HCAP 10/2010
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PROBATE ACTION NO. 10 OF 2010
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| | IN THE ESTATE OF TAO HIU MING (陶曉明) also known as WILLIAM TAO also known as TAO HIU MING WILLIAM also known as TAO BEN (陶品) also known as DANNY DAO and also known as HENRY TAO, late of Flat 4, 35th Floor, Apartment Tower, Convention Plaza, No 1 Harbour Road,, Hong Kong, married man, deceased |
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BETWEEN |
| | TAO SHEN JONG (陶沈榮) | Plaintiff |
and |
| | YUNG SAU LAN SHIRLEY (榮秀蘭) | Defendant |
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| Before: Hon L Chan J in Court |
| Dates of Hearing: 14-17 and 20 January 2014 |
| Date of Judgment: 21 March 2014 |
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J U D G M E N T
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1. The plaintiff seeks an order to vacate a caveat entered by the defendant and to pronounce and decree probate in solemn form for the last will of Mr Tao Hiu Ming, deceased (“Mr Tao”).
2. The will was executed on 8 November 2007 (“the Will”). Mr Tao passed away in Hong Kong on 16 June 2009. He was domiciled in Hong Kong.
3. The defendant is the widow of Mr Tao. She is not a beneficiary in the Will. She entered the caveat in respect of Mr Tao’s estate on 17 July 2009. In answer to the warning to caveator, she entered an appearance on 28 August 2009 stating that she did not admit that Mr Tao had made the Will. She puts the executor of the Will to proof of the same in solemn form. She has also given notice to the plaintiff pursuant to O 62 r 6(1)(c) of the Rules of the High Court. The rule provides that:
“(1) Notwithstanding anything in this Order or in section 52A of the Ordinance-
(c) unless the Court is of opinion that there was no reasonable ground for opposing the will, no order shall be made for the costs of the other side to be paid by the party opposing a will in a probate action who has given notice with his defence to the party setting up the will that he merely insists upon the will being proved in solemn form of law and only intends to cross-examine the witnesses produced in support of the will.”
4. The plaintiff is the younger son of Mr Tao by an earlier marriage. He is the executor named in the Will and is the sole beneficiary to Mr Tao’s residuary estate which constitutes the bulk of the estate. The only other beneficiary is the plaintiff’s elder brother Tony Tao who was bequeathed US$1 million.
Background
5. Mr Tao was born in Shanghai in January 1943. He had three half sisters, Madam Susan Hsu, Ann Hsu and Shen Qiong Fei.
6. He came to Hong Kong in 1949/1950. Shortly thereafter he moved to Taiwan and lived with his stepfather. He received education up to the secondary level and then pursed various callings in Hong Kong and Taiwan. He married the plaintiff’s mother Madam Chen in 1977 and had 2 sons born of this marriage. The sons are the plaintiff and his elder brother Tony Tao. He separated from Madam Chen in around 1989. He also came into contact with the defendant whom he had first met in 1975. They then started cohabiting in summer of 1989 at the defendant’s apartment. Madam Chen then petitioned for divorce from him in 1991 and obtained a decree absolute in November 1994. He and the defendant then married in May 1995. They also moved to an apartment at Po Garden in Mid-Levels in 1992 which became their matrimonial home after their marriage.
7. Mr Tao, after having started cohabiting with the defendant, did not visit Madam Chen or his sons often. He stopped visiting them since the early 1990s. In early 1997, the plaintiff reunited with him. In May 1997, the plaintiff came to live with him and the defendant. The plaintiff went to boarding school in the US. The plaintiff would return to live with him and the defendant during term breaks.
8. Apart from the matrimonial home in Po Garden, Mr Tao and the defendant also had a matrimonial home in Wilshire, Los Angeles, California. They often travelled back and forth between Hong Kong and Los Angeles and lived in these 2 matrimonial homes. Both of them were in retirement.
9. According to 2 witnesses of the defendant, Ms Kung and Mr Yao who were close family friends, the relationship between Mr Tao and the defendant had been a close and loving one. Mr Yao said that their relationship was so good that it was almost perfect.
10. Unfortunately, Mr Tao was diagnosed with brain tumour in October 2006. He and the defendant were then living in the Wilshire matrimonial home. The plaintiff was in his 2nd year of study of law at the New York University. It was then planned that he should arrange with the university to suspend his studies so that he could return to live with Mr Tao which he did in December 2006. Before his studies were suspended, he often returned to the Wilshire home and stayed with Mr Tao and the defendant. However, his relationship with the defendant had become antagonistic.
11. According to the defendant, the plaintiff would say to Mr Tao in the presence of the defendant and Ann Hsu that Mr Tao should leave the Tao’s family money to him as he would beget many offspring for the Tao family. He also said that Mr Tao should not leave anything in his estate to the defendant as the defendant would remarry. He and the defendant had arguments on what Mr Tao should or should not do for the sake of Mr Tao’s health. One example as witnessed by Mr Yao was whether Mr Tao should take his medicine with water or green tea. Mr Yao, being a pharmacist, did not think there was much difference between the two modes of taking the medicine. Another example was whether Mr Tao should take health supplements recommended by the plaintiff but not sure if approved by Mr Tao’s doctors.
12. Ms Kung, the other close family friend, witnessed an incident that when Mr Tao in the course of a dinner told his sister Ann Hsu that he would give Ms Hsu the property which was owned by him and was at the time occupied by Ms Hsu with his permission. The defendant supported the idea but the plaintiff opposed it. It was then not implemented.
13. Ms Kung said that both the plaintiff and the defendant wanted to do good to Mr Tao but they had different views of the matter. However Mr Yao said that these were reflections of a power struggle between the plaintiff and the defendant. In these struggles of power, Mr Tao always sided with the plaintiff and allowed the plaintiff’s arguments to prevail.
14. Since the diagnose of Mr Tao’s illness, the plaintiff and Mr Tao also had lengthy discussions behind closed doors to the exclusion of the defendant. All these alienated the defendant from Mr Tao. Despite all these, the defendant still devoted her attention to the care of Mr Tao both before and after his surgery on 21 November 2006.
The first will dated 20 November 2006
15. According to Mr Yao, it was around November 2006 that Mr Tao asked him to recommend a lawyer in Los Angeles to prepare a will for Mr Tao. He recommended Mr James Yan. In their general discussions about the Will, Mr Tao told Mr Yao that he intended to take care of the defendant, his sisters, nephews and nieces in his will.
16. Mr Tao went to see Mr James Yan in the evening of 19 November 2006 in the company of the plaintiff and Mr Yao but in the absence of the defendant. A sister of Mr Tao and a family friend Mr Hsiung were also present but the sister did not attend the meeting with Mr Yan. Mr Yao was present in the meeting room but did not take part in the discussion.
17. Mr Tao produced a draft will to the meeting. The plaintiff then made a lot of comments on how the Will should be drafted. There was disagreement between the plaintiff and Mr Tao over certain provision to be made in the Will. The plaintiff appeared to be dictating to Mr Tao on what should be included but Mr Tao did not want to include all the amendments he suggested. The plaintiff did a lot of talking but Mr Tao was quiet and the atmosphere was hostile. The Will was not signed in that evening as Mr Tao needed some assistance from D S Cheung & Co, a firm of solicitors in Hong Kong. This firm of solicitors was at least responsible for engrossing the Will for execution as the Will as executed bore this firm’s name.
18. Mr Tao returned home and gave his draft will to the defendant to fax to a solicitor in Hong Kong. That solicitor was probably a member of D S Cheung & Co. The defendant took a glance at the draft and learnt that she was given the life interest in the matrimonial homes in Hong Kong and Los Angeles but not the absolute ownership of the same. She was also not given the residuary estate and as a result she was very depressed.
19. In the morning of 20 November, Mr Tao went to the hospital for pre-surgery preparations. Mr Yao was also there and again witnessed a dispute regarding whether it should be the plaintiff or the defendant to be named as the trustee in certain medical document. The plaintiff again prevailed in the dispute.
20. There was then a dinner in that evening which was participated by Mr Tao, the plaintiff, the defendant, the defendant’s elder brother, Mr Yao, Ms Kung and possibly Ms Ann Hsu. After dinner, Mr Tao, the plaintiff, the defendant, Ms Ann Hsu, Mr Yao and Ms Kung went to Mr James Yan’s office. Mr Yao and Ms Kung went there at the request of the defendant to attest Mr Tao’s execution of the Will.
21. Mr Tao, the defendant and Ann Hsu were driven to Mr Yan’s office by the plaintiff. In the course of the journey, the plaintiff asked about the ownership of some apartments in the Convention Plaza in Hong Kong. Upon hearing from the defendant that they were held by companies of which Mr Tao and the defendant were directors and shareholders, the plaintiff reacted angrily and demanded Mr Tao to pay him the value of these apartments as he considered that the apartments should belong to him.
22. When everybody was at Mr Yan’s office, Mr Yao thought that the atmosphere was less hostile then the previous evening, but the plaintiff was still running the show. He demanded Mr Tao to make a short will to give him all Mr Tao’s assets. He walked to and fro and dictated the words for Mr Tao to put into the Will. Eventually Mr Yan asked both the plaintiff and the defendant to leave the room. Mr Yan then presented a will in Chinese and Mr Tao executed the same with Ms Kung and Mr Yao attesting the execution. This is Mr Tao’s first will.
23. By the first will, Mr Tao bequeathed US$1 million and an apartment in Wanchai to the elder son, Tony Tao. He then bequeathed to the defendant all the money in an account with the Bank of America, a life interest in the two matrimonial homes and all the vehicles. The account at the Bank of America at that time had about US$6 million.
24. He then bequeathed to the plaintiff all his other assets and properties and the residuary estate. These assets and properties include some investments of HK$9 million’s worth, all monies and stocks kept in the accounts with ICBC Bank, all stocks kept in an account with DBS Vickers, a deposit of US$2.5 million with LGT Bank (Switzerland) Limited, the reversionary interest in the two matrimonial homes, six apartments in the Hong Kong Convention Plaza, two apartments in Shanghai, four apartments in Las Vegas, a shop on Kimberly Road, Kowloon, two apartments in a luxurious development in Shenzhen and all watches, rings, clothing and shoes and the residuary estate.
25. Of these bequests, the shop on Kimberly Road and the two apartments in Shenzhen were originally intended to be for the defendant, but they were amended in Mr Tao’s handwriting to be for the plaintiff.
26. The first will also expressly stated that apart from the beneficiaries named therein, all other children of Mr Tao had no right to share any of his estate. This clause apparently was to exclude any claim by the twin daughters of his who were born outside of matrimonial relationship.
27. There was also no bequest to any of his sisters, nephews or nieces as he had told Mr Yao in their general discussions.
The divorce proceedings
28. After making his will on 20 November, Mr Tao had his surgery carried out by Dr Keith Black on the next day. The family friend Ms Kung observed that, despite a successful surgery and a gradual recovery, Mr Tao had his character changed and become quiet. Ms Kung felt that he was not as optimistic as before. The defendant was looking after him very carefully but he did not appreciate the care and had scolded and shouted at the defendant.
29. Mr Yao also felt that the relationship between the defendant and Mr Tao had changed from bad to worse after the surgery. He had also discussed with Mr Tao on why Mr Tao had treated the plaintiff better than the defendant. His view was that Mr Tao was a traditional Chinese man and considered sons to be very important. Mr Tao also believed that he was indebted to the plaintiff because he had left him and his mother for a long time. Mr Tao also knew that he had treated the defendant badly and was apologetic about that.
30. The defendant instituted divorce proceedings against Mr Tao on 21 August 2007. The papers were served on him on the same day at the Wilshire matrimonial home. He was shocked by this. The defendant then moved out of the Wilshire home on that day. She later told Ms Kung that the reason for the divorce was because Mr Tao did not treat her as his wife anymore and that made her feel very disappointed given their previous good relationship and the way she had cared about Mr Tao. She felt that the plaintiff had suddenly taken Mr Tao away from her.
31. After the defendant had moved out of Wilshire, Mr Tao had asked Mr Yao to assist in salvaging his relationship with the defendant and to remedy whatever that had caused the defendant to leave. Mr Yao had also seen Mr Tao lying on the bedroom floor and Mr Tao explained that he did not want to sleep in the bed because of the emptiness of the bed reminded him of the defendant. It appeared to Mr Yao that the plaintiff was the obstacle for Mr Tao to agree to the defendant’s terms for their reunion. Mr Tao had told Mr Yao that the plaintiff was very manipulative. Mr Yao also observed that Mr Tao was totally under the plaintiff’s manipulation and control and Mr Tao would use all means he could to satisfy the plaintiff’s demands. Mr Yao had asked Mr Tao the reason for this, but Mr Tao did not explain why.
The evidence on the Will
32. After the defendant had left Wilshire on 21 August 2007, Mr Tao executed the Will on 8 November 2007. He appointed the plaintiff the sole executor and trustee of the Will. He bequeathed in the Will US$1 million to his elder son Tony Tao. The bequest of the Wanchai apartment to elder son in the first will was not repeated by him in the Will. He then bequeathed all his residuary estate which comprised the rest of all his properties and assets to the plaintiff alone. He also expressly provided in the Will that nobody related to him by blood or otherwise including the defendant should dispute the validity of the Will.
33. The defendant now puts the plaintiff to strict proof of:
(1) due execution of the Will;
(2) the testamentary capacity on the part of Mr Tao; and
(3) knowledge and approval on the part of Mr Tao as to the content of the Will.
34. The plaintiff called three witnesses. They are Californian attorneys Ms C and Mr F Lin who attested the execution of the Will by Mr Tao. I address to Ms C not in her full name because I have addressed to her in the same way in a previous interlocutory decision which touched upon her personal matters. In order to protect her privacy, I continue to address her in this way in this judgment. The 3rd witness of the plaintiff is Ms D Wu, a partner of Messrs Fairbairn, Catley, Low & Kong, a firm of Hong Kong solicitors. Ms Wu was responsible for taking instructions from Mr Tao and she drafted the Will. In addition, the plaintiff also adduced a statutory declaration by Mr W Norman as hearsay evidence. Mr Norman is also a Californian attorney.
Meetings between Mr Tao and Ms C
35. Ms C gave evidence from Los Angeles via video link. She made a statutory declaration and provided additional information in the course of her cross-examination. In addition, there is a joint declaration of attorneys signed by Ms C and Mr Lin on 13 November 2007 and by Mr Norman on 14 November 2007 recording the evidence on the execution of the Will by Mr Tao.
36. She said in oral evidence that she was given a cold-call by the plaintiff who said that he had located her from the internet search engine Google as an attorney who spoke both English and Putonghua. She told the plaintiff that she was a tax and estate planning attorney. The plaintiff then arranged for her to meet with Mr Tao who needed advice in estate planning. Since Mr Tao had assets in Hong Kong and the US, Ms C also brought in Mr Norman, who was experienced in international estate planning, to advice Mr Tao. Ms C and Mr Norman had two meetings with Mr Tao in August 2007 in which the plaintiff was also present. In these two meetings, everything Mr Tao said in Putonghua was translated by Ms C to Mr Norman in English and vice versa.
37. There was then at the end of August 2007 a third meeting just between Mr Tao and Ms C. This meeting was held because Mr Tao wanted to talk to Ms C about his testamentary wishes. This 3rd meeting was not referred to in Ms C’s statutory declaration and she cannot recall why she made the omission.
38. She recalled that the 3rd meeting lasted for about 1½ hours. Mr Tao told her in the meeting about his two daughters who were born outside marital relationship. He also mentioned about his sisters but not the fact that he had provided them with financial support.
39. In re-examination, she recounted what Mr Tao had said about the defendant in the third meeting as follows:
“A. He explained that he was unhappy and disappointed because he was – you know, he had been diagnosed with this very serious illness, that he felt that by filing the divorce she was causing him stress. He also told me that he thought she had nothing to complain, that he felt he was a model husband, that he never gave her a budget, that she was allowed to spend money on clothes. He said that, you know, in their social circles that she often received – she often received compliments or was perceived to be a very fashionable person, well dressed, and he said – I remember a story he told me, this is all in the context of him saying ‘I don’t understand why she filed for a divorce, I’m a model husband’, etc, he told me that, I don’t know the timing, but he said that there was a visit where she alone went to Las Vegas, and apparently during the course of her stay lost a significant amount of money and he just said to me, ‘All I did was ask her to be more cautious next time and she became angry with me that, how dare I prohibit her from spending money’, but my recollection was that he told me she lost, you know, something north of US$1 million during her stay. I believe at that meeting he may have also told me that she, without his permission, took out a very large sum from his Bank of America account, I think it was something like $4 million, $4.4 million, and so he said for these reasons he was unhappy with the actions she’s taken, that he did not wish to include her in his testamentary wishes.
…
A. I was just restating what Mr Tao had told me. There was another story he told me, something to the effect that he was home all day alone, or he hadn’t eaten all day and he asked Ms Yung to go with him to eat because he was hungry and then, you know, she wouldn’t go with him because, you know, he didn’t feel well, he was upset that she couldn’t be inconvenienced to go with him to eat when she didn’t feel like eating; something like that.
Q. Do you remember any other things that he’s mentioned about how he was being treated poorly by Ms Yung?
A. I think that was also in the context of the statement that Mr Tao told me that she also, without his permission, withdrew the large sum of money, the $4 million from the Bank of America account.”
Evidence on the taking of instructions and drafting of the Will
40. The Will was in fact drafted by Ms Wu of Fairbairn. Ms C took no part in the actual drafting, but she gave some advice to Mr Tao on his Chinese draft which was later used by him as his instructions to Ms Wu. Ms C also advised on a few minor technical amendments for the making of the initial and final drafts.
41. Ms Wu of Fairbairn made a witness statement and provided further details in cross-examination on how she had taken instructions from Mr Tao and provided the drafts of the Will for him. She said she was asked by her litigation partner Mr Terence Luk in September 2007 to draft a will for Mr Tao. She received written Chinese instructions from Mr Tao (p 1294). That is Mr Tao’s draft Chinese will which had been commented upon by Ms C. The instructions or draft will was typed in Chinese and sent by Ms C by e-mail to her on 10 September. In fact, there is produced in the evidence an earlier handwritten draft in the same terms which had been provided to Ms C (p 224 to 245). The defendant identified the handwriting in that draft as that of Mr Tao. The typed written draft will sent to Ms Wu is based on this written draft.
42. Mr Tao stated in his draft will that the will to be made would supersede the first will he made in 2006. He expressly stated that he would not bequeath anything to his wife the defendant, because he was unhappy about her. In particular after he had fallen ill in 2006, her conduct had made him very unhappy and absolutely disappointed. Furthermore she had recently applied for divorce from him. He also said he had some assets temporarily placed under the name of the defendant which he did not intend to give to the defendant. He also mentioned that the defendant had taken away US$4.4 million of his money from an account in their joint names without his consent and he wanted to recover this money from the defendant.
43. He then instructed a bequest of US$1 million to his elder son Tony Tao and gave all the rest of his assets and properties to the plaintiff to the exclusion of all his other children.
44. He also wanted to appoint the plaintiff as his executor.
45. Finally, he said he had to execute this will in the US because he was receiving medical treatment in the US. However, he wanted his estate to be administered according to the laws of Hong Kong.
46. Ms Wu found some provisions in the draft unusual. These are the provision not to give anything to the wife, making a complaint against the wife and the instruction of recovery of assets from the wife. Furthermore, the statement that Mr Tao was receiving treatment in the US was just instruction to his solicitor rather than a provision in a will.
47. Since there were these unusual provisions in the draft and that Ms Wu had only communicated with Ms C and not Mr Tao, Ms Wu therefore asked for a telephone conference to talk to Mr Tao.
48. She and Mr Luk then had a ½ hour long distance telephone conference with Mr Tao on 14 September in which Mr Tao gave detailed instructions as to the contents of the Will. These instructions were by way of confirmation of his instructions in his draft will.
49. Ms Wu also said in oral evidence that she had learnt from Mr Terence Luk that Mr Tao was suffering from cancer though she was not told the type of tumour. However, after reading Mr Tao’s instructions and having had the telephone conference with him, she was of the view that he was as at 14 September fully capable of understanding the nature of a testamentary act and of giving instructions as to his testamentary wishes and dispositions. She also said that Mr Tao was very alert and lucid in the telephone conference and gave instructions with clarity. She had no doubt that Mr Tao as at 14 September had the requisite testamentary capacity when he gave instructions for the preparation of the Will.
50. She also added in cross-examination that throughout the telephone conference, she had only talked to Mr Tao and nobody else. Mr Tao was also quite fast in responding to questions and not appeared to have been prompted or hinted by anyone. He was quite spontaneous in responding to her questions. She further said in re-examination that Mr Tao’s speech had force and was energetic.
The e-mails between Ms C and Ms Wu
51. Ms Wu’s only direct discussion with Mr Tao was in the telephone conference. All her other communications with Mr Tao were conducted care of Ms C by e-mail. She also confirmed that after she had e-mailed the first draft of the Will to Mr Tao care of Ms C on 6 October, she only received the simple amendment instructions on 6 November which she implemented on the same day. She then e-mailed and couriered the final draft to Ms C.
52. There are some e-mail exchanges between Ms C and Ms Wu which have been produced. The 1st mail was from Ms C to Ms Wu dated 28 August 2007 wherein Ms C introduced herself to Ms Wu. She also mentioned that Mr Tao was finalising his draft will in Chinese after she had given him some advice.
53. Ms Wu replied on 29 August and suggested that the Will should preferably be prepared in Chinese to avoid any dispute in interpretation. She said in oralevidence that she had made an error here as she intended to suggest a will in English but mistakenly mentioned a will in Chinese. I accept the explanation.
54. On 10 September, Ms C e-mailed a draft of Mr Tao’s will in simplified Chinese for Ms Wu’s review.
55. On 13 September, Ms C gave Ms Wu a further e-mail to enquire if Ms Wu’s computer could unravel Mr Tao’s draft will.
56. On 14 September, Ms Wu replied to Ms C and advised that Ms Wu and her partner Mr Terence Luk had talked to Mr Tao on that day about the Mr Tao’s memorandum (which I understand to be the draft will) and she would draft a will for Mr Tao in English.
57. There was then a letter dated 6 October by e-mail from Ms Wu to Mr Tao care of Ms C. The letter attached a draft will in English and a Chinese translation of the same. It also contained some legal advice for Mr Tao to consider.
58. The next mail was dated 6 November from Ms C to Ms Wu wherein Ms C said Mr Tao had a health set back and would be coming to her office on 8 November to execute his will. Ms C also suggested a few minor technical amendments to the draft will she received from Ms Wu on 6 October. There was then a further e-mail from Ms C on a supposed typo mistake.
59. Ms Wu finalised the draft will and sent it with a Chinese translation to Ms C both by e-mail and courier on 6 November. Ms Wu also said in her letter the following:
“… Same as in U.S.A., the Will has to be signed by the testator in the presence of two independent witnesses who must not be one of the beneficiaries or his spouse. Please go through the contents of the Will with Mr Tao Hiu Ming and make sure that he fully understands the contents of the Will and is of sound mind. We recommend that his medical practitioner be present to confirm that he is of good mental and physical condition. Attached please also find a copy of the sample medical certificate for your use.
…”
60. The sample medical certificate is worded as follows:
“I, Dr. [ name ] of [ address ] hereby certify that I have examined Tao Hiu Ming at [ address ] immediately before the contents of his Will dated [ ] were read over and explained to him by (Ms C) and I am of the opinion that he was of sound mind, memory and understanding, and that he was sufficiently orientated and in adequate command of his own faculties both when the contents of the said Will were read over and explained to him and when he signed the said Will. He was aware of the nature of the said Will and of his act.”
61. Ms C then replied by e-mail on 7 November. The material part of the mail is as follows:
“Also, with respect to your recommendation to have Mr. Tao’s physician present during the execution, we probably will not be able to arrange this given the short time constraint. Is this customary in HK?
I have been informed that Mr. Tao will have a 4-hour neurological exam on November 13, 2007 and have been asked to confirm with you whether it is necessary for him to go through this exam. I think the concern is that this is a long process and Mr. Tao would rather not have it if not necessary. I have indicated that I will defer to your advice.
What is the threshold in HK to have capacity to sign Wills? In California, it is not very high - the testator only needs to understand that he is signing his Will and the manner in which his assets are being disposed. Under California standards, Mr. Tao certainty has the capacity to sign – if he had not told me he had cancer, I never would have guessed it – he physically appears to be good health.”
62. Ms Wu then made her last reply also on 7 November as follows:
“Under Hong Kong laws, a testator has to know and approve the contents of his Will. When a testator is elderly and inform his Will should be witnessed and approved by a medical practitioner who satisfies himself as to the capacity and understanding of the testator and who records his examination and findings.
We therefore suggest that if possible, a medical practitioner be present at time of execution of the Will to certify the capacity of Mr Tao in the event that his capacity is being challenged in the future.”
63. Regarding her e-mail of 6 November, Ms Wu said that she learnt from Ms C’s e-mail of the same day that Mr Tao had a health set back. It had already been a month since she had despatched the first draft. She did not know what had happened to Mr Tao and was therefore a bit concerned as to whether Mr Tao’s health had deteriorated. She therefore followed her usual practice to recommend that Mr Tao’s medical practitioner should be present at the execution of the Will to confirm that Mr Tao was of good mental and physical condition. She also attached her sample medical certificate in her e-mail of 6 November for Ms C’s consideration.
64. However, Ms C in her reply e-mail of 7 November indicated that it was unnecessary to have Mr Tao’s doctor present at the execution. Nevertheless, Ms Wu reiterated her advice for doctor’s presence if the testator was elderly or inform. She explained in cross-examination that she repeated her advice out of prudence as she had not met Mr Tao.
65. Ms C was also asked about the following paragraph in her e-mail of 7 November to Ms Wu:
“What is the threshold in HK to have capacity to sign Wills? In California, it is not very high – the testator only needs to understand that he is signing his Will and the manner in which his assets are being disposed. Under California standards, Mr Tao certainty has the capacity to sign – if he had not told me he had cancer, I never would have guessed it – he physically appears to be good health.”
She explained that she was just stating her opinion and not trying to justify that a medical examination was unnecessary. She agreed that she was giving an opinion that if the mental threshold in Hong Kong for executing a will was no higher than that of California, then the medical examination for Mr Tao would not be necessary.
Ms C’s evidence on execution of the Will
66. Mr Tao then executed the Will on 8 November with Ms C and Mr Lin as attestation witnesses and also in the presence of Mr Norman but without the presence of any medical practitioner.
67. Ms C gave evidence in her statutory declaration of the actual execution of the Will by Mr Tao. She said that Mr Tao arrived at her office at 2:45 pm on 8 November. He came with his sister Susan, her young son and a female friend. He appeared very alert and was in good spirit. Ms C then called her colleague Mr Lin to join her. Mr Lin was fluent in English and Putonghua and could read both languages. Hence, Ms C asked him to act as an attesting witness.
68. Mr Norman also arrived at about 2:55 pm. Ms C said it was her idea that Mr Norman should be present as she would like to have someone with whom Mr Tao had met before to be present. She said in cross-examination that Mr Norman was not an attesting witness or to replace the doctor who was not available. She further explained that Mr Lin, the other attesting witness had not met Mr Tao before. She wanted Mr Norman there because Mr Norman had seen Mr Tao since their initial meeting and was someone who had seen Mr Tao during the course of those three months. Mr Norman knew how Mr Tao was and was familiar with Mr Tao.
69. The meeting then proceeded but without Mr Tao’s relatives and friend. The meeting was for Mr Tao to execute the Will, an Advance Health Care Directive and a letter of intent to recover what he regarded as his assets from the defendant. The Health Care Directive has nothing to do with these proceedings.
70. Mr Tao then read the Will slowly paragraph by paragraph. In the course of his review, he asked Ms C to confirm that the plaintiff was to be the sole executor and residuary beneficiary and that the defendant was not a beneficiary as he intended not to provide for her because she had started divorce proceedings against him and had treated him very badly. He also instructed Ms C to change his US address to his Hong Kong address in the Will. After reading the Will, he confirmed in Putonghua that he understood and approved of the contents which represented his wishes.
71. On the two matters of making the plaintiff the sole executor and residuary beneficiary and not providing for the defendant, Ms C said in her statutory declaration that these were raised by Mr Tao when he was reviewing the contents of the Will. However, the declaration of attorneys, which Ms C signed on 13 November 2007, seems to suggest that the two matters were elicited from Mr Tao by a series of questions from Ms C. Ms C in cross-examination preferred the version in her statutory declaration. She said that the statutory declaration was a more detailed account and a more detailed memorialisation than the declaration of attorneys. She also did not regard that there was any inconsistency between the two documents.
72. She also explained in oral evidence that her series of questions were standard questions which were open ended. She gave some examples of such questions like:
“Is your name Tao Hiu Ming? Is your name William Tao? Is this your Will? Have you read it and understand its contents? Do you understand how this Will disposes of your assets when you pass away? Is anyone forcing you to sign this document?”
73. She also said in her statutory declaration that she had asked Mr Tao these questions before Mr Tao executed the Will. It was a standard practice by attorneys in California. The purpose was to ascertain the testamentary capacity of the testator, to confirm his testamentary wishes and dispositions and to ensure that he fully understood and approved of the contents of the Will. Mr Tao confirmed his understanding that he was signing his will which accurately directed the disposition of his assets upon his death. He also confirmed that he was not signing his will under any duress or undue influence and was signing it out of his own free will and volition. These questions and Mr Tao’s answers in Putonghua were translated by Ms C into English for the benefit of Mr Norman.
74. Prior to the execution, Mr Lin also read aloud the Chinese translation of the Will to Mr Tao and Mr Tao assisted Mr Lin with the pronunciation of a few Chinese words. Mr Tao then executed the Will at about 3:15 pm. He also signed the Chinese translation of the Will. The Will and the Chinese translation were then signed by Mr Lin and Ms C as attesting witnesses. Mr Norman was not asked to sign as Hong Kong law only requires two attesting witnesses. The meeting took about 20 minutes.
75. After the execution of the Will, both Mr Lin and Mr Norman left the meeting leaving Ms C behind to assist Mr Tao on the signing of the Advance Health Care Directive and the letter of intent to recover assets.
76. Ms C also said that from her interactions and conversations with Mr Tao at the meeting on 8 November 2007, she was satisfied that Mr Tao:
(1) understood the nature of the testamentary act;
(2) understood and recollected the nature and situation of his properties; and
(3) remembered and understood his relations to his spouse, living descendants and the people whose interests were affected by the Will.
These are also the criteria under the Californian Probate Code for ascertaining testamentary capacity.
77. In cross-examination, Ms C reiterated that her interaction with Mr Tao and her discussion with him made her very confident that Mr Tao met the requisite requirements to sign the Will.
78. There were also the following questions and answers in her
re-examination:
“Q. … When you saw Mr Tao on 8 November, could you tell us his condition, both physical and from your interaction with him, his ability to express himself as compared with previous occasions when you met him?
A. It was consistent with his general well-being on the prior occasions that I saw him. He was alert. Mr Tao was a very dynamic, energetic man. He was the same. … It was his condition I found no different than prior meetings I had with Mr Tao.
…
Mr JAT: So far as 8 November was concerned, was there anything from your interaction with Mr Tao which would cause you to think that he was infirm?
A. No.
Q. Was there anything that would cause you to think, well, I can’t have the execution done on this day, I ought to have medical doctors present?
A. No.”
79. Regarding the decision not to have Mr Tao’s doctor present at the execution of the Will, Ms C said in cross-examination that it was not made by her. She also said that she was advised that it would be difficult and perhaps impossible to arrange for a medical professional to be present at the execution. She therefore said that it was possible that there was no positive decision not to have the doctor there, but it was just not possible to secure him because of availability.
80. Ms C also agreed that for all her communication with Mr Tao by e-mail, it was done through the plaintiff. Such communication would include the relaying of e-mails from Ms Wu with the draft Will attached.
Mr Lin’s evidence on execution of the Will
81. Mr Lin also made a statutory declaration. His evidence was on his involvement in this matter from about 2:45 pm on 8 November 2007 as he had not met Mr Tao before. He said in oral evidence that there was no prior arrangement for him to be one of the attesting witnesses. He just happened to be in the office and he was one of the two persons in the firm (including Ms C) who could speak fluent Chinese. Ms C therefore enlisted his help in attesting Mr Tao’s execution of the Will. He also agreed in cross-examination that he was called upon by Ms C unexpectedly to be an attesting witness. His evidence on the whole is similar to Ms C’s. He was also satisfied that Mr Tao had testamentary capacity under the Californian Probate Code.
82. Regarding the two matters of making the plaintiff the sole executor and residuary beneficiary and not providing for the defendant, Mr Lin said that they were raised by Mr Tao out of his own initiative in the course of his reviewing the Will and not elicited by Ms C’s questions.
83. Regarding the passage in the declaration of attorneys which seems to suggest that the two matters were elicited by Ms C’s questions, Mr Lin’s understanding was that Ms C’s questions to Mr Tao were on the accuracy of the Will.
84. Mr Lin also recalled in cross-examination that Mr Tao was very alert on that day. This observation was based on his interaction with Mr Tao, the responsiveness of Mr Tao and the questions raised by and general demeanour of Mr Tao. He did not have any impression that Mr Tao was suffering from any illness on that day. His impression was that Mr Tao knew what he was doing on that day as he was alert. When he was told by Ms C that Mr Tao had some health issues, he was surprised. Since Mr Tao had some health issues (the nature of which he was not apprised of), he and Mr Norman decided that he should read aloud the Will to Mr Tao which he did slowly and carefully to ensure that Mr Tao understood the same.
Mr Norman’s statutory declaration on execution of the Will
85. The plaintiff also adduced Mr Norman’s statutory declaration but did not call him to testify. The content of this statutory declaration is more or less the same as that of Ms C and Mr Lin. Mr Norman said he had met Mr Tao on at least two previous occasions and advised Mr Tao in relation to some international estate planning and income tax issues. On the other hand, the declaration of attorneys which he also signed merely said that he had met Mr Tao on one previous occasion in which he gave the said advice to Mr Tao. However, Ms C both in her statutory declaration and oral evidence was firm that Mr Norman had met Mr Tao in two previous meetings when the said advice was given.
86. Mr Norman also said in the statutory declaration that Mr Tao raised on his own initiative the two matters of making the plaintiff the sole executor and residuary beneficiary and not providing for his wife. He raised them for confirmation in the course of reviewing the Will.
87. Mr Norman also said Mr Tao was very engaged in the process on that day. However, he, Ms C and Mr Lin decided that Mr Lin should read the Will aloud to Mr Tao before execution as he knew that Mr Tao had some health issues. He then mentioned the execution of the Will by Mr Tao and the attestation of the same by Ms C and Mr Lin. He also opined that Mr Tao had the testamentary capacity as required by the Californian Probate Code.
The defendant’s evidence
88. The defendant made a lengthy witness statement which was adopted as her evidence in chief. She described the background of Mr Tao, her own background and how they met and alter married after Mr Tao was divorced by his former wife, Madam Chen. She also described their family life which they spent in their two matrimonial homes in Hong Kong and Los Angeles. She also talked about the investments which she said were made by Mr Tao and her jointly. She then mentioned about the plaintiff who left his mother and joined their family at the age of 15. She also referred to Mr Tao’s illness, how their relationship changed thereafter and her problems with the plaintiff.
89. She referred to the execution by Mr Tao of the first will on 20 November 2006 which was followed by Mr Tao’s surgery on the next day. After the surgery, their relationship deteriorated further. Eventually she instituted divorce proceedings against Mr Tao on 21 August 2007 and moved out of the Wilshire matrimonial home on the same day.
90. When Mr Tao executed the Will on 8 November 2007, she had already been out of touch with him save through lawyers for over two months. She did not know that Mr Tao had made the Will until the guardianship proceedings which took place in July 2008 in Hong Kong.
91. In cross-examination, she agreed that her relationship with Mr Tao was not good in the period from August 2007 to February 2008. This is also borne out by the letters which were exchanged between their respective lawyers after her filing of the divorce suit against Mr Tao on 21 August 2007.
92. On 26 October 2007 which was about two weeks before the execution of the Will, Mr Tao through his US lawyers also demanded the defendant to return the US$4.4 million which she had withdrawn from their joint account in the middle of July 2007.
93. Regarding her withdrawal of the US$4.4 million, she said in cross-examination that she did not know how long they had to stay in the US because of Mr Tao’s illness. She was afraid that the brain tumour could affect Mr Tao’s thinking so that he might give all the money to the plaintiff. She therefore went to the bank where they had the joint account, opened another account in her own name and transferred US$4.4 million into that account leaving behind over US$1 million for their daily expenses. She then told Mr Tao about what she did. Mr Tao did not ask her to return the money until his lawyers’ letter of 26 October 2007.
Medical and other documentary evidence on Mr Tao’s testamentary capacity
94. Apart from the evidence of the witnesses, there are also some contemporaneous medical records on Mr Tao’s health.
95. There is a consultation report made by Dr Amin Mirhadi of the Cedars-Sinai Outpatient Cancer Centre on a consultation on 6 November 2007 (C1-399). The report revealed that Mr Tao had been prescribed by his medical oncologist, Dr Drazin a few months ago some drugs called Levitra and Avastin. Mr Tao would be receiving additional systemic therapy under the care of Dr Drazin and the drugs would include Temodar, Levitra and Avastin. Temodar is an oral chemotherapy drug. Mr Tao noted that he had some instability when he walked, loss of balance, occasional headaches and difficulty with ambulation. Dr Mirhadis’ physical examination of Mr Tao showed that Mr Tao was in no apparent distress. He was alert and oriented and addressed questions appropriately. Dr Mirhadis’ impression of Mr Tao was that he was about to restart systemic therapy. His functional status had gradually diminished, but he was still ambulatory and had a relatively normal mental status.
96. Another medical consultation report was made by Dr Keith Black of Cedars-Sinai Medical Centre on a consultation on 14 November 2007 (C1-401). The report recorded more growth of new tumour along the septum pellucidum, right lateral ventricle and right thalamic area. Mr Tao had one treatment of Avasin on 7 November 2007. Dr Black’s physical examination of Mr Tao showed that he was awake, alert and oriented. He followed commands appropriately. He also ambulated without difficulty.
97. He was then having Avastin treatment on a biweekly basis and took Levitra and 80 mg of Temodar daily (C1-319).
98. Dr Black also provided a letter of opinion dated 17 March 2011. He said:
“…
I was Mr Tao Hiu Ming’s neurosurgeon and I operated on him in late 2006. Following his surgery, Mr Tao Hiu Ming was under my care from late 2006 to early 2008 and I was in charge of his medical treatment. During that period, I met and examined Mr Tao Hiu Ming on a regular basis.
According to Mr Tao Hiu Ming’s son, Mr Tao Shen Jong, Mr Tao Hiu Ming executed a will on 8 November 2007.
It is my opinion that in November of 2007, Mr Tao Hiu Ming had the relevant testamentary capacity and had the ability to:
(1) understand the nature of a testamentary act;
(2) understand and recollect the nature and situation of his property; and
(3) remember and understand his relations to living descendants, spouse, and parents, and those whose interests are affected by his will.
…”
99. In addition, Mr Tao underwent a one hour Global Mental Status Evaluation which was a neuropsychological assessment on 13 November 2007. It was conducted by Po H Lu, Psy D, Director, UCLA-ADRC Neuropsychology Laboratory and Assistant Clinical Professor of Neurology, David Geffen School of Medicine at UCLA (B-269 to 270). Mr Tao underwent the evaluation to evaluate his global cognitive status.
100. Dr Lu’s report stated that:
“… His mood was pleasant, affable, and engaging throughout the assessment. The patient was alert and oriented. …The patient spoke Mandarin and speech characteristics were normal for fluency, clarity, rate, volume, and prosody. He did not display any word finding difficulty or memory lapses. Thought process was linear, organized, and goal-directed. No hallucinations and delusional thinking were apparent during the testing. He demonstrated good task persistence and effort; therefore, the test results are judged to be valid and interpretable and accurately reflect his present global cognitive functioning.”
101. The Cognitive Abilities Screening Instrument (CASI) – Chinese Version 2.0 was administered to by Dr Lu to Mr Tao and Mr Tao obtained a score of 90/100 on the CASI (MMSE-CE = 28/30), indicating intact global cognitive abilities. Dr Lu concluded that:
“In summary, assessment of Mr Tao’s global mental status did not reveal any notable cognitive deficits as he performed within normal limits across the abilities assessed by the CASI including attention, orientation, short-term memory, long-term memory, language abilities, visual construction, verbal (category) fluency, abstraction, and judgment. It should be emphasized that the present assessment yields only a gross estimate of the patient’s global cognitive abilities and it is not meant to provide a detailed profile of the patient’s neuropsychological functioning. For the purposes of the referral question (per the patient’s request), his global cognitive status remains relatively intact.”
102. In the patient’s questionnaire for this evaluation (C1-319), it was originally stated that Mr Tao needed the evaluation to assess his “mental status”. It was then amended to an assessment of his “lucidness”. Mr Wong, leading counsel for the defendant submitted that “lucidness” had nothing to do with testamentary capacity. Furthermore, Mr Wong said that because of this so-called last minute change in the scope of the test from “mental status” to “lucidness”, Dr Lu had to specifically emphasise the limitation of the purpose of the test.
103. I think the proper way to understand the purpose of the test is to read Dr Lu’s report and in particular his conclusion referred to above. It is clear that Dr Lu had conducted an assessment of Mr Tao’s global mental status. After giving his conclusion on the test, he further said that Mr Tao’s “global cognitive status remains relatively intact” by way of an answer to Mr Tao’s request for an assessment of his “lucidness”. This statement was not meant to be a limitation of the purpose of the test. I also do not think anything turns on the amendment of the scope of the test from “mental status” to “lucidness”. The test that Dr Lu conducted on Mr Tao was a Global Mental Status Evaluation.
Findings of facts
104. Regarding the plaintiff’s witnesses, Ms Wu is a Hong Kong solicitor who was instructed to draft the Will. She did not know Mr Tao or the plaintiff. Her only direct contact with Mr Tao was in the ½ hour long distance telephone conference on 14 September 2007. She also did not know the plaintiff. She initially found some of Mr Tao’s instructions contained in his draft Chinese will unusual. She then took instructions from him in the ½ hour telephone conference. She was talking to and taking instructions from Mr Tao direct. There was nobody there to prompt or hint Mr Tao. After the telephone conference, she was convinced that Mr Tao had testamentary capacity.
105. On 6 November 2007, which was a month and three weeks after she had talked to Mr Tao, she was told that Mr Tao had some health set-back and was about to execute the Will. She therefore suggested the presence of a doctor to confirm his testamentary capacity before the execution of the Will. She repeated her suggestion on 7 November. She made the suggestion not because she knew of any concrete reason requiring Mr Tao to be medically examined before executing the Will but simply out of prudence as she had not heard from Mr Tao for sometime and was told that he had some health set-back. She is a solicitor and has no interest in the outcome of this action. Her evidence is reasonable. I accept her evidence as true.
106. Regarding Ms C, she is also a lawyer and unrelated to either Mr Tao or the plaintiff. She also has no interest in the outcome of this action. She had three meetings with Mr Tao before the one in which the Will was executed. Mr Norman was present in the 1st and 2nd meetings. Though she had advised on the draft Chinese will which was used by Mr Tao as his instructions to Ms Wu, she had no part in the giving of verbal instructions to Ms Wu or on the drafting of the Will save a few technical points (see C4 pp. 1280 to 1281, 1292 to 1294 and 1298).
107. There are however conflicts between her oral evidence and statutory declaration on the one hand and the joint declaration of attorneys she signed on 13 November 2007 on the other regarding (i) whether the meeting on 8 November for execution of the Will was fixed after she had received the second draft of the Will from Ms Wu on 6 November or the meeting had been fixed before that, (ii) whether Mr Tao had of his own volition raised the two issues of making the plaintiff the sole executor and residuary beneficiary and not providing for the defendant and (iii) whether Mr Norman had met Mr Tao just once or twice before the meeting on 8 November. She also omitted her 3rd meeting with Mr Tao from her statutory declaration.
108. Nevertheless, I, having heard her oral evidence via the video link and considered her evidence as a whole including her e-mail exchanges with Ms Wu, the evidence of Mr Lin and the statutory declaration of Mr Norman which corroborates each other, find her a truthful and forthright witness despite the above unsatisfactory aspects. I accept her evidence. I also accept her reason for securing the presence of Mr Norman at the execution of the Will as Mr Norman had met Mr Tao in the three months hitherto and knew how Mr Tao was during that period.
109. Mr Lin is also a lawyer and has no interest in the outcome of the action. He was a stranger to Mr Tao until the meeting for execution of the Will. He was brought in as an attesting witness because he happened to be in the office and was fluent in both English and Putonghua. After attesting Mr Tao’s execution of the Will and having signed the joint declaration of attorneys, he had nothing more to do with Mr Tao. I also accept his evidence despite its conflict with the joint declaration of attorneys on the issue of whether Mr Tao had of his own volition raised the issues of making the plaintiff the sole executor and residuary beneficiary and not providing for the defendant.
110. Regarding Mr Norman’s statutory declaration, I also accept its contents as truthful as they are in line with the evidence of Ms C and Mr Lin.
111. I also accept the evidence of Mr Yao and Ms Kung. They are close family friends who came all the way from Los Angeles to Hong Kong to give evidence in this action. They are helpful witnesses who responded to questions directly and in a forthright manner. I find that there is no reason for them to side with either the plaintiff or the defendant. I also accept Mr Yao’s perception that there was a struggle between the plaintiff and the defendant for Mr Tao’s preference. The plaintiff appeared to have prevailed in the struggle. This resulted in the defendant taking out divorce proceedings against Mr Tao and her moving out of the Wilshire matrimonial home on 21 August 2007.
112. Regarding the defendant’s evidence, I think the material parts on the background and the circumstances of the making of the first will are covered by Mr Yao and Ms Kung. Mr Yao and Ms Kung are independent from the outcome of this action. I prefer their evidence. Hence, it is not necessary to make any finding on the defendant’s evidence.
The legal principles
113. The legal principles governing the propounding of a will is well settled and has been set forth by Ribeiro PJ in the judgment of the CFA in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387 at paras 171 to 173:
“G.2 The burden of proof when a will is propounded
171. A person who propounds a will has the legal or persuasive burden of satisfying the court that it is the will of the deceased: Barry v Butlin (1838) 2 Moo PC 480; Robins v National Trust Company Limited [1927] AC 515; Wintle v Nye [1959] 1 WLR 284 (HL).
172. The standard of proof is the balance of probabilities. The proponent of the will must show on a preponderance of the evidence that it is the will of the deceased: Worth v Clasohm (1952) 86 CLR 439, 453; Fuller v Strum [2002] 1 WLR 1097, 1120.
173. This means that the proponent of the will has the persuasive burden of proving on a balance of probabilities that:
(a) there was due execution of the will;
(b) the testator was of testamentary capacity; and,
(c) the testator knew and approved of the contents of the will.
(Barryv Butlin (above); Harmes v Hinkson [1946] 3 DLR 497 (PC))”
114. Mr Wong for the defendant referred to Williams, Mortimer & Sunnucks, Executors, Administrators and Probate (20th edn) at para 13-03 for the law on the second issue of testamentary capacity:
“For a will to be valid:
(1) The testator’s mind must be sound to be capable of forming the testamentary intentions embodied in the will;
(2) The testator’s memory must be sound to recall the several persons who ought to be considered as his possible beneficiaries; and
(3) The testator’s 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.”
115. In addition, Mr Wong also referred to the requirements set out by Cockburn CJ in Banks v Goodfellow, LR 5 QB 549 at 565:
“It is essential to the exercise of such a power that a testator
(1) shall understand the nature of the act;
(2) and its effects;
(3) shall understand the extent of the property of which he is disposing;
(4) shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural facilities – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”
116. Mr Jat, leading counsel for the plaintiff however referred to Hawkes v Burgess [2013] EWCA Civ 74 where Mummery J said at para 60:
“My concern is that the courts should not too readily upset, on the grounds of lack of mental capacity, a will that has been drafted by an experienced independent lawyer. If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity. (emphasis added).”
117. Mr Wong in turn in his closing submissions referred to the “golden rule” mentioned by Templeman J (as he then was) in Kenward v Adams (1975) The Times 29 November 1975 as follows:
“In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rulewhich should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfied himself of the capacity and understanding of the testator, and records and preserves his examination and findings.
There are other precautions which should be taken. If the testator has made an earlier will this should be considered by the legal and medical advisers of the testator and, if appropriate, discussed with the testator. The instructions of the testator should be taken in the absence of anyone who may stand to benefit, or who may have influence over the testator.
There are not counsels of perfection. If proper precautions are not taken injustice may result or be imagined, and great expense and misery may be unnecessarily caused.” (emphasis added).
118. Regarding the third issue of the testator’s knowledge and approval of the contents of the Will, the parties accept that if the propounder of the will can prove due execution and testamentary capacity, there is then a rebuttable presumption that the testator knew or approved of the contents of the will.
119. Mr Jat also referred to Gill v Woodall and Ors [2011] Ch 380 for the approach to consider a will prepared and read over by a solicitor to a testator. Lord Neuberger MR said at paras 14 to 16:
“14 Knowing and approving of the contents of one’s will is traditional language for saying that the will ‘represented [one’s] testamentary intentions’” see per Chadwick LJ in Fuller v Strum [2002] 1 WLR 1097, para 59. The proposition that Mrs Gill knew and approved of the contents of the will appears, at first sight, very hard indeed to resist. As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testatrix, raises a very strong presumption that it represents the testatrix’s intentions at the relevant time, namely the moment she executes the will.
15 In Fulton v Andrew (1875) LR 7 HL 448, 469, Lord Hatherley said that
‘when you are once satisfied that a testator of a competent mind has had his will read over to him, and has thereupon executed it … those circumstances afford very grave and strong presumption that the will has been duly and properly executed by the testator …’
This view was effectively repeated and followed by Hill J in Gregson v Taylor [1917] P 256, 261, whose approach was referred to with approval by Latey J in In re Morris, decd [1971] P 62, 77F-78B. Hill J said that ‘when it is proved that a will has been read over to or by a capable testator, and he then executes it’, the ‘grave and strong presumption’ of knowledge and approval ‘can be rebutted only by the clearest evidence’. This approach was adopted in this court in Fuller v Strum [2002] 1 WLR 1097, para 33 and in Perrins v Holland [2011] Ch 270, para 28.
16 There is also a policy argument, rightly mentioned by Mrs Talbot Rice, which reinforces the proposition that a court should be very cautious about accepting a contention that a will executed in such circumstances is open to challenge. Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries. Human nature being what it is, such people will often be able to find evidence, or to persuade themselves that evidence exists, which shows that the will did not, could not, or was unlikely to, represent the intention of the testatrix, or that the textatrix was in some way mentally affected so as to cast doubt on the will. If judges were too ready to accept such contentions, it would risk undermining what may be regarded as a fundamental principle of English law, namely that people should in general be free to leave their property as they choose, and it would run the danger of encouraging people to contest wills, which could result in many estates being diminished by substantial legal costs.”
120. Mr Jat also submitted that the defendant has not made any plea that Mr Tao did not know and approve the contents of the Will, hence “the body of case law relating to “suspicious circumstances” in the context of want of knowledge and approval is not … relevant” (Wang Din Shin v Nina Kung, CACV 460/2002 per Yuen JA at para 894 – not disturbed by the CFA).
121. However, Mr Wong for the defendant submitted that this case is one of those that excites the vigilance and suspicion of the court and the plaintiff must satisfy the court affirmatively that Mr Tao knew and approved of the contents of the Will. He relies on the second rule in Barry v Butlin. Ribeiro PJ has examined this rule in detail in paras 204 to 221 of Nina Kung v Wong Din Shin and the parts relevant to this case are:
“G.9 The second rule in Barry v Butlin
204. The influence of the second complication was much more profound in the courts below. In Barry v Butlin (1838) 2 Moo PC 480, Parke B set out two rules which have since repeatedly been referred to:
‘These rules are two; the first that the onus probandi lies in every case upon the party propounding a Will; and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable Testator.
The second is, that if a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it 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, and it is judicially satisfied that the paper propounded does express the true Will of the deceased.’ (at 482-483)
205. The first rule, which allocates the persuasive burden to the person propounding the will, is not controversial. However, the second rule, which refers to a requirement that the proponent of the will remove or dispel “suspicious circumstances” has bedevilled the approach to the evidence in the courts below. An understanding of the scope of that rule (referred to here simply as “the second rule”) is therefore essential. …
206. As noted above, the person propounding the will has the burden of proving due execution, testamentary capacity and the testator’s knowledge and approval of the will’s contents. It is, and was at the time Barry v Butlin was decided, well-established that proof of the first two conditions generally meant that knowledge and approval would be rebuttably presumed without the need to adduce affirmative evidence thereof. …
…
208. The particular circumstance introduced in Barry v Butlin involved the fact that “a party writes or prepares a Will, under which he takes a benefit”. The second rule states that such circumstance ought generally to excite the suspicion of the court, so that knowledge and approval is no longer presumed. Instead, the court demands affirmative evidence which it subjects to a “vigilant and jealous” examination, refusing to pronounce in favour of the will unless satisfied that it expresses the true will of the deceased. …
209. It is therefore important to note that Parke B was not seeking to create a general rule imposing a burden on the proponent “to dispel suspicious circumstances surrounding a will”. His Lordship was careful, in Barry v Butlin itself, to stress that the second rule was concerned with proof of knowledge and approval, that it did not automatically apply and that it did not displace the usual rules concerning the burden of proof. …
…
211. … A modern authority helpfully summarising the position is Fuller v Strum[2002] 1 WLR 1097 (CA).
(a) Having referred to the doctrine of “the righteousness of the transaction” as a salutary one, Peter Gibson LJ continued in the following terms:
‘But ‘the righteousness of the transaction’ is perhaps an unfortunate term, suggestive as it is that some moral judgment by the court is required. What is involved is simply the satisfaction of the test of knowledge and approval, but the court insists that, given that suspicion, it must be the more clearly shown that the deceased knew and approved the contents of the will so that the suspicion is dispelled. Suspicion may be aroused in varying degrees, depending on the circumstances, and what is needed to dispel the suspicion will vary accordingly. In the ordinary probate case knowledge and approval are established by the propounder of the will proving the testamentary capacity of the deceased and the due execution of the will, from which the court will infer that knowledge and approval. But in a case where the circumstances are such as to arouse the suspicion of the court the propounder must prove affirmatively that knowledge and approval so as to satisfy the court that the will represents the wishes of the deceased. All the relevant circumstances will be scrutinised by the court which will be ‘vigilant and jealous’ in examining the evidence in support of the will: Barry v Butlin (1838) 2 Moo PC 480 at 483 per Parke B.’ (at 1107)
(b) Chadwick LJ stressed the continued applicability of the usual rules on the burden and civil standard of proof and the need to understand references to removing suspicions in that light:
‘...... there is no basis for an approach that requires, in all cases, that a person propounding a will which he has prepared, and under which he takes a benefit, must satisfy the court by evidence which excludes all doubt -- or by evidence which excludes all reasonable doubt (the standard of proof required in criminal proceedings) -- that the testator knew and approved the contents of the will. The standard of proof required in probate proceedings (as in other non-criminal proceedings) is satisfaction on the preponderance (or balance) of probability. But the circumstances of the particular case may raise in the mind of the court a suspicion that the testator did not know and approve the contents of the document which he has executed which is so grave that, as Viscount Simonds observed in Wintle v Nye [1959] 1 WLR 284, 291, it can hardly be removed.’ (at 1121)
(c) Longmore LJ put the point simply as follows:
‘The vigilance and jealousy of the court is directed to being satisfied that the testator did know and approve the contents of his will; no less but also no more.’
(at 1123)”
122. In a nut-shell, when the circumstances are such as to arouse the suspicion of the court as to whether the testator knew and approved of the contents of the will, the second rule in Barry v Butlin applies. There is then no presumption of knowledge and approval of the will by the testator upon discharge of the burden of proof on due execution and testamentary capacity, but that the person propounding must prove on a balance of probability that the testator knew and approved of the contents of the will. All relevant circumstances will be scrutinized by the court in the exercise.
123. Though Mr Jat submitted that the plaintiff can rely on the presumption of knowledge and approval, he has not strenuously argued against the application of the second rule in Barry v Butlin. He instead submitted that the documentary evidence is overwhelming on Mr Tao’s knowledge and approval of the Will. I would therefore consider whether the plaintiff has positively proved that Mr Tao knew and approved of the Will.
Analysis and finding on due execution
124. The evidence of Ms C and Mr Lin show that there was due execution of the Will by Mr Tao. Their evidence on this issue has not been challenged and has been accepted by me. Mr Wong for the defendant has also not challenged the issue. I therefore find that there was due execution of the Will by Mr Tao.
Analyses and findings on testamentary capacity
125. The plaintiff relies on the evidence of Ms C, Mr Lin, Ms Wu, the statutory declaration of Mr Norman and the documentary evidence referred to above.
126. Mr Wong made extensive reference to the medical records of Mr Tao. Mr Tao had his last chemotherapy in July or August 2007, but an MRI report dated 26 October 2007 showed dramatic increased of tumour growth. Mr Wong submitted that Mr Tao’s cancer must have relapsed after the last chemotherapy but prior to 26 October. Mr Tao was then given various treatments of Temodar, Avastin and Levitra. His conditions seemed to have stabilised. But he was eventually certified in March 2008 to be a mentally incapacitated person within the meaning of Part II of the Mental Health Ordinance.
127. I would also mention that the plaintiff had in proceedings brought under Part II of the Mental Health Ordinance said that Mr Tao had a relapse of cancer in February 2008. Mr Wong submitted that this was inaccurate as the relapse had occurred prior to 26 October 2007. But it seems that the relapse in October 2007 was under control after a few weeks of treatment and Mr Tao then came back to Hong Kong. He then suffered another relapse in early 2008 and his conditions worsened. Mr Wong’s submission on this point is therefore incorrect.
128. Mr Wong then referred to the advice of Ms Wu that a doctor should be present to examine Mr Tao’s testamentary capacity before his execution of the Will. Mr Wong said that there was a deliberate refusal to follow this legal advice.
129. However, I would reiterate that Ms Wu’s advice was not given on the basis of any concrete reason justifying and requiring the doctor’s presence. She only made the suggestion out of prudence because she had not heard from Mr Tao for a month and three weeks and was told by Ms C on 6 November 2007 that Mr Tao had suffered some health set-back.
130. In contrast to Ms Wu’s position, Ms C was in close contact with Mr Tao as they must have been in communication before and after 6 November 2007 and Ms C would conduct the meeting on 8 November for Mr Tao to execute the Will. I therefore find that Ms C was in a much better position than Ms Wu in considering whether a medical examination would be necessary before Mr Tao’s execution of the Will. I reject Mr Wong’s submission on this point.
131. Mr Wong then referred to a four-hour neurological test to be conducted on Mr Tao on 13 November 2007. Mr Wong regarded it as a detailed medical examination for proving Mr Tao’s testamentary capacity. He submitted that there was a conscious decision to drastically curtail the scope of this test and to replace it by a one-hour assessment of Mr Tao’s mental status by Dr Lu on the same date. He further submitted that the reason for this was to prevent the revelation of some deficiency of Mr Tao’s testamentary capacity to make any will.
132. I cannot imagine that it would have required a four-hour neurological test to find out Mr Tao’s testamentary capacity. I do not think this test was arranged specially for this purpose. Furthermore, it was a test that had already been arranged on or before 7 November 2007 when Ms C wrote her email to Ms Wu and it was to be conducted on 13 November, not 8 November. It was not arranged pursuant to Ms Wu’s advice for a doctor to be present at the meeting on 8 November.
133. I think it might be that those who were in Los Angeles could not arrange the doctor’s presence at the meeting on 8 November because of the shortness of time. Hence, they intended to make use of the pre-arranged neurological examination on 13 November to examine Mr Tao’s testamentary capacity as well. But Mr Tao did not want to go through this long examination, hence Ms C asked Ms Wu on 7 November whether it was necessary to go through that long examination to test Mr Tao’s testamentary capacity. Ms C also asked Ms Wu in the same email the threshold in Hong Kong for someone to have testamentary capacity.
134. Regarding Dr Lu’s assessment report, Mr Wong submitted that that was insufficient to prove that Mr Tao had testamentary capacity. I have already dealt with the approach to take in considering this report. I am also of the view that Dr Lu’s conclusion should be considered together with the evidence of Ms Wu, Ms C, Mr Lin and the statutory declaration of Mr Norman.
135. Mr Wong also referred to the amendment to the patient’s questionnaire for Dr Lu’s assessment. The amendment was from an assessment of Mr Tao’s “mental status” to an assessment of his “lucidness”. Mr Wong submitted that the assessment for lucidness was much less comprehensive than for “mental status”. However, I have already pointed out that Dr Lu’s test was not merely on “lucidness”, but was a global mental status evaluation on Mr Tao.
136. For these reasons, I reject Mr. Wong’s submissions in relation to the neurological test and Dr Lu’s test.
137. Mr Wong also asserted that Mr Norman’s presence at the meeting was to fill the gap created by the absence of the medical petitioner as suggested by Ms Wu. He challenged Ms C’s explanation for Mr Norman to be there.
138. Mr Norman had two prior meetings with Mr Tao and had advised him on international estate planning. He had interacted with Mr Tao. Ms C said that she arranged Mr Norman to be there because Mr Norman was familiar with Mr Tao whilst Mr Lin was a total stranger to Mr Tao. Ms C also said that Mr Norman’s presence was not to replace the absent medical petitioner. Mr Wong’s submission implies that Ms C was lying and this attack is unwarranted particularly when Ms C is an attorney. I accept Ms C’s reason for Mr Norman’s presence at the meeting.
139. Mr Wong also charged the plaintiff with having concealed the making of the Will from the defendant. But the defendant has admitted in oral evidence that her relationship with Mr Tao was poor from August 2007 to February 2008. This has also been borne out by the correspondence exchanged between their respective lawyers. Hence, I can see nothing unusual in Mr Tao or the plaintiff not telling the defendant that Mr Tao was making or had made the Will to disinherit her.
140. Mr Wong also referred to Mr Tao’s change of personality and had become socially withdrawn, moody, volatile and prone to emotional outbursts and tantrums. Regarding the observations by the US attorneys and the American doctors in their reports which showed that Mr Tao had behaved differently, Mr Wong submitted that Mr Tao, being a respected Chinese businessman, would have behaved in a most composed manner, restrained himself and concealed his emotions when he was in front of strangers such as the American doctors. I think this a reasonable submission. That would also mean that Mr Tao at the material time had the ability to control his emotions and compose his behaviour.
141. Regarding Dr Black’s letter of opinion dated 17 March 2011, Mr Wong submitted that Dr Black was only the surgeon who operated on Mr Tao and one doesn’t know his qualification on conducting the relevant test to ascertain testamentary capacity. Furthermore, there is no evidence that he had conducted any detailed neurological test on Mr Tao to enable him to give the opinion as set out in the letter. Mr Wong also pointed out that Dr Black gave no basis for the opinion.
142. Mr Wong thus sloughed off Dr Black’s opinion as a bare assertion. However, I think Dr Black’s letter of opinion should be read together with the contemporaneous medical reports on Mr Tao’s conditions both mentally and physically. Dr Black is a leading surgeon in the US and should know what he was opining on.
143. Mr Wong also submitted that Ms C had in her statutory declaration given the wrong impression that the execution of the Will was postponed from 6 October to 8 November due to certain amendments made by her. Mr Wong further submitted that the amendments were not the true reason and it was Mr Tao’s health set back as disclosed in the 6 November e-mail from Ms C to Ms Wu that caused the postponement. He also submitted that the plaintiff had made much opposition to the production of these e-mails.
144. On the production of e-mails, I agree with Mr Jat that the plaintiff opposed production because he did not have the possession, custody and power over them as they belonged to Mr Tao’s estate. They were disclosed by Mr Tao’s administrator after the defendant’s application for specific discovery of the same by the plaintiff was dismissed.
145. Regarding the delay in the execution of the Will, Ms C had also explained in re-examination that the postponement was due to her unavailability as she had to be away from Los Angeles to attend a conference and then to go to Beijing for 2 weeks. She only returned to her office on 5 November 2007. She gave this evidence after checking her calendar and billing entries and I accept her evidence on this.
146. Mr Wong also seemed to suggest that Ms C was not truthful when she said she had no involvement in the drafting of the Will. The evidence is that Ms C had advised on Mr Tao’s draft Chinese will which Mr Tao revised and used as instructions to Ms Wu. There is however no evidence on what was the advice. Ms C also made a few suggestions on technical matters to Ms Wu. These points have nothing to do with the effect of the provisions in the Will. Apart from these input, Ms C had not taken part in the giving of instructions to Ms Wu on the drafting of the Will. She also had not taken part in the telephone conference in which Ms Wu took instructions from Mr Tao. I do not think there is sufficient basis for Mr Wong to make this attack on Ms C.
147. Mr Wong also referred to the absence of reference to the third meeting between Ms C and Mr Tao in Ms C’s statutory declaration. The hint is that Ms C had fabricated this meeting. Having considered Ms C’s evidence in relation to this meeting with care, I accept Ms C’s evidence and find that there was indeed such a meeting and that the things that Ms C said that Mr Tao had told her in the meeting had indeed been relayed by Mr Tao to her therein.
148. Mr Wong had also raised a few other minor points and submitted on a cumulative basis that Ms C was not a credible witness. I would however reiterate that Ms C is a truthful witness and I accept her evidence despite the imperfections referred to above.
149. Mr Wong also submitted that Mr Lin’s evidence is unreliable. He referred to the conflict between his statutory declaration and oral evidence on the one hand and the joint declaration of attorneys on the other regarding whether Mr Tao had voluntarily raised the issues of making the plaintiff his sole executor and residuary beneficiary and not providing for the defendant. He also submitted that Mr Lin did not know Mr Tao and he only had a brief encounter of 20 to 25 minutes with Mr Tao at the meeting on 8 November so that his evidence was unreliable.
150. I have held that Mr Lin’s evidence is credible despite the conflict with the joint declaration of attorneys. Mr Wong’s submission also overlooked the interaction between Mr Lin and Mr Tao when Mr Lin read out the Chinese translation of the Will in Putonghua to Mr Tao. I do not accept this submission.
151. Mr Wong also submitted that Ms Wu’s evidence is unreliable as she only had a 30-minute telephone conversation with Mr Tao and the conference was just to go through Mr Tao’s draft Chinese will with Ms Wu doing most of the talking. There was also no enquiry of Mr Tao’s assets and his relations who might have claims against his bounty. Mr Wong therefore submitted that Ms Wu had not satisfied the requirements stipulated in Banks v Goodfellow. He also criticised Ms Wu for not calling for the first will and canvass its terms with Mr Tao when she knew that Mr Tao was old and infirm.
152. I do not accept that Mr Tao was or appeared to be old and infirm in early October 2007. That was contrary to the evidence of Ms Wu, Ms C. Furthermore, Mr Wong’s submissions ignored the fact that Ms Wu harboured the view that there were strange terms in Mr Tao’s draft Chinese will. She therefore asked for the telephone conference to satisfy herself that these strange terms were indeed the instructions of Mr Tao. Mr Tao then gave her detailed instructions on the contents of the Will in the telephone conference. She also said that Mr Tao was alert and lucid and gave instructions with clarity. She also agreed that Mr Tao was spontaneous in responding to questions. I therefore reject Mr Wong’s submissions on Ms Wu’s evidence.
153. Mr Wong also submitted that the statutory declaration of Mr Norman should not be relied on as the evidence has not been tested by cross-examination. Mr Norman also did not understand Chinese and his observation of Mr Tao at the meeting on 8 November was not supported by contemporaneous document like the joint declaration of attorneys. However, I note that Mr Norman already had 2 meetings with Mr Tao beforehand and had interacted with and knew how he behaved. Mr Norman was certainty able to say that Mr Tao had behaved in the way as described in Mr Norman’s statutory declaration.
154. Mr Wong further referred to paras 8, 9, 17 and 19 of Mr Tao’s 2nd affirmation filed in the divorce proceedings and said that Mr Tao had admitted that since the repeated chemotherapy and radiotherapy on his stage-4 brain tumour, he was unable to understand his financial matters.
155. Mr Tao made his 2nd affirmation to support his argument that the plaintiff and one Ms Li should attend on his behalf a joint inspection of documents at an office in Prat Avenue in Tsimshatsui. The English translation of paras 7 to 9, 17 and 19 of the 2nd affirmation are as follows:
“7. I deeply believe that in order to carry out the joint inspection smoothly and effectively, right persons must be present. Therefore, since my first letter of 15th October 2007, I have expressly requested that my agents must be present apart from myself and my legal representatives. Otherwise, it will be difficult to achieve any practical results.
8. First of all, because I am diagnosed to have phase IV brain cancer, physically and mentally I cannot afford to stay in the Prat Avenue Unit to inspect documents for long periods of time. If I take the risk to attend the joint inspection, I will need to take frequent breaks or even seek adjournments from time to time. That being the case, frequent delays will be unavoidable and this is in nobody’s interest.
9. Besides, after a series of major operations, radiotherapy, chemotherapy, my mind is not as sharp as before. My eyesight is not good. I will not be able to determine the relevancy and importance of documents correctly and expeditiously.
…
17. Over past years, my son Andy Tao has known, to some extent, about any investments (whether or not in my own name) and finance. Due to my health conditions, he is certainly more capable than me in determining the nature of documents and explaining the factual background of the documents to my solicitors in order for them to give legal advice.
…
19. To sum up, given that my body and brain are affected by illness, and on top of that I do not have a thorough understanding of my finance and other matters and also the Prat Avenue Premises, if Ms Li and Andy Tao will not be present at the joint inspection, I will be placed at a disadvantage that will result in the loss of purpose of the whole joint inspection insofar as I am concerned.”
The translation for para 19 is not taken from the translation produced in the court file but is my free translation. The original para 19 in Chinese is as follows:
“19. 總而言之，如李女士及陶沈榮不出席共同檢視，我的身體、頭腦受疾病影響，加上我對我自身財政、各方面事務以至寶勒巷單位不全面瞭解，將使我在共同檢視中處於劣勢，使到整個共同檢視對我來說完全失去意義。”
Having considered these paragraphs repeatedly, I do not detect any admission by Mr Tao as referred to by Mr Wong.
156. Insofar as Mr Wong’s arguments are based on contemporaneous medical reports and records, I do not think I should pay heed to them. The reason being that these reports and records had been available long before the commencement of the trial. It was open to the defendant to apply for expert medical evidence to show, on the basis of these reports and records, that Mr Tao on about 8 November 2007 was not in possession of the requisite testamentary capacity. No such application was made and it is unfair to the plaintiff to allow the defendant to build up such a case on the basis of these reports and records at the trial. I also cannot say that a person suffering from a relapse of stage-4 brain tumours and is on chemotherapy and radiotherapy would thereby loss his testamentary capacity.
157. Mr Wong has indeed identified several points of conflict in the evidence of Ms C, Mr Lin and Mr Norman. But putting them into the pool of evidence overall, they are not serious issues of conflict. To say that these few issues of conflict should make the evidence of four lawyers worthless is to make a mountain out of a molehill.
158. He well demonstrated in his telephone conference with Ms Wu his ability to form testamentary intentions. He also showed the requisite testamentary capacity on 8 November 2007 when he interacted with Ms C and Mr Lin.
159. He also recalled those who ought to be considered in his will as he had provided for his sons. He also expressly barred all others related to him by blood or otherwise including the defendant from disputing the Will. Though he did not provide for his daughters who were born outside wedlock or his three half-sisters in the Will, this is not extraordinary as he also did not provide for them in the first will. On this point, he was just consistent.
160. He might also have been very keen about making the plaintiff almost his sole heir and disinheriting the defendant absolutely. But that does not necessarily mean that he was deficient in testamentary capacity. He was a traditional Chinese man who favoured male descendants. The plaintiff had left his former wife to join him some years ago. The plaintiff was living with him and keeping him company when his eternity was almost in sight. His half-sisters were not living with him. The plaintiff no doubt was very dear to him.
161. On the other hand, he thought that he had been a model husband and had treated the defendant lovingly and generously. However, when he was seriously ill, the defendant departed from him and started divorce proceedings against him. In his view, the defendant had treated him badly. That was what he said to Ms C. In these circumstances, he could have viewed it reasonable to disinherit the defendant. Furthermore, the defendant was not a woman without means. She was also a wealthy person in her own right. She had also withdrawn US$4.4 million from their joint account in mid-July 2007. This could have been one of the reasons why Mr Tao was keen about disinheriting her.
162. In the light of the evidence of four lawyers and the letter of opinion of Dr Black, all of which I accept, I find that the plaintiff has proved that Mr Tao had the requisite testamentary capacity when he executed the Will.
Analyses and findings on knowledge and approval of the Will
163. There is evidence showing that the plaintiff had demanded Mr Tao to make him the sole heir of Mr Tao’s entire estate. He enjoyed the affection of Mr Tao. He located lawyers for Mr Tao to make the Will. He was also the interface of communication that took place in written English as between Mr Tao and his lawyers. Mr Tao’s draft Chinese will contained expressions used by someone who was conversant with legal expressions but Mr Tao was not such a person. He is the beneficiary to almost the whole of Mr Tao’s estate whilst his antagonist, the defendant was disinherited. In the light of all these, I would not apply the presumption of knowledge and approval, but would require the plaintiff to prove the same.
164. Mr Wong again submitted in substantial length that Mr Tao did not have knowledge and approval of the Will. However, to the extent that these submissions are built on the contemporaneous medical reports and records, I do reject the same as there has not been any application for expert medical evidence.
165. Mr Wong referred to the exclusion of the defendant from the long discussions between Mr Tao and the plaintiff and the change in relationship between the plaintiff and the defendant after Mr Tao was diagnosed of stage-4 brain tumour in 2006. Mr Wong also referred to the plaintiff’s demand to be the sole heir to Mr Tao’s estate on the ground that the plaintiff would prolong the “Tao” line whilst the defendant would remarry after Mr Tao’s death. He also referred to the making of the first will.
166. However, the evidence of Mr Yao shows that Mr Tao was still deciding what he wanted to do. He was still in control of his affairs. In the evening of 19 November 2006 at the office of the attorney Mr James Yan, there was hostility between the plaintiff and Mr Tao when Mr Tao was finalizing the terms of the first will. The hostility demonstrates that Mr Tao and the plaintiff did not see things eye to eye on the provisions in the first will and Mr Tao was not at all pleased by what the plaintiff sought to dictate to him.
167. Mr Wong also referred to the hand-written amendments to the first will which changed the beneficiary of some real properties from the defendant to the plaintiff. But these amendments were made in the presence of Mr James Yan by Mr Tao himself. Both the plaintiff and the defendant had left the room before Mr Tao executed the first will. Hence, Mr Tao must have knowledge and approved of the amendments.
168. I would accept that the plaintiff was deeply involved in the making of the Will and he should have learnt of its terms from Mr Tao even before it was executed. I note that it was the plaintiff who took the Will to the office of Mr Tao’s Hong Kong solicitors for custody. I also accept that Mr Tao did not find it easy to decline the demands of the plaintiff to have the bulk or even the whole of his estate. However, this is because of favouritism, and not the lack of knowledge and approval of the Will or the inability to make the Will. The telephone conference between Ms Wu and Mr Tao made it plain that Mr Tao knew what he was providing for in the Will. His concern to make the plaintiff the sole executor and residuary beneficiary and to disinherit the defendant was also made plain at the meeting of 8 November. He followed closely the reading out of the Chinese translation of the Will by Mr Lin in Putonghua and corrected Mr Lin’s pronunciation of several characters. All these show that Mr Tao had full knowledge and had approved of the contents of the Will.
169. Even if, as Mr Wong had submitted, it was the plaintiff and not the divorce proceedings that had caused the disinheritance of the defendant, that does not mean that Mr Tao did not have knowledge and approval of the Will. The defendant might think that she had been smeared by the plaintiff behind her back so that Mr Tao had harboured grudges against her unfairly and hence disinherited her unfairly. Even so, if Mr Tao had made the Will with knowledge of and approval to its contents, then it is not for the court to strike down the Will on the ground that it was made by Mr Tao unfairly. I note that there is no plea of undue influence or fraud and I have not detected any evidence to suggest either.
170. Mr Wong has also referred to efforts of Mr Tao and the defendant to make amends. But these efforts do not suggest that Mr Tao had no knowledge or not approved of the Will.
171. I also reiterate that Mr Tao was only found to have been mentally incapacitated in March 2008 after another relapse of his brain tumour in February 2008. The evidence of the four lawyers suggests that he was in apparent good heath in October and November 2007. Their evidence is also corroborated by the contemporaneous medical reports and records. He was also not senile or infirm in any sense of these words.
172. Mr Wong also referred to the draft Chinese will used by Mr Tao as instructions to Ms Wu. Mr Wong highlighted some legal expressions usually used by lawyers and submitted that such show the involvement of the plaintiff and that Mr Tao would not have been able to use such expressions. Mr Wong also referred to the Letter of Instructions also executed by Mr Tao on 8 November and suggested that it was also drafted by the plaintiff.
173. I would however say that even if the draft Chinese will and the Letter of Instructions were composed by the plaintiff, that alone does not prove that Mr Tao did not have knowledge or approved of the Will. The evidence of the four lawyers shows that he did have knowledge and had approved of it.
174. Mr Wong also referred to what he called the unusual features of the Will. He referred to the disinheritance of the defendant who had married Mr Tao and took care of him for 18 years. Mr Wong also referred to the lack of any provision for Mr Tao’s three half-sisters for whom Mr Tao had provided for in his life time. Furthermore, the elder son Tony was given US$1 million and an apartment in Wanchai under the first will. But the Wanchai apartment was taken away from him in the Will. Mr Wong also repeated the fact that the making of the Will was kept a secret from the defendant. Mr Tao had also used a different team of Hong Kong and US lawyers who did not examine the first will or discuss with Mr Tao on his proposed changes in the Will.
175. Mr Wong also criticised Ms C’s conduct in relation to the drafting of the Will in that she had not discussed with Mr Tao the extent of his estate. But the drafting of the Will was done by Ms Wu who took instructions directly from Mr Tao. This criticism is thus misplaced.
176. Regarding the disinheritance of the defendant, I have already dealt with it above. I do not think the disinheritance of the defendant was anything strange in the circumstances.
177. I have also opined why it was not unusual for the defendant not to have been apprised of the making of the Will given the animosity between the parties from August 2007 to February 2008.
178. The non-provision for the three half-sisters again is not a new issue as the sisters were also not provided for in the first will.
179. Regarding the elder son, Tony Tao, he was deprived of the Wanchai apartment in the Will, but the US$1 million remained. That could have meant that Mr Tao had yielded to yet another demand of the plaintiff. But that does not mean that Mr Tao had no knowledge or had not approved of the Will.
180. Regarding the change of lawyers, even if the new team of lawyers were located by and known to the plaintiff, this is again neither here nor there. They were Mr Tao’s lawyers and provided professional services to Mr Tao. Their acquaintance with the plaintiff is immaterial. I do not read this submission as one that is pregnant with charges of impropriety against the lawyers as any such allegation would have to be made expressly and with clarity.
181. Finally, Mr Wong referred to Mr Tao’s address in the Will. Originally, it was stated to be an office at Prat Avenue. But it was corrected in manuscript to an address on Nathan Road. The amendment was countersigned by Mr Tao. Mr Wong said that the putting in of the original address suggested that the instructions for the Will were not from Mr Tao.
182. I think it is possible that the original address might have been from the files of Ms Wu’s firm as some other lawyers in that firm were then handling the divorce proceedings for Mr Tao. For the rest of the contents of the Will, I accept that instructions were initially given in the draft Chinese will and then confirmed by Mr Tao to Ms Wu in the telephone conference. The fact of the amendment of the address of the Will in manuscript adds weight to my finding that Mr Tao had knowledge of and approved its contents.
183. In the premises, I find that the plaintiff has proved that Mr Tao did have knowledge and approve of the contents of the Will.
Judgment
184. I have found for the plaintiff on all relevant issues. I therefore pronounce and decree probate in solemn form for the true last will of the late Mr Tao Hiu Ming dated 8 November 2007. I further order that the caveat entered by the defendant in HCCA 2059 of 2009 be vacated.
Costs order nisi
185. Regarding costs, I make a costs order nisi that there be no order as to costs as I think the defendant do have some reasonable grounds to oppose this action. Her absolute disinheritance, in the light of her long and loving relationship with Mr Tao as testified by Mr Yao and Ms Kung, is already a good reason for her to enquire if the Will was properly made. I hold this view despite the divorce proceedings and her withdrawal of the US$4.4 million from the joint account.
| (Louis Chan)
Judge of the Court of First Instance
High Court
|
Mr Jat Sew-Tong, SC and Mr Victor Dawes, instructed by Clifford Chance, for the plaintiff
Mr Wong Yan-Lung, SC and Mr Law Man-Chung, instructed by Winston & Strawn, for the defendant