part of her stay in Canada in 1986, when WCW collected her from and took her to the airport at each end of the trip. 128.WKY must have known these facts, and so his advancing a case based on a termination or break of the relationship with WCW was at a minimum unhelpful and probably deliberately misleading, and I have taken this into account in my overall assessment of his evidence. But this is not the first case in which a witness is consciously wrong or misleading on an area of evidence which ultimately does not affect the analysis, even if it affects credit. 129.Ultimately, although WKY pursued a particular basis to explain his adoption, and his experts then based their written opinions in part directed at those facts, it has become very clear as analysed above that the conclusions are not changed by a different reason for, or failure of the stated reason for, the adoption. 130.Further, if it is correct that WKY can properly be regarded as an i-tze (as all experts agreed), and that such a person is not the legally appointed successor for a family, it does not seem to matter that someone other than WKY – probably WCW – performed the key role of “carrying the banner and buying the water”(擔幡買水) at the funerals of Wong family members. I accept that it might have been expected that WKY could have played a more significant role in the funeral of his adoptive mother WYL, but I take into consideration that he was living overseas at the time of the arrangements for her funeral, and the arrangements seem to have been made by WFL (who also was, or was as close as can be to being, an adopted child of WYL). I do not think the fact that he is not named as a son on WYL’s tombstone changes the overall position revealed by the evidence. 131.Nor do I think that the Adoption Issue is to be decided by reference to whether WKY or his siblings treated WYL (and/or WYS) well, or showed bad behaviour to them. The main criticisms of the degree of care and attention showed to WYL by WKY and his siblings centres on the lack of visits by WKY to WYL, and the evidence MHC and MLT gave about the circumstances around the sisters’ move in 1995. Whilst I accept that MLT felt strongly that she was forced to step in to care for WYL and WYS at a time when there were other real demands on her time, not least the serious illness of her husband, and it is fair to say that WKY’s contact with WYL and WYS might not have been as frequent as in some other family relationships (and WYL might well have expressed the wish to see more of WKY), I do not find that WYL was harshly treated by anyone. On one view, MLT’s evidence was against MHC’s case in that she felt that WKY and his siblings should have been caring for WYL and WYS because they had a closer relationship with them. In any event, as I say, I do not think this area of dispute substantially helps in resolving the question at issue. 132.I conclude that WKY is a person adopted within the meaning of section 2(2)(c) of the IEO, and would make a declaration to that effect. 133.But it seems to me that WKY was probably not the only adopted child of WYL. Accepting the evidence of WFY that there was a real difference in WYL’s treatment of WFY and WKH on the one hand and WFL and WKY on the other, the evidence from NYC as to how WFL and WKY came under WYL’s care (including that WFL was taken as a daughter and not allowed to return), the evidence of WGH in his affirmations, and Wong Sum’s evidence that both WFL and WKY were adopted, I think there is at least a very strong likelihood that WFL is also properly to be regarded as a person adopted by WYL within the meaning of the section. 134.In order to show WKY was the adopted son of WYL, Ms Ng in part referred to certain contemporaneous photos, but WFL is in some of them too. One telling photo was of the occasion when WCW left to study overseas in 1958. It was taken at the old Hong Kong airport and showed the family group of WYT, WYL, WYS, WCW, WFL and WKY. As well as identifying an apparently supportive and friendly departure for WCW from WYT and WYL and WYS (which is a strong visual counter to WKY’s case on this – see above), the photo also seems to identify a close immediate family grouping including both WKY and WFL. 135.I take into account the argument of Ms Ng that the distinction between the positions of WFL and WKY is to be found in the adoption ceremony, which marked the seriousness of the adoption of WKY as against the informality of the treatment of WFL. Ms Ng also relies on that ceremony as denoting the importance of WKY as a male, also shown by the ante-natal discussions between WYT and WYL with NYC prior to WKY’s birth. To my mind, the point of the ceremony was apparently as regards the putting in place an heir or successor, which may flow from the fact that WKY was a male, but which does not necessarily mean that any ceremony would have been conducted if it had been recognized that WYL simply could not take WKY as a successor. It is not to be forgotten that Ms Ng herself relied on the fact that NYC recognized that WYL really loved WKY and (with WYT) was better able to provide financial support for his upbringing. Further, if, in the absence of a need for any ceremony, the key is to look at the substance as to whether or not a courtesy child has been taken, I do not think an argument based on the ceremony is a good one. 136.I also take into account that WFL has described herself as a niece of WYL and has not sought to take part in these proceedings to establish any other relationship. However, on the materials I have, I would nevertheless reach the conclusion that WFL is to be regarded as adopted within the section. 137.But, for the reasons which follow, that conclusion may not have any consequence. The Resulting Trust Issue 138.It is WKY’s case that the bulk of the property comprising the estate of WYS – being the real property at PJ Court held registered in the names of WYL and WYS as joint tenants, and the balance in the joint bank account(s) of WYL and WYS – is held on resulting trust for the estate of WYL. 139.It is implicit in that case that WKY asserts that any such joint asset was also held on trust for WYL during her lifetime. The basis of the claim is that the purchase price of the PJ Court property was provided solely by WYL from the proceeds of the sale of her property at 108 BS, and the remainder of the proceeds funded the joint bank account. This is said to give rise to the presumption of a resulting trust (though it seems to me that the correct approach is to treat any presumption simply as an evidential too, which is not necessary if there is actual evidence of intention). 140.Mr Hung relies on the proposition that where a claim is made against the estate of a deceased, who therefore cannot give evidence to counter that of the claimant, Courts should approach such a claim with some suspicion. He finds that proposition in the case of Yung Shu Wu v. Vivienne Sung Wu (2011) 14 HKCFAR 39 at §73. But, ultimately, it seems to me that any correct approach requires a careful consideration of the evidence, including by reference to testing the contemporaneous documentation (such as it is) against the inherent probabilities or likelihoods. 141.Of course, Mr Hung has also placed weight on the fact that no claim was made by WKY as regards the estate of WYL until many years after her death, indeed, until after the death of WYS some 10 years later. WKY has explained this delay by saying that he did not wish to take any action whilst WYS remained alive, and he was perfectly content for WYS to use the funds for her own living and medical expenses (notwithstanding his position that those funds used all strictly to be regarded as having been held on trust for the estate of WYL). 142.At least at first blush, there is some force in point made by Mr Hung by reference to the lengthy inaction on the part of WKY. On the other hand, whilst I expressly reject WKY’s suggestion in evidence that he had a discussion with WYS specifically relating to her use of funds during her lifetime, I do accept that WKY's motivation in these actions is not primarily about the money. 143.I do not see any particular inconsistency in the fact that WKY would have been content for WYS to use whatever funding was available to her, even to have exhausted all of it (including the equity in PJ Court), with the fact that he now asserts the existence of the resulting trust. But, again, that seems to me to refocus the attention on whether the evidence does or does not in fact point to such a resulting trust. 144.WKY’s own evidence on the point was largely unhelpful. Though he asserted a fairly positive case in his witness statements, for example that the bank accounts were only made joint for convenience, it became clear through cross-examination that WKY had no personal knowledge of the financial arrangements of and between WYL and WYS. 145.The documentary material to which Ms Ng drew my attention, in support of her suggested inference that the purchase money for PJ Court and the funds in the joint account, came solely from WYL included:
146.Little can be said against the flow of funds, as set out above, at least from the date when 108 BS was sold in 1995. But that fund flow is not an answer to the question as to whether or not there should be presumed to be a resulting trust, let alone whether or not such presumption has been rebutted. Rather, it is necessary to look at the funding issues at a much earlier time. 147.I have taken into account in my consideration the apparent characters of WYL and WYS respectively. It seems to be fairly common ground between most of the witnesses that WYL was the stronger in character, whereas WYS was the more articulate of the two, with much better written language skills in both Chinese and English. It might also be fair to say that the evidence tended to show WYS was the more worldly of the two sisters. 148.Nevertheless, it seems clear that neither of them were ever formally employed, though they both to some extent assisted WYT in the operation of the Kin Yick Lung business (WYL on the practical customer-facing side, WYS more on the internal administration side). Perhaps as a result of the fact that she was the elder of the two, and perhaps because she was the stronger character, it seems that it was WYL to whom people would go for money. But that does not mean that the money was hers alone. 149.As stated, as WKY was forced to concede in cross-examination, he himself had no real knowledge about the financial affairs of the family, or of WYL and WYS. He was also forced to concede the practical reality, or at least its substantial likelihood, that any funds which either of WYL and WYS had must have originated from WYT. 150.As to the way in which funds or properties were held, it seems to me that the properties were held by various family members in accordance with the direction of WYT, with all relevant funds having which dated from him. On the evidence, there is no real likelihood that either of WYL or WYS could have afforded to pay from their own resources for the properties which were held in their names. 151.So, for example, I find that the property at 2/F and 3/F of 368 CP was not bought with funds owned by WYL. From the uncontroversial evidence, I cannot see how she would have had $100,000 of her own resources in 1963, from which to have purchased that property. Thus, when in 1964 the nomination was made for WYS to accept the assignment of that property (even though WYL was the original named purchaser under the sale and purchase agreement), I think the likelihood was that the nomination was directed by WYT. Ms Ng sought to rely on the fact that the sale and purchase agreement provides that the price is acknowledged as having been received from the purchaser (ie. WYL), but that is simply within the context of the transaction, and it does not seem to me to identify what in fact was the source of the funds. 152.The practical reality of this was apparently recognised by WKY, whose case included an assertion that when the Kin Yick Lung business and financial trouble, a “family” property had to be sold, albeit that the referenced family property was one held in the name of WYS (or an alias of hers). I have also already noted that the 366 CP property sold in 1947 for $15,000 was held in WYS' name, at a time when she was just 27. Though there is no evidence of when that property was first purchased in her name, the uncontroversial evidence as to her lack of employment seems to lead to the inference that it was purchased with funds provided by WYT. 153.Also, the 2/F and 3/F 368 CP property held in WYS’ name was sold in 1989, and the inference to be drawn from the evidence is that the proceeds of that sale were used to maintain WYL and WYS until that ran low and it became necessary to free up equity from the 108 BS property. 154.Similarly, I find that WYL did not have $55,000 of her own funds with which to have purchased 108 BS from her father in 1959. Rather, it seems to me (and I find as a fact) that the way in which this family property was held was changed at the direction of WYT. 155.As a result, 108 BS was not WYL's property in the way which is necessary to provide the whole foundation to the resulting trust argument put forward on behalf of WKY. Indeed, that it was not her property seems to me to provide the clear explanation as to why, in 1995, the replacement property purchased to house the two sisters was at once put into both their names as joint tenants. That this is a departure from sole ownership is obvious, I would also think it likely that that the conveyancing solicitor would have explored and explained the difference between joint tenants and tenants in common. 156.I find the same to be so in relation to the balance of the sales proceeds as were put into the joint account. As Mr Hung submits, had the issue been one of mere convenience, there is little reason why WYS was not simply made an authorized signatory on an account in the name of WYL. 157.In other words, I reject the factual foundation for the assertion of the presumption of resulting trust. 158.(Though it is unnecessary to the analysis, I also think that the relevant presumption in the case of a joint bank account with a survivorship clause may be a presumption of advancement.) 159.In any event, I would also have found that the purchase of PJ Court in the names of WYL and WYS as joint tenants, and the placing of funds in a joint bank account (with the survivorship clause express) would have rebutted any presumption. On the evidence as a whole, even if a prima facie presumption of resulting trust arises, I would find those acts would constitute a gift by WYL to WYS of the property and funds, certainly as to the extent of them remaining at the death of WYL. 160.Indeed, on the evidence as a whole, I would find that both WYL and WYS considered themselves to be, and treated themselves as, true joint beneficial owners of these assets; and that both intended the funds to be used for them jointly and for the survivor to take beneficially the totality of the assets remaining as at the death of the first of them. 161.I reject the evidence that WYL always said that all the assets were hers, or that WKY would inherit her (those) assets. 162.Also, as will be seen from the following section of this Judgment, I consider that the Will does represent the true testamentary wishes of WYS, properly and fully understood by her at the time that she made it. That WYS considered that she was properly in a position to make testamentary disposition of those assets, or such of them as might remain as at the date of her death, is not consistent with a belief or understanding on her part that she held them only on trust. I mention this not because I place any particular reliance on this point (and see my ‘bootstraps’ criticism below of what might be thought to be the ‘flipside’ argument), but because some might think this point can fit into the analysis. 163.I conclude there was no resulting trust. The Will Validity Issue 164.It falls to MHC to prove the Will. On the other hand, it is also correct that it falls to WKY to seek to prove his positive case that the Will was made when WYS was not of sound mind. These may seem to be the opposite sides of the same coin, but I will keep in mind throughout that irrespective of WKY’s position, it remains for MHC to satisfy me that the Will should be upheld. 165.The sound disposing mind and memory must exist at the actual moment of the execution of the will. But that is usually to be presumed, unless contested. If the testamentary capacity is contested, the onus lies on the person propounding the will on the balance of probabilities. However, if the will is rational on the face of it and is shown to be duly executed, in the absence of evidence identifying a lack of capacity, the court will pronounce for it: see, for example, Lau Chi Ying v. Lau Wai Keung (unreported, HCAP 2/2009, 30 December 2011, DHCJ Au-Yeung) at §§126-127. 166.Ms Ng has argued that as MHC was the person who made the arrangements for WYS to make the Will under which he was to be the executor and sole beneficiary, both rules in Barry v. Butlin [1838] II Moore 480 at 483 apply. 167.Under the first rule, since MHC propounds the Will, the onus is on him to satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. Under the second rule, if a party rights or prepares a Will, under which he takes benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and requires the Court to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed. 168.Whilst Mr Hung relied upon the principle taken by him from the Yung Shu Wu case (quoted above), Ms Ng argues that MHC’s evidence as to the preparation and writing of the Will is so suspicious and ambiguous as to demand examination. 169.The particular parts of the evidence relied upon are:
170.I note in passing that the witness statement of WKY seemed to suggest at least the suspicion, if not an actual assertion, that the Will was not made in June 2006, but sometime later in November 2006. That suggestion was also apparent in Ms Ng's opening submission, referring to the Will being “purportedly made on 6 June 2006”. However, this point was not pursued in cross-examination of either MHC or Mr Lam Ka Pui, the solicitor who settled and witnessed the Will. But, for the avoidance of doubt, I should state that I am perfectly satisfied that the Will was in fact made on 6 June 2006. 171.Ms Ng also relied on what she called the irrationality of the purported disposition in the Will which did not reflect WYS’ knowledge that the beneficial interest in the bulk of the property held in her name did not belong to her, and that it was contrary to her awareness of WKY's claim as the adopted son of WYL. However, on any view WKY was not WYS’ adopted son, and the argument further seems to me to be a ‘bootstraps’ or circular argument, and is in any event contrary to my finding on the Resulting Trust Issue. 172.I do not think it surprising, or in any way suspicious, that a person might choose to make a will to make express his or her testamentary wishes, at some point after discovering that he or she is suffering from a severe cancer (particularly if treatment for it has been refused). 173.Nor do I accept that a serious medical physical condition necessarily identifies any diminution in mental faculties or capacity. Indeed, the suggestion otherwise is rather offensive. But in any event, it is WYS’ soundness of mind, not her bodily health, that should be the focus of attention. There is clear evidence in this case from which it can be seen that there was a real distinction between WYS’ deteriorating physical health and her mental health. 174.Whilst WKY, and other witnesses called by him, have used the term “senile dementia” to describe WYS, none of the evidential material really supports any such medical conclusion. (I would also make the point that it was not attractive for WKY to have run a positive case that WYS suffered from senile dementia, when he himself had not seen her at any time in 2006, and not for many years.) 175.I have had the benefit of various hospital records for WYS as were adduced in evidence. As must be correct, WKY accepted in evidence that there was no reason to doubt the accuracy of any of the medical records. He also accepted that there is no reference to “senile dementia” (or anything like it) in the medical notes and records. In fact, for the period throughout 2006 until the month before her death in December of that year, the medical records identify no mental or cognitive problem or incapacity of WYS. 176.Following her fall at home in late January 2006, WYS was admitted to the Hong Kong Baptist Hospital. In the notes of an examination of WYS by a Registered Nurse dated 1 February 2006, it was recorded that WYS’ mental state was “good”, mental ability was “conscious” (as opposed to “confused”), memory was “normal”, emotion was “calm”, and verbal communication was “normal”. 177.In similar notes for the hospital clinic attendance on 26 May 2006, precisely the same observations are recorded. This is notwithstanding that the notes also identify significant physical health issues. Indeed, that seems to have been the occasion when metastasis of the colon cancer was confirmed, it also being noted that no treatment was being prescribed “for [reasons of] old age”. 178.By way of contrast, similar notes dated 28 November 2006 record WYS' mental state as “tired”, and her verbal communication as “inarticulate” (albeit that she remained conscious and calm). This was just 5 days before WYS passed away on 3 December 2006. 179.The Will was professionally drawn by a solicitor, so I am not sure that the second limb of Barry v. Butlin comes into play, but I can consider the evidence about the circumstances of the making of the Will. 180.It was between the February and May hospital visits that WYS began preparations for the making of the Will. The particular solicitors’ firm used was chosen by MHC. It was suggested to him in cross-examination that the choice of the firm was suspicious, because a different firm had been used by WYL and WYS for their conveyancing matters. However, MHC explained that he contacted that firm but was told that they concentrated on conveyancing work and did not offer drafting of wills. Therefore, he contacted the firm of a solicitor who acted for the owners association at his building. I accept that evidence, and in any event, there is no reason to think that the firm of KP Lam & Co, or its principal Mr Lam, acted in any way other than professionally. (The strong professional criticism of Mr Lam made by WKY in his witness statement was in effect withdrawn in his oral evidence.) 181.WYS was first seen by a member of staff from the solicitors’ firm on 15 May 2006, at home. The relevant staff member, Ms Chan Lee Fong interviewed WYS and obtained instructions from her, which are recorded in a letter of appointment and a will checklist. WYS gave instructions for the Will to be drafted in Chinese, and for MHC (identified correctly as her nephew) to be appointed executor and beneficiary. 182.Ms Chan also requested that WYS should obtain a doctor’s certificate about her mental well-being. This request was made, not because of any apparent concern as to WYS' mental condition, but rather because of her old age. In his evidence, Mr Lam clarified that it was his firm's practice to ask for such a certificate for any person making a will, if they were over 70 (or in hospital). 183.WKY suggested that it was deeply suspicious that no such certificate was sought by WYS whilst she was at the hospital in late May 2006, but rather obtained a certificate from Dr Kan on 6 June 2006. There is nothing at all in this suggestion. It is obvious, and it was the express request of Mr Lam's firm, that any medical certificate as to mental capacity should be obtained on the day intended for the making of the Will. No one has ever suggested that the Will was going to be made on a date other than 6 June 2006. 184.On that date, WYS was accompanied by MHC on her visit to Dr Kan. I do not think there was anything suspicious about the fact that she was accompanied by MHC, as he had been taking her to various hospital and doctor appointments. Dr Kan was asked to provide a certificate, which he did in the following terms: “Ms Wong attended my clinic on 6/6/06. She showed coherent speech. She is mentally fit to make decisions”. 185.When he gave oral evidence, Dr Kan accepted that he had not been asked to make the certificate for the purposes of WYS’ making a will. It was not clear from the evidence who Ms Chan had asked to obtain a medical certificate, namely whether it was WYS or MHC, but even assuming it was the latter, I do not find it odd that the particular reason might not have been made clear to the doctor; a layman might not appreciate the point that there is any potential difference in mental capacities depending on the task in question. Nor, unless clearly instructed otherwise (and there is no evidence that it was suggested to MHC or WYS that she should see a doctor of any particular specialism), would a layman likely think that any particular doctor would be necessary to certify competence. 186.In any event, it seems that Dr Kan thought he was being asked to certify that WYS was mentally competent to have decided how she should be treated for her physical conditions, and in particular as regards her refusal to undergo operative intervention for her fractured right hip in February 2006. Plainly, Dr Kan considered WYS to be fit to make significant medical decisions, and said so in terms in his evidence. 187.When I asked him whether he would have done anything different, had he realised he was being asked to provide a certificate for testamentary capacity purposes, Dr Kan answered that he may have made it clearer that he did not think it was within his ability to certify someone fit to execute a will. This is because he is really an orthopaedic surgeon. But, in re-examination, Dr Kan confirmed that when he studied medicine, he was nevertheless taught how to examine a patient's mental condition. 188.I do not think that the assessment of a person's mental capacity to make competent decisions as regards their own medical care and treatment is likely to be fundamentally different from the assessment of that person's mental capacity to make competent decisions as regards their own testamentary wishes. The important point is that it is sufficient if the testator has such a mind and memory as will enable him or her to understand the elements of which the will is composed and the disposition of property in its simplest forms: see, for example, Banks v. Goodfellow (1870) LR 5 QB 549. 189.After obtaining the medical certificate from Dr Kan, WYS returned to her home (with MHC), where she was attended by Mr Lam and Ms Chan. She produced the doctor’s certificate to them, and they repeated the terms of the Will to her and confirmed with her that it accorded with her prior instructions and her wishes. 190.I accept the evidence of Mr Lam that this is what occurred, and that after reading and confirming the content of the Will, it was signed by WYS and witnessed by Ms Chan and Mr Lam. All three also signed at the bottom of each page, as well as on the execution page. Clearly, no suspicion was raised in the mind of Mr Lam (who would have been conscious of his role to be alert to testamentary capacity) as to WYS' capacity to understand and make a proper testamentary provision by the Will. 191.In case it should matter, I also accept the evidence that whilst MHC was physically present in the apartment at the time that the Will was executed, he was not in the same room. In any event, no allegation of duress or anything of that nature has been raised. On the other hand, it seems a nurse or carer was present, and I note that (despite the fact that the identity of that person can be established from a record kept by MHC, who organized the carers for WYS), no party has sought to adduce any evidence from her as to what transpired during the relevant interview, or WYS' state of mind on that day, or any surrounding period of time in 2006. 192.I have specifically taken into account the evidence of Wong Sum, the long-term family friend of WYS. He said that – together with WFY, who confirmed his evidence in her own – he visited WYS in early February 2006 after her fall at home. On that occasion, WYS did not at first recognize him until prompted by WFY. However, through cross-examination, it became clear that WYS did then recognize him, had a discussion with him, and insisted on giving him a lai see packet because he was such an old family friend and needed it. 193.Though WFY confirmed Wong Sum’s witness statement, she also confirmed the matters elicited through cross-examination of him. Other than that, she was not able to refer to any string of occasions when she doubted WYS' mental capacity or competence (notwithstanding that it was WFY’s own evidence that she was a frequent visitor to WYS, albeit less after February 2006 because a carer had thereafter been employed, by MHC). 194.I do not find this evidence at all persuasive that WYS had a diminished mental capacity in or after February 2006. Indeed, had that been the case, I would also have expected some evidence as to a change in WYS’ conversation topics, but there was none. From the evidence in her letters to WKY, and from other evidence such as from Johnber Mok (a great nephew of WYS, who described her as always being of clear mind and “amazing” in the way that she would discuss current affairs), WYS was clearly very intelligent and interested in what was going on. I do not see from the evidence any real suggestion that that changed at any material time. I do not think the transient failure to recognize someone, almost immediately rectified, points convincingly to any relevant diminished mental capacity. 195.I am satisfied on the balance of probabilities that WYS was of sound mind when she made the Will. 196.The case for WKY is otherwise really based on a series of circumstances which raised his suspicions. I accept that MHC has done little to allay suspicion, and even in his oral evidence he exhibited something of a determination to be only as helpful as he felt he must. For example, he appeared reticent to reveal what might be in a packet of papers that he had found in WYS’ apartment. On occasions, his reticence appeared to amount to being evasive. That, of course, was not an approach particularly helpful to himself. 197.WKY’s suspicions appear first to have been raised by what happened at or immediately after WYS’ funeral. On that occasion, MHC handed to both WKY and WCW a document dated 26 December 2006 by which he notified them of the address for any enquiry to be made as regards the will of WYS. The address was the address of the solicitors firm of Mr Lam. 198.It was MHC’s evidence that he was told by WYS before her death that he should give such a notice. Insofar as MHC appeared to suggest in evidence that the actual piece of paper with the notice was given to him by WYS for him to pass on, that cannot be correct by reference to its date. But I am not sure that was the real thrust of his evidence; rather, he was talking about giving some notice. 199.When I asked MHC why he thought WYS had asked him to give the notice specifically to WKY and to WCW, MHC told me that, first, WCW was the successor for the Wong's family and, second, WKY had been “adopted” (his word) by WYL at an earlier stage, though, that did not mean that it was done legally and was rather so that WYL would give him an education. But as (or even though) that had happened so long ago, WKY should also be given the note so that he could have a clear “account” of the fact that WYS had given the Will to MHC. He said that this is what was told him by WYS and amounted to her instructions. 200.I did not find this evidence easy to reconcile with other evidence given by MHC, in which he stated that he had not known the contents of the Will until after the death of WYS. But it seems likely that, on the basis that the Will made MHC both executor and sole beneficiary, WYS could have anticipated that either or both of WCW and WKY might potentially be disappointed or even upset. 201.WCW was not interested in pursuing the matter and took no steps in relation to seeing the Will. It is correct that he had at one time, filed a caveat (HCCA 706/2007) in HCAP 8/2010, prompted by his wishing to obtain some things from PJ Court, which he thought were his own, but that caveat was subsequently withdrawn. 202.I accept that the terms of the notice would understandably have left WKY with the impression that if he went to the solicitors firm identified, he would be given sight of the Will. Unfortunately, when he went to the offices, the solicitor refused to allow him to see the Will, apparently on the basis of some doubt as to WKY's proper standing to see it. MHC denied he had given instructions to the solicitors to prevent WKY having sight of the Will, though that may not matter. 203.The problem was compounded when WKY went to PJ Court to try to find any documents that there might have been kept there which would shed light on his adoption by WYL. WKY gave evidence that notwithstanding that he could hear MHC and MLT inside the apartment, they refused either to speak to him or to allow him entry. 204.WKY expressed in oral evidence that had he been given sight of the Will, and had he been permitted entry to PJ Court and some assistance in trying to locate documents relevant to him and his position, he would likely thereafter have gone back to Canada. But in the circumstances as actually occurred, so great were the suspicions raised in his mind that these proceedings in which he has challenged the validity of the Will almost inevitably ensued. 205.I can well understand a degree of frustration, and even suspicion, on the part of WKY. As I have already indicated, MHC has not acted in any conciliatory way in order to seek to meet WKY’s concerns. This is so, even when on his own evidence he was told by WYS that he should involve WKY in the giving of an “account” in relation to the Will. However, whilst these various matters cause me to look critically at the facts overall, these specific points are not themselves determinative of the Validity of the Will Issue. 206.The Will was simple, and readily understandable by a lady of WYS’ intelligence and education. I accept that an enquiry should look below the surface of the document, and consider if the testator had a real understanding of what might be the subject of the document, and perhaps who might have been candidates as beneficiaries. It was ‘universal’ and so dealt with all property. There is nothing inherently unlikely – and certainly nothing “irrational” as was suggested for WKY – in WYS’ decision, as an unmarried and childless woman the last of her generation and with many potential successors long settled overseas and rarely seen, to appoint a Hong Kong resident nephew (one who has been involved and concerned in looking after her when she most needed it) as her sole executor and beneficiary. 207.At the end of the day, the question as to the validity of the Will is whether the Court’s conscience has been satisfied that the Will genuinely reflects the true testamentary wishes of WYS, and that she clearly understood the content and meaning of the Will. 208.On my assessment of the evidence as a whole, I am so satisfied to the requisite standard. Conclusion and Orders 209.As I have found for WKY on the Adoption Issue, I confirm his status as an adopted son of WYL and hence his right to inherit on an intestacy. So I accept WKY is entitled to a grant of Letters of Administration, and so order. 210.I refuse to declare, as I have rejected the proposition, that the estate of WYS holds the property on trust for the estate of WYL. 211.I accept that the Will should be admitted to probate, with MHC as the executor as provided for in the Will. 212.All other claims or counterclaims not expressly or impliedly dealt so with shall stand dismissed. Costs 213.I propose to make a costs order, which will be nisi in the first instance and only become absolute should no party apply for a variation of it within 14 days of handing down this decision. If any variation application is made, I shall give directions as to the filing of written submissions, and I shall deal with the application on paper. 214.Though against my other findings it is something of a pyrrhic victory, WKY has succeeded on his case as to the Adoption Issue in HCAP 10/2012 and that he should be granted letters of administration as an adopted child of WYL within the meaning of the IEO. (I note that his case that he is the only adopted child of WYL has failed as I have found WFL also to be so adopted, but I do not think that aspect has added to the costs of any party.) WKY is therefore at first blush entitled to his costs of that action, which was vigorously defended. But I must take into account that a considerable amount of evidence has been canvassed when it was ultimately held to be – indeed argued for WKY as being – largely irrelevant to the Adoption Issue. It is also fair to say that I have by no means decided all sub-issues arising in HCAP 10/2012 in favour of WKY. 215.On the other hand, MHC has succeeded on the Resulting Trust and Validity of the Will Issues as arose in HCAP 8/2010, so it would seem he is entitled to the costs of that action. But I also take into account that MHC has adopted an approach which has not helped himself on certain matters arising in that action. 216.But both actions were in effect progressed and heard together, and there was considerable overlap in the counter allegations made and the evidence as was called in the two actions (though this plainly did not apply to the expert opinion evidence which went to the Adoption Issue in HCAP 10/2012). 217.Hence, where no party has been wholly successful overall, where neither of the protagonists have come out of the case with a resounding judicial support for their stance, and where it might be thought that the honours have been broadly shared, I consider the appropriate order is that there should be no order as to costs on either action. 218.MHC’s costs will fall to be taxed in accordance with the legal aid regulations. Final Points 219.I hope I will be forgiven for expressing the hope that the parties, and their witnesses, can move toward a less combative and more conciliatory relationship. At various times, and to naturally varying extents across those times, almost all the witness participants in this trial (apart from the experts) played a significant part and were an important element in the lives of one if not both of WYL and WYS. WYL and WYS themselves were plainly very close and looked after each other through their shared lives until a “ripe old age” (a phrase I gratefully adopt from Ms Ng as an alternative to “dotage”). It would be good to think that the parties can come together to honour their shared memories. 220.Finally, I thank Counsel for their assistance in the presentation of the evidence and arguments in this case, in particular in their relatively succinct written submissions.
Mr Andy Hung, instructed by Ho & Ip, assigned by the Director of Legal Aid, for the plaintiff in HCAP 8/2010 and the defendant in HCAP 10/2012 Ms Margaret Ng, instructed by Charles Wong & Co, for the defendant in HCAP 8/2010 and the plaintiff in HCAP 10/2012 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCAP 8/2010