Lee Wai Ho v. Fung Kui Chuen

HCAP 21/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 21 OF 2011

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Before: Hon Mimmie Chan J in Court

Dates of Hearing: 7-10 & 13-14 January 2014 and 28 February 2014

Date of Judgment: 19 August 2014

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J U D G M E N T

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Background

1.Li Yuk Sim (“Yuk Sim”) was the eldest of 4 sisters.  The plaintiff Lee Wai Ho (“Wai Ho”) was the youngest.  When war broke out on the Mainland in the 1940s, Yuk Sim was 18 years old.  At her parents’ bidding, Yuk Sim brought Wai Ho to Hong Kong to seek shelter from a distant relative (“Li”).  Yuk Sim and Wai Ho lived with Li and his family on Johnston Road in Wanchai, until Wai Ho got married in 1957.  At some later stage, the second sister also joined them in Hong Kong.

2.In 1947, Yuk Sim encountered Mr Young Chung Chee (“Young”), on Li’s introduction.  She soon moved out of Johnston Road and commenced co-habitation with Young, in a flat on Hennessy Road in Wanchai. According to Wai Ho, Yuk Sim and Young lived and were regarded by the family and their friends as a loving couple, although they were never married.  Young supported Yuk Sim and had even paid for Wai Ho’s schooling. 

3.In 1960, Young financed the purchase of Flat A on the 3^rd floor of King Sing Mansion, 187 Wan Chai Road (“Property”) which was registered in Yuk Sim’s name.  In about 1961, Young also enabled Yuk Sim’s mother (“Madam Shum”) to come to Hong Kong from the Mainland, to live with Yuk Sim and Young at the Property (until Madam Shum’s death in about 1968).  Although Young moved out of the Property some time around 1968, after the emergence in Hong Kong of a woman who claimed to be Young’s wife from the Mainland, Yuk Sim lived at the Property until her death in January 2011.  Young continued to support and kept in contact with Yuk Sim until he died in about 1990.

4.It appears that the defendant, Fung Kui Chuen (“Fung”) moved into the Property some time in 1966.  He was a tenant of one of the rooms in the Property, and resided at the Property with his grandmother.  The grandmother did not appear to get on well with Yuk Sim, and she moved out of the Property in the 1970’s. 

5.It is not disputed that Yuk Sim’s health had deteriorated, to the extent that by 2009/2010, she was wheelchair bound and bedridden.  She died of pneumonia in January 2011.  Fung claims that Yuk Sim had made a will dated 10 September 2005 (“Will”), by which all of her assets including the Property (which formed the bulk of her estate) were bequeathed to Fung, who was named as the sole executor , trustee and beneficiary of Yuk Sim’s estate. 

6.By these proceedings, Wai Ho seeks a declaration that the Will was invalid, that Yuk Sim had died intestate, and that Wai Ho as Yuk Sim’s sole surviving sister at the time of her death is entitled to the grant of letters of administration of Yuk Sim’s estate.  Wai Ho claims that Yuk Sim lacked the requisite testamentary capacity at the time of the purported execution of the Will, as she had suffered from Alzheimer’s disease since 2000, and alternatively that Yuk Sim had signed the Will under Fung’s undue influence.

7.Fung denies that the Will is invalid, or that Yuk Sim suffered from Alzheimer’s or any form of dementia in 2005 when she signed the Will, or that the Will was signed under his undue influence.  By way of counterclaim, Fung seeks probate of the Will in solemn form.

Issues

8.The parties are in agreement that the issues for determination at trial are:

(1) Did Yuk Sim have the requisite testamentary capacity when she executed the Will?

(2) Did Yuk Sim know and approve the contents of the Will?

(3) Was Yuk Sim under Fung’s undue influence when she executed the Will?

(4) Did the Will embody the testamentary intentions of Yuk Sim?

9.Clearly, the mental capacity of Yuk Sim has been the key issue at the heart of the dispute in this case.  The only medical evidence on Yuk Sim’s condition prior to her death were the notes made by one Dr Sze, when Yuk Sim sought medical treatment at the Ruttonjee & Tang Shiu Kin Hospitals (“Hospital”) in December 2004 and May 2005 for hypertension and “bone pain”.  Reliance was sought to be placed on the record which Dr Sze made, on 19 May 2005, of the fact that: sometimes Yuk Sim was unable to get up to go to the washroom and “had overflow incontinence”. 

10.When those acting for Wai Ho applied to the court in September 2012 for leave to adduce medical expert evidence on Yuk Sim’s mental capacity, the order they obtained from the Registrar on 17 December 2012 was for leave to Wai Ho to call a medical expert “to give evidence on the medical findings of Dr Sze as shown on her consultation notes on 19 May 2005”, and for Fung to call Dr Sze to give evidence at the trial.  An expert report of Dr Wong was produced by Wai Ho pursuant to the Order of 17 December 2012.  On 5 March 2013, Fung applied for Dr Wong’s report to be struck out. 

11.When the striking out application was heard on 6 June 2013, I raised with the parties the inappropriateness of the order of 17 December 2012.  On the face of the notes made by Dr Sze, she was consulted by Yuk Sim on 19 May 2005 when problems of hypertension and lumbar spondylosis presented.  Based on the current state and system of medical care provided to patients in public hospitals in Hong Kong, it appeared to me that it was highly unlikely that Dr Sze would be able, at trial, to recall the patient she had seen at the Hospital clinic in 2005 other than what was recorded in her consultation summary, or to give evidence which would be of assistance to the court in its determination of the issue in dispute, which is Yuk Sim’s mental condition at the time of her consulting Dr Sze in May 2005.  Nor would it be appropriate, of assistance, or even relevant to the issues in dispute in this case, to have the parties adduce expert evidence “on Dr Sze’s findings” as recorded in her notes. 

12.Hence, bearing in mind the issues in dispute and the circumstances of the case, the order I made on 26 November 2013 (“Order”) was to give leave to the parties to adduce expert evidence on the disputed issue of Yuk Sim’s mental capacity, and in particular, whether she could have suffered from Alzheimer’s or other types of dementia when she signed the Will, and if yes, whether Yuk Sim was of sound mind and understanding to appreciate and approve the disposition under the Will.  I also gave directions (“Directions”) that the expert reports were to be made on the assumptions that (1) the facts stated in the identified paragraphs of the witness statements of Wai Ho and Raymond (in which their observations on Yuk Sim’s condition and on how she had conducted herself were set out) are true, and that (2) Dr Sze’s notes of 19 May 2005 and 2 December 2004 (being the only available medical documents on Yuk Sim) are not disputed.  Pursuant to these Directions made under the Order, Wai Ho produced the expert report of Dr John Wong Yee Him, and Fung produced the expert report of Dr Jimmy Yuet Sun Dong, both dated 13 December 2013.

Applicable legal principles

13.The applicable legal principles are not disputed in this case, and have been summarized by Counsel for Yuk Sim.

14.Under section 5 of the Wills Ordinance:

“(1) Subject to section 6 … no will shall be valid unless:-

(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction;

(b) it appears that the testator intended by his signature to give effect to the will;

(c) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time; and

(d) each witness either: (i) attests and signs the will; or (ii) acknowledges his signatures, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.

(2) A document purporting to embody the testamentary intentions of a deceased person shall, notwithstanding that it has not been executed in accordance with the requirements under subsection (1), be deemed to be duly executed if, upon application, the court is satisfied that there can be no reasonable doubt that the document embodies the testamentary intentions of the deceased person.”

15.It is not disputed that the person propounding the will has the legal or persuasive burden to satisfy the court that the propounded will is that of the testator.  The standard of proof is the balance of probabilities.  As held in Chiu Man Fu & Ors v Chiu Chung Kwan Ying HCAP 9/2005 at para 48; Li Chi Loy v Li Lai Lan [2008] 5 HKLRD 74, at para 26; and Barry v Butlin (1838) 2 Moo PC 480, at 1090, this means that the proponent of the will has to show, on a preponderance of the evidence, that there are:

(a) due execution;

(b) testamentary capacity; and

(c) the testator’s knowledge and approval of the contents of the will.

16.In normal circumstances, proof of (a) and (b) above generally means that (c) would be rebuttably presumed without the need to adduce affirmative evidence thereof (Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387, 448; Li Chi Loy v Li Lai Lan (supra), para 63).

17.On the other hand, if a party challenges the validity of a will on the ground that there is want of due execution, testamentary capacity, or the requisite knowledge and approval, that party bears the evidential burden of putting them in issue.  If the evidence adduced by that party is of sufficient cogency to raise such issue, the court, in assessing the evidence as a whole at the end of the case, decides whether the proponent of the will has discharged the persuasive burden in relation to the relevant fact in issue, on a balance of probabilities. 

18.If, however, a person seeks to challenge a will on the ground that the testator was induced to make the will by fraud or by undue influence, such person bears the persuasive burden of establishing the fraud or undue influence alleged.  The proponent of the will in such case has no burden of disproving fraud or undue influence.  Again, at the end of the day, the court decides whether, having regard to all the evidence adduced, the person opposing the grant has satisfied the court that it is more likely than not that the testator was induced to make the will by fraud or undue influence.

Did Yuk Sim have the requisite testamentary capacity when she executed the Will?

19.On the question of testamentary capacity, the test can be found in the classic statement of Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565, and was applied in Chiu Man Fu & Ors v Chiu Chung Kwan Ying (supra).  For the Court to be satisfied that a testator was of sufficient testamentary capacity, the testator:

(1) shall understand the nature of his act and its effects;

(2) shall understand the extent of the property of which he is disposing;

(3) shall be able to comprehend and appreciate the claims to which he ought to give effect; and

(4) with a view to the latter object, that no order of the mind shall poison his affections, pervert his sense of right, or prevent the existence of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if his mind had been sound, would not have been made.

20.In applying the test of Banks v Goodfellow, the Court should also bear in mind the following propositions:

(1) The question is whether the testator was of sound mind, memory and understanding when he made the will.  The testator’s mind must be sound to be capable of forming the testamentary intentions embodied in the will.  His memory must be sound to recall the several persons who ought to be considered as his possible beneficiaries.  His understanding must be sound so that he may comprehend their various ties with him by blood or friendship and their claims on these or other grounds upon his testamentary bounty (Chiu Man Fu & Ors v Chiu Chung Kwan Ying (supra), para 65; Re LLC [2010] 3 HKLRD 16).

(2) The court is concerned with the testator’s capacity to form the testamentary intentions embodied in the will, to recall the possible beneficiaries and to understand and comprehend their ties with him and the claims on his bounty.  The Court does not require proof of actual understanding, recollection or comprehension (Chiu Man Fu & Ors v Chiu Chung Kwan Ying (supra), para 66; Hoff v Atherton [2005] WTLR 99).

(3) The Court will look at the evidence to see what inferences can be properly drawn as to capacity.  This is not an easy task.  However daunting it may be, the Court will always exercise its judicial acumen to examine all the circumstances to ascertain if the testator possessed the requisite testamentary capacity.  The Court will give due regard to all the available evidence, factual and expert, and assess them in the overall context of the case (Chiu Man Fu & Ors v Chiu Chung Kwan Ying (supra), paras 70 & 218).

21.In assessing testamentary capacity, the Court will consider the rationality, but not morality, of a testator’s disposition under the will as a relevant factor.  However, as recognized in Chiu Man Fu & Ors v Chiu Chung Kwan Ying (supra), paras 71-76 and 218, the law entrusts people with complete freedom in general to leave their property as they choose.  Whilst leaving testamentary disposition to the testator’s unfettered discretion, the law requires that he should have the requisite capacity in so doing.  The law therefore does not require a testator to act fairly when he makes a will since it is not the function of the Court to examine the morality of a testator’s testamentary wishes.  The law is not concerned with an objective assessment of whether the testamentary disposition is fair or reasonable, only whether the testator had the testamentary capacity to make the disposition in question.  The rationality of the disposition is relevant when the contested will represents a dramatic change of a previous testamentary disposition.  In an extreme case, the irrationality of the testator’s testamentary disposition may well drive the Court to find and unsound mind.  However, irrationality is only one of the relevant factors that the Court takes into account when considering testamentary capacity.  Rationality must be evaluated together with all the available evidence, factual and medical. (Chiu Man Fu & Ors v Chiu Chung Kwan Ying (supra), paras 71-76, 218)

22.As Poon J highlighted in his judgment in Re LLC (supra), paras 85-86, non-medical factual evidence on how a testator conducted himself and interacted with others may provide important clues as to his cognitive and emotional ability, which are cogently relevant to his mental capacity.  Occasionally, the factual evidence may conflict with the medical view and in such circumstances, the Court will evaluate and weigh the factual evidence against the medical evidence, and vice versa, in determining the mental state of the testator.

The factual evidence

23.According to the evidence of Wai Ho, Yuk Sim had cared for her and her family, and was particularly close to her firstborn, Raymond.  When Wai Ho was pregnant with Raymond in 1960, Yuk Sim and Young had invited Wai Ho and her husband to live with them in the Property.  According to Wai Ho, Yuk Sim was fond of children and had taken loving care of Raymond since his birth.  She also regarded Raymond as her lucky baby, as he was born in the same year as Young and Yuk Sim had purchased the Property.

24.According to Raymond, he was raised by his parents with great help from Yuk Sim, who had treated him as her own child.  As Raymond’s younger brother was born a year after Raymond’s birth, it was his aunt Yuk Sim who had looked after him, whilst his mother looked after the younger brother.  Although Wai Ho’s family moved out of the Property in around 1964, Raymond kept close contact with Yuk Sim until he left Hong Kong in 1980 to pursue his studies in Australia.  During the period from 1980 to 1987, Raymond returned to Hong Kong only twice, but on each occasion, he visited Yuk Sim once a week and they had dinner together.

25.After his graduation in 1987, Raymond worked as an intern in Australian hospitals for 2 years.  Thereafter, he worked as a doctor in family medicine in Australia, until now.  Between 1990 and 1996, Raymond visited Hong Kong once or twice each year, and from 1997 to 2003, he visited Hong Kong 2 to 3 times a year.  On each occasion, he stayed in Hong Kong for about a month, during which period he visited Yuk Sim every week.  Since 2004, Raymond had returned to Hong Kong 4 to 6 times a year.  He stayed in Hong Kong from 2 weeks to 4 weeks for each visit, and again, he visited Yuk Sim on each occasion of his return visit, until Yuk Sim’s death in 2011.

26.According to Wai Ho, Fung was a mere tenant of Yuk Sim at the Property.  In her witness statement, she claimed that Yuk Sim disliked Fung, and had wanted him and his grandmother to move out of the Property.  She claimed that Fung had bullied Madam Shum, that Yuk Sim disliked the companions that Fung had brought to the Property, and that in the 1980s, Fung had even asked Yuk Sim to move away and to let him use the Property for his own business, which Yuk Sim refused to do.  She claimed that Yuk Sim had always been guarded against Fung’s intentions to steal the Property from her, and that she had not trusted him. 

27.In Court, Wai Ho conceded that, as evidenced by the family photographs taken in the 1980’s and produced in evidence, Fung had often accompanied Yuk Sim on family trips, functions and dinners.  She claimed that this was only for Yuk Sim’s convenience, so that Fung could take her home after the functions, and that as time went by, the relationship between Yuk Sim and Fung became one of mutual benefit.  Fung could cook and clean for, and take care of Yuk Sim in her advanced age and as her health declined, and in return, Fung could live in one of the rooms of the Property without paying any rent.  On Wai Ho’s evidence, Fung had often borrowed money from Yuk Sim, her second sister and from herself.  Wai Ho claims that Yuk Sim had told her that from what she (Yuk Sim) knew of Fung’s character, she (Yuk Sim) was still guarded against Fung on important matters, and that as Yuk Sim considered that she had already done enough for Fung, she would not “leave him any benefit”.

28.In their witness statements, Wai Ho and Raymond gave evidence on what they had observed of Yuk Sim’s physical condition, and of her conduct on various occasions.

The MTR incident

29.According to the evidence of Wai Ho and Raymond, some time in 1999 to 2000, they took Yuk Sim to Tsing Yi on the new Tung Chung MTR line, which line commenced operation in late 1998.  On their return trip, Wai Ho, Raymond and Raymond’s family disembarked at Lai King Station, and left Yuk Sim to go home on her own.  She was to continue the journey on the MTR line to Central Station, where she could take the island line to Wanchai Station.  When Wai Ho and Raymond got home at Mei Foo, they received a telephone call from Fung, who said that Yuk Sim had not returned home.  According to Raymond, he was later informed by Fung that Yuk Sim was lost at the MTR, that she had failed to disembark at Central Station, and had taken the same train all the way back to Tung Chung.  Raymond was also told that Fung had found Yuk Sim in the train on the Tung Chung line, and had brought her home.

30.According to Wai Ho, she had asked Yuk Sim about the incident after the event, and Yuk Sim had told her that at the time, her mind was “a blank”, she could not remember what she had to do, and so she remained, dull or stupefied, at her seat.  Wai Ho claims that Yuk Sim also told her that her memory had faded, that she frequently felt at a loss, and that she could not recall many things which had happened, or people whom she knew.

31.On Wai Ho’s evidence, she had noticed from her encounters and contact with Yuk Sim that her sister’s memory had deteriorated since the MTR incident, but she had taken this simply as a sign of natural deterioration from old age.

The restaurant incident

32.Wai Ho and Raymond also testified to the fact that in February 2003 (as evidenced by a restaurant receipt produced by Raymond in evidence), Yuk Sim had lunch with Wai Ho, Raymond and his son at a restaurant in Causeway Bay.  On that occasion, Yuk Sim ordered several dishes, but when they arrived, Yuk Sim refused to eat the food, claiming that she had not ordered them.  According to Wai Ho, it was an occasion when Yuk Sim had rarely taken the initiative to order dishes from the menu, and her gesture had been much welcomed by the family at the table.  However, when the dishes Yuk Sim ordered arrived, she was displeased and reprimanded Raymond for ordering food which she did not like.  When Raymond pointed out that the dishes had been ordered by herself, Yuk Sim became angry, said that she had never ordered any dishes, and that Raymond was lying.

Other signs of abnormal behavior

33.Wai Ho, Raymond and Fung agree that Yuk Sim was mild and gentle in nature.  Fung claims that Yuk Sim was cheerful and amiable. However, Wai Ho’s evidence is that after the restaurant incident in 2003, she observed during her visits that not only had Yuk Sim become dull in appearance, she became confused in her speech, was often violent, lost her temper and even hit people.  She also spat and spoke in foul language, which was totally out of character for Yuk Sim.  In her testimony, Wai Ho said that her second sister (who died in 2009, but had taken care of Yuk Sim when her health deteriorated) had also noticed Yuk Sim’s abnormal behavior, and had remarked that Yuk Sim had acted as if she had gone mad, and that her illness was terrifying.

The MMSE tests

34.According to Wai Ho, by 2004, Yuk Sim had become totally disorientated and could no longer find her way.  From then, she could no longer go out on her own.  Wai Ho recalled that it was around this time that Raymond performed tests on Yuk Sim to access her recall ability.  She could not remember details of these tests, and only recalled Raymond telling her after the event that Yuk Sim had been suffering from Alzheimer’s disease for several years.

35.According to Raymond, he started to conduct memory tests on Yuk Sim during his stays in Hong Kong from 2004, as he suspected that there was something wrong with Yuk Sim’s memory.  He conducted the “Mini- Mental State Examination” (“MMSE”) on Yuk Sim in 2004, which is recognized as a test designed to assess the degree of cognitive impairment of a subject by asking questions from a standard MMSE questionnaire, and is widely regarded as the standard test for first line screening of dementia.  Raymond was quick to clarify that he had not retained a copy of the score sheet of the MMSE test he conducted on Yuk Sim in 2004, nor could he recall the exact scores Yuk Sim obtained for the answers she gave on that occasion.  He could only remember that Yuk Sim’s score in 2004 was in the range of 15 to 25, and that he had concluded that her cognitive impairment was in the mild to moderate range.

36.Raymond did produce a copy of the score sheet which he had marked in respect of the MMSE test which he conducted on Yuk Sim on the occasion of his return to Hong Kong in September 2005.  His travel records for his visit to Hong Kong from 7 to 22 September 2005 were also produced in evidence.  On this occasion in September 2005, Raymond was able to obtain, for the first time, and used a Chinese questionnaire for the MMSE test, and out of the 7 questions asked, Yuk Sim was only able to answer 4.  She scored 11 for these questions asked, and assuming that Yuk Sim would have correctly answered the remaining 4 questions not asked, Raymond gave Yuk Sim a score of 17 out of 30, which indicated that she was under moderate cognitive impairment.

37.Raymond explained in his testimony that he retained this copy of the MMSE test and Yuk Sim’s score in September 2005, because it was a Chinese questionnaire which had just become available from the Chinese University in Hong Kong, and he took it with him when he returned to Australia after his visit, so that he could use the Chinese questionnaire for his own patients in Australia.

38.Raymond’s evidence is that when he performed the MMSE test on Yuk Sim in September 2005, she had difficulties in recalling recent events, such as what she had been doing and where she had been in the previous days.  On Raymond’s evidence, he was very certain in September 2005 that Yuk Sim had been suffering from dementia for at least a few years.

39.In 2005, Raymond brought a few weeks’ course of Ebixa and gave them to Yuk Sim as medication to treat her dementia.  According to Raymond, the medication had at that time been newly released on the market.

40.Raymond conducted another MMSE test on Yuk Sim in around 2006.  He did not keep the score sheet, but he recalled that Yuk Sim’s scores were in the range of 10 to 15, which indicates moderate severity.

41.In 2007, Yuk Sim scored not more than 5 on the MMSE test Raymond conducted.  According to Raymond, this indicated mental impairment of a severe range.

Other observations on Yuk Sim’s condition

42.On Raymond’s evidence, by 2005, Yuk Sim was significantly disabled.  She needed assistance in most aspects of her daily living.  She could not travel alone to new places as she was likely to be lost. She needed some assistance in most household chores.  She had irrational thinking and talking at times.  According to Raymond, Yuk Sim’s short-term memory fluctuated within the day.  She was also emotionally unstable and easily agitated at times.

43.According to Wai Ho, during the times when she visited Yuk Sim in 2005, she was unable to give sensible answers to questions asked of her, could only repeat meaningless words or sentences, could not carry on a normal dialogue, and suffered incontinence and had to use diapers.  Wai Ho also observed that the medication prescribed by Raymond did not appear to have noticeable effect on Yuk Sim.

44.Wai Ho’s evidence is that in about 2006, she noticed blisters on Yuk Sim’s body, caused by scalding as a result of the use of hot water bottles next to the skin.  She concluded that Yuk Sim had lost her sensation to heat since she was unaware that she had been scalded.

45.On Raymond’s evidence, Yuk Sim spent one night in 2007 at his home in Mei Foo, and he had observed that Yuk Sim was not able to finish her meal due to shakiness and lack of coordination with her hands.  She had to be spoonfed, and had to wear diapers at night.  Her talking had become consistently irrational, and she was unable to speak logically on the telephone. It was on this occasion that Raymond conducted the MMSE test referred to in paragraph 41 above.

46.According to Wai Ho, Yuk Sim was bedridden by 2009, and could only use a wheelchair when she went out in the company of others.  She had no recognition of the people around her, including Wai Ho, Raymond and other members of the family.  An Indonesian domestic helper had to be employed by Wai Ho and Raymond to take care of Yuk Sim’s daily living.

Fung’s account of Yuk Sim’s condition

47.In his witness statement, Fung gave scanty evidence on Yuk Sim’s condition.  He only claimed that her health condition was poor when he first met her in the 1960’s, that she became very ill in 1967 and required surgery and that it was he who had arranged for Yuk Sim to be admitted into the hospital at that time.  According to Fung, when Yuk Sim returned home from the hospital in 1967, she asked Fung’s grandmother and Fung to move into the Property to look after her and Madam Shum, who was by then over 80 years old.  Fung claims that after Madam Shum and his grandmother died, he would travel with Yuk Sim and her family on vacations.  In his witness statement, Fung claims that in about 2005, Yuk Sim told him that as she was getting old, she would prepare a will and would leave the Property to Fung in appreciation of the fact that Fung had taken care of her over the years.  He was also given access to Yuk Sim’s safe deposit box at the bank.  In late 2005 or early 2006, Fung claims that Yuk Sim gave the Will to him, which he kept in the safe deposit box.

48.According to Fung, it was only since 2008 that Yuk Sim required the use of a wheelchair.  By early 2010, Yuk Sim was completely wheelchair-bound, and in late 2010, Yuk Sim fell extremely ill.  Fung denies Wai Ho’s claim that Yuk Sim suffered from Alzheimer’s disease since 2000.  According to Fung’s witness statement, although Yuk Sim’s health had deteriorated for some time, “she had never been diagnosed to be suffering from dementia or Alzheimer’s disease”.

49.Counsel for Wai Ho emphasized, and it is pertinent to note, that up to August 2012, Fung had emphatically denied the claims made by Wai Ho and Raymond with regard to Yuk Sim’s lack of testamentary capacity in 2005, and that Yuk Sim had suffered from dementia since 2000.  He had dismissed these claims, including the MTR incident, as a pack of lies.  He also denied that by 2005, Yuk Sim suffered from incontinence and required the use of diapers for her daily living.  He claimed in his affirmation, made on 27 August 2012 (“Affirmation”) to resist Wai Ho’s application for discovery of Yuk Sim’s medical records, that these allegations made by Wai Ho were not only untrue, but show how little she knew of Yuk Sim. 

50.In relation to the MTR incident, Fung insisted in his Affirmation that it was untrue that Yuk Sim had been unable to return home on the MTR because she was blank in her mind and had not known what to do.  Fung claims in his Affirmation that Yuk Sim was very familiar with the MTR station, and did not require any assistance when traveling from place to place in Hong Kong.

51.In his testimony in court, Fung accepted for the first time that Yuk Sim had indeed got lost on the MTR, and that he had to take the MTR from Wanchai to the Tung Chung Station, where he found Yuk Sim, and took her home.  He claimed that it was not unusual for the elderly to be lost, and that Yuk Sim might not have been familiar with the Tung Chung Station.  Fung had not asked Yuk Sim why she had not sought assistance from anyone, if she was simply not familiar with the Tung Chung Station or the Tung Chung line.

52.In relation to the MMSE tests, Fung denies that Raymond had performed any such tests on Yuk Sim.  The reason he gave was that Raymond rarely visited Yuk Sim, and that he had never seen Raymond use any tool or equipment to medically examine Yuk Sim.

53.As for the restaurant incident, Fung was not present.  Nevertheless, he disagreed that Yuk Sim could have forgotten what she had ordered, and claimed that if she had refused to take the food, it must have been due to the fact that she did not like the food, as she was a picky person and he knew her habits.

54.With regard to the issue of Yuk Sim’s incontinence and use of diapers, Fung insisted that she only commenced the use of diapers in 2009.  In his Affirmation, he had dismissed Wai Ho’s claim, that Yuk Sim had to use diapers by 2005, as a lie.  However, after the date of his Affirmation, Yuk Sim’s medical records were produced by the Hospital (on Wai Ho’s application), and Dr Sze’s consultation notes of May 2005 indeed revealed that Yuk Sim had complained of incontinence. 

55.In court, Fung admitted that it was he who had taken Yuk Sim to see Dr Sze in May 2005.  Dr Sze’s Notes of May 2005 and December 2004 also recorded that Yuk Sim had attended the Hospital in the company of a “relative”.  The Notes record that Dr Sze was told on 19 May 2005 that Yuk Sim was sometimes unable to get up to go to the washroom and had overflow incontinence, but refused to have diapers.  According to the Notes, Dr Sze advised Yuk Sim on 19 May 2005 to use diapers at night.

Findings on the evidence of Yuk Sim’s condition

56.Having heard the testimony of Wai Ho, Raymond and Fung, I accept both Wai Ho and Raymond as honest witnesses who gave their evidence to the best of their recollection.  I have restricted Raymond’s evidence to matters of fact, since he did not give evidence of opinion as an expert.  Whilst Wai Ho may have exaggerated Yuk Sim’s dislike of and hostility towards Fung, particularly in the latter part of her life, I accept that Wai Ho and Raymond had given true accounts of their observations of Wai Ho’s physical condition and how she had conducted herself from 2000 to the time of her death in 2011.  It is obviously difficult to recall exact details and the exact timing of the relevant events, which took place over 10 years ago.  However, I bear in mind that the evidence of Wai Ho, and Raymond in particular, are coorborated by and consistent with the contemporary documents, such as Raymond’s travel records to Hong Kong, the receipt for the meal at the restaurant in February 2003, and importantly, Dr Sze’s Notes and her consultation summary of May 2005 and December 2004 (which are not disputed). 

57.Counsel for Fung attacked the credibility of Raymond’s evidence on the MMSE tests which he said he had conducted on Yuk Sim from 2004.  He argued that it is unbelievable that Raymond would not have kept records of the tests, if he had indeed conducted any on Yuk Sim.  It was also argued that if Raymond had indeed considered, by 2003, that Yuk Sim suffered from Alzheimer’s or dementia, either he or Wai Ho would have taken her to see a doctor, or Raymond would have prescribed medication for Yuk Sim before 2005.

58.I accept the explanation given by Raymond and by Wai Ho as to why they had not sought medical treatment for Yuk Sim before 2005. Many people, like Wai Ho, simply associate Alzheimer’s with old age and natural deterioration.  Wai Ho said in her evidence that she had found Yuk Sim to be dull and not her usual self, but by the year 2000, Yuk Sim was already 77 years old, and to Wai Ho, Yuk Sim was simply displaying old age symptoms, and she explained that she did not know if Yuk Sim’s condition was serious, or not.

59.Raymond himself is a doctor, and I believe that he was simply giving an honest response, when he concluded that there was nothing much which could have been done for Yuk Sim by the time he realized in 2004 that his aunt had dementia or Alzheimer’s disease.  Raymond claimed that he first suspected in 2003, after the MTR incident and the restaurant incident, that there was something wrong with Yuk Sim.  As he was himself a doctor, he considered that it was not necessary to refer Yuk Sim to another doctor.  He explained that dementia is not curable as an illness of the elderly, and that was a reason why he, like many other doctors, was not too concerned about seeking a cure for his aunt.  It was not something that could be fixed, and he considered that medically, his aunt was sure to get worse.  Other than telling his parents in 2003 that his aunt was suffering from dementia and would need more care as the years went by, Raymond considered that there was nothing more that he could have done, apart from giving Yuk Sim some new medication on his return to Hong Kong in 2005.

60.In any event, I reject the argument raised by Counsel for Fung, that “the only reasonable inference” to be drawn from the fact that Raymond did not consult a specialist, nor administer drugs to Yuk Sim to slow down the progress of deterioration of her illness, is that Yuk Sim did not suffer from dementia in 2005.  I accept Raymond’s explanation, but even if that is not to be believed, there are too many possible reasons for his lack of action (his absence from Hong Kong, even his indifference, as examples), for the court to draw the inference against all the other evidence – as Counsel suggested.

61.Raymond accepted that he had not kept all the records of the MMSE tests he had conducted on Yuk Sim, but he recalled the range of Yuk Sim’s scores which indicated the severity of her dementia.  I accept his explanation regarding why he particularly retained the MMSE test which he conducted in 2004, ie it was the first Chinese questionnaire he had come across in Hong Kong and he took that to Australia for his use there.

62.On the other hand, I find Fung’s evidence unsatisfactory in many respects.  The MTR incident referred to in the witness statements of Wai Ho and Raymond (made on 16 and 7 August 2012 respectively) had first been dismissed by Fung outright as a lie in his Affirmation (filed on 27 August 2012), with the assertion which he made that Yuk Sim did not require any assistance when she traveled from place to place in Hong Kong.  Fung never mentioned in his Affirmation, nor in his witness statement (made on 20 August 2014), that he had to travel to Tung Chung in 2003 to look for Yuk Sim, and that he had eventually found Yuk Sim at the Tung Chung Station - an admission which he made only in the course of his being cross-examined in court.  His testimony on the MTR incident totally contradicts the assertion he made in the Affirmation, that Yuk Sim was very familiar with the MTR system, and did not require any assistance when traveling in Hong Kong.  I do not find Fung to be a forthright witness.

63.His evidence on whether Yuk Sim had suffered from incontinence in 2005 is likewise unreliable.  In his Affirmation, Fung again simply claimed that it was untrue that Yuk Sim suffered from incontinence by 2005 and required to use diapers.  He claimed that Wai Ho knew little about Yuk Sim, and that Yuk Sim only required diapers in about 2009.  Not only did Dr Sze’s Notes support Wai Ho’s claim, but they revealed that Yuk Sim was accompanied by Fung when she went to see Dr Sze and complained about her overflow incontinence in May 2005.  When the Court asked why he had not corrected either Yuk Sim or Dr Sze, when Yuk Sim complained of incontinence and Dr Sze advised her to use diapers, if he considered that incontinence was not a problem actually encountered by Yuk Sim, Fung could not give a satisfactory answer, and simply stated that he did not know how to correct a doctor.  I reject Fung’s evidence, and find that he either knew of Yuk Sim’s problem of incontinence in 2005, by virtue of his daily care of Yuk Sim (as he has throughout maintained), or by the time when he heard Yum Sim’s complaint to Dr Sze in May 2005, and had lied when he denied Wai Ho’s claim, or that he simply had no basis to make such a denial.

64.Likewise, Fung’s rejection of Raymond’s claim that he had conducted MMSE tests on Yuk Sim had no sound basis.  He claimed that Raymond had lied regarding the tests, but on Fung’s evidence, this was simply because he had never seen Raymond use any equipment or (in his words) perform any medical tests on Yuk Sim at the Property.  The MMSE test only required Raymond to ask Yuk Sim several questions, and the test could be conducted in a matter of minutes, without any medical equipment.

65.The undisputed facts should be borne in mind.  On Fung’s own case, Yuk Sim was meek and gentle by nature.  Outbursts of temper and violent behaviour as Wai Ho described would be out of character for Yuk Sim.  Further, Fung does not dispute that Yuk Sim was bedridden and wheelchair bound in 2010.  Fung also alleges that by 2005, Yuk Sim had considered that she could not move about so easily, and hence made arrangements to give Fung access to her safe-deposit box.  By 2010, as evidenced by the documents purportedly signed by Yuk Sim, upon arrangements made by Fung for the attempted and aborted sale of the Property, Yuk Sim could no longer make her usual signature, and could only manage to make a wobbly cross at the space where her signature should appear.  Fung admitted in court that by 2010, he himself had suspicions that Yuk Sim may have some mental incapacity. 

The medical expert opinion

66.As explained in paragraph 12 above, the expert evidence was given on the assumption that the facts stated by Wai Ho and Raymond in their witness statements are accepted as true.  On consideration of all the available evidence, I accept the facts stated by Wai Ho and Raymond as truthful evidence and accept their account of what they had observed of Yuk Sim, during the time they spent with her, to be true.

67.Dr Wong is the expert called by Wai Ho.  He practises in Hong Kong as a specialist in psychiatry, and founded the Kwai Chung Psychogeriatrics Out Patient Clinic cum Carer Support Centre.  His work there involved the development and delivery of services for dementia, depression and mental health problems.  In 2005, he started the Good Memory Clinic in Kwai Chung Hospital which deals with mild cognitive impairment.

68.Dr Wong is of the opinion that it is within the capability of a psychiatrist to comment retrospectively on the likelihood of Yuk Sim having an illness which affected her ability to understand and to make decisions at the time the Will was made.  He explained that this is done by looking for features of dementia or cognitive impairment in the evidence, examining the description of Yuk Sim’s self-care abilities during different periods of her final years, and then making an objective medical assessment on Yuk Sim’s cognitive status.

69.Dr Wong referred to 7 stages of Alzheimer’s dementia, commonly referred to as Reisberg’s major clinical stages.  Dr Reisberg, a Professor of Psychiatry, developed the Functional Assessment Staging Tool (“FAST”) to assess the stage of dementia of a person with Alzheimer’s disease.  FAST is recognized by professionals as the most well validated measure of the course of Alzheimer’s disease, and is commonly used by professionals to determine the stage of progression of the disease, and to prepare for future treatment and care plans of the patient.  FAST outlines the key symptoms which characterize the 7 stages, ranging from unimpaired function to very severe cognitive decline, of the patient.

70.According to Dr Wong, the facts outlined in the witness statements of Wai Ho and Raymond depict the representation of a person suffering from moderate to severe dementia.  Dr Wong referred to Raymond’s evidence, that in 2003, Yuk Sim forgot what she had ordered in the restaurant, and that she became irritable when the food was served.  In Dr Wong’s opinion, this is consistent with some of the commonly seen features of Reisberg’s stage 4 mild Alzheimer’s disease.  Dr Wong also referred to Wai Ho’s description of Yuk Sim as dull and confused, which matches the flattening of affect displayed by a patient in stage 4.

71.According to the literature produced by Dr Wong from the Fisher Centre for Alzheimer’s Research Foundation, entitled “Clinical Stages of Alzheimer’s” (“Fisher summary”), stage 4 is described as “mild Alzheimer’s disease” and is explained as follows:

“The diagnosis of Alzheimer’s disease can be made with considerable accuracy in this stage. The most common functioning deficit in these patients is a decreased ability to manage instrumental (complex) activities of daily life. Examples of common deficits include decreased ability to manage finances, to prepare meals for guests, and to market for oneself and one’s family. … The mean duration of this stage is 2 years.

Symptoms of impairment become evident in this stage. For example, seemingly major recent events, such as a recent holiday or a recent visit to a relative may, or may not, be recalled. Similarly, overt mistakes in recalling the day of the week, month or season of the year may occur. Patients at this stage can still generally recall their correct current address. They can also generally correctly recall the weather conditions outside and very important current events, such as the name of a prominent head of state. Despite the overt deficits in cognition, persons at this stage can still potentially survive independently in community settings. However, functional capacities become compromised in the performance of instrumental (ie complex) activities of daily life. For example, there is a decreased capacity to manage personal finances. For the stage 4 patient who is living independently, this may become evident in the form of difficulties in paying rent and other bills. A spouse may note difficulties in writing the correct date and the correct amount in paying checks. The ability to independently market for food and groceries also becomes compromised in this stage…. Similarly, the ability to order food from a menu in a restaurant setting begins to be compromised. Frequently, this is manifest in the patient handing the menu to the spouse and saying ‘you order’.

The dominant mood at this stage is frequently what psychiatrists term a flattening of affect and withdrawal. In other words, the patient often seems less emotionally responsive than previously. This absence of emotional responsivity is probably intimately related to the patient’s denial of that deficit, which is often also notable at this stage. Although the patient is aware of their deficits, this awareness of decreased intellectual capacity is most painful for most persons and, hence, the psychological defense mechanism known as denial, whereby the patient seeks to hide their deficit, even from themselves where possible, becomes operative. In this context, the flattening of affect occurs because the patient is fearful of revealing their deficits. Consequently, the patient withdraws from participation in activities such as conversations.

In the absence of complicating medical pathology, the diagnosis of AD can be made with considerable certainty from the beginning of this stage. Studies indicate that the duration of this stage of mild AD is a mean of approximately 2 years.” (Emphasis added)

72.In his analysis, Dr Wong referred to Wai Ho’s description of Yuk Sim as being irritable and violent at times in 2003, which was noted as a change from Yuk Sim’s previous personality.  In Dr Wong’s opinion, this is a symptom known as “catastrophic reaction” and is often related to the subject having poor short-term memory and then having explosive outbursts over minor setbacks, brought on by his or her own forgetfulness.  According to Dr Wong, this matches the description of anger in stage 5 of Reisberg’s clinical stages. 

73.Stage 5 is described thus in the Fisher summary:

“In this stage, deficits are of sufficient magnitude as to prevent catastrophe free, independent community survival. The characteristic functional change in this stage is in incipient deficits in basic activities of daily life. This is manifest in a decrement in the ability to choose proper clothing to wear for the weather conditions and/or for the daily circumstances (occasions)…. The mean duration of this stage is 1.5 years.

At this stage, deficits are of sufficient magnitude as to prevent independent, catastrophe free, community survival. Patients can no longer manage on their own in the community. If they are ostensibly alone in the community then there is generally someone who is assisting in providing adequate and proper food, as well as assuring that the rent and utilities are paid and the patient’s finances are taken care of. For those who are not properly watched and/or supervised, predatory strangers may become a problem. Very common reactions for persons at this stage who are not given adequate support our behavioral problems such as anger and suspiciousness.

Cognitively, persons at this stage frequently cannot recall such major events and aspects of their current lives as the name of the current president, the weather conditions of the day, or their correct current address. Characteristically, some of these important aspects of current life are recalled, but not others. Also, the information is loosely held, so, for example, the patient may recall their correct address on certain occasions, but not others.

Remote memory also suffers to the extent that persons may not recall the names of some of the schools which they attended for many years, and from which they graduated. Orientation may be compromised to the extent that the correct year may not be recalled. Calculation deficits are of such magnitude that an educated person has difficulty counting backwards from 20 by 2s.” (Emphasis added)

74.Dr Wong also referred to Raymond’s observation of Yuk Sim’s difficulty in 2005 in recalling recent events, that she was significantly disabled, that she needed assistance in her daily living, could not travel alone to new places as she was likely to be lost, had short-term memory fluctuation, irrational thinking and talking, and was emotionally unstable and easily agitated.  Dr Wong considered that these were symptoms which match the features displayed by a patient suffering from moderately severe Alzheimer’s disease, in stage 6 of Reisberg’s clinical stages.

75.Stage 6 is described in the Fisher summary:

“At this stage, the ability to perform basic activities of daily life becomes compromised. Functionally, five successive substages are identifiable. Initially, in stage 6a, patients, in addition to having lost the ability to choose their clothing without assistance, begin to require assistance in putting on their clothing properly. Unless supervised, patients may put their clothing on backward, they may have difficulty putting their arm in the correct sleeve, or they may dress themselves in the wrong sequence….

Stage 6a

In the stage of moderately severe Alzheimer’ disease, the cognitive deficits are of sufficient magnitude as to interfere with the ability to carry out basic activities of daily life. Generally, the earliest such deficit noted in this stage is decreased ability to put on clothing correctly without assistance. The total duration of the stage of moderately severe AD (stage 6a through 6e) is approximately 2.5 years.

… At approximately the same point in the evolution of AD, but generally just a little later in the temporal sequence, patients lose the ability to bathe independently without assistance (stage 6b).

Characteristically, the earliest and most common deficit in bathing is difficulty adjusting the temperature of the bath water… In this 6b substage, patients generally develop deficits in other modalities of daily hygiene such as properly brushing their teeth independently.

Stage 6c, 6d, 6e

With the further evolution of AD, patients lose the ability to manage independently the mechanics of toileting correctly (stage 6c). Unless supervised, patients may place the toilet tissue in the wrong place. Many patients will forget to flush the toilet properly. As the disease evolves in this stage, patients subsequently become incontinent. Generally, urinary incontinence occurs first (stage 6d), then fecal incontinence occurs (stage 6e). The incontinence can be treated, or even initially prevented entirely in many cases, by frequent toileting... In the sixth stage cognitive deficits are generally so severe that persons will display little or no knowledge when queried regarding such major aspects of their current life circumstances as their current address or the weather conditions of the day.

In this stage the patient’s cognitive deficits are generally of such magnitude that the patient may at times confuse their wife with their mother or otherwise misidentify or be uncertain of the identity of close family members. At the end of this stage, speech ability overtly breaks down.

Recall of current events is generally deficit to the extent that the patient cannot name the current national head of state or other, similarly prominent newsworthy figures. Persons at this sixth stage will most often not be able to recall the names of any of the schools which they attended. They may, or may not, recall such basic life events as the names of the parents, the former occupation and the country in which they were born. They still have some knowledge of their own names; however, patients in this stage begin to confuse their spouse with the deceased parent and otherwise mistake the identity of persons, even close family members, in their own environment. Circulation ability is frequently so severely compromised at this stage that even well educated patients had difficulty counting backward consecutively from 10 by 1s.

Emotional changes generally become most overt and disturbing in the sixth stage of AD. Although these emotional changes may, in part, have a neurochemical basis, they are also clearly related to the patient’s psychological reaction to their circumstances. For example, because of their cognitive deficits, patients can no longer channel their energies into productive activities. Consequently, unless appropriate direction is provided, patients begin to fidget, to pace, to move objects around and place items where they may not belong, or to manifest other forms of purposeless or inappropriate activities. Because of the patient’s fear, frustration and shame regarding their circumstances, as well as other factors, patients frequently develop verbal outbursts, and threatening, or even violent, behavior may occur. Because patients can no longer survive independently, they commonly developed a fear of being alone….

The mean duration of this sixth stage of AD is approximately 2.3 years. As this stage comes to an end, the patient, who is doubly incontinent and needs assistance with dressing and bathing, begins to manifest overt breakdown in the ability to articulate speech….”(Emphasis added)

76.Dr Wong had further considered the observations expressed in Raymond’s witness statement, that by 2007, Yuk Sim could not finish her meals, was subsequently spoonfed, was on diapers at night, and that her talking had become consistently irrational.  In his opinion, these signs are consistent with the conditions described for a patient suffering severe dementia in stage 7.

77.According to the Fisher summary, at stage 7, a patient is suffering from severe Alzheimer’s disease:

“At this stage, AD patients require continuous assistance with basic activities of daily life for survival…. Early in this stage, speech has become so circumscribed, as to be limited to approximately a half dozen intelligible words or fewer in the course of an intensive contact and attempt at an interview with numerous queries… As this stage progresses, speech becomes even more limited to, at most, a single intelligible word. Once speech is lost, the ability to ambulate independently (without assistance), is invariably lost…”

78.Dr Wong referred to Raymond’s MMSE test conducted in 2004, and to Raymond’s evidence that Yuk Sim’s score on that occasion was in the range of 15 to 24.  On Dr Wong’s evidence, a score lower than 19 or 20 is compatible with early dementia, and Yuk Sim’s later score of 11 out of 24 in 2005 is compatible with her having moderate dementia.  I note from the Chinese questionnaire produced by Raymond in respect of the MMSE test conducted in 2005 that Yuk Sim was not able to answer the first question, of the current day and date, month and season when the test was conducted, nor was she able to answer questions 4 and 5 of the test.  Question 4 was for the deduction of 7 from 100, and in answer to question 5, Yuk Sim was not able to recall the 3 items related to her in question 3.

79.According to Dr Wong, Yuk Sim’s score in the 2005 is compatible with her being under moderate cognitive impairment at the time. 

80.Dr Wong’s evidence is that, based on Raymond’s evidence on the score which Yuk Sim obtained in the 2006 and 2007 tests, there was a progressive decline in her cognitive status, from a borderline score of 15 to 24 in 2004, to a single digit score (of no more than 5 in 2007), and that this is consistent with her suffering from severe dementia by 2007.  According to Dr Wong, such progressive decline in cognition is compatible with dementia, especially Alzheimer’s disease.

81.In summary, Dr Wong’s opinion is that Yuk Sim’s behavior between 2003 to 2007, as observed by Raymond and Wai Ho, is consistent with her suffering from dementia which was progressively declining downhill.  Her behavior in 2003 as described by Raymond and Wai Ho matched that of a person suffering from mild Alzheimer’s disease in stage 4.  The description of Yuk Sim’s condition in 2005 is consistent with that of a patient suffering from moderately severe dementia in stage 6, and by 2007, she was in stage 7 of Alzheimer’s disease, in the severe stage.

82.With respect to Dr Sze’s Notes, Dr Wong pointed out that incontinence is a common feature in cases of moderate to severe dementia.  He referred to an article entitled “Urinary Incontinence in Dementia”, by Der-Shan Han MD, and quoted the following passage from the article:

“The progression of the disease [dementia] is usually classified in the following 4 stages: mild cognitive impairment, mild dementia, moderate dementia and severe dementia. Incontinence often emerges in the 3^rd stage/moderate dementia. Difficulties with mobility also emerge in the same stage.”

According to the same article, urinary incontinence affects about 22% of people with dementia living in the community and about 84% of those in nursing homes, and is up to 4 times more common in those with dementia than those without.

83.In the opinion of Dr Wong, Yuk Sim suffering from incontinence in 2005, as recorded in Dr Sze’s Notes, is compatible with the account given by Raymond and Wai Ho of Yuk Sim’s condition, and depicts Yuk Sim as having features which correspond to stage 6 of Reisberg’s stages, or the stage of moderately severe Alzheimer’s disease.  At this stage of the disease, the memory of the patient continues to deteriorate, there may be personality changes, and the patient needs extensive help in her daily activities.  The patient would have difficulty in recalling most recently learned facts, and would have difficulty recalling facts communicated to him or her a few minutes earlier.  The patient would be confused about where they are, or about the day and date of the week, and the season.  There would be loss of awareness of the recent experiences as well as of their surroundings.  According to Dr Wong, the patient could probably still remember his or her own name but would have difficulty with his or her personal history.  The patient would have trouble with choosing proper clothing, and would require assistance in self-care.  The patient would be unable to learn and memorize new material, make logical deductions, or understand complicated and abstract concepts.  In Dr Wong’s opinion, such a patient would have difficulty understanding the nature, purpose, benefits and risks of a legal document.  He therefore concluded that as a patient at stage 6, or suffering from moderately severe Alzheimer’s disease, there is “a distinct possibility” that Yuk Sim did not have the mental capacity in 2005 to make a will.

84.Dr Dong, on the other hand, maintained in his report and in his evidence that he doubted the accuracy of the diagnosis made by Dr Wong (that Yuk Sim was suffering from dementia in 2005), because Dr Wong did not have any face-to-face interview with Yuk Sim’s family and friends, and his diagnosis was simply based on the witness statements made by Wai Ho, Raymond and Fung.  Dr Dong considered that as the witness statements were made 7 years after the Will was made by Yuk Sim in 2005, the accuracies of the statements would be severely affected by the witnesses’ “recall bias”.  In Dr Dong’s opinion, the best person to decide whether Yuk Sim had testamentary capacity is Mr Yeung Ping Kuen Ivan, the solicitor who attested the Will and who declared on the Will that he had “interpreted” the Will to Yuk Sim, who had appeared to him to thoroughly understand the Will and had declared that the Will was made in accordance with her wishes.

85.Clearly, Dr Dong had inappropriately taken on the role as an advocate for Fung, which is not his place, and he has chosen to ignore the Court’s Directions, that he is to give expert evidence on the assumption and basis that the facts stated in the relevant paragraphs of the witness statements of Wai Ho and Raymond are true.  It is for the Court, and not the expert, to decide, after hearing all the evidence at trial, whether or not the facts in question as stated by Wai Ho and Raymond are true, or whether, as Dr Dong argued, the witnesses were severely or in any way affected by “recall bias”.  As the Court explained to the parties, the experts’ opinion only have value or effect if the facts assumed by them are ultimately found by the Court to be true. 

86.Perhaps Dr Dong’s doubts as to the “accuracy” of Dr Wong’s diagnosis, and his own reluctance to make “a definite diagnosis” of whether Yuk Sim suffered from dementia in 2005 stem from the different standards which the law and medicine apply.  As the Court explained in Lee Kin-kai v Ocean Tramping Co Ltd trading as Ocean Tramping Workshop CACV 64/1989, 31 January 1990, at para 10 of the judgment of Hunter JA:

“In law there is a sufficient causal connection if it is shown on the balance of probabilities that the accident was a substantially contributing cause of the injury.  A cause is sufficient; it need not be shown to be the sole cause. The doctor’s practice, is what is known as the science of aetiology. In the words of one in particular, they look for “clinical cause”, proof beyond reasonable doubt and perhaps beyond any doubt.”

87.As I tried to make clear when the Directions were made, and as explained in the earlier parts of this judgment, the issue for determination by the Court in this case, with the assistance from the medical experts, is whether it is more likely than not that Yuk Sim was suffering from dementia, which might have affected her testamentary capacity when she made the Will in 2005.  It need not be established beyond reasonable doubt that Alzheimer’s or dementia was the clinical cause of the illness affecting Yuk Sim, or the clinical cause of her behavior, as observed by the factual witnesses.

88.Dr Dong’s assertion that the attesting solicitor is in the best position to decide whether Yuk Sim had the necessary testamentary capacity when she made the Will in 2005 is simply not correct.  The solicitor’s declaration in the Will, to which Dr Dong referred, is only to the effect that the solicitor had “interpreted” the Will to Yuk Sim, and that Yuk Sim “appeared to thoroughly understand” the Will, and had declared that it was made in accordance with her wishes.  The solicitor did not explain how Yuk Sim “appeared” to him to thoroughly understand the Will, and how she declared the Will to be in accordance with her wishes.  In normal circumstances, the attesting solicitor attests to the testator’s act of execution or signing of the Will.  Only a medical doctor who had examined the testator would have been in a position to give evidence on the mental condition of the testator and his/her understanding.  There is no evidence of the solicitor having medical qualifications, or that he had in any way satisfied himself as to the mental condition of Yuk Sim just before she signed the Will in 2005.

89.From the available evidence of Dr Wong, a patient suffering from mild cognitive impairment only has subtle deficits which may not be noticeable by persons who are even closely associated with the patient.  Even if the solicitor who had attested Yuk Sim’s signing of the Will on 10 September 2005 had been called to give evidence, I have grave doubts that such evidence would have been reliable, or could have assisted the Court in deciding whether Yuk Sim did indeed understand the contents and effect of the Will, what her wishes were, and whether the Will was indeed in accordance with her wishes. 

90.In fact, the attesting solicitor never made any witness statement for use in these proceedings, and it was only at the commencement of trial that those representing Fung indicated that Fung intended to subpoena the attesting solicitor to give evidence.  I refused leave on the basis that there had been undue and unexplained delay on Fung’s part in seeking to adduce evidence from the attesting solicitor, when the issue of Yuk Sim’s testamentary capacity had been identified at the earliest stage from the filing of the pleadings, and that the trial would obviously be disrupted with prejudice to Wai Ho, if the attesting solicitor should be permitted to give evidence at such late notice.

91.I regret that the evidence of Dr Dong is totally unhelpful, and unnecessary.

Findings on Yuk Sim’s testamentary capacity

92.Having considered the evidence of Raymond, Wai Ho and Fung on the MTR incident, it would appear that by 2000, Yuk Sim had displayed the earliest noticeable symptoms of Alzheimer’s.  According to Fung, she was very familiar with the MTR system.  Yet, she was unable to get off the train at Tung Chung Station, and to find her way back to the Hong Kong line to the Wanchai Station, to go home.  Wai Ho’s evidence is that Yuk Sim had related to her after the event that her mind was a complete blank, that she had forgotten what she had wanted to do, and had simply remained in her seat, until she was (on Fung’s evidence) found by Fung.  If Yuk Sim’s cognition had not been impaired, even at her age in 2000 (around 77), she should have been able to ask someone for directions if she had simply been unfamiliar with the Tung Chung line or Tung Chung Station.

93.Yuk Sim’s inability to recall that she had ordered dishes in the restaurant incident, and her reaction when the food arrived, is consistent with an inability to recall and retain memory of current events, and irritability.  On the available evidence, these are symptoms of mild Alzheimer’s disease at stage 4.  According to Dr Wong’s evidence, difficulty in recalling recent events is not common even for the elderly, and is more consistent with dementia.  Dr Wong explained that short-term memory would not fluctuate within the day even for a normal aged person, that dementia would usually be the cause, and further, that it was a sign of early to middle stage dementia.  The timing of the restaurant incident in 2003 is supported by the receipt produced by Raymond.  This is consistent with Raymond’s recollection of Yuk Sim’s score in the MMSE test he conducted, on his return in the following year (in 2004), to be in the range of 15 to 25, which is indicative of mild to moderate cognitive impairment.

94.By 2005, when Raymond brought medication from Australia to treat Yuk Sim for her condition, and when he conducted the second MMSE test, Yuk Sim could not even recall the current date, nor items related to her minutes before.  From this, it is clear that by then, Yuk Sim’s case was not one of old age memory deterioration, and that her cognitive deficit was more than just mild.  By May 2005, when Yuk Sim sought treatment for hypertension and bone pain from Dr Sze, she (or Fung on her behalf) already complained to the doctor of, at least, the start of overflow incontinence. 

95.Raymond and Wai Ho claim that Yuk Sim was wheelchair-bound by 2009.  On Fung’s case, this was not until early 2010, although he admitted that she displayed problems with her mind by 2009, and that he had suspected her of having dementia problems by 2010, on the occasion of his attempted sale of the Property.  There is no other objective evidence of Yuk Sim suffering from any other ailment that might have caused her reliance on the wheelchair.

96.A patient does not suddenly succumb to Alzheimer’s disease, or dementia.  Alzheimer’s is not an illness which suddenly strikes at full force.  The conditions are developmental. 

97.On the evidence, Yuk Sim had displayed symptoms of mild cognitive impairment in 2000 (the MTR incident).  From the first detectable appearance of cognitive impairment in 2000 (at the latest), until 2010 (at the latest as accepted by Fung) when Yuk Sim was wheelchair-bound and virtually immobile from the disease, it was a span of about 10 years.  The Will was made in 2005, at a stage when, on the evidence which I have accepted, Yuk Sim displayed symptoms consistent with mild to moderate dementia.  According to the Fisher summary, by the time symptoms of mild cognitive impairment become noticeable (the MTR incident in 2000), the patient is normally midway or near the end of this stage (stage 3), and progression from stage 3 to stage 4 (mild Alzheimer’s disease) normally occurs in 2 to 3 years (2002 to 2003).  The restaurant incident took place in 2003, which is more or less consistent with this average rate of progression.  Yuk Sim’s score in the MMSE test conducted in 2004 suggests mild to moderate dementia, also consistent with this rate of progression.  According to the Fisher summary, the mean duration of stage 4 (mild Alzheimer’s disease) is 2 years. 

98.Yuk Sim’s score in the 2005 MMSE test suggests that she had deteriorated to the stage of moderate dementia.  She began to suffer from incontinence by May 2005, consistent with moderate to severe dementia (according to Dr Wong and the article by Der-Shan Han).

99.It would appear from the evidence and from the Fisher summary of the symptoms displayed in the various stages of progression of Alzheimer’s disease that, particularly in the early and mild stages, a patient’s cognitive abilities and memory fluctuate, even within the day. 

100.It must be borne in mind that the burden is on Fung, as the proponent of the Will, to prove on the balance of probabilities that Yuk Sim had the requisite mental capacity at the material time when she signed the Will in 2005.  On the available evidence, and with assistance from Dr Wong’s analysis, I come to the inevitable conclusion that it is more probable than not that when the Will was signed in 2005, Yuk Sim was suffering from at least moderate, if not moderately severe, Alzheimer’s disease.  Based on the description of the disease and Dr Wong’s analysis as summarized in paragraph 83 above, I am not satisfied that it is more probable than not that, at that relevant time, Yuk Sim was able to understand and recall the extent of the assets or the value of the Property she held, that her memory was sufficiently sound to recall the component and identies of her family members as her possible beneficiaries, and any interests or claims which they may have, by virtue of their blood ties or relationship, to her property. According to the Fisher summary, patients at the stage of moderately issue Alzheimer’s disease are often confused and uncertain of the identities of even their closes family members. I am not satisfied, on a balance of probabilities, that at the time when Yuk Sim signed the Will and when it was allegedly explained to her, she was able to understand the nature of her act of signing the Will and its legal consequences.  Even if the attesting solicitor had explained the Will, and its contents and meaning to Yuk Sim in 2005, I am not satisfied on the expert medical evidence that she was able to retain and truly understand the information imparted to her.  Any nods, repetition of the words spoken, or other form of acknowledgment may not represent true understanding by a person suffering from dementia.

101.On the available evidence, I do not need to rely on the rationality or irrationality of Yuk Sim’s disposition under the Will.  On Wai Ho’s case, Yuk Sim was close to her sister and to Raymond whom she had brought up and treated as a son, such that it would not be rational for Yuk Sim to exclude them from any disposition under the Will.  It was argued that the Property was of significant sentimental value to Yuk Sim (as it had been purchased for her by Young), and she would not have left it to Fung.  On Fung’s case, he had been taking care of Yuk Sim for decades, and she had treated him as a son (although I find Fung’s explanation for his open reference to Yuk Sim as his “wife” in the funeral arrangements to be unconvincing, and his act in doing so totally astonishing).  The key issue is whether Yuk Sim was in a position, or had the capacity, to understand the nature of the disposition made under the Will, and to appreciate and comprehend the claims to which she ought to give effect.  On this, I am not satisfied.

Did Yuk Sim know and approve the contents of the Will?

102.By reason of my findings and conclusions reached on the question of Yuk Sim’s lack of testamentary capacity, that it was more likely than not that she was suffering from mild to moderate Alzheimer’s disease in 2005, I come to the same conclusion on the evidence, that I am not satisfied that at the time when the Will was made, Yuk Sim had knowledge and understanding of what was in the Will, and what its effect would be.

103.I also accept the submissions made on behalf of Wai Ho, that on all the evidence, it was Fung who gave instructions to the solicitor to prepare the Will for Yuk Sim, Fung was the sole beneficiary under the Will under which he gained a substantial benefit, Fung was admittedly present throughout the process of the preparation and execution of the Will, and it was Fung who retained possession of the Will, and accordingly, the second rule in Barry v Butlin (1838) 2 Moo PC 480 applies.  Notwithstanding the fact that the Will may have been duly executed, the presumption of knowledge and approval does not apply, and any presumption which may apply is, in any event, rebutted on the evidence. 

104.It also follows from my findings that I am not satisfied that the Will embodies the testamentary intentions of Yuk Sim.

Was Yuk Sim under undue influence when she signed the Will?

105.In view of my findings on the other 3 issues, it is not necessary to deal with the remaining issue of undue influence.

Orders made

106.For all the above reasons, I grant the relief sought in the Amended Writ, and make the declarations that the Will was invalid, that Yuk Sim had died intestate, and that Wai Ho is entitled to a grant of letters of administration of Yuk Sim’s estate, and dismiss the counterclaim.

107.Wai Ho as plaintiff is entitled to the costs of the action and the counterclaim.  Fung’s own costs are to be taxed in accordance with the Legal Aid Regulations.

Mr Matthew Ho, instructed by Mike So, Joseph Lau & Co, for the plaintiff

Mr Albert Cheung, instructed by Wong, Fung & Company (assigned by the Director of Legal Aid), for the defendant