CHOY PO CHUN AND ANOTHER v. AU WING LUN

HCAP 7/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 7 OF 2010

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JUDGMENT

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INTRODUCTION

1.  This action concerns the validity of a will allegedly made by Au Kong Tim (區幹恬), deceased (“the Deceased”) dated 5 September 2008 (“the 2008 Will”).  Three key issues arise for determination:-

(1) whether the 2008 Will was executed by the Deceased;

(2) whether the Deceased was of testamentary capacity at the time of execution of the 2008 Will; and

(3) whether the Deceased knew and approved of the contents of the 2008 Will at the time of execution of the same.

BASIC FACTS

(i)   Family Background

2.  The Deceased was born in 1916, and died on 7 July 2009.  During his lifetime, the Deceased ran a successful business in construction and real estate development. He left a substantial estate upon his death.  As at 31 December 2015, the total value of the Deceased’s estate was over HK$1 billion.

3.  The Deceased was married to Madam Leung Shuet Hung (“Madam Leung”) in 1947.  They had two sons and one daughter, namely:-

(1) Mr Au Wing Lun, William (“William”) – the defendant;

(2) Ms Au Lan Wai, Gloria Seltzer (“Gloria”); and

(3) Mr Au Yuk Lun, Anthony (“Anthony”).

4.  William has one son (“Wilson”) and one daughter (“Sarah”) by his wife, Ms Lam Po Po Viennie (“Viennie”).

5.  Gloria has been residing in Canada since around 1969.

6.  Anthony has one son (“Chadwick” – the 2^nd plaintiff) and three daughters (“Charleen”, “Cheuk Mun” and “Cheuk Yin”) by his wife, Ms Choy Po Chun (“Po Chun” – the 1^st plaintiff).

7.  Both William and Anthony are qualified solicitors in Hong Kong.

8.  Since around 1983, Anthony and Po Chun have been living in an unit in Provident Centre, North Point, while the Deceased (until he was admitted to the Elderly Home mentioned below) and Madam Leung have been living in another unit in Provident Centre.

9.  According to Po Chun, the Deceased was admitted to Lord Kindness Elderly Rehabilitation & Care Centre (“the Elderly Home”) in March 2008.  On the other hand, in William’s first witness statement dated 20 November 2013, he said that his father was admitted to the Elderly Home in March 2007 and he visited his father regularly (three times a week) from March 2007 to May 2009.  In his first supplemental witness statement dated 12 December 2016, William accepted that he could have mixed up the year of his father’s admission to the Elderly Home, but in his second supplemental witness statement dated 20 January 2017 he reverted to the version that the date of his father’s admission to the Elderly Home was in March 2007.

10.  To be fair to William, Po Chun has not always been consistent about the date of the Deceased’s admission to the Elderly Home either.  In her first witness statement dated 8 August 2013, she said that the Deceased was admitted to St Paul’s Hospital following a fall at home breaking his thigh bone in February 2008, and was admitted to the Elderly Home after his discharge from St Paul’s Hospital.  However, in her first supplemental witness statement dated 20 April 2016, she said that the Deceased slipped and fell down badly breaking his thigh bone in February 2007, and was admitted to the Elderly Home after his discharge from hospital.  Apparently, Po Chun also told Dr Tsang Fan Kwong (the plaintiff’s psychiatric expert witness) during interviews in March and July 2017 that the Deceased was admitted to the Elderly Home after a fall in February 2007.  In her third supplemental witness statement dated 10 February 2017, she said that she incorrectly remembered the date of the Deceased’s fall when she made her first supplemental witness statement (in that the date of the Deceased’s falls should be February 2008 instead of February 2007), and the date of the Deceased’s admission to the Elderly Home should be 4 March 2008.  She also produced some receipts issued by the Elderly Home to prove the date of the Deceased’s admission to the Elderly Home.

11.  As will be seen below, the Deceased had a fall in January 2007 and another fall in February 2008, and was hospitalised on each occasion.  That probably explains why Po Chun and William might have been confused about the date of the Deceased’s admission to the Elderly Home.  On the totality of the evidence before me, I find that the Deceased was admitted to the Elderly Home in March 2008.

12.  The Deceased stayed in the Elderly Home until he was admitted to St Paul’s Hospital on 27 May 2009.  He died of pneumonia at the hospital on 7 July 2009, at the age of 93.

(ii)   Gifts of real properties made by the Deceased to William and Anthony

13.  In 1976, the Deceased gifted an apartment and a car parking space in Evelyn Towers, North Point, Hong Kong (“the Evelyn Tower Property) to Anthony.

14.  In 1983, the Deceased gifted two units in Provident Centre to Anthony.  According to William, the gifts were made because of the birth of Chadwick, the Deceased’s first grandson.

15.  In the same year, ie 1983, upon the direction of the Deceased, Anthony transferred the Evelyn Towers Property to William pursuant to a deed of gift.

16.  On 7 February 1985, the Deceased gifted a duplex flat at No 147 Caine Road, Hong Kong (“the Caine Road Property”), to William.  According to William, that gift was made because of the birth of Wilson, the Deceased’s second grandson.

17.  William says that the Deceased, being a very traditional Chinese man, had always favoured his male descendants over his female descendants, as shown by the fact that although the Deceased made gifts of real properties to his two sons as mentioned above, the Deceased never gifted any real property to his daughter (Gloria).  In addition, Williams refers to an email sent by Gloria to Po Chun dated 20 December 2010, in which Gloria stated the following:-

“Knowing father always favoured male children and grandchildren, I think he would leave everything to his male heirs.”

18.  I accept that there is some truth in William’s claim that the Deceased’s disposition was to favour his male descendants over female descendants.  It does not mean, however, that the Deceased always overlooked his female descendants.  It is not in dispute, for example, that the Deceased provided financial support for the overseas education of all his six grandchildren, including his four granddaughters. Also, as will be seen below, the Deceased made a will in 2002 leaving the whole of his estate to his six grandchildren in equal shares.

(iii)   The Deceased and Madam Leung’s previous wills

19.  According to William, the Deceased made a will in 1976 giving the whole of his estate to him (William) and Anthony.  William is unable to produce a copy of the 1976 will, but claims to have been shown a copy of it by Madam Leung.  Since nothing much turns on the 1976 will, it is not necessary for me to decide whether the Deceased ever made this will as alleged by William.

20.  It is not in dispute that the Deceased executed a will dated 31 October 1977 (“the 1997 Will”) appointing Madam Leung as the sole executrix of that will and giving the whole of his estate to Madam Leung, although William claims that he did not become aware of the existence of this will until after the commencement of these proceedings.

21.  On 7 November 1997, Madam Leung also made a will appointing the Deceased as the sole executor of that will and giving the whole of her estate to the Deceased.

22.  By a further will dated 19 July 2002 (“the 2002 Will”), the Deceased:-

(1) revoked all former wills and testamentary dispositions made by him (including the 1997 Will);

(2) appointed Po Chun, Chadwick and Charleen as the executors and trustees of the 2002 Will; and

(3) gave the whole of his residuary estate (real and personal) to his six grandchildren in equal shares (ie 1/6^th each).

23.  Madam Leung also made a will dated 19 July 2002, the terms of which were materially the same as those of the 2002 Will of the Deceased.

(iv)   The 2008 Will

24.  According to William:-

(1) Although the Deceased made the 2002 Will which effectively “disinherited” both him and Anthony, the Deceased never intended to disinherit them forever.  The Deceased made the 2002 Will because he was not happy that:-

(a) William’s firm (Messrs William Au & Co) had been losing a lot of money, and William had employed a particular paralegal (“Raymond”) whom the Deceased considered to be the main cause of the failure of his practice; and

(b) Anthony ran for the office of the Chief Executive of the HKSAR in 1997, contrary to his wish that his family should maintain a low profile.  Also, the Deceased “disinherited” Anthony in order to “maintain fairness and basic equality” between William and Anthony.

(2) The 2002 Will was only a “gesture” to make him realise that he might not be receiving anything from the Deceased’s estate and was an attempt by the Deceased to induce him to change his behaviour.  It was the Deceased’s wish that (i) he would close down his firm to cut his losses, (ii) he would stay away from Raymond, and (iii) he would visit him more often to “become a more filial son”.  William claims that his father’s plan worked as he “did all 3 of these acts almost immediately afterwards upon reflection”, and his father “had since 2002 forgiven him”.

(3) The Deceased had been telling him for many years since 2002 that the 2002 Will was not in line with his true wishes and he would change it.  In July 2008, the Deceased told him that he wanted to make a new will and instructed him to find a solicitor to prepare the same for his signing.  This eventually led to the making of the 2008 Will on 5 September 2008.  William admits that, for about 1 month prior to the Deceased’s execution of the 2008 Will, he had assisted his father in practising his Chinese signature for “10 odd times” by holding his father’s hand during such practice sessions.  I shall come back to the circumstances in which the Deceased allegedly executed the 2008 Will later in this Judgment.

25.  Po Chun and Chadwick do not accept the above evidence of William.  It is not, however, in dispute that it was William who arranged for the preparation of the 2008 Will. 

26.  By the 2008 Will, the Deceased purportedly:-

(1) revoked all former wills and testamentary dispositions made by him (including the 2002 Will);

(2) appointed William and Anthony as the executors and trustees of the 2008 Will; and

(3) gave the whole of his residuary estate (real and personal) to his two sons (William and Anthony) and his two grandsons (Chadwick and Wilson) in equal shares (ie 1/4^th each).

(v)   The present action

27.  This action was commenced by Po Chun and Chadwick against William on 29 March 2010 seeking to propound the 2002 Will.  By his counterclaim, William seeks to propound the 2008 Will.  William admits the validity of the 2002 Will, subject to it having been revoked or superseded by the 2008 Will.  On the other hand, the validity of the 2008 Will is disputed by Po Chun and Chadwick on the grounds that:-

(1) the 2008 Will was not executed by the Deceased;

(2) if the 2008 Will was executed by the Deceased -

(a) he was not of testamentary capacity at the time of execution of the 2008 Will; and/or

(b) he did not know and approve of the contents of the 2008 Will at the time of execution of the same.

28.  Since it is William who wishes to propound the 2008 Will in solemn form, the legal or persuasive burden is on him to prove, on the balance of probabilities, that: (i) there was due execution of the 2008 Will by the Deceased; (ii) the Deceased was of testamentary capacity; and (iii) the Deceased knew and approved of the contents of the 2008 Will (see Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387, at paragraph 173 per Ribeiro PJ).

29.  The fact that Po Chun and Chadwick have raised issues such as forgery, want of testamentary capacity and want of the requisite knowledge and approval of the contents of the 2008 Will means that they bear the evidential burden of adducing evidence sufficiently cogent and probative to raise those issues with a view to defeating William’s case on the 2008 Will.  However, the legal or persuasive burden of proving that the 2008 Will was the will of the Deceased remains on William (see Nina Kung, at paragraphs 176, 180 and 194 per Ribeiro PJ).

30.  Before I consider the three main issues mentioned at the beginning of this Judgment, I should mention that numerous issues have been raised by the parties which are not directly relevant to the three main issues but may be said to go to the credibility of the witnesses, eg William (and Anthony)’s disciplinary records, the fact that William and, for that matter, Anthony, had previously asked for or obtained financial assistance from the Deceased, William’s personal life, William’s indebtedness to third parties, letters written or signed by Madam Leung expressing disapproval of William’s conduct, etc.  In view of the relationship between the parties to this action, I do not propose to resolve the collateral issues mentioned above unless they are essential for a proper resolution of the three main issues in this action.

THE 2008 WILL WAS EXECUTED BY THE DECEASED

31.  In relation to the issue of due execution of the 2008 Will by the Deceased, William called Mr Yeung Wai Chung, Victor (“Mr Yeung”) and Mr Lau Wah Shun, Edwin (“Mr Lau”), who prepared that will and attested to the execution thereof by the Deceased on 5 September 2008, to give oral evidence at the trial.  Mr Yeung, admitted as a solicitor in Hong Kong in 2002, was at the material time and is a partner of Messrs Tso Au Yim & Yeung (“the Firm”).  Mr Lau was, in September 2008, a trainee solicitor (under the supervision of Mr Yeung) and is now an assistant solicitor of that firm, having been admitted as a solicitor in Hong Kong in 2010.

32.  According to Mr Yeung, whose evidence was largely consistent with and supported by Mr Lau:-

(1) He first came to meet William on 18 July 2008 in connection with the preparation and execution of a document for him (which, it is not disputed, was a will for William himself).

(2) On or about 28 August 2008, he received a telephone call from William indicating that his father wished to instruct him to draft a will and to witness the execution of the will.  William also mentioned that his father had injured himself in an accidental fall and was therefore living in an elderly home. For that reason, his father could not give him direct instructions and it would be necessary for him and the representative of the Firm to go to the elderly home to witness his father’s signature on the will.  Some instructions in respect of the proposed will were sought by him and provided by William over the phone.  In the course of that telephone conversation, he asked William about the health condition of his father.  William indicated that his father previously had a fall, was unable to walk and needed to stay at the elderly home, but his mental condition was good and sound.

(3) Afterwards, he instructed Mr Lau to assist him in following up with the case.  In fact, it was only after he had spoken to Mr Lau that he was reminded that he had previously dealt with William in July and had met him once before.

(4) On 29 August 2008, William faxed to the Firm some instructions relating to the will to be prepared, including a photocopy of an old ID card of the Deceased.  After receiving the faxed instructions, he instructed Mr Lau to prepare a draft will for his review and approval, which Mr Lau did.  After he had approved the draft will prepared by Mr Lau, he instructed Mr Lau to send it to William for confirmation as to whether the contents thereof truly reflected the Deceased’s wishes and instructions, which Mr Lau did at a meeting with William in the office of the Firm on 2 September 2008.

(5) At that meeting, an appointment was made for him and Mr Lau to visit the Elderly Home on 5 September 2008 to interview the Deceased, explain the contents of the draft will to him and witness the execution of the same by the Deceased.

(6) In the morning of 5 September 2008, he and Mr Lau went to the Elderly Home to meet the Deceased.  William was also present on that occasion.  The meeting took place inside a room of about 50 sq ft in size.  After William’s introduction, the Deceased greeted him and Mr Lau.  He then explained to the Deceased that he had received instructions through his son to handle his testamentary matters, and requested the Deceased to produce his ID card for verification of his identity.  William then handed over the original of the Deceased’s ID card to him. He checked the same and passed it over to Mr Lau for double checking.  After verification of the Deceased’s identity, he informed the Deceased of the purpose of their visit and said that he wished to confirm the instructions directly with him (the Deceased), explain the contents of the will and attest to his execution of it.  The Deceased politely responded that he was thankful to him and Mr Lau for coming to visit him in an elderly home.  Afterwards, Mr Yeung asked the Deceased whether he wanted the will to be read over and explained to him.  The Deceased indicated that he agreed with such arrangement.

(7) He then spent about 5 to 8 minutes reading out and explaining the contents of the will and its legal effects to the Deceased.  After that, he asked the Deceased whether he understood and comprehended the contents of the will.  The Deceased said that he did not understand.  William then leaned over and raised his voice to try to explain the contents of the will, but was stopped by him.  He reminded William not to interfere with his client (ie the Deceased).  William kept silent upon his advice.  He then asked the Deceased whether he should read out and explain the contents of the will again in a louder voice.  The Deceased replied that he wished the contents of the will to be read out and explained to him again.  He proceeded to do so, slowly and with a raised voice.  The whole process took another 10 to 15 minutes.  He then asked the Deceased whether he understood and comprehended the contents of the will and its legal effects. This time, the Deceased clearly replied to him that he understood.  Mr Lau also nodded to him indicating that he too was satisfied that the Deceased understood the contents and effects of the will.

(8) He then told the Deceased that if the contents of the will were in accordance with his intention and instructions, he and Mr Lau would be required to attest to his execution of the will in order to give it legal effect.  He placed the will and a pen on the foldable table of the wheelchair (on which the Deceased was sitting) and pointed out to the Deceased the place where he should sign.  The Deceased tried to raise his right hand, but had difficulty in doing so, which was noticed by him and Mr Lau.  He asked the Deceased whether he would require someone to assist him to sign the will, to which the Deceased replied that he needed assistance.  Mr Yeung then suggested to the Deceased that William could support and assist him in signing the will.  The Deceased agreed with his suggestion. William then lifted the Deceased’s right hand onto the foldable table, placed the pen into his grip and support the back of his right hand during the signing of the will by the Deceased.  After the Deceased had signed the will, he and Mr Lau signed as witnesses.  He told the Deceased that he would take the will for sealing and return it to William for custody.  The Deceased agreed to such arrangement.

(9) The will was later sealed and given to William on 5 September 2008.

(10) The fee charged by the Firm for preparing and attesting to the execution of the will was HK$2,000.

33.  At the trial, there was much cross examination of William, Mr Yeung and Mr Lau by Mr Hingorani on the details of Mr Yeung and Mr Lau’s meeting with the Deceased at the Elderly Home on 5 September 2008 and the execution of the 2008 Will by the Deceased, including matters such as the room in which the meeting took place, the size of the room, what furniture was in the room, the exact sequence of events, who said what at the meeting, the relative standing or sitting positions of Mr Yeung, Mr Lau, William and the Deceased in the room, and the precise manner in which William supported the Deceased’s right hand when executing the 2008 Will.  It is not necessary for me to recite the details of William, Mr Yeung and Mr Lau’s evidence on these matters or resolve such discrepancies, mostly minor in nature, as there may exist in their evidence on these matters having regard to the nature of the allegation raised by Po Chun and Chadwick, namely, that the Deceased’s signature, consisting of a single Chinese character “區”, on the 2008 Will was “forged”.  In his cross examination of William, Mr Hingorani put to him that the Deceased had no part to play at all in the execution of the 2008 Will and the signature of the Deceased was entirely by William’s own hand, which suggestions were denied by William.

34.  In support of the case of forgery, Po Chun and Chadwick rely substantially on the evidence of their handwriting expert, Mr S C Leung, whose opinions are that:-

(1) the Chinese character “區” purporting to be the signature of the Deceased on the 2008 Will was “highly probably” written by William (paragraph 8.5 of Mr Leung’s expert report dated 9 October 2014); and

(2) that signature “was not written with [the] aid of a guiding hand” (paragraph 8.6 of Mr Leung’s expert report).

35.  Mr Leung expresses his opinions by reference to what he calls a “9-point opinion scale”.  Under this scale, the above views expressed by Mr Leung would represent his firm or clear conclusions.  If Mr Leung’s views are correct, it necessarily means that both Mr Yeung and Mr Lau lied in court (there being no question of mistaken recollection, confusion or misunderstanding as to how the Deceased came to execute the 2008 Will), although that was never put to them by Mr Hingorani in his cross examination of those witnesses. 

36.  I have carefully considered the evidence of Mr Yeung and Mr Lau.  There is nothing in the evidence before me to suggest why these two practising solicitors would deliberately give false evidence in a court of law.  I accept, by and large, their evidence regarding the circumstances in which the Deceased came to execute the 2008 Will on 5 September 2008.  I have reached this conclusion notwithstanding (i) such discrepancies as there may exist in the evidence of Mr Yeung, Mr Lau and William, and (ii) the expert evidence of Mr Leung.

37.  As regards the evidence of Mr Leung, I have the following observations:-

(1) In forming his opinion that the disputed signature was not made by the Deceased, Mr Leung had only four known Chinese signatures of the Deceased for the purpose of comparison with the disputed signature on the 2008 Will.  On any view of the matter, the sample size is a very small one for the purpose of carrying out a handwriting examination.  Further, those four signatures were made by the Deceased over a long period of time (in 1962, 2000, 2005 and 2006 respectively), when the Deceased was, it would seem, in better physical conditions.  Taking into account also the manner by which the Deceased allegedly executed the 2008 Will (namely, with the support of William’s hand or under the guiding hand of William), it is hardly surprising that the disputed signature would exhibit different handwriting characteristics when compared with his known signatures. As stated in Ordway Hilton, Scientific Examination of Questioned Documents (Revised Edition), at page 202, “[w]hen the assisting party guides the writing hand to such an extent that he is participating in the writing formation, characteristics foreign to the writer’s usual habits can be introduced”.

(2) As for Mr Leung’s opinion that the disputed signature was written by William, that opinion was essentially based on the existence of some common handwriting characteristics between the disputed signature and the known signatures of William.  However, as also stated in Scientific Examination of Questioned Documents, ante, at page 204, “[t]here may be an occasional guided signature that reveals little conflict but actually turns out to be the handwriting of the assisting party only slightly modified. Such a condition might well arise when a close member of the family is assisting the writer and the writer himself is almost unable to write at all.  Under these circumstances, if he trusts the assisting party, he may merely hold the pen and relax completely, so that the guider must move the writer’s hand and the pen in the execution of the signature.”

(3) In reaching his conclusion that the disputed signature “was not written with [the] aid of a guiding hand”, Mr Leung places considerable reliance on the fact that the disputed signature “does not appear to possess expected attributes of guided signatures, such as awkwardness, poor alignment, false start, kinks and jerks”, but “[o]n the contrary, evidence of good pen control was depicted” (see paragraph 7.3 of Mr Leung’s report).  I accept that this is a matter which may support Po Chun and Chadwick’s case of forgery.  However, the extent to which a guided signature may exhibit the expected attributes referred to by Mr Leung would, I believe, depend on the circumstances.  As mentioned in the quoted passage in (2) above, there could occasionally be a guided signature which reveals little conflict.  Much would depend on whether the guided party trusts the guiding party, and allows his hand to be moved freely by the guiding hand.

38.  In Nina Kung v Wong Din Shin, Chan PJ stated at paragraph 15 that “… the courts generally prefer the direct evidence of witnesses who actually saw and heard what happened to the opinion evidence of an expert.  This is especially so in the case of handwriting evidence because of the nature of such evidence.”  In the same case, Ribeiro PJ stated at paragraph 393 that “handwriting evidence is necessarily of a lower order of cogency than direct evidence of execution”.  In the present case, I prefer the direct evidence of Mr Yeung and Mr Lau to the opinion of Mr Leung.

39.  There are three other matters that I ought to mention here. 

40.  First, Mr Hingorani criticises Mr Yeung and, to a lesser extent, Mr Lau, for failing to follow a checklist set out in “Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers” published by the British Medical Association and the Law Society designed to ascertain whether the Deceased was capable of “understanding the nature of the act and its effects”, “understanding the extent of the property being disposed of” and “able to comprehend and appreciate the claims to which a person making a will ought to give effect”. Mr Hingorani further criticises Mr Yeung and Mr Lau for failing to follow the “golden rule” referred to by Templeman J (as he then was) in Kenward v Adams (1975) The Times 29 November 1975, namely, that when a solicitor draws up a will for an aged or seriously ill testator, it should be witnessed or approved by a medical practitioner who ought to record his examination of the testator and his findings, and that an earlier will should be examined and any proposed alterations should be discussed with the testator.  It is not in dispute that Mr Yeung and Mr Lau did not follow the said checklist or the golden rule.  The checklist and the golden rule are matters of common sense which ought to have bene observed.  I have taken Mr Hingorani’s criticisms into account when assessing Mr Yeung and Mr Lau’s evidence, but do not consider that their failure to follow the said checklist or the golden rule should cause me to reject their evidence.

41.  Second, if the 2008 Will was executed by the Deceased in the manner as described by Mr Yeung and Mr Lau (namely, with the support of William’s hand or under the guiding hand of William, coupled with a sufficient indication by the Deceased of his intention to execute the will and of his assent/acquiescence to the contents thereof), such execution can properly and legally be regarded as execution by the Deceased (see Fulton v Kee [1961] NI 1 at 11-13 and 20; Wilson v Beddard 59 ER 1041 at 1043).

42.  Third, in reaching the conclusion that the 2008 Will was executed by the Deceased, I rely on the evidence of Mr Yeung and Mr Lau, but not that of William.  But for their evidence, I would not have accepted William’s case on the issue of execution, in view of his previous inconsistent evidence appearing in paragraph 52 of his first witness statement (where he said, “I merely placed the pen into my father’s palm and my father started to sign on the Last Will without me holding his hand”), which evidence he retracted in paragraph 128 of his first supplemental witness statement (where he said, “Thinking back, I think I could have continued to hold my father’s hand when he signed”).  This inconsistency is a major one, and cannot be brushed aside as being a minor inconsistency or discrepancy.  There are other discrepancies between the evidence of Mr Yeung and/or Mr Lau on the one hand and William on the other, eg whether William told Mr Yeung over the phone that his father was mentally sound, and whether Mr Yeung said to William at the meeting on 5 September 2008 that it was better for the Deceased to sign than just make a mark on the will).  On these matters, I prefer the evidence of Mr Yeung and Mr Lau and reject the evidence of William.

43.  In all, I find that the 2008 Will was executed by the Deceased, and reject the allegation of forgery raised by Po Chun and Chadwick.

THE DECEASED WAS OF TESTAMENTARY CAPACITY AT THE TIME OF EXECUTION OF THE 2008 WILL

(i)   Applicable principles

44.  The following classic statement by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565 was endorsed by the Court of Appeal in Chiu Man Fu v Chiu Chung Kwan Ying, CACV 40/2012 (18 June 2013), at paragraph 52, as laying down four criteria for testamentary capacity:-

“It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; 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 faculties—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.”

45.  In Boughton v Knight (1873) LR 3 P&D 64 at 67, Sir J Hannen stated that the question of whether a testator had testamentary capacity should be treated as a “practical question” which did not depend solely on scientific or legal definition, and was a question of degree to be solved on the facts and circumstances of each case.  Further, as pointed out by the Court of Appeal of New South Wales in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, the criteria in Banks v Goodfellow are not matters that are directly medical questions, but are matters for commonsense judicial judgment on the basis of the whole of the evidence.

46.  The fact that a person was suffering from dementia, or had partial unsoundness of mind, does not necessarily mean that he did not have testamentary capacity to make a will: see Chiu Man Fu v Chiu Chung Kwan Ying, HCAP 9/2005 (31 January 2012), at paragraph 133 per Poon J (as he then was); Chan Chun Pui and Pang Woon Kam v Feng Cuixian, HCAP 13/2007 (24 July 2009), at paragraphs 121-124 and 146 per Recorder A Ho SC.

47.  The fact that the dispositions in a will are rational is an important factor or indicator of testamentary capacity (see Banks v Goodfellow, supra, at 558 and 565-566; Hoff v Atherton [2004] EWCA Civ 1554, at paragraph 44 per Peter Gibson LJ).  So also is the fact that   a will is prepared by an independent and experienced solicitor, is executed by the testator after the solicitor has read through and explained its provisions to the testator, and the solicitor is satisfied that the testator is capable of understanding, and understands, the will.  In Burgess v Hawes [2013] EWCA Civ 74, the following was stated by Mummery LJ:-

“57 That said, it is, in my opinion, a very strong thing for the judge to find that the Deceased was not mentally capable of making the 2007 Will, when it had been prepared by an experienced and independent solicitor following a meeting with her; when it was executed by her after the solicitor had read through it and explained it; and when the solicitor considered that she was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational.

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. The court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testatrix, and particularly in circumstances when that expert accepts that the testatrix understood that she was making a will and also understood the extent of her property.”

(ii)   Po Chun’s evidence on the Deceased’s conditions

48.  According to Po Chun:-

(1) Between 2006 and 2007, the Deceased lost his way about 5 times.  In particular, on one occasion occurring on 20 August 2007, the Deceased, dressed in his pyjamas, left his residence in Provident Centre and disappeared.  Po Chun tried to look for the Deceased in the streets of North Point but could not find him. A report of a missing person was then made to the Police.  Later, he was found by the Police to be wandering over the streets in the vicinity of the Caine Road Property, and brought back to the Central Police Station.  When Poi Chun arrived at the police station, the Deceased apparently did not know why he was there, he thought that Madam Leung had been arrested for an offence and was awaiting trial (which was not true), and he kept asking Po Chun when the trial would commence.  (In relation to this matter, I have disregarded the evidence of PC 58558 who was called as a witness to give evidence at the trial, because it is clear that he had minimal (if any) recollection of the incident.)

(2) Since 2006, the Deceased’s memory had deteriorated, as shown by his repeated purchases of the same clothes of the same design (up to over 40 pieces) and the same or similar statute of Guan Yin and animal god, and repeatedly taking home a lamp shade from a construction area.

(3) The Deceased often was not sober, talked without sense and had illusion.

(4) The Deceased often fell and injured his arms and legs.

(5) After the Deceased’s admission to the Elderly Home in about March 2008, the Deceased appeared to show symptoms of incontinence and inability to walk, and needing help in eating, cleaning, bathing, going to toilet, and changing.

(6) In the first few weeks after his discharge from Tung Wah Hospital in May 2008, the Deceased did not have a clear speech and had difficulty in communicating with family members, needed help in eating because his right hand was unable to move, and could not sit up straight on his own.  After the first few weeks, the Deceased’s conditions further deteriorated: he started to have problems with swallowing and needed to be fed by intubation, he spoke less or even could not speak, when other people spoke he just looked at them and nodded but did not have other responses, he paid little attention to what other people were talking about, he could not express his needs verbally and could only express himself by nodding, his right side became weaker, he lost his ability to support himself and needed to put on a “tying-up” vest for support.

(7) By August and September 2008, the Deceased did not speak at all, could not distinguish time and place, could only recognise her, Anthony, Madam Leung, and the domestic helper, could not move his right hand and could only slightly move his left hand.  I should mention that this part of Po Chun’s evidence cannot be taken literally to mean that the Deceased could recognise no one else.  As will be seen below, I accept William’s evidence that the Deceased probably could also recognise William and the nursing staff and carers at the Elderly Home, and communicate with them.

49.  In assessing Po Chun’s evidence, I have considered the various points raised by Mr Chua regarding her credibility in paragraphs 66 to 81 of his closing submissions.  I do not propose to lengthen this judgment by analysing them separately here.  Notwithstanding those points, many of which are peripheral to the central issues in this case and of marginal relevance only, I am satisfied that, by and large, Po Chun is an honest witness, and I accept her evidence referred to paragraph 48 above.

(iii)   William’s evidence on the Deceased’s conditions and other matters

50.  William’s evidence is that after the Deceased’s admission to the Elderly Home, he had been visiting the Deceased 3 times a week bringing him foods, soups and daily necessities, talking to him, comforting him, and helping him shave and go to the toilet.  He continued to visit the Deceased regularly from the end of May 2009 until his death on 7 July 2009, during which period of time the Deceased was staying in a hospital.  William said that the Deceased was able to communicate with (a) him, (b) the nursing staff, (c) the carers, and (d) other inmates at the Elderly Home, and he gave details of the conversations that he had with the Deceased during the period from March 2007 to May 2009 in paragraphs 56(1) and (2) of his first witness statement.  I accept the above evidence given by William.

51.  In addition, William relied upon various other matters in support of his case that the Deceased was of sound mind, memory and understanding, including the following:-

(1) Between March 2007 and 7 July 2009, Po Chun used, or continued to use, a general power of attorney dated 18 March 2002 executed by the Deceased in her favour to enter into tenancy agreements and acted in relation to tenancy matters on his behalf. In paragraph 9 of her 6^th affidavit filed on 30 March 2011, Po Chun said that the Deceased was “sober enough for the purpose of the Powers of Attorney Ordinance”.

(2) On 23 March 2007, Anthony and Madam Leung took the Deceased to open a joint bank account, no 239-278872-001, at Hang Seng Bank (“the Joint Account”).  The account opening form was apparently signed by the Deceased, Madam Leung and Anthony, and provided that any one of the three account holders could operate the account.  Between April 2007 and June 2009, dividends payable on the shares held in the name of the Deceased in various listed companies, namely, CLP Holdings Ltd, Hongkong Electric Holdings Ltd and HSBC Holdings plc (totalling some HK$60 million), were paid into the Joint Account.  In paragraph 18 of Anthony’s 2^nd affidavit filed in HCAP 9/2010 on 17 June 2010, he stated that “it was the Deceased and [Madam Leung] who had exercised full control over [the Joint Account]”.  And in paragraph 3 of his 2^nd affidavit filed in this action on 20 March 2011, he stated that “[f]or the joint account with Hang Seng Bank Limited and the dividend payment, I was acting in accordance with the instructions of the Deceased and my mother”.

(3) In around December 2008 or January 2009, William once accompanied the Deceased (in a wheelchair) to Hang Seng Bank, Kennedy Town, requesting the bank to add him (William) as an account holder/authorized signatory of the Joint Account. However, that could not be done without the consent of the other joint account holders.  Nevertheless, the Deceased did, on that occasion, close a dormant account with the bank.  Pausing here, I should mention that in paragraph 133 of his first supplemental statement, William accepted that he might have mixed up the account numbers and/or the date of closure of the dormant account.

(4) The Deceased signed a form dated 27 March 2009 to transfer “213,721 Rights Shares” in HSBC out of his name.

(5) The Deceased was baptized by Po Chun in the morning of 7 July 2009, before he passed away later that day.

(6) In paragraph 4 of Anthony’s 2^nd affidavit filed in HCAP 9/2010, he stated that, “… I make it very clear of my stance that I do not seek to contest the validity of the 2008 Will …”.

(iv)   Medical history and records

52.  On 8 January 2007, the Deceased was admitted to Pamela Youde Nethersole Eastern Hospital (“PYNEH”) with head and right forearm/hand injuries as a result of a fall.  On 10 January 2007, he was discharged from PYNEH.  In a medical report dated 10 March 2010 signed by Dr Tsang Yi Po (Chief of Service, Department of Neurosurgery of PYNEH), it was stated that: (i) on his admission to the hospital, CT scan of the Deceased’s brain showed “cerebral atrophy”; but (ii) in a follow-up consultation after his discharge from PYNEH, he had good recovery and was “asymptomatic”.

53.  In a Memo dated 2 September 2007, Dr Ko Wing Hong certified that the Deceased was “suffering from dementia which would affect his ability in judgement”.

54.  On or about 15 February 2008, the Deceased had a fall at home and was admitted to St Paul’s Hospital with a broken thigh bone.   After his discharge from the hospital on 4 March 2008, he was admitted to the Elderly Home.  While he was in the Elderly Home, he was examined by Dr Au Ting Wah.  In a “Medical Examination Form for Residents in Residential Care Homes for the Elderly” signed by Dr Au dated 4 March 2008:-

(1) under “Past psychiatric history”, “senile dementia” was stated;

(2) under “Physical Examination”, “dementia: general weakness” was stated; and

(3) under “Functional Assessment”, it was stated that the Deceased was suffering from “mild dementia”, “always need personal escort”, had “frequent urine or faecal soiling”, “need time to express” (for speech), and required “frequent assistance (need supervision or assistance in bathing and not more than 4 in other activities)”.

55.  On 27 April 2008, while the Deceased was in the Elderly Home, he was found to have right sided weakness and a decrease in general conditions (for 2 days), and was admitted to Queen Mary Hospital for treatment.  Chronic subdural haematoma was diagnosed, and an emergency burr hole drainage of the subdural collection was performed on 28 April 2008.  In a medical report signed by Dr Taw Beng Teck, Medical Officer of Queen Mary Hospital, dated 26 January 2010, it was stated that the Deceased had a past medical history of “dementia”.

56.  On 3 May 2008, the Deceased was transferred from Queen Mary Hospital to Tung Wah Hospital for rehabilitation.  He was discharged from Tung Wah Hospital on 9 May 2008.  In a “Nursing Assessment Form” dated 3 May 2008, it was recorded that the Deceased’s mental condition was “alert”, his emotions were “steady”, his speech was “clear”, but he had “double incontinence”.

57.  In a document called “Occupational Therapy Department Progress Sheet” of Tung Wah Hospital, it was recorded that the Deceased’s mental state was “alert & conscious”, he could follow “simple command” and had improved “verbal response” on 5 May 2008.

58.  In a medical report signed by Dr Ho Kok Yan, Medical Officer of Tung Wah Hospital, dated 19 February 2010 (with reference to his admission to and discharge from Tung Wah Hospital in May 2008), it was stated that the Deceased had “dementia”.

59.  In a document called “Neurosurgery S4 Consultation Summary” of Queen Mary Hospital dated 16 June 2008 (relating to a follow up consultation), it was stated that the Deceased was “fit for oral feeding”, had “no gross neurological deficit”, and “oral feeding [was] well”.

60.  In a document entitled “Community Nursing Service Closing Summary” issued by Tung Wah Hospital dated 8 August 2008, it was stated that the Deceased’s mental state was “stable”.  The following patient conditions at discharge were also recorded:-

(1) speech: “clear”;

(2) hearing: “normal”;

(3) remarks: “few words”;

(4) elimination – urinary: “incontinence”;

(5) elimination – bowel: “incontinence”;

(6) self care: “dependant”; ADL assistance: “bed bath, dressing, feeding, grooming, Hy mobility, shower bath, toileting”; and

(7) patient’s responses to community nurse’s advice: “compliance - poor; capability – incapable”.

61.  In a Medical Assessment Form for the Social Security Allowance (SSA) Scheme signed by Dr Tsang Chun Pong dated 14 May 2008, it was stated that the Deceased was qualified for Normal Disability Allowance, his disability was due to “chronic subdural haematoma”, and he was “mentally unfit for making a statement”.  Dr Tsang gave evidence at the trial, but could not add much to the document that he had signed.

62.  In another Medical Assessment Form for the SSA Scheme signed by Dr Tomy Li Wai Tung dated 17 April 2009, it was similarly stated the Deceased was qualified for Normal Disability Allowance, his disability was due to “chronic subdural haematoma”, and he was “mentally unfit for making a statement”.  Dr Tomy Li, who gave evidence at the trial, could not recall the detailed circumstances in which he came to make the finding that the Deceased was mentally unfit to make a statement, but could only give evidence of his normal practice. When he was asked whether, in relation to the finding that the Deceased was mentally unfit to make a statement, it meant the Deceased could not answer questions put to him or do what he was asked to do, the doctor said that he thought that was what happened at that time.

63.  In a document called “Lord Kindness Elderly Care and Rehabilitation Centre – assessment record to be filled in before using physical constraints” dated 16 August 2008, no abnormal psychiatric behaviour/condition (such as “confusion”, “wandering”, “other unusual behaviour”) was noted, although it was stated that the Deceased “was suffering from dementia”.

64.  In a document called “Lord Kindness Elderly Care and Rehabilitation Centre - Consent for the Use of Physical Constraint” signed by Dr Li Kai Fu dated 18 August 2008, it was stated that the Deceased should be constrained by “safety vest” to prevent him from (a) falling due to “lower body weakness” and (b) removing medical appliances, drainage catheter, feeding tube, diaper or clothing because he was suffering from “dementia”.

65.  In a “Medical Examination Form for Residents in Residential Care Homes for the Elderly” signed by Dr Li Kai Fu dated 18 February 2009, it was stated that the Deceased had a psychiatric history of “dementia”.  In his medical report dated 28 December 2012, Dr Li stated that “[i]n January 2009, the [Deceased’s] physical and mental condition gradually deteriorated, his dementia condition and cognitive ability became worse.  On 18 February 2009, the [Deceased] was assessed to have moderate dementia.” 

66.  Dr Li Kar Fu, a general practitioner, also gave evidence at the trial.  He prescribed Aricept to the Deceased, which he said would usually be given to patients with mild to moderate dementia.  He also said that between March and August 2008, the Deceased displayed symptoms showing decrease in memory and cognitive capacity.

(v)   Expert evidence

67.  By paragraph 1 of the order of DHCJ B Chu (as she then was) dated 15 December 2014, the parties were given leave to adduce expert evidence on the issue of the Deceased’s mental capacity on 5 September 2008, and by paragraph 3 of her order, the parties were required to file and exchange written expert reports on that issue based on (i) the medical notes, discharge summaries and other medical records relating to the Deceased, and (ii) the facts as set out in the witness statements.  At the trial, two expert psychiatrists, namely, Dr Tsang Fan Kwong (called by Po Chun and Chadwick) and Dr Singer (called by William), gave evidence on the Deceased’s mental capacity.  Neither expert had the opportunity to examine the Deceased while he was alive.  Their assessments were, in that sense, “retrospective”.  The following expert reports are before the court:-

(1) Dr Tsang’s report dated 30 July 2015;

(2) Dr Singer’s report dated 10 February 2015; and

(3) Dr Tsang and Dr Singer’s joint report dated 28 November 2015.

68.  Dr Tsang expresses the following conclusions in his report:-

(1) “… [the Deceased’s] dementia was moderate to severe” (paragraph 72).

(2) “The Deceased was suffering from dementia since 2006 and the dementia was running a gradual downhill course.  Chronic Subdural haematoma might have brought further impairment to his brain function.  Drainage of it resulted in slight and brief improvement yet the deterioration could not be stopped” (paragraph 75).

(3) “When he made the Will on 5 September 2008, based on various information available, his mental capacity might be substantially impaired making him not fit to make a will mentally. Also, there was no formal assessment done to ensure that he is fit to make a Will.  For elderly with dementia and living in elderly home, mental capacity to make a Will should be confirmed before he execute [sic] the Will” (paragraph 76).

69.  On the other hand, Dr Singer’s conclusions are as follows:-

“1 A diagnosis of Dementia in the Deceased is not supported by medical symptoms or signs.

2 There is lack of medical evidence of mental incapacity – mental impairment ‘or’ abnormality of mental processes – in Deceased affecting ability to understand or make a choice in executing the will.

3 Medical evidence of capacity outweighs that of incapacity.

7 … the Deceased on the balance of probabilities more likely than not did have mental capacity at the moment he executed the 2008 Will on 05^th September 2008” (pages 76 - 78 of Dr Singer’s report).”

70.  In their joint report, Dr Tsang and Dr Singer agree that:-

(1) retrospective proof of mental capacity or incapacity is difficult because of lack of sufficient information; and

(2) in psychiatric practice a person is presumed mentally normal until it is proved otherwise.

71.  In view of the fact that neither expert had the opportunity to examine the Deceased in person, they have to base their assessment of the Deceased’s mental capacity by reference to the available medical records (including both what is stated and what is not stated in those records) and the evidence of the factual witnesses (throwing light on whether the Deceased showed signs and symptoms of a dementia patient).  I understand from the oral evidence of the experts that typical symptoms of a dementia patient would include memory impairment, disorientation in respect of time and place, language disturbance, delusion, inability to carry out daily activities or being dependent on others for daily activities, incontinence, and inability to swallow, although the severity of these signs and symptoms would depend on whether the patient has reached the stage of mild, moderate or severe dementia.  It would appear also not to be in dispute that the Deceased did show at least some of those signs and symptoms during the period of time that he was staying in the Elderly Home.  Dr Singer says, however, that there could be other causes for the signs and symptoms displayed by the Deceased, and one must rule out those other causes or more likely causes (such as physical weakness, old age and frailty, history of fractures and surgical operations) before one can make a definitive diagnosis of dementia.

(vi)   Deceased’s testamentary capacity

72.  The evidence which most strongly supports William’s case that the Deceased was of testamentary capacity at the time of the execution of the 2008 Will comes from the circumstances in which that will came to be executed by the Deceased, as described by Mr Yeung and Mr Lau.  I have already summarised their evidence above when considering the issue of due execution and I shall not repeat the same here.  The Deceased’s interaction with Mr Yeung and Mr Lau on 5 September 2008 shows, in my view, that the Deceased understood and appreciated what he was doing on that occasion.  I consider it to be significant that the Deceased indicated to Mr Yeung that he did not understand the contents of the 2008 Will after it had been read over and explained to him for the first time, but indicated to Mr Yeung that he understood the contents thereof after the second reading over and explanation by Mr Yeung.  This shows that the Deceased could differentiate between “understanding” and “not understanding” the contents of the 2008 Will, and express himself accordingly.  I give weight to the evidence of Mr Yeung and Mr Lau on the issue of testamentary capacity notwithstanding Mr Hingorani’s criticisms of their evidence mentioned in paragraph 40 above.

73.  I also take into account the fact that the 2008 Will, consisting of only 2 pages, is simple or straight forward, as well as the fact that the provisions in the 2008 Will (under which the Deceased appointed his two sons as the executors and trustees thereof, and gave his estate to his two sons and two grandsons) are, in my view, rational.  Mr Hingorani says that the 2008 Will represents a radical departure from the 2002 Will.  There are obviously important differences between the two documents.  However, the provisions in the 2008 Will are consistent the Deceased’s disposition to favour his male descendants over female descendants.  The best proof of this matter comes, I believe, from the mouth of the Deceased’s daughter (Gloria).

74.  Further, limited, support for the view that the Deceased was of testamentary capacity can be found in some of the matters relied upon by William referred to in paragraph 51 above, in particular:-

(1) the fact that the Deceased opened the Joint Account with Madam Leung and Anthony on 23 March 2007;

(2) the fact that in around December 2008/January 2009 (or September 2007), the Deceased closed a dormant bank account at Hang Seng Bank; and

(3) the fact that on or about 27 March 2009, the Deceased executed a transfer form in respect of some rights shares in HSBC.

75.  I do not, however, attach weight to other matters relied upon by William, in particular:-

(1) the fact that Po Chun continued to use the general power of attorney given by the Deceased to enter into tenancy agreements and acted in relation to tenancy matters on behalf of the Deceased between March 2007 and July 2009 – because I accept Po Chun’s explanation that she did so believing that her action would benefit or protect the interests of the Deceased;

(2) Po Chun’s statement that the Deceased was “sober enough for the purpose of the Powers of Attorney Ordinance” – because Po Chun was not a lawyer and I do not believe that she could differentiate between the mental capacity required for making a will and that required for the continued validity of a power of attorney;

(3) the previous statements made by Anthony in relation to the control and operation of the Joint Account – because those statements were made in answer to William’s allegation that Anthony and Po Chun had misappropriated properties and monies belonging to the Deceased, and I believe it to be likely that that Anthony was seeking to exculpate himself when he made those statements;

(4) the fact that the Deceased was baptized by Po Chun in the morning of 7 July 2009 – because Po Chun might have been keen to see the Deceased baptized before he passed away; and

(5) the fact that Anthony previously stated on oath that he did not seek to contest the validity of the 2008 Will – because Anthony stood to receive a substantial inheritance under that will.

76.  These having been said, I accept that there is also some evidence which may support the view that the Deceased lacked testamentary capacity at the time of execution of the 2008 Will.

77.  First, there are various medical notes and records (referred to in paragraphs 52 to 65 above) in which a diagnosis of dementia was stated.  In relation to those medical notes and records, Dr Signer comments that (i) the medical practitioners who certified or stated that the Deceased was suffering from dementia were not or might not be qualified to make a definitive diagnosis of dementia because they were not specialists in psychiatry, and (ii) there was no proper clinical diagnosis of dementia by reference to accepted international classifications of mental disorders (such as the diagnostic criteria from the World Health Organization International Classification of Disease (WHO ICD 10), or the American Psychiatric Association, Diagnostic and Statistical Manual (DSM IV)), or evidence of the Deceased’s conditions meeting those diagnostic criteria.

78.  In my view, although the medical practitioners who certified or stated that the Deceased was suffering from dementia might not be specialists in psychiatry, dementia is not such a rare condition for elderly persons that it would necessarily be beyond the competence of general practitioners to recognise or diagnose.  This having been said, the relevant medical notes and records in respect of the diagnosis of dementia are extremely brief. They did not contain full details of the Deceased’s mental condition, or state how the various medical practitioners came to make a finding or diagnosis that the Deceased was suffering from dementia.  Hence, I would only give limited weight to the said medical notes and records in my consideration of the Deceased’s testamentary capacity (see the observations of the Cheung JA, with whom Yuen JA agreed, in Choy Po Chun v Au Wing Lun [2012] 2 HKLRD 148, at paragraph 34, regarding the quality of these medical notes and records).  In passing, I should mention that the oral evidence of Dr Li Kar Fu does not, in my view, add much to the medical notes and records.

79.  Second, there is evidence that the Deceased showed some signs and symptoms of a person suffering from dementia.  Such evidence comes mainly from the observations of Po Chun as well as from the contemporaneous medical notes and records referred to in paragraphs 52 to 65 above.  For the present purpose, I would give greater weight to the contemporaneous medical notes and records, which I consider to be more objective and reliable, than the observations of Po Chun.  Although the medical notes and records show that the Deceased did display some signs and symptoms of a person suffering from dementia, there are also entries which suggest otherwise (as fully set out in Dr Singer’s report which I do not propose to repeat in this Judgment).  Further, I accept Dr Singer’s evidence that the signs and symptoms could be explicable by other causes or more likely causes (such as physical weakness, old age and frailty, history of fractures and surgical operations) in the present case.

80.  Third, there is the opinion evidence of Dr Tsang.  His diagnosis is that the Deceased was suffering from dementia of the “Alzheimer’s Type with Behavioural Disturbance, Late Onset” (paragraph 47 of Dr Tsang’s report).  In his closing submissions, Mr Chua submitted that Dr Tsang adopted a wrong starting point: instead of taking the absence of records of signs and symptoms as pointing towards the Deceased being in normal and healthy mental state, Dr Tsang asserted that there was no evidence to show the Deceased had mental capacity.  A few passages in Dr Tsang’s report, in particular paragraphs 56, 68, 69, 70 and 74, were relied upon by Mr Chua.  Read in their proper contexts, I do not consider that Dr Tsang adopted a wrong starting point as suggested by Mr Chua.  Indeed, Dr Tsang expressly agrees with Dr Singer that in psychiatric practice a person is presumed mentally normal until proven otherwise (see paragraph 74 of Dr Tsang’s report).  This is repeated in paragraph 1 (page 12) of the joint expert report of Dr Tsang and Dr Singer.

81.  Of greater substance is Mr Chua’s criticism that Dr Tsang did not adhere to the proper practice of differential diagnosis and the need to exclude more likely causes before arriving at a diagnosis of dementia of the Alzheimer’s Type, which criticism I consider to have some force.  As stated in the DSM-IV Diagnostic Guidelines for Dementia, “[a]lthough researchers are seeking to develop sensitive and specific tests to confirm the diagnosis of Dementia of the Alzheimer’s Type, it currently remains a diagnosis of exclusion, and other causes for the cognitive deficits … must first be ruled out” (page 6/23), and “[b]ecause of the difficulty of obtaining direct pathological evidence of the presence of Alzheimer’s disease, the diagnosis can be made only when other etiologies for the dementia have been ruled out” (page 9/23). 

82.  There is another unsatisfactory aspect of Dr Tsang’s evidence. DHCJ B Chu’s order dated 15 December 2014 expressly provided that the expert reports should be prepared based on the assumptions that the medical notes, discharge summaries and other medical records of the Deceased already disclosed would be admitted as evidence at the trial and the facts stated in the witness statements already filed and exchanged were true.  The purpose of this direction clearly was to ensure that each expert would be expressing his opinions on the basis of common and identified materials thereby facilitating a fair assessment of their respective evidence.  However, it is not in dispute that Dr Tsang sought information directly from Po Chun, Anthony and Chadwick during interviews which took place on 24 March 2015 and 25 July 2015 (for a total of 3 hours) for the purpose of preparing his report.  The problem with the approach adopted by Dr Tsang is that (i) neither Anthony nor Chadwick made any witness statement or gave evidence at the trial, and (ii) it is by no means clear from Dr Tsang’s report as to which parts of the information set out in paragraphs 5 to 24 of his report came from Po Chun and which parts came from Anthony/Chadwick.  Although many of the matters referred to in paragraphs 5 to 24 of Dr Tsang’s report are covered by Po Chun’s evidence or other documents before the court, it remains unclear how much weight Dr Tsang placed on information provided by Anthony and Chadwick in forming his opinions.

83.  On the totality of the evidence before me, I find, on the balance of probabilities, that the Deceased was not suffering from dementia at the time of execution of the 2008 Will.  In any event, the issue that I have to determine is not whether the Deceased was suffering from dementia, but whether he had testamentary capacity to make the 2008 Will.  As observed by Cheung JA in Choy Po Chun v Au Wing Lun [2012] 2 HKLRD 148, at paragraph 35, “Even if, on the face of the evidence, it is shown that the deceased had dementia, the crux of the matter must be about the severity of his dementia and the extent to which the dementia affected his testamentary capacity at the time when he executed the 2008 will.”

84.  Even if, contrary to the above conclusion, the Deceased was suffering from dementia at the material time (the severity of which, on the evidence, would probably be between “mild” and “moderate”), in view of the matters stated in paragraphs 72 and 73 above and the evidence of Dr Singer (whose opinion I prefer to the opinion of Dr Tsang), I am satisfied that William has discharged the burden that the Deceased was of testamentary capacity at the time of execution of the 2008 Will.

85.  There is one other point raised by Mr Chua that I should briefly deal with.  Mr Chua submits that an adverse inference should be drawn against Po Chun and Chadwick on the ground that Anthony and Chadwick have not been called to give evidence. I accept that they may be able to give some evidence relevant to the Deceased’s mental condition at the material time.  However, Anthony is a named executor and beneficiary under the 2008 Will, but not under the 2002 Will.  If the validity of the 2008 Will is upheld, Anthony will stand to receive over HK$250 million from the estate of the Deceased, while he gets nothing under the 2002 Will.  It is clear that Anthony’s interests under the 2008 Will are quite different from those of Po Chun and Chadwick under the 2002 Will.  In such circumstances, I consider it reasonable for Po Chun and Chadwick not to call Anthony, who has a huge personal financial interest in the outcome of the action, as their witness at the trial whatever may be their understanding as to Anthony’s view or belief as regards the mental condition of the Deceased.  Indeed, it may even be argued that, given Anthony’s interests and William’s interests under the 2008 Will are identical, William could or should have called Anthony to give evidence.   In so far as Chadwick is concerned, it has not been suggested by Mr Chua that he had frequent contacts with the Deceased particularly after his admission to the Elderly Home in March 2008.  The value of his evidence would, I believe, be limited.  In any event, I consider the existing evidence is sufficient for me to form a clear conclusion on the Deceased’s testamentary capacity which would not be displaced by any adverse inference that may arise from the failure of Anthony and Chadwick to give evidence.

86.  There is also some suggestion, in Mr Chua’s closing submissions (at paragraph 43.3), that Madam Leung could also have been called to give evidence.  However, I understand that Madam Leung is of advanced age.  I do not consider it unreasonable for Po Chun and Chadwick not to call Madam Leung to give evidence, particularly having regard to the nature of these proceedings.

THE DECEASED KNEW AND APPROVED OF THE CONTENTS OF THE 2008 WILL AT THE TIME OF EXECUTION

87.  On behalf of Po Chun and Chadwick, Mr Hingorani argues that, on the facts of the present case, the second rule in Barry v Butlin is triggered so that, as explained by Ribeiro PJ in paragraphs 206 to 211 of his judgment in Nina Kung, William is required to prove affirmatively knowledge and approval in order to satisfy the court that the 2008 Will represented the wishes of the Deceased.  In support of this argument, Mr Hingorani relies, in particular, on the following so-called “suspicious circumstances”:-

(1) “radical departure from previous testamentary dispositions”;

(2) “beneficiary was the controlling force”; and

(3) “reading over insufficient” (see paragraphs 21 to 31 of Mr Hingorani’s closing submissions).

88.  I accept Mr Hingorani’s submissions that there are special circumstances or features in the present case which would bring into operation the second rule in Barry v Butlin so that knowledge and approval cannot be presumed merely upon proof of due execution and testamentary capacity, and that the court ought to be vigilant and jealous in examining the evidence when considering the issue of knowledge and approval.

89.  In this case, the 2008 Will was prepared by Mr Yeung (an experienced solicitor) and was executed by the Deceased in front of Mr Yeung and his trainee solicitor after its contents had been read over and explained to the Deceased by Mr Yeung.  As earlier mentioned, I regard as significant the fact that after the 2008 Will had been read over and explained to him for the first time, the Deceased indicated to Mr Yeung that he did not understand the contents of the 2008 Will, but after the second reading over and explanation, the Deceased indicated to Mr Yeung that he understood the contents thereof.

90.  Generally speaking, the fact that a will was prepared by a solicitor and was, on the face of it, properly executed by a testator in front of the solicitor and his clerk after having been read over the contents thereof by the solicitor provides strong evidence of the testator’s knowledge and approval of the contents of the will: see Gill v Woodall [2010] Ch 380 per Lord Neuberger MR:-

“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 , 77 f -78 b . 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.”

91.  It may be noted the phrases “strong presumption” or “grave and strong presumption” were used by various judges when explaining the significance of the fact that a will was prepared by a solicitor and its contents had been read over by the solicitor to the testator prior to his execution of the same.  It is not necessary for me to decide whether such circumstances should be regarded as giving rise to a rebuttable legal or evidential presumption of the testator’s knowledge and approval of the contents of the will.  For the purpose of the present case, I am content to proceed on the basis that such circumstances should be regarded as strong evidence of the testator’s knowledge and approval of the contents of the will, as a matter of common sense.

92.  Moreover, the 2008 Will is, as earlier observed, a simple document, and its dispositions are rational.  These are factors which further support the view that the Deceased knew and approved of the contents of the 2008 Will (see Hoff v Atherton, supra, at paragraph 65 per Chadwick LJ; Boudh v Bodh [2007] EWCA Civ 1019, at paragraph 46 per Mummery LJ).

93.  In all, I am satisfied that William has discharged the burden of proving affirmatively that the Deceased knew and approved of the contents of the 2008 Will at the time of his execution of the same.

DISPOSITION

94.  For the foregoing reasons, I dismiss Po Chun and Chadwick’s claim against William and, in relation to William’s counterclaim, pronounce in solemn form for the force and validity of the 2008 Will.  I also order Po Chun and Chadwick to pay William’s costs of the action (including the counterclaim), to be taxed if not agreed.

95.  Lastly, it remains for me to thank counsel for the assistance that they have rendered to the court in this action.

HCAP 7/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 7 OF 2010

____________

____________

____________

____________________

D E C I S I O N

____________________

INTRODUCTION

1.  The question which arises for my decision is what should be the order of speeches and witnesses at the trial of this action which has been scheduled to commence on 20 March 2017, with 14 days reserved. 

Brief background

2.  In this probate action, the plaintiffs (“Po Chun” and “Chadwick”) seek to propound a will made by Au Kong Tim, deceased (“the Deceased”) made on 19 July 2002 (“the 2002 Will”), while the defendant (“William”) seeks to propound an alleged subsequent will made by the Deceased on 5 September 2008 (“the 2008 Will”), in solemn form.

3.  The Deceased had 2 sons, namely, William and Anthony, and a daughter.

4.  Anthony is the husband of Po Chun and father of Chadwick.

5.  Po Chun and Chadwick are two of the three executors and trustees named in the 2002 Will, while William is one of the two executors and trustees named in the 2008 Will.

6.  William admits the validity of the 2002 Will, subject to it having been revoked or superseded by the 2008 Will.

7.  On the other hand, Po Chun and Chadwick dispute the validity of the 2008 Will on 3 alternative grounds, namely, that:-

(1)  it was not executed by the Deceased;

(2)  the Deceased did not know and approve of the contents of the 2008 Will; and

(3)  the Deceased was not of sound mind, memory and understanding at the time of execution of the 2008 Will.

8.  Both parties intend to call factual and expert witnesses, including handwriting and psychiatric experts, to give evidence at the trial.

discussion

9.  It is sometimes thought to be advantageous for a party to open first, and close last, in a trial.  However, for presumably some tactical reasons which have not been explained by the parties, neither party in this action wishes to begin by opening at the trial.

10.  Subject to any special directions which may be given by the trial judge, the order of speeches and witnesses is governed by Order 35, rule 7(2) to (7) of the Rules of the High Court, Cap 4A.

11.  The general rule is that the plaintiff shall begin by opening his case (rule 7(2)).

12.  However, rule 7(6) provides that “[w]here the burden of proof of all the issues in the action lies on the defendant … the defendant … shall be entitled to begin, and in that case paragraphs (2), (3) and (4) shall have effect in relation to, and as between, him and the plaintiff as if for the references to the plaintiff and the defendant there were substituted references to the defendant and the plaintiff respectively”.

13.  In the present case, the contest at the trial will be the validity of the 2008 Will.  Since it is William who wishes to propound the 2008 Will in solemn form, the legal or persuasive burden is on him to prove on the balance of probabilities that: (i) there was due execution of the 2008 Will by the Deceased; (ii) the Deceased was of testamentary capacity; and (iii) the Deceased knew and approved of the contents of the 2008 Will (see Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387, at paragraph 173 per Ribeiro PJ).

14.  The fact that Po Chun and Chadwick have raised issues such as forgery, want of testamentary capacity or of the requisite knowledge and approval of the contents of the 2008 Will only means that they bear the evidential burden of adducing evidence sufficiently cogent and probative to raise those issues with a view to defeating William’s case on the 2008 Will.  However, the legal or persuasive burden of proving that the 2008 Will was the will of the Deceased remains on William (see Nina Kung, at paragraph 176, 180 and 194 per Ribeiro PJ).

15.  It is, in my view, clear that the legal or persuasive burden of proof of all the three issues mentioned in paragraph 13 above lies on William.

16.  Mr Chua SC advances 4 reasons in support of William’s position that Po Chun and Chadwick should open, and their witnesses should give evidence first:-

(1)  The general and usual rule is that the plaintiff should open, and also the fact that another, related, action (HCAP 9/2010) commenced by William (as plaintiff) against Anthony and Po Chun (as defendants) has been stayed in favour of the present action.

(2)  Po Chun and Chadwick have made a serious allegation of forgery against William, and the burden of proof of such allegation falls squarely on them.

(3)  It cannot be said that the burden of proof of “all the issues” in the action lies on William.

(4)  The key issue in this case is whether the 2002 Will or the 2008 Will ought to be propounded.  While the legal burden of proof is on William to propound the 2008 Will, the legal burden is on Po Chun and Chadwick to propound the 2002 Will, as the true and last will of the Deceased.

17.  In respect of (1), while I accept that the general rule is that the plaintiff should open, it does not apply where the burden of proof of all the issues in the action lies on the defendant. The fact that the action commenced by William against Anthony and Po Chun has been stayed in favour of the present action is neither here nor there.

18.  In respect of (2), as mentioned earlier, the evidential burden is on Po Chun and Chadwick to adduce evidence sufficiently cogent and probative to raise the issue of forgery.  However, the legal or persuasive burden of proving due execution of the 2008 Will by the Deceased remains on William.  In this regard, it is, in my view, important to appreciate that the issues of forgery and due execution are inter-related.  If the 2008 Will was duly executed by the Deceased, it means necessarily that it was not forged.  Equally, if the 2008 Will was forged, it could not have been duly executed by the Deceased.  The two issues must therefore be looked at together.  Irrespective of the issue of forgery raised by Po Chun and Chadwick, William will need to prove, and the legal burden is on him to prove, that the 2008 Will was duly executed by the Deceased.  If Po Chun and Chadwick fail to discharge the evidential burden of proving forgery, that is the end of the issue of forgery.  On the other hand, if they can discharge the evidential burden of proving forgery, that issue should, in my view, be considered together with the issue of due execution.

19.  In respect of (3), I am of the view that the burden of proof of all the key issues in the action (namely, due execution, testamentary capacity, and knowledge and approval of the contents of the 2008 Will) lies on William.

20.  Lastly, in respect of (4), although the 2002 Will is being propounded by Po Chun and Chadwick in this action, William has admitted its validity, subject only to its alleged revocation by the 2008 Will (see paragraph 16 of the Defendant’s Answer to the Plaintiffs’ Notice to Admit Facts dated 22 July 2016).

21.  In all, I consider that William should begin at the trial by reason of Order 35, rule 7(6) of the Rules of the High Court and, in any event, in the exercise of my discretion.

22.  Accordingly, the order of the proceedings at the trial shall be as follows:

(1)  opening by Mr Chua,

(2)  opening by Mr Hingorani (if any),

(3)  William’s factual witnesses giving evidence,

(4)  Po Chun and Chadwick’s factual witnesses giving evidence,

(5)  Dr Kieran Singer, Dr Tsang Fan Kwong, Dr Daniel Wong and Mr Sze Chung Leung giving evidence in that order,

(6)  closing by Mr Hingorani, and

(7)  lastly, closing by Mr Chua.

HCAP 7/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 7 OF 2010

____________

____________

________________________________

REASONS FOR DECISION

________________________________

Introduction

1. This reasons for decision concerns the defendant’s application in essence for the following relief:

(a)   an order for a joint meeting of the plaintiffs’ and the defendant’s respective handwriting expert (with related directions);

(b)   an order for the inspection at the said joint meeting by non-destructive means of the documents earlier examined by the other party’s expert;

(c)   an order for a joint expert report to be produced subsequent to the said joint meeting (with related directions).

(“the original application”)

2. An alternative relief was added during the hearing; namely, an order for the defendant’s expert to inspect by non-destructive means the documents earlier examined by the plaintiffs’ expert.

3. At the end of the hearing, the original application was dismissed but an order was made in terms of the alternative relief above.  Below are the reasons for the decision.

Background

4. This action was commenced in March 2010.  It concerns the estate of a Mr Au (“the dec’d”) who was:

(1)   the grandfather of the 2^nd plaintiff;

(2)   the father-in-law of the 1^st plaintiff;

(3)   the father of the defendant.

5. This action is based (among other things) on a will dated 19 July 2002. The statement of claim alleges that the defendant wrongfully applied for probate of the dec’d’s estate (relying on anther will dated 5 September 2008 (“the 2008 will”)).  This action complains that the defendant:

(a)   wrongfully acted as the purported executor of the dec’d’s estate;

(b)   wrongfully intermeddled with properties belonging to the dec’d’s estate (such as collecting rents from the estate’s properties).

The defendant denies the complaint and counterclaims for the 2008 will to be pronounced.

6. The authenticity of the 2008 will is disputed. Handwriting experts have been appointed to give their respective opinion on this (and court directions for such purpose have earlier been given):

(1)   the plaintiffs’ expert is one Mr Leung whose report was dated 9 October 2014 (“Leung” and “Leung’s report”);

(2)   the defendant’s expert is one Mr Wong whose report was dated 28 January 2015 (some 3 months after Leung’s report) (“Wong” and “Wong’s report”).

7. The contents of the above expert reports show that the experts have compared the original of the 2008 will against:

(a)   in the case of Leung’s report:

(1)  about 10 original documents (on which the dec’d’s signature appears);

(2)  about 8 original documents (on which the defendant’s signature appears);

(b)  in the case of Wong’s report:

(1)  about 5 copy documents (on which the dec’d’s signature appears);

(2)  about 9 original documents (on which the defendant’s signature appears)

(as well as other copy and original documents)

8. Leung’s report opines that it is highly probable the signature on the 2008 will was written by the defendant.  Wong’s report (i) is inconclusive as to whether the dec’d signed the 2008 will, and (ii) opines that it is highly improbable the 2008 will was signed by the defendant.

This application

9. In gist, the basis of the defendant’s original application was:

(1)   the experts have compared the 2008 will against different documents;

(2)   further, Wong did not have the opportunity to compare the 2008 will against other original documents on which the dec’d’s signature appears;

(3)   a comparison of signatures appearing on various original documents is crucial to an expert’s assessment of the authorship of the signature on a disputed document.

10. In relation to para 9(2) above, the reason for that was, the plaintiffs have (for reasons not presently apparent), in their list of documents dated 3 January 2013, (i) listed only some of the original documents earlier examined by Leung, but (ii) listed them only as copy documents (“the said list of documents”). In a letter dated 6 February 2015, however, the plaintiffs confirmed they have possession of the original documents earlier examined by Leung.

11. The main ground of objection to the above was that the requested inspection was not necessary (relying on RHC Ord 24 r 13(1) (Production to be ordered only if necessary)).

12. This ground of objection is unmeritorious.  The defendant did not dispute Wong’s need to examine the original documents (para 9(3) above); nor did he dispute that the said list of documents was (i) incomplete, and (ii) inaccurate.

13. It is trite law there is a continuing duty on the part of the legal representatives to make proper discovery of documents. It was said in Hong Kong Civil Procedure 2016, Vol 1:

“It is necessary for solicitors to take positive steps to ensure that their clients appreciate at an early stage of the litigation … not only the duty of discovery and its width but also the importance of not destroying documents which might possibly have to be disclosed … ” (emphasis supplied) (para 24/2/8 thereof);

“The obligation is general, and requires the disclosure of all relevant documents whenever they may come into a party’s possession” (para 24/2/16 thereof).

14. In view of the above, I did not find favour with the plaintiffs’ argument summarized in para 11 above. They cannot pray in aid of Ord 24 r 13(1) having themselves failed to properly abide by Ord 24 (especially Ord 24 rr 1 and 2).  Two further contentions put forth by them are similarly unmeritorious:

(a)   it is irrelevant whether the defendant disputes the authenticity of the requested documents.  Those documents are necessary for another purpose; namely, they are for Wong to perform a better comparison of the signatures;

(b)   it is not a good answer to say that earlier Wong had been able to give his opinion despite the requested documents were not available to, and have not been inspected by, him.  There is no dispute (all things being equal) an examination of the original documents, as opposed to their copies, will help improve the quality of the handwriting expert evidence.

15. But the original application did not simply seek an inspection of the original documents earlier inspected by Leung; it sought a “joint” inspection of those documents (para 1(b) above).

16. The application for a joint meeting of the experts was premised principally on Wong maintaining the opinion set out in Wong’s report even after Wong has had sight of the requested document.  There is no proper basis to so conclude at this stage.  Further, it is doubtful if handwriting expert evidence is an area where a meeting for the experts to discuss their different opinions is a meaningful exercise.  But because my discretion was based mainly on the first of the two matters set out in this paragraph, no determination has been made on the second matter.

17. For this reason, the original application was premature, and should thus be dismissed.

Conclusion

18. By virtue of the matters set out above, the original application was dismissed but the alternative relief was granted.

Other matters

19. The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the reasons for decision and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

Costs order

20. There is no valid reason to depart from the usual rule that costs should follow the event.  The defendant was the unsuccessful party as regards the original application.

21. The alternative relief was proposed at a very late stage of this application.  Very little hearing time was spent on it.

22. The plaintiffs therefore turned out in effect to be the successful party, and ought to be awarded the costs of this application (to be summarily assessed).

HCAP 7/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 7 OF 2010

____________

____________

____________

______________

D E C I S I O N

______________

1.  This is the plaintiffs’ application for leave to appeal against the part of my decision dated 7 July 2015, reasons for the decision have been handed down on 24 July 2015 (together “the July 2015 decision”), where I dismissed their earlier application to strike out/expunge the defendant’s psychiatrist expert report (“the Singer report”).

2.  The applicable legal principles for granting or refusing leave to appeal are trite: one important factor is that the applicant must show the intended appeal would have a reasonable prospect of success.  In relation to an intended appeal against the exercise of discretion (which is what this application is concerned with), the appeal can only succeed if:

(a) there has been a mistake of law;

(b) the discretion was in disregard of principle;

(c) irrelevant matters have been taken into account;

(d) there has been a failure to exercise discretion;

(e) the discretion was “outside the generous ambit within which a reasonable disagreement is possible”.

3.  The subject-matter of this application has been covered at para 1(c), 2(3), 3 to 5 and 23 to 32 of the July 2015 decision.  Those paragraphs will not be repeated, and only a summary will be given below.  The abbreviations used in the July 2015 decision will also be used below.

4.  In gist, the July decision rejected the plaintiffs’ arguments that:

(1) the Singer report is irrelevant and/or of no probative value;

(2) the expert had acted in breach of the code of conduct in not acting independently and acting as the defendant’s advocate.

Those arguments are in essence rehearsed in this application.

5.  In relation to para 4(1) above, the plaintiffs accept that expert evidence will be struck out/expunged only if it is plainly inadmissible or irrelevant: para 5, plaintiffs’ submissions dated 7 September 2015.

6.  The following grounds have been put forth in support of para 4(1) above:

(a) the Singer report totally failed to give a medical definition and meaning to the term “mental capacity”;

(b) the Singer report lacks scientific basis.  By this, the complaint appears to be that the expert has not expressly referred to professional knowledge acquired in his practice other than a literature provided to him by the solicitors.

The ground put forth in support of para 4 (2) above is that the expert acted as an advocate by commenting on the Mental Health Ordinance (Cap 136) and on the plaintiffs’ Dec 2014 submissions.

7.  The ground summarized in para 6(a) above fails in the light of the part of the Singer report which falls under the heading “SUMMARY”, where the expert opined that there was a lack of medical evidence of mental incapacity (which the expert apparently thought should mean “mental impairment ‘or’ abnormality of mental processes … affecting [the dec’d’s] ability to understand or make a choice in executing the Will”), and that medical evidence of mental capacity outweighs that of incapacity.  It is also important to note the expert seemed to have adopted the approach that “in psychiatric practice a person is presumed mentally normal until proven otherwise”.  The above heading was set out after a section devoted to a protracted examination of the medical (and other) documents and records pertaining to the dec’d’s illness, treatment and behaviour before his death.

8.  There is no suggestion (whether at the hearing leading to the July 2015 decision, or that of this hearing) that the above meaning of “mental impairment” (and/or the approach adopted in the Singer report) is wrong or unsupportable (let alone plainly wrong or unsupportable).

9.  The ground summarized in para 6(b) above fails because there is nothing inherently wrong in an expert relying on only one textbook (irrespective of who provided him with the textbook).  What matters is whether the textbook the expert relied on is literature which expert can (or cannot) reasonably rely on.  Criticisms such as the expert has been too brief and/or economical in his research are more matters (similar to matters mentioned at para 26 and 30, the July 2015 decision) to be canvassed at trial and pertains to weight (and/or reliability) rather than admissibility.

10.  As regards para 4(2) above, it fails for the reasons already given in the July 2015 decision (para 30 and 31 thereof).  Those reasons are adopted here.

11.  The plaintiffs also mentioned an order dated 15 December 2014 which struck out a report written by the same expert, and contend somehow that should be taken into account in the July 2015 decision. A perusal of the transcript of the hearing leading to that order shows the context to be totally different:

“[plaintiffs’ counsel]: … it’s obvious that we didn’t object to [the report] because … the experts are required to give evidence on mental capacity only. Now the issue about testamentary capacity is the ultimate question to be decided by the trial judge”;

“COURT: By the court, yes.”;

“[plaintiffs’ counsel]: Exactly, and the report … draws a conclusion on testamentary capacity, so he can’t file the same expert report.”;

“COURT: [addressing defence counsel] I think you may have a problem there, isn’t it … ?”;

“COURT: … [the expert] is not in a position to say whether … the court will have to make that decision …”;

“COURT: So I will order that the report has to be expunged”.

12.  It is of course trite law the conclusion to be made on an ultimate issue (such as “testamentary capacity” and “testamentary intention” in the context of this application) is not one for the expert, but for the court: Phipson on Evidence (2013) 18^th Ed, para 33-12 to 33-17.  But it is common ground “mental capacity” is not such an issue.

13.  Finally, the plaintiffs also complain that the Singer report only dealt with the dec’d’s dementia (but not the other mental problems).  Assuming (but without deciding (because this application is not the forum to so decide)) this complaint to be valid, it still does not render the Singer report inadmissible (though it may be put forth as reasons for arguing it to be incomplete and/or unreliable and so on (which are more matters of weight, and to be determined after trial)).

14.  By reason of the above matters, leave to appeal is refused.

15.  The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above only because of the need to balance between the length of the decision and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

16.  There is no apparent reason to depart from the usual rule that costs should follow the event.  There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of this application are to be paid by the plaintiffs to the defendant.

17.  I consider summary assessment of costs to be appropriate.  The above costs shall thus be so assessed.  For this purpose:

(1) the defendant be at liberty to lodge with court and serve a statement of costs within 7 days from today;

(2) the plaintiffs be at liberty to lodge with court and serve a statement of objections within 7 days thereafter.

HCAP 7/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 7 OF 2010

____________

____________

____________

________________________________

REASONS FOR DECISION

________________________________

Introduction

1.  There were 4 applications:

(a) the defendant’s application to set aside the interrogatories served earlier by the plaintiffs (“the set aside application”);

(b) the defendant’s application for an order that unless the plaintiffs file and serve their expert report on the deceased’s mental capacity within a prescribed period, they be barred from adducing such expert evidence at trial (“the unless order application”);

(c) the plaintiffs’ application to strike out and/or expunge the defendant’s expert report on the deceased’s mental capacity (“the strike out application”);

(d) the defendant’s application for leave to adduce expert evidence on the deceased’s physical ability (“the expert evidence application”).

2.  At the end of the hearing, the following orders were made:

(1) the plaintiffs’ interrogatories were set aside;

(2) an order was made in terms of the unless order application (but 28 days, instead of 14 days, were given to the plaintiffs);

(3) the strike out application was dismissed;

(4) the expert evidence application was dismissed.

The reasons for the above are set out below.

Background

3.  The parties are the close relatives of the late Mr Au Kong Tim, who passed away in July 2009 (“the dec’d”). The plaintiffs (the dec’d’s daughter-in-law and grandson) commenced this action in March 2010 alleging that they are the executors appointed by (and one of them is one of the beneficiaries named in) an English will made by the dec’d in July 2002 (“the plaintiffs’ 2002 will”).

4.  The defendant (the dec’d’s son), on the other hand, alleges that he is one of the executors appointed by (and one of the beneficiaries named in) a Chinese will made by the dec’d in September 2008 (“the defendant’s 2008 will”).

5.  The parties further allege that the will relied upon by the opposite side is a forgery and does not evidence the dec’d’s testamentary intention.  Further, the plaintiffs allege that the dec’d was physically incapable of signing any documents by the time of the defendant’s 2008 will.

The set aside application

6.  It is part of the defendant’s case the defendant’s 2008 will was witnessed by two solicitors, a Mr Yeung (“Yeung”) and a Mr Lau (“Lau”).

7.  Relying on RHC Ord 26 rr 1(1), 2(1)(c) and 3(1), the plaintiffs served interrogatories on the defendant on 6 January 2015.  Although the defendant was the party served, the plaintiffs intend that the interrogatories are to be answered by the two solicitors themselves by making and filing an affidavit (or affirmation).

8.  Two grounds of objection have been put forth by the defendant:

(a) the statute does not provide for potential witnesses themselves to be compelled to answer interrogatories by affidavit;

(b) in any event, the interrogatories served by the plaintiffs are objectionable because they cover matters which ought to be matters of evidence and/or matters for cross-examination.

9.  As regards para 8(a) above, the plaintiffs relied heavily on Ord 26 r 2(1)(c) the relevant parts of which read:

“Where interrogatories are served, a note at the end of the interrogatories shall specify … where the interrogatories … are required to be answered by an agent … of a party, which of the interrogatories … an agent … is required to answer, … which agent … ” (emphasis supplied).

10.  The plaintiffs argue that the above language shows that a party’s agent can be compelled to answer interrogatories.  For the reasons set out below, I disagree with the argument.

11.  First, Ord 26 r 1(1) stipulates that interrogatories have to be served on parties, not witnesses or other third parties.  The duty to answer interrogatories is provided for by Ord 26 r 2(2):

“a party on whom interrogatories are served shall, … be required to give within the period specified under paragraph (1)(a) answers, … be on affidavit” (emphasis supplied).

12.  That the duty to answer interrogatories lies with parties, not witnesses or other third parties can also be discerned from the language used by Ord 26 rr 5(2), 5(3), 6(1) and 6(2).  In addition, Atkin’s Encyclopaedia of Court Forms in Civil Proceedings (1968) 2^nd Ed, Vol 22, para 8, text to nn, d, f, g and h, said:

“It is the duty of the party answering to answer … to the point of substance … he must answer to the best of his knowledge, information and belief. … a party must always use such means of knowledge as are reasonably available to him in order to answer … For example, where the matters inquired into are such as would be known to the party’s servants or agents in the ordinary course of their employment, he must make inquires of them and give the result of his inquiries. He is not, however, bound to inquire of persons who are no longer his servants or agents or under his control … ” (p 375 thereof).

(see similar comments in Atkin’s Court Forms (1980), Vol 22, para 8, text to nn p and q (pp 460-1 thereof))

13.  Interrogatories have been replaced in England by “information requests” (Part 18, Civil Procedure Rules).  Comments similar to those quoted in para 12 above have been made in relation thereto in Atkin’s Court Forms (2014) 2^nd Ed, Vol 15, para 87, text to n 2 (p 308 thereof).

14.  The precedent form is also consistent with such a conclusion; see, for example, Atkin’s Court Forms (1996) 2^nd Ed, Vol 22(1), Forms 4 (p 532 thereof).

15.  In view of the above, I agreed with the defendant and disagreed with the plaintiffs regarding the above first ground (para 8(a) above).

16.  I also agreed with the defendant regarding the above second ground (para 8(b)).

17.  Interrogatories must be necessary either:

(1) for disposing fairly of the cause or matter; or

(2) for saving costs.

(Ord 26 r 1(1))  The authors of Hong Kong Civil Procedure 2015, Vol 1, further commented:

(a) interrogatories which relate solely to credit are not allowed: para 26/4/6 thereof;

(b) “fishing interrogatories” are not allowed: para 26/4/9 thereof;

(c) (more directly related to Ord 26 r 1(1)) it could not be necessary to interrogate to obtain information or admissions which were or were likely to be contained in pleadings, medical reports, discoverable documents or witness statements unless, exceptionally, a clear litigious purpose would be served by obtaining such information or admissions on affidavit: para 26/4/11 thereof.

It is common nowadays for witness statements to be served (with directions that they stand as evidence-in-chief at trial).  Consequently, the relatively narrow compass within which it is appropriate to serve interrogatories may be a reason for the increased rarity in more recent times for them to be served.

18.  A quick glance of the interrogatories will show that they are either subject-matters for cross-examination on credibility, or, worse still, irrelevant.

19.  Examples of the earlier category are purported interrogatories like:

“If you believed [the dec’d] was [the defendant’s] father, did it occur to you that he must be an old man?” (Yeung request No 15);

“… did you ask [the defendant] to provide evidence to prove [the dec’d] was ‘精神狀況良好’?” (Yeung request No 18; Lau request No 19);

“Were you misled by [the defendant] that you were providing legal service to him?” (Yeung request No 25);

“What is the meaning of ‘參扶’? Please clarify:” (Yeung request No 55; Lau request No 44);

“Please describe in more detail how did [the dec’d] sign the [the defendant’s 2008 will]” (Yeung request No 56; Lau request No 45).

20.  Examples of the latter category are purported interrogatories like:

“… what is the relevance of your suggestion that you had been providing pro bono legal services … ” (Yeung request No 1);

“Did you actually believe [the defendant] was Ada Wong’s husband? If the answer is [affirmative], what was the basis of your belief? If the answer is [negative], why did you not correct Ada Wong what she said she wanted to ‘代她丈夫處理一些法律文書’ ?” (Yeung request No 6; partly the same as Lau request No 2);

“Is it your firm’s practice to take instructions from other people rather than the one who needs legal service?” (Yeung request No 10; Lau request No 7);

“Did you actually believe what [the defendant] said when he told you that [the dec’d] was his father? … ” (Yeung request No 13; Lau request No 10);

“… Is that your firm’s standard practice of taking instructions from other person(s) rather than the testator in preparing a draft Will?” (Yeung request No 29; Lau request No 21);

“Please describe the setting (layout) of Lord Kindness Elderly Care and Rehabilitation Centre” (Yeung request No 35; Lau request No 27).

The unless order application

21.  Besides asserting that they have encountered difficulties in ascertaining and/or locating the doctors who treated the dec’d (and which the plaintiffs intended to call as expert witnesses), no other explanation has been given by them for failing to comply with the expert evidence direction (ordered as early as in December 2014).

22.  I did (and do) not consider the assertion set out in para 21 above to be a satisfactory reason for opposing the unless order application.  Accordingly, an “unless” order was made giving the plaintiffs in effect another 28 days to comply with the said direction.

The strike out application

23.  The plaintiffs sought to strike out/expunge the defendant’s expert report (“the Singer report”) on the following grounds:

(1) the Singer report is irrelevant and/or of no probative value;

(2) the psychiatrist has acted in breach of an expert’s code of conduct by failing to act independently and by acting as the defendant’s advocate.

These grounds will be discussed in turn below.  It should be noted that the Singer report is a document of about 80 pages long.

24.  Below is a summary of how the Singer report was structured:

(a) the relevant parts of the dec’d’s medical records/documents from the defendant’s solicitors are set out, followed by the psychiatrist’s own comments or remarks (total 20 pages);

(b) the relevant parts of the affirmations or witness statements from the defendant’s solicitors, followed by the psychiatrist’s own comments or remarks (total 29 pages);

(c) the psychiatrist made an assessment of the dec’d’s mental capacity by relying on parts of Assessment of Mental Capacity — A Practical Guide for Doctors and Lawyers 3^rd Ed (the book was made available by the defendant’s solicitors) (total 8 pages);

(d) the psychiatrist’s comments on some provisions of the Mental Health Ordinance (Cap 136) (total 2 pages);

(e) the psychiatrist’s comments on parts of the plaintiffs’ written submissions dated 11 December 2014 (“the plaintiffs’ Dec 2014 submissions”) (total 10 pages);

(f) a summary of the psychiatrist’s conclusions (total 3 pages).

25.  Below is the gist of the plaintiffs’ criticisms of the Singer report put forth in support of this application:

(1) the fundamental scientific knowledge and expertise of the psychiatrist has not been stated, for example, stating the medical definition of “mental capacity”, the medical definition of “dementia” (and its symptoms);

(2) the psychiatrist has assumed the role of the defendant’s advocate:

(a) he relied on reference materials provided by the defendant’s solicitors;

(b) he commented on Cap 136 and the plaintiffs’ Dec 2014 submissions.  In relation to the former, the definition of “mental capacity” is different from testamentary capacity in probate.  In relation to the latter, the psychiatrist has travelled beyond his scope of expertise and assumed the role of the defendant’s advocate.

26.  I found none of the above criticisms to be able to justify the order sought by the plaintiffs.  They may constitute materials for cross-examining the psychiatrist; but irrespective of whether that is in fact the case, it still does not justify the strike out or expunge of the Singer report because the criteria for doing so (summarized in para 23 above) have not been met.

27.  In relation to para 25(1) above, the way in which an expert sets out his or her report is (save in exceptional situations which do not arise here) a matter for the expert.

28.  What the psychiatrist has done here is to consider the dec’d’s behaviour (whether his speech, conduct or lifestyle) put forth by the plaintiffs as symptoms (or evidence) of lack of mental capacity on the dec’d’s part.  I did (and do) not find anything wrong with this approach. It should also be noted, in this connection, the psychiatrist apparently began from the medical assumption that everyone is presumed to be sane unless shown to be not sane.  In relation to “mental capacity”, it is unknown (because there is no such evidence) whether there is such a concept in medicine (independently of, say, Cap 136 and/or other laws).

29.  In relation to para 25(2)(a) above, the source from which a reference book came is not per se a ground for concluding that the reference book should not be relied on.

30.  In relation to para 25(2)(b) above, there is nothing inherently wrong for an expert to refer to Cap 136.  After all, that is the statute which provides (among other things) for a scheme for people who may lack mental capacity within the meaning of Cap 136, and medical doctors (especially psychiatrists) are often invited to comment on this kind of cases.  A medical expert who is also an approved mental disorder specialist cannot be faulted for making reference to Cap 136.  This of course does not bar the plaintiffs from challenging the matter at trial by cross-examination and/or legal submissions.

31.  As regards the allegation that the psychiatrist has travelled beyond the scope of expertise and assumed the role of an advocate (see para 23(2) and 24(e) above), the psychiatrist was merely responding to criticisms levied against him in the plaintiffs’ Dec 2014 submissions. It is only fair and proper for the expert to set out his response thereto in writing thereby giving the plaintiffs advanced notice of the same.  The plaintiffs’ allegation has no substance.

32.  By reason of the above matters, this application to strike out/expunge the Singer report should be (and was) dismissed.

33.  There was another part of this summons which was in substance unopposed (for valid reasons).  There is no need to discuss that part here.

The expert evidence application

34.  The defendant argued that leave to adduce expert evidence should be given.  One of the factual disputes in this action is whether the dec’d could sign on the defendant’s 2008 will (the plaintiffs contend that he could not whereas the defendant contends otherwise).

35.  In view of the witness statements already filed, it is expected that at least some of the witnesses will testify they have seen the dec’d before, and at the time of, the defendant’s 2008 will.  Those testifying for the plaintiffs are expected to testify that the dec’d could no longer write or sign by then, whereas those testifying for the defendant are expected to testify to the contrary.

36.  The dec’d has undergone burr-hole drainage operation by the time of the defendant’s 2008 will.  The defendant intends to obtain expert opinion from a medical practitioner as to the effect of such an operation on the physical ability of a patient.

37.  The defendant has not put forth a case that such an operation will invariably have no effect on a patient.  This is understandable because it can confidently be expected that a medical practitioner will say that whether or not such an operation will cause physical inability will vary from case to case.

38.  This is especially so when:

(1) factual witnesses who will testify for the respective party are going to give contradictory factual versions about this;

(2) whether or not there was adverse effect on the dec’d’s physical ability since the operation (and if so, what the aftermath was) has not been mentioned expressly, or specifically, in the dec’d’s medical records.

39.  For the above reasons, I dismissed this application.

Other matters

40.  The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the reasons for decision and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

HCAP 7/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 7 OF 2010

____________

____________

________________

J U D G M E N T

________________

Introduction

1.  The main action is a probate action over, among other things, the validity of an alleged will in which the defendant (“D”) was appointed as one of the executors.  Before the court were three applications as follows:

(i)   A notice of appeal filed by the plaintiffs (collectively called “Ps”) on 26 November 2013 against Master Levy’s order allowing extension of time for  D to comply with O 76 r 5 of the Rules of the High Court (“RHC”)  in filing an affidavit of testamentary scripts (“Appeal”);

(ii)   Ps’ summons issued on 29 November 2013 to strike out D’s amended defence and counterclaim (“Striking Out Summons”);

(iii)   D’s summons issued on 25 March 2014 for retrospective leave for him to file his 7^th affirmation on 19 March 2014 (“Leave Summons”).

2.  The Appeal was in fact lodged earlier than the Striking Out Summons, but for some reasons, it was fixed for hearing before this court after the hearing for the Striking Out Summons.  I will deal with the Appeal first, then the Leave Summons and lastly the Striking Out Summons.

Brief Background

3.  The Deceased was a man of substantial wealth.  He passed away on 7 July 2009 at the age of 93, survived by his wife, 2 sons and a daughter, and 6 grandchildren (“Grandchildren”).  D is the elder son, and the younger son is called Au Yuk Lun, Anthony (“Anthony”).  Both Anthony and D are solicitors.

4.  The 1^st plaintiff (“P1”) is Anthony’s wife and they have 4 children, a son who is the  2^nd plaintiff (“P2”) herein, and 3 daughters, one of whom is called Charleen.

5.  D has 2 children, namely a son Wilson and a daughter Sarah.

6.  The Deceased  had executed at least 4 wills:

(i)   In 1976, the Deceased executed a will bequeathing all of his properties to Anthony and D only (“1^st Will”)[1];

(ii)   On 31 October 1977, the Deceased executed a will in English bequeathing all his real and personal property to his wife Madam Leung Sheut Hung, and appointing her the sole executrix of the will (“2^nd Will”)[2];

(iii)   On 19 July 2002, the Deceased executed a will in English (“3^rdWill”), in which  he appointed P1, P2 and Charleen as executors and trustees, and devised and bequeathed his residuary estate to the Grandchildren in equal shares[3];

(iv)   On 5 September 2008, the Deceased executed a will in Chinese  in which  he appointed Anthony and D as executors and trustees, and devised and bequeathed his residuary estate to his four male descendants, namely, Anthony and his son P2,  and  D and his son Wilson in equal shares (“4^th  Will”).

7.  There was no dispute that the 1^st Will was revoked by the 2^nd Will which was in turn revoked by the 3^rd Will, and that the 3^rd Will was duly executed in all respects.  Neither D nor Anthony was named as beneficiaries under the 3^rd Will, but under that will, Anthony’s family would have control of the Deceased’s estate as they would be entitled to two-thirds of the estate.

8.  D and Anthony were both named beneficiaries under the 4^th Will, and effectively under this will, D and Anthony would have joint control of the Deceased’s estate and each family would be entitled to one half share of the estate.

9.  On 24 September 2009, D applied for grant of probate under HCAG 10859 of 2009, claiming to be one of the executors under the 4^th Will (“Grant Application”).

10.  On 29 March 2010, Ps commenced the present probate action HCAP 7 of 2010 for the pronouncement of the validity of 3^rd Will and against the validity of the 4^th Will, alleging, among other things, that the Deceased’s signature on the 4^th Will was forged, or alternatively, the Deceased did not know or approve the contents of the 4^th Will, as he had been suffering from dementia since in or about 2007 (“Probate Action”).

11.  D filed his acknowledgment of service on 12 April 2010.   Ps filed their affidavit of testamentary scripts on 21 April 2010.  Under O 76 r 5 of the RHC, D’s affidavit of testamentary scripts should have been filed on or before 26 April 2010 but he failed to do so.

12.  On 14 June 2010, D filed the defence and counterclaim, seeking to pronounce for the validity of the 4^th Will.

13.  It was not until 12 November 2013 that D took out a summons for an extension of time to comply with O 76 r 5.  The hearing was heard on 14 November 2013, and Master Levy granted leave to D to comply with the rule within 7 days (“Order”).

14.  On 15 November 2013, D filed an affirmation purportedly to be in compliance with O 76 r 5 (“4^thAffirmation”).

15.  Ps lodged the Appeal on 26 November 2013, against the Order.

16.  It was further Ps’ case that the contents of the 4^th Affirmation did not meet the requirements, in that D only deposed to the existence of the 4^th Will and nothing else.  D had not deposed in the affirmation as to whether any other testamentary scripts (in the form of a draft or otherwise) existed or not, nor had he exhibited the original of the 4^th Will in the 4^th Affirmation nor lodged the same with the court for filing.

17.  Three days after Ps lodged the Appeal, Ps further took out a summons on 29 November 2013 to, among other things, strike out D’s amended defence and counterclaim, or alternatively seek an order that D should have the burden of proof in respect of the due execution of the 4^th Will and the physical and mental capacity of the Deceased at the time of the execution of the 4^th Will (“Striking Out Summons”).

18.  The day before the hearing of the Striking Out Summons, D filed his 7^th affirmation, said to be a supplemental affirmation of testamentary scripts (“7^th Affirmation”).  At that time, D had not sought leave to file his 7^th Affirmation.

19.  Notwithstanding the filing of the 7^thAffirmation, Ps proceeded with the Striking Out Summons, which was first heard before this court on 19 March 2014, and was adjourned part-heard to 2 May 2014.  In the meantime, the Appeal came up for hearing on 24 March 2014, during which D undertook to issue a summons seeking retrospective leave to file his 7^th Affirmation within 3 days.  D was accordingly directed to do so, and all matters were later adjourned to 2 May 2014.  D then issued his Leave Summons.

The Appeal

Generally

20.  An appeal from the master to the judge in chambers is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time.  Further, a judge hearing such an appeal is entitled, if he thinks fit, to adopt the master’s reasoning in his own judgment without setting out the reasoning himself, and by so doing, the judge does not fail to exercise the discretion conferred on him[4].

21.  There was no written decision of Master Levy, but her reasons could be seen from the transcript as follows[5]:

“Court : So you refuse to let the defendant comply? So that means they don’t need to comply with Order 76, rule 5.

[Ps’ Counsel] : No, no, no, Master … Our view is that there will be some serious consequences arising from them, even if they comply with filing the affirmation …

…

Court : I don’t understand what your objection is? Your objection is they are not allowed … they should not be given any opportunity to comply with Order 76, rule 5?

[Ps’ Counsel] : Without consequences

Court : I don’t understand what you mean by ‘without consequences’ …

Court :         … it is unfortunate that in this case the non-compliance by the defendant of Order 76, rule 5, has not been brought to the attention of the court and the plaintiff has not taken any step to compel the defendant to comply.  The obligations under Order 76 rule 5 are mandatory on both the Plaintiff and the defendant.  Plaintiff counsel, Mr Au, seemed to be objecting this application on the ground that the defendant’s compliance with this rule may bring to some consequences that may further delay the matter.  As I have said, since the obligations on both parties are mandatory, this must be done.  If there may be further issues arising from this compliance, the matter may be taken further.  However, so far as this summons is concerned, it is only a matter of time.  Therefore, I order the defendant to comply with Order 76, rule 5, within 7 days.”

22.  It was accepted by Ps’ Counsel Mr Kevin Li that Master Levy would have jurisdiction or power to grant an extension of time before the defence and the counterclaim had been filed under O 2 and O 3.  The issue was whether Master Levy should exercise such jurisdiction or power after the defence and counterclaim had been filed.

23.  Mr Li submitted that although a default in complying with time, being an irregularity, should not nullify any proceedings, where the irregularity was of fundamental nature and involving an application which might involve an order with drastic consequences, a court would be slow to overlook the irregularity and he had referred to paragraph 2/1/1 of the Hong Kong Civil Procedure 2014 Vol 1 (“HKCP”).

24.  It was Ps’ case that there had been a fundamental irregularity that was incurable and the Master had no power to grant an extension of time.  Alternatively, even if she did, an “unless order” should have been made in all the circumstances of this case.

Whether there is an unlimited power generally to grant extension of time for compliance with O 76 r 5 of RHC

25.  One of Ps’ grounds for the Appeal was that the Master had failed to have regard to whether the court had unlimited power to grant extension of time for compliance with O 76 r 4[6].

26.  This issue did not appear to have been raised at the hearing before the Master by the then Counsel acting for Ps, who in fact accepted that D would have to file the affidavit “sooner or later”[7] and he seemed to be only pointing out to the Master that there would be some “serious consequences” due to D’s non-compliance[8].

27.  O 76 r 5 of RHC provides that –

“(1) Unless the Court otherwise directs, the plaintiff and every defendant who has acknowledged service of the writ in a probate action must swear an affidavit-

(a) describing any testamentary script of the deceased person, whose estate is the subject of the action, of which he has any knowledge or, if such be the case, stating that he knows of no such script; and

(b) if any such script of which he has knowledge is not in his possession or under his control, giving the name and address of the person in whose possession or under whose control it is or, if such be the case, stating that he does not know the name or address of that person.

(2) Any affidavit required by this rule must be filed, and an office copy thereof and any testamentary script referred to therein which is in the possession or under the control of the deponent, must be lodged in the Registry within 14 days after the acknowledgment of service by a defendant to the action or, if no defendant acknowledges service and the Court does not otherwise direct, before an order is made for the trial of the action.

(3) Where any testamentary script required by this rule to be lodged in the Registry or any part thereof is written in pencil, then, unless the Court otherwise directs, a facsimile copy of that script, or of the page or pages thereof containing the part written in pencil, must also be lodged in the Registry and the words which appear in pencil in the original must be underlined in red ink in the copy.

(4) Except with the leave of the Court, a party to a probate action shall not be allowed to inspect an affidavit filed, or any testamentary script lodged, by any other party to the action under this rule, unless and until an affidavit sworn by him containing the information referred to in paragraph (1) has been filed.

(5) In this rule “testamentary script” (遺囑性質的文稿) means a will or draft thereof, written instructions for a will made by or at the request or under the instructions of the testator and any document purporting to be evidence of the contents, or to be a copy, of a will which is alleged to have been lost or destroyed.”

28.  Under the above rule, the filing of affidavits of scripts should precede the service of pleadings and this is also clearly contemplated by O 76 r 7 of RHC.  The purpose of this procedure is to ensure that all parties are well acquainted with all the testamentary scripts that they are dealing with, and to ensure that all scripts are identified at the earliest opportunity.  As stated in paragraph 76/5/1 of HKCP, it is impossible to plead properly until it is known what scripts exist[9].

29.  Mr Li had referred this court to Part 57.5 of the UK Civil Procedure Rules, and the UK Chancery Guide on Part 57 and the UK PD 57.  In UK, if the requirements for filing the testamentary documents are not complied with under their rules, it is likely that the claim will not be issued and, correspondingly, that the acknowledgment of service will not be permitted to be lodged.  Relying on the UK rules, Mr Li then submitted that in Hong Kong, the courts should have similar power to set aside a defence and counterclaim served prior to the filing of the affidavit of testamentary scripts under O 2 of RHC due to irregularity[10].

30.  The provisions in our O 76 r 5, however, are not exactly the same as the UK Rule 57.5 under Part 57.  Further the HK Practice Direction 20.2 which came into effect on 1 August 2012 also contained different provisions from the UK PD 57.

31.  One of the main differences between the rules in HK and those in UK lie in the time when their equivalent to our affidavit of testamentary scripts and the scripts are required to be filed.  Under UK Rule 57.5(3) and (4), unless the court directs otherwise, these have to be filed by the claimant at the time when the claim form is issued, and by a defendant at the time when he acknowledges service.  Para 24.1 of the UK Chancery Guide thus states that if the requirements are not complied with it is likely that the claim will not be issued and correspondingly, that the acknowledgment of service will not permitted to be lodged.

32.  In Hong Kong, the time for the plaintiff and the defendant who has acknowledged service to file the affidavit of testamentary script is within 14 days after the acknowledgment of service, or if no defendant acknowledges service and the court does not otherwise direct, before an order is made for the trial of the action.

33.  The UK rules are clearly drafted to ensure the required testamentary documents and the written evidence are being filed at the very outset of the probate proceedings.  We do not have such requirements in Hong Kong.  However, even under the UK provisions, Rules 57.5 (2) and (4) are both preceded by the words “unless the court directs otherwise”.

34.  Our O 76 r 5 (1) is also preceded by the words “Unless the Court otherwise directs...”. On my reading of this rule, there is clearly power generally for the court to direct any matters in relation to the filing of an affidavit of testamentary scripts, including extending the time for compliance with the requirement under r 5 (2).

35.  In Lam Ping v Zi Yen Lu HCAP 13/2004 (unrep, 31/03/10), as said by Lam J, as he then was, under O 76 r 5, all parties to a probate action are required to file an affidavit of testamentary scripts[11]. In that case, the plaintiff sought to propound a will of her late husband, which was challenged by the defendant.  It can be seen from the judgment of the case that at a direction hearing on 11 August 2009 Lam J noted that neither party had complied with O 76 r 5, and he therefore ordered the parties to do so.   At the time of the order, it was some 5 years after the commencement of the probate action, and the defence had already been filed[12].

36.  Although the issue of court’s power was not raised by either side in Lam Ping,Lam J did not consider that he had no power  to order the parties to file the affidavits of scripts, or that his power was in any way limited,  after the defence had been filed.

37.  It has been noted in paragraph 76/5/1 of HKCP that O 76 r 5 is frequently ignored in Hong Kong.  This is further noted in paragraph 7  in our Practice Direction 20.2 where practitioners are reminded of the requirements under O 76 r 5,  and it is stated therein that non-compliance may result in delay and the court may make an adverse costs order against the defaulting party.  Again, there is nothing there to indicate that the court has no power to grant any extension of time in case of non-compliance, or that its power is limited in any way after a defence has been filed or after close of pleadings.

38.  Further, this court generally has power to extend time under O 3 r 5 of RHC, and also under O 1B r 1(2) (a).

39.  Having considered the above, I am of the view that the Master, or this court has a general power to grant an extension of time for compliance with O 76 r 5 of RHC, which is not limited by the mere fact that a defence has already been filed, or the mere fact that pleadings have been closed.

Whether there was a fundamental irregularity in the present case

40.  Although Mr Li accepted that a default in complying with time is only an irregularity, and shall not nullify any proceedings, he submitted that in the present case the irregularity was of a fundamental nature and he had referred to O 2 r 1 of RHC.

41.  So far as I could see, this issue was not raised before Master Levy either.

42.  The purpose of O 2 r 1 of RHC is to abolish the distinction between non-compliance with procedural rules which renders proceedings a nullity and non-compliance which merely renders proceedings irregular[13].

43.  Paragraphs 2/1/1 and 2/1/2 of the HKCP set out a number of cases where the courts had considered whether there had been irregularity of a fundamental nature as to be incurable.  As stated therein, “The authorities, taken as a whole, show that O2 r1should be applied liberally in order, so far as is reasonable and proper, to prevent injustice being caused to one party by mindless adherence to technicalities in the rules of procedure[14].”

44.  D’s Counsel Mr Lam submitted that whether a particular irregularity was curable or not is a fact-sensitive question.

45.  In the present case, at the time when the writ was issued and at the time when D acknowledged service and filed his defence, D was acting in person.  Once Ps filed their affidavit, under O 76 r 5(4) they became entitled to inspect and take copies of D’s affidavit.  This meant that from 21 April 2010 onwards, Ps could have asked for a copy of D’s affidavit should they feel they needed to have read that before finalizing their pleadings.

46.  Also, what Ps could have done was to seek an extension of time before filing their statement of claim.  This would be a similar situation as when a plaintiff in a probate action files a writ endorsed with a statement of claim but fails to file his affidavit of testamentary scripts, as stated in para 76/7/1 of HKCP, in such a case, the defendant should seek an extension of time for service of defence until r 5 has been complied with and such application, as further in paragraph 10 of Practice Direction 20.2, should be made as expeditiously as the circumstances of the case permits.

47.  Ps nevertheless went ahead to file their statement of claim on 12 May 2010, and even filed their Reply and Defence to Counterclaim on 22 November 2010, without raising the issue, or asking D for a copy of his affidavit of scripts.

48.  D’s failure to file his affidavit was raised for the first time by Ps in a letter dated 4 October 2013 from their solicitors to D’s solicitors[15].

49.  At the time of this letter, the main dispute between the parties was that the original of the 4^th Will should have been lodged under the Probate Action, but instead had remained with the Probate Registry under the Grant Application.

50.  Ps’ above letter went on to state, among other things, the following :

“Furthermore, pursuant to Order 76 rule 5, your client must file an affidavit and the testamentary script referred to therein must be lodged to the Registry. It was a mistake on the part of your client (who acted in person previously) in not complying with this particular order of the Rules of the High Court …

In the circumstances both your client and yourselves are requested to rectify the mistake without further delay.”

51.  Thus, at that time Ps were asking D to rectify the mistake. D’s solicitors responded by saying that they were instructed to prepare D’s affirmation to state that the original of the 4^th Will had been kept in the Probate Registry, but the proposal was not accepted by Ps who were of the view that D would not have complied with O 76 r 5 by this proposal.

52.  Ps’ solicitors then sent a letter dated 4 November 2013[16]. In this letter, what Ps’ solicitors had stated, among other things, was that both their clients and themselves believed that there was a good chance that the court would dismiss D’s entire case pursuant to O 2 of RHC when D applied for extension of time to file his affidavit of testamentary script.  What Ps did not make clear in this letter was whether Ps would consent to the extension of time.

53.  This resulted in D issuing a time summons and filing his 5^th affirmation in support thereof.  In D’s 5^th affirmation, he had exhibited a copy of the 4^th Affirmation affirmed on 25 October 2013.  Ps did not file any affirmation in opposition.  The hearing of D’s time summons was fixed for 3 minutes before Master Levy on 14 November 2013.

54.  Ps had instructed Counsel to attend this hearing.  Master Levy was fully aware that the Probate Action had been ongoing for at least 3 years and pleadings had all been filed. Ps’ grounds for opposition to D’s time summons was  that (i) a true copy of the 4^th Will had not been filed under the Probate Action (ii) delay and non-compliance of O 76 r 5  (iii) serious prejudice to Ps right to a fair trial (iv) matter should be referred to a judge for determination[17].

55.  The only evidence before the Master at the hearing in relation to D’s time summons was D’s 5^th affirmation exhibiting copies of the correspondence between solicitors and a copy of the sworn 4^th Affirmation.  There was no affirmation filed by Ps  to oppose D’s time summons prior to the hearing before the Master.  P2’s 4^th affirmation was filed after the Order and in support of Ps’ Striking Out Summons. 

56.  There was also no application from Ps, nor D, for leave to adduce any new evidence by way of their subsequent affirmations for the purpose of the Appeal, nor was there any such agreement.  The only relevant documents were those contained in the Appeal Bundle C placed before this court.  Even though the hearing of the Appeal before this court was a re-hearing, the re-hearing was thus based on the evidence then placed before Master Levy.

57.  To summarise, there was no sufficient evidence before Master Levy as to what effect the time extension would have on Ps, what prejudice Ps would suffer, or any evidence as to why they could not be compensated by a costs order, or what “serious consequences” there would be, as submitted by their then Counsel.

58.  It was pointed out by the Master that Ps themselves had not taken any step to compel D to comply with his obligations under O 76 r 5. What is clear to this court is that the Ps were able to plead their case and conduct this litigation for some 3 years without having read D’s affidavit of testamentary scripts.

59.  As mentioned earlier, there was no dispute about the validity and due execution of 3^rd Will or the earlier wills which had been superseded.  The main issue in the Probate Action was only in relation to the 4^th Will, its due execution, and the testamentary capacity of the Deceased at the time of execution.  Although a true copy or original of the 4^th Will was not filed under the Probate Action and was thus not stored with the Registrar in the Probate Action, it had in fact been filed into the Probate Registry on 24 September 2009 under the Grant Application, even before Ps had issued the Probate Action, and had been kept there since.

60.  One of Ps’ concerns was about new wills being discovered, but as pointed out by Mr Lam, even if D had complied with O 76 r 5(1) in full back in April 2010, the same issue could exist.  If D were to find a new will after the filing of his affidavit, he would be obliged to file a supplemental affidavit.  The same would also apply to Ps had they been able to find another will after their affidavit of testamentary scripts had been filed.

61.  As mentioned earlier, in Lam Ping, the non-compliance with O 76 r 5 had been in existence for 5 years or more, and yet the order for filing was given.

62.  Having considered all the above, I am of the view that the irregularity in the present case was not a fundamental irregularity which was incapable of being cured.

63.  Mr Li had also submitted that this court should set aside D’s defence and counterclaim as a result of irregularity under O 2 r 1(2).

64.  In fact, there was no summons issued by Ps before Master Levy to set aside D’s defence and counterclaim under O 2 r 2, nor was there any one before this court.  The Appeal was only in relation to the Order for extension of time.

65.  Mr Lam submitted that under O 2 r 2(1) an application to set aside anything for irregularity could only be made “within a reasonable time” and “before the party applying has taken any fresh step after becoming aware of the irregularity”, and in the present case, there had been “fresh steps” taken after Ps had become aware of the irregularity, in that witness statements had been exchanged.

66.  Mr Li responded by saying that the witness statements were exchanged pursuant to an earlier order of Master Lung made on 24 May 2013 and that performance of a court order could not be considered an unequivocal waiver of Ps’ right to raise objection.

67.  Ps had had a copy of D’s 4^th Affirmation for some time prior to the exchange of witness statements on 21 November 2013.  Mr Li had admitted that Ps knew that the 4^th Affirmation was not complete at the time of the exchange of the witness statements.  Although Master Lung’s order was made earlier, under paragraph 1h of that order, Ps could have applied for an extension of time to exchange witness statements, ie until such time D had complied with O 76 r 5, if they had thought that they would suffer prejudice and damage had the exchange.  Yet they chose not to.

68.  Ps’ decision to proceed to exchange witness statements was   clearly with knowledge that the 4^th Affirmation was not complete or insufficient.  As stated in paragraph 2/2/3 of HKCP, steps taken with knowledge of an irregularity with a view to defending the case on the merits will waive irregularities.  Mr Lam submitted that the exchange of witness statements by Ps was done with a view to defend D’s counterclaim on the merits, and would thus constitute a “fresh step”. I accept his submissions.

69.  In any event, the exchange of witness statement was in fact a matter which took place after the Order.

70.  As I have come to the view that the irregularity was not of a fundamental nature, nor incurable, nor of any serious or drastic consequences, I see no reason as to why D’s defence and counterclaim should be set aside.

Whether an extension of time should have been granted

71.  In relation to legal principles on time extension applications, Mr Lam had referred this court to the Court of Appeal decision in The Decurion [2012] HKLRD 1063, where Cheung JA had said :

“(1) It is clear that the applicable principle in deciding whether time should be extended is to look at all relevant matters and consider the overall justice of the case. A rigid mechanistic approach is not appropriate… There are two conflicting principles at play. First, a party being required to observe the procedural rules, the default of which may result in judgment being entered against it. Second, a party should not be deprived of an adjudication on the merits due to a procedural default unless there is prejudice to the other party which cannot be compensated by costs. These two principles are not absolute. A rigid application of the first principle may lead to dismissal of actions without consideration of whether the defendant has been prejudiced by the default. But, the Court has treated the existence of such prejudice to be crucial and often decisive. Likewise a rigid application of the second principle without exception may enable a wealthy litigant to flout the rules. The resolution to these two conflicting principles is to consider all the circumstances of the case and not confine the decision to the application of a universally applicable rule of thumb: see Costellow v Somerset County Council [1993] 1 WLR 256, 263 (Sir Thomas Bingham MR).

(2) I do not consider this approach has been drastically changed by the introduction of the Civil Justice Reform in Hong Kong since 2 April 2009. An expeditious disposal of a case has to be considered together with the equally salutary objective of ensuring fairness between the parties[18].”

72.  D had explained his reasons for the delay in his 5^th affirmation.  D said at the time when he lodged the acknowledgment of service of the writ, and at all material times, he was acting in person.  He said he was not aware at the time that he had to make affirmation of testamentary script within 14 days after he lodged his acknowledgment of service.  He was only made aware of the requirement under O 76 r 5 when his solicitors received Ps’ letter dated 4 October 2013.  He then said he had proposed through his solicitors that the parties should jointly apply for an order from Master Levy for the release of the original of the 4^th Will from the Probate Registry to Ps’ solicitors for examination by their handwriting expert[19], but his proposal was not accepted by Ps.

73.  D had further stated in his 5^th affirmation that the late filing of his affirmation of testamentary script did not prejudice Ps’ position.  As mentioned earlier, there was no sufficient evidence from Ps at the hearing before the Master as to what prejudice they would suffer.  There was also no sufficient evidence of any damage caused to the Ps.

74.  Further, as mentioned earlier, the main dispute between the parties in the Probate Action was over the validity and due execution of the 4^th Will, and the matter which led to Ps raising the issue of D’s failure to file the Rule 5 Affidavit at that time was the inspection of the original of the 4^th Will by Ps’ handwriting expert.  In accordance with an earlier order of Master Levy made on 25 July 2013, the original was to be released to Ps’ solicitors for the expert’s inspection, and the parties subsequently jointly attended the Probate Registry to collect the original, when it was then discovered that the original was not filed under the Probate Action, but under the Grant Application instead.  One thing then led to another.

75.  So far as delay in the Probate Action was concerned, although D’s proposal in his solicitors’ letter of 23 October 2013 would not have relieved D from all his obligations under O 75 r 5, it would have at least solved the then immediate problem of inspection by expert, and, after inspection, would have resulted in the original 4^th Will being returned to the court and filed under the Probate Action.  It seems to me D’s then proposal was a practical one and should have been accepted by Ps.

76.  Anyway, there was no sufficient evidence before Master Levy, or before this court, that D’s failure to comply with O 76 r 5 was intentional.  I have also said earlier that there was no sufficient evidence before Master Levy as to prejudice or any serious consequences.

77.  Having considered all the above, I see no reason to make a different order from Master Levy.  I would just add, that even if new evidence, namely all the subsequent affirmations filed by the parties in connection with the Striking Out Summons and the Leave Summons were to be adduced for the Appeal, in light of what I have said hereinafter in this judgment, such  would not have affected my decision for the Appeal.

Unless Order

78.  As to whether Master Levy should have made an “Unless Order”, Mr Li admitted that Ps never sought an “Unless Order” at the time of the hearing before the Master. Having said this, it was not disputed that the Master had a discretion to make such an order had she thought appropriate.  Further, Mr Li submitted that as the hearing before this court was a re-hearing, this court could make such an order on the Appeal.

79.  Whether to allow the extension of time was a matter within the discretion of the Master.  I see no reason to interfere with her decision now.  Further, this seems to be now academic as D’s 4th Affirmation, and 7^th Affirmation, had both been filed.

Conclusion

80.  For all the above reasons, I dismiss Ps’ Appeal.

Leave Summons

81.  One day prior to the hearing of Ps’ Striking Out Summons, D filed his 7^th affirmation, said to be a supplemental affidavit of testamentary scripts (“7^th Affirmation”).

82.  At the time of the hearing, Ps and Mr Li had read the 7^th Affirmation. There was no specific objection taken by Mr Li to D’s filing of the 7^th Affirmation, his objection being a general one that the court had no power to extend time for the filing of any affidavit of testamentary scripts. In fact, Mr Li pointed out that all along D had denied he was still in breach of O 76 r 5 after filing the 4^th Affirmation, and submitted that notwithstanding the filing of the 7^th Affirmation, the defect was still not cured.   Mr Li then said it was only after filing of the 7^th Affirmation that Ps learnt of the existence of there being instructions and drafts in relation to the 4^th Will.

83.  It was during the hearing on 24 March 2014 for the Appeal that the question of whether D should have applied for leave before filing the 7^th Affirmation came up. Mr Li then objected to D’s filing of the 7^th Affirmation, and one of his grounds was that D had not issued a proper summons for extension of time. This then led to the Leave Summons being issued by D before the resumed hearing on 2 May 2014.

84.  D filed his 8^th affirmation in support of his Leave Summons.  He explained that it was only on 14 March 2014 that he realized there was a standard form prescribed in the UK PD 57 which he could have used.  He said although he had for some years been a solicitor in Hong Kong until his recent retirement, he had never practised in UK.  Further, his solicitor had informed him that he was also unaware of the UK form.

85.  P2 responded in his 6^th affirmation by pointing out that D was a practicing solicitor from 1978 to 2012 when he retired.  Further, as D had chosen to act in person in the beginning of these proceedings, he must have confidence that he had sufficient legal knowledge to have conduct of these proceedings without the assistance of others, and it was also surprising that his solicitor also did not have enough legal knowledge to remind D what should be done.

86.  The form initially referred to by Mr Li in his 1^st skeleton submissions was the Chancery Masters’ Practice Form No 37, The Supreme Court Practice 1999 Vol 1B-238[20].  In fact, there is a similar specified form in the UK PD 57 (“UK Specified Form”).  The UK Specified Form has never been adopted in Hong Kong.  There is further no requirement or provision in our Practice Direction 20.2 that the UK Specified Form is to be adopted.  It is thus not mandatory for Hong Kong practitioners to use that form although it serves as a good guidance as to what an affidavit of testamentary scripts should contain.

87.  As earlier mentioned, in Hong Kong the requirements in O 76 r 5 are often ignored.  There is no sufficient evidence that the UK Specified Form is commonly used by probate practitioners here.  Further, there is no evidence as to what area/s of practice D was involved in before he retired.  Anyway, I accept D’s explanation that neither he nor his solicitor was aware of the UK Specified Form until they read Mr Li’s submissions.

88.  It has however been stated in paragraph 76/5/1 of the HKCP that unlike an affidavit of documents under O 24, the affidavit of scripts should not merely specify the scripts in the possession, custody, or power of the deponent, but all scripts of which he has knowledge (even if he does not accept that they constitute valid wills), and the deponent must lodge in the Registry all the scripts in his possession or under his control. Scripts which are not in the possession or control of any party will have to be the subject of an order or a subpoena to bring in scripts under O 76 r 13, unless arrangements can be made for them to be brought in voluntarily.  The scripts then remain in the relevant office until the final conclusion of the action.

89.  It is further clear from O 76 r 5(5) that “testamentary script” includes not simply the will, but a draft thereof and also all written instructions for a will made by or at the request of under the instructions of the testator and any document purporting to be evidence of the contents thereof.

90.  Leaving aside the issue of  the original 4^th Will being filed under the Grant Application instead of the Probate Action, in my view, the 4^th Affirmation was still insufficient as D did not depose to all testamentary scripts of which he had knowledge of.

91.  D explained that he had understood that he could file a supplemental affidavit of testamentary scripts voluntarily, and his aim, in making the Leave Summons to file the 7^th Affirmation was to have all potential rooms for arguments on any peripheral or technical matters removed.  He apologized for his delay and was willing to pay Ps’ costs.

92.  That D could file a supplemental affidavit was based on what was stated in Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (20^th Ed, 2013)[21] referred to this court by Mr Lam.

93.  Mr Li had submitted that what was said by Williams, Mortimer and Sunnucks was taken out of context as it was referring to the UK position where such affidavits would have to be filed at the outset, and a party could then later file a supplemental affidavit voluntarily if this prerequisite had not been complied with.

94.  As it was Ps who were relying and referring to the UK practice in support of their submissions, I do not see why D could not similarly do so.

95.  Having said this, in the present case, the Order stated clearly that D had to comply with O 76 r 5 within 7 days.  The matters deposed in the 7^th Affirmation were not new matters after the Order.  D should have included those matters in the 4^th Affirmation.  As the 7^th Affirmation was filed by D to comply with O 76 r 5, he should have filed it within 7 days of the Order.  I am therefore of the view that D ought to have sought leave for the filing of the same out of time.

96.  In opposition to the Leave Summons, Mr Li adopted generally his submissions in relation to the Appeal, namely that D’s Leave Summons should be dismissed as (i) the default was so fundamental that it could not be cured (ii) the prejudice and damage caused to Ps could not be compensated by costs.

97.  The case The Decurion has set out a useful summary of the court’s approach to balancing on the one hand the need for parties to observe procedural time limits and on the other, consideration of whether a party’s default could be compensated by an order for costs.

98.  A copy of the 4^th Affirmation was exhibited and produced during the hearing before the Master, and there was no complaint from Ps’ then Counsel at the hearing before the Master that the 4^th Affirmation was not in accordance with the UK Specified Form or insufficient in any way.

99.  P2 filed his 6^th affidavit in opposition to D’s 8^th affirmation to object to the Leave Summons.  So far from what I could gather, the main prejudice and damage alleged by  Ps seemed to be:

(i)   D’s case had been tainted with the risk of “tailoring” his own evidence after having seen the pleadings, Ps’ evidence and the witness statements of the 2 solicitors, Mr Yeung and Mr Lau, who were involved in the drafting of the 4^th Will and who were witnesses to the Deceased’s execution of the 4^th Will.  

(ii)   The case had to be adjourned and delayed for a substantial period.

100.  The witness statements of the two solicitors were in fact dated 13 November 2012.  I understand that those witness statements were sent to the parties at the time by the two solicitors,  although the formal exchange of P1’s and D’s witness statements only took place on about 21 November 2013.

101.  In any event, as I have said earlier, it was open to Ps to apply for extension of time for the exchange since by that time, Ps had had sight of the 4^th Affirmation for some time, and they knew at that time that the 4^th Affirmation was not a complete or a sufficient affidavit of testamentary scripts.  They had also read the 7^th Affirmation prior to the hearing for the Striking Out Summons, and Mr Li took the view that the 7^th Affirmation would not affect Ps’ Striking Out Summons.

102.  Ps would have seen the two solicitors’ witness statements and would have known from those witness statements that there had been faxed instructions and drafts in relation to the 4^th Will.  The 7^th Affirmation did not reveal anything new or surprising in relation to the 4^th Will, as Mr Li seemed to be submitting.

103.  As for adjournment or delay, this action was commenced over 4 years ago.  There had been numerous applications including an application by Ps for O 14 judgment, which ended with an appeal to the Court of Appeal.  Ps only took out a case management summons on 28 September 2012, about 2½ years after the issue of the writ.  The 1^st CMC eventually took place on 24 May 2013, more than 3 years after the commencement of the action.  At this time, D’s failure to comply with O 76 r 5 had not yet been discovered by P.  Thus, the adjournment of the 1^st CMC hearing to the 2^nd CMC on 25 November 2013 was due to other matters, such as the inspection by the handwriting expect rather then D’s failure to comply with O 76 r 5.

104.  Subsequently, the 2^nd CMC was further adjourned to the 3^rd CMC on 2 December 2013, and later to the 4^th CMC on 23 December 2013, which was then adjourned due to Ps’ Appeal and the Striking Out Summons.  Any delay caused by the filing of the 7^th Affirmation, or any prejudice resulting thereof has to be viewed against the background of how this litigation had been conducted since commencement, which in my view, seemed to be due more to the litigious and uncompromising attitude of both sides

105.  Having considered P2’s 6^th affirmation, I find there was no sufficient evidence therein that there was prejudice or damage to Ps which could not be compensated by costs.  On the other hand, one of the grounds for Ps’ Striking Out Summons was  D’s  alleged “contumelious failure” to observe the requirements set out in O 76 r 5, and not allowing him to file the 7^th Affirmation could cause serious prejudice to him.  Having considered the interests of the administration of justice, the effect which the failure to comply would have on each party and the effect which the granting relief would have on each party, I am prepared to grant D retrospective leave to file the 7^th Affirmation.

The Striking Out Summons

106.  The Striking Out Summons was issued by Ps under O 2 r 1, O 18 r 19, O 33 r 3 & 4, O 76 of RHC and the inherent jurisdiction of the court.  In brief, it sought , among other things, the following:

(i)   The amended defence and counterclaim dated 27 June 2013 (“ADC”) be struck out either wholly or in part;

(ii)   Alternatively, the ADC be dismissed for want of prosecution;

(iii)   Alternatively, if the court decides not to strike out or dismiss the ADC, an order that D has the burden of proof in respect of the due execution of the 4^th Will, and both physical and mental capacity of the Deceased at the time of the execution of the 4^th Will.

107.  The grounds Ps relied on for striking out the ADC  were:

(i)   It would prejudice, embarrass or delay the fair trial of the action;

(ii)   It was an abuse of the process of the court;

(iii)   For want of prosecution;

(iv)   Contumelious default.

108.  In particular, Ps relied on the following defaults and inactions of D :

(i)   D’s contumelious failure to observe the requirements set down in O 76 r 5 of RHC;

(ii)   D had failed to prosecute his case with due dispatch, in that D had failed to produce any evidence to prove the due execution by the Deceased of the 4^th Will and the physical and mental capacity of the Deceased at the time of execution.

109.  Further, Mr Li submitted D’s “contumelious failure” was :

(i)   D’s failure to file his affidavit of testamentary scripts on or before 26 April 2010;

(ii)   Notwithstanding obtaining leave, the 4^th Affirmation did not meet the requirements under O 76 r 5 in that (i) D did not depose as to whether any other testamentary scripts existed or not, and (ii) he had not exhibited the original of the 4^th Will in his affirmation or lodged the same with the court for filing;

(iii)   Although the original of 4^th Will had been transferred directly to the present Probate Action from the Grant Application on 12 December 2013, D still had  failed to (i) disclose other testamentary scripts, if any ; and (ii) rectify his affirmation by exhibiting the original of the 4^th Will.

110.  Mr Li further submitted that D’s deliberate and wilful disregard of the rules and the Order was clearly intentional and contumelious, and his conduct had further caused embarrassment, prejudice and/or delay the fair trial of the action or otherwise an abuse of the court.

111.  P2’s 4^th affirmation filed in support of the Striking Out Summons referred to roughly two periods of time, namely:

(i)   From commencement of action in March 2010 until close of pleadings deemed to be on 22 November 2010;

(ii)   From joint attendance of solicitors for both parties at the Registry on 17 September 2013 to try and carry out the order of Master Levy of 25 July 2013 until 23 December 2013.

112.  There was no sufficient evidence in P2’s above affirmation of any conduct or inaction on D’s part, if any, during the period of almost 3 years between November 2010 and September 2013, save that generally D had failed to file his affidavit of testamentary scripts during all that period.  In fact, as I had mentioned earlier, during that period, there had been numerous interlocutory applications and also an appeal to the Court of Appeal.

113.  It was only in P2’s 5^th affirmation in reply to D’s 6^th affirmation in opposition that P2 made some further allegations.

114.  P2 had continued to question in his 5^th affirmation whether D had complied with O 76 r 5 as the original 4^th Will had not been exhibited in the 4^th Affirmation[22].

115.  In fact, O 76 r 5(2) only provides that any testamentary script referred to in the affidavit in the possession or under the control of the deponent must be lodged in the Registry.  There is no requirement that the original of the 4^th Will had to be exhibited or annexed to the affidavit. Paragraph 76/5/2 of HKCP in fact states that “It must be noted that the scripts are to be described in the affidavit and not exhibited.  They should not be marked in any way.”  Ps’ interpretation of this rule was clearly not correct.

116.  What had been exhibited in the 4^th Affirmation by D was a copy of the 4^th Will and D had explained therein the whereabouts of the original, namely with the Probate Registry under the Grant Application.  Anyway, this issue should have been closed latest by 12 December 2013 when the original had been ordered by Master Levy to be transferred from the Grant Application to the Probate Action instead.

117.  Ps took out the Striking Out Summons about two weeks after the Order.  As I have said, the main area of complaint in P2’s supporting affirmation seemed to be over D’s failure to exhibit or lodge the original under the Probate Action.  Anyway, it was only when Mr Li lodged his skeleton submissions that it became clearer that Ps were also complaining of other areas of insufficiencies of the 4^th Affirmation and reference was  made to the UK Specified Form.

118.  D had explained as to why the 4^th Affirmation and the 7^th Affirmation had been filed late.  I find his explanations reasonable. Although as mentioned earlier, I accept that there were insufficiencies in the 4^th Affirmation, I am unable to find sufficient evidence to support Ps’ allegations of D’s “intentional” or “contumelious” failure of comply with the Order.  There was further no evidence of any of D’s intentional or contumelious non-compliance of  any other court orders.

119.  It is trite that a pleading should only be struck out “in plain and obvious cases” and that “if the court does not think the matter to be clear beyond doubt… there should be no striking out”[23].  Further, in striking out applications, disputed facts are to be taken in favour of the party whose pleading is sought to be struck out[24].

120.  Having considered the evidence, I am not satisfied that there had been contumelious failure on D’s part to observe the requirements in O 76 r 5, or any contumelious default or non-compliance of the Order or any other orders.

121.  There was no sufficient evidence that the ADC might prejudice, embarrass or delay the fair trial of the action, or otherwise an abuse of the process of the court.

122.  Ps had further sought an order that the ADC be dismissed for want of prosecution.  Their complaints of D’s inactions or delays or failure to prosecute his case were :

(i)   D’s delay in producing any medical evidence in relation to the testamentary capacity (physical and/or mental) of the Deceased;

(ii)   D had delayed in procuring evidence from his own hand writing expert;

(iii)   D had delayed in filing his witness statement;

(iv)   D issued  unmeritorious applications, including striking out Ps’ claim on 21 August 2012, and an application for maintenance;

(v)   D brought actions on behalf of his daughter Sarah and his son Wilson for maintenance and distribution of the estate against the administrator pendente lite, by acting as their solicitors.

123.  In D’s 6^th affirmation, D had in fact said the present action was “derailed” by Ps’ application for summary judgment and the subsequent appeal to the Court of Appeal, and pointed out Ps only took out the case management summons only at end of September 2012. Ps took out their application for summary judgment at end of January 2011 and the hearing before To J took place on 5 May 2011, and the decision was handed down on 14 July 2011.  The appeal to the Court of Appeal was on 14 February 2012, and the judgment was handed down on 28 February 2012. Thus, the delay to the progress of the action for that year would be due mainly to this application and the appeal, although it seemed later in August 2012, D also seemed to have issued an application to strike out Ps’ claim.

124.  The delay, if any, caused by D’s striking out application did not seem to be as long as P’s application for summary judgment, since, as mentioned earlier, Ps took out the case management summons on 28 September 2012.  Leave for the parties to adduce handwriting expert was later made at the 1^st CMC hearing on 24 May 2013 by Master Lung.

125.  D had explained that the main difficulty with his not having sent off his instructions to his medical expert and his handwriting expert earlier was that he did not have a lot of cash.

126.  As for any delay in exchanging witness statements, Master Lung’s order  stated that this should take place within 60 days of his order, which meant around 24 July 2013.  I note that P1’s statement was dated 8 August 2013, which meant that hers was a bit late as well, although I accept D’s was dated 20 November 2013.  This was the period when the parties were arguing about the release of the original of the 4^th Will for inspection, which led to D’s time summons to comply with O 76 r 5.  The exchange eventually took place on 21 November 2013 and the delay was not serious in light of the background.   

127.  In any event, there had been no applications by Ps for any “Unless Order” for the compliance of any part/s of Master Lung’s order.

128.  As for other “unmeritorious applications”, I am not clear as to how these would cause delay to the present action.

129.  Ps were also seeking an order summarily pronouncing, without any trial, (a) in favour of the 3^rd Will; and (b) against the 4^th Will.   As pointed out by Mr Lam, Ps seemed to be in substance again asking for a summary judgment against D.  In this respect, although To J only granted D conditional leave to defend, on  appeal, this was overturned by the Court of Appeal and D was granted unconditional leave to defend on 28 February 2012[25].

130.  As stated in paragraph 76/8/1 of HKCP, and also by Cheung JA in the above appeal:

“16. Order 76 sets out the procedure for a contentious probate action. The defendant had served a counterclaim as required by Order 76, rule 8 propounding the 2008 will. A probate action being of the nature of an action in rem and the court’s function being inquisitorial (Re Fuld (No. 2) [1965] 2 All E.R. 657) the court will, at the trial, make a positive finding as to which is the valid will, or whether the deceased died intestate, and (in the case of an interest action) who is entitled to representation: generally it will not (except in the case of a revocation action) merely dismiss the action without more. A defendant is entitled to give notice with his defence that he merely insists upon the will being proved in solemn form of law, and only intends to cross-examine the attesting witnesses (Order 62, rule 4) but in other cases he must set up a positive case by way of counterclaim. For the same reason, a defendant may serve a counterclaim, and thus obtain carriage of the action, even where the plaintiff delays in serving a statement of claim. It would rarely be appropriate for a probate action to be dismissed for want of prosecution[26].”

131.  D’s 6^th affirmation showed that he had been prosecuting his counterclaim, and was keen to push this matter forward to a speedy trial as soon as possible[27].

132.  I do not find that there had been sufficient evidence of inactions, delays or failure to prosecute the case on D’s part as alleged by Ps, and I see no reason as to why the ADC should be dismissed for want of prosecution.

133.  In the Striking Out Summons, Ps also sought alternatively, an order that D has the burden of proof in respect of (i) due execution of the 4^th Will; and (ii) both physical and mental capacity of the Deceased at the time of the execution of the 4^th Will, in the event this court decides not to strike out or dismiss the D & C.

134.  In relation to this matter, Mr Lam had referred this court to the following passage in Williams, Mortimer and Sunnuckson Executors, Administrators and Probate (20^th Edition, 2013):

“Although those propounding the will must satisfy the court that the testator was of sound disposing mind, yet if the will is rational on the face of it and is shown to be duly executed and no other evidence is offered, the court will pronounce for it, presuming that the testator was mentally competent. Slight evidence of mental incapacity will not disturb this presumption…

It has therefore, been said that the burden of proving unsoundness of mind lies on those who allege it…  The burden of proof may shift from one party to another in the course of a case…  it is not the law that in all cases of doubtful capacity there has to be positive proof of capacity before the court can pronounce for the will[28].”

135.  Mr Li had on the other hand referred this court to Nina Kung v Wang Din Shin FACV 12/2004 (CFA).  As said by Ribeiro PJ therein, a propounder of a will has the legal or persuasive burden of satisfying the court that it is the will of the deceased. The standard of proof is the balance of probabilities, and 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[29].  Further, when someone wishes to dispute the validity of a will on the grounds that there is want of due execution, or of testamentary capacity, or of the requisite knowledge and approval, that person bears an evidential burden of putting the relevant ground of challenge in issue[30] .

136.  What Ribeiro LJ said in Nina Kung is clearly binding on this court, and no doubt D, and his legal team, should be aware of the principles set out in that case.  I am of the view that it is not necessary for this court to make any such order as sought by Ps.

137.  Mr Li had referred to what was said by To J in his decision in relation to Ps’ application for summary judgment and submitted that To J had already made a finding that Ps had already discharged their evidential burden of proof in relation to the lack of mental capacity of the Deceased[31] and that this finding had not been disturbed by the subsequent Court of Appeal decision.

138.  However, Cheung JA had said that it was necessary to examine the quality of those medical reports produced by Ps.  Cheung JA further went on to say that in order to properly adjudicate the issue of testamentary capacity, the court must satisfy itself with the severity of the dementia and the Deceased’s mind when he executed the 4^th Will[32].

139.  In my view, whether D will be able to discharge the legal burden on him is a matter for the trial judge.  I do not consider that at this stage this court should make any direction or order as sought by Ps.

Orders

140.  In view of what I have said above, I order as follows:

(i) Ps’ Appeal be dismissed;

(ii) D’s Leave Summons be allowed;

(iii) Ps’ Striking Out Summons be dismissed;

141.  As for costs, I order Ps to pay D’s costs of the Appeal and the Striking Out Summons.  As for D’s Leave Summons, I order D to pay Ps’ costs of that summons.  All costs to be taxed and paid forthwith. These are costs order nisi which shall be final after 21 days.

Mr Kelvin Li, instructed by Y T Tong & Co, for the 1^st and 2^nd plaintiffs

Mr Kenneth Lam, instructed by Simon Chan & Co, for the defendant

[1] Paras 65-66, D’s witness statement, B:232; see also para 7, D:90

[2] Para 5, D: 89; see also D:121-122

[3] D:116-119

[4] Para 58/1/2, pg 1024, Hong Kong Civil Procedure 2014, Vol 1

[5] From C:74 line E to C:76 Line O

[6] Para 32, Ps’ skeleton submissions 29.04.14

[7] Line R, C:75

[8] Line F, C:74

[9] at pg 1348,  Hong Kong Civil Procedure 2014, Vol 1

[10] Para 32, Ps’ skeleton submissions dd 29.04.14

[11] per Lam J, as he then was, at para 7, pg 3

[12] See para 23, pg 8

[13]  See para 2/1/1, pg 48, and also at para 2/1/2, pg 49, Hong Kong Civil Procedure

[14] At pg 50, para 2/1/2, Hong Kong Civil Procedure

[15] A: 166

[16] A: 162

[17] Ps’ Submissions dd 14.11.13, C: 79-81

[18] At para 11, pgs 1067-1068

[19] C:64

[20] Para 17, P’s skeleton submissions 14.03.14

[21] Paras 35-05 at pg 522

[22] Para 11, A:142

[23] Para 18/19/4, Hong Kong Civil Procedure

[24] Para 18/19/4, Hong Kong Civil Procedure

[25] A:8299

[26] Para 16, at pg 156

[27] At para 41, A:138

[28] At pg 200

[29] At paras171-173

[30] At para 176

[31] Para 33, A:55

[32] Paras 34-36, A:92-94

HCAP 7/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 7 OF 2010

____________

____________

BETWEEN

_____________

D E C I S I O N

_____________

INTRODUCTION

The applications

1.  This is an application by the Plaintiffs to enter final judgment under order 14 of the Rules of the High Court (“RHC”) against the Defendant for, inter alia:

(1)   pronouncement in solemn form of law for the force and validity of the will of the late Au Kong Tim(區幹恬)(“Deceased”);

(2)   further and in the alternative to (1), the Defendant’s Reply to Defence to Counterclaim be struck out as having been filed without leave of the Court; and

(3)   further or in the alternative to (1), paragraphs 9(vii) and 13(a) of the Defendant’s Defence and Counterclaim, all references to the 1^st Plaintiff intermeddling with the Deceased’s estate and all references to her colluding with Au Yuk Lun as well as all references to “Au Yuk Lun” or “YL Au” therein be struck out on the ground that they do not fall within the ambit of Order 76 rule 1(2) of the RHC for they may prejudice, embarrass or delay the fair trial of the action and/or are otherwise an abuse of the process of the Court and/or under the inherent jurisdiction of the Court.

2.  In response to item (2) above, the Defendant took out a summons on 29 April 2011 to apply for leave to serve his Reply to the Plaintiffs’ Defence to Counterclaim out of time under Order 18 rule 4.  He had attempted to file the Reply marginally out of time on 23 December 2010 without leave.  The application caused no prejudice to the Plaintiffs and was therefore granted with costs to the Plaintiffs.

Background

3.  The Deceased was a man of substantial wealth. He passed away on 7 July 2009 at the age of 93, survived by his wife; two sons, namely, Au Yuk Lun Anthony (“Anthony”) and Au Wing Lun William (“William”); a daughter, Gloria Seltzer (“Gloria”) and six grandchildren.

4.  Anthony was married to the 1^st Plaintiff and has one son, the 2^nd Plaintiff herein and three daughters.  One of the daughters is Charleen Au (“Charleen”).

5.  William was married and has one son and one daughter.

6.  Gloria was married and has been living in Canada for the last forty-two years.

7.  On 19 July 2002, the Deceased executed a will in English (“2002 Will”), which had been duly interpreted to him by his solicitor and witnessed by two solicitors.  There is no dispute as to the authenticity of that will and that the Deceased had testamentary capacity at the time of execution of that will.  Under the 2002 Will, the Deceased devised and bequeathed all his properties to his six grandchildren in equal shares and appointed the 1^st, 2^nd Plaintiffs and Charleen as executors and trustees of the will.  Effectively, under the 2002 Will, Anthony’s family has control of the Deceased’s estate and is entitled to two-thirds of the estate.  William and Anthony are not beneficiaries under the 2002 Will.

8.  On 24 September 2009, William applied for grant of probate under HCAG 10859 of 2009 and claimed to be the executor of another will executed by the Deceased on 5 September 2008 (“2008 Will”).  The 2008 Will is a Chinese will purportedly executed by the Deceased after it had been duly explained by Yeung Wai Chung (“Yeung”), a solicitor of Messrs Tso Au Yim & Yeung (“Messrs TAYY”) and witnessed by Yeung and Lau Wah Shun (“Lau”), a trainee solicitor.  Under the 2008 Will, the Deceased devised and bequeathed all his properties to his four male descendants, namely William and his son, Anthony and the 2^nd Plaintiff, in equal shares and appointed William and Anthony as executors and trustees of the will.  Effectively, under the 2008 Will, William and Anthony have joint control of the Deceased’s estate and each family is entitled to a half share of the estate.  William and Anthony are beneficiaries under the 2008 Will.

9.  On 29 March 2010, the Plaintiffs commenced probate action in HCAP 7 of 2010 (“HCAP 7”) against William seeking to pronounce for the validity of the 2002 Will and against the validity of the 2008 Will.  They alleged, inter alia, that the 2008 Will was not duly executed by the Deceased; that the purported signature of the Deceased on the 2008 Will was a forgery and that at the time of the purported execution of the 2008 Will the Deceased was not of sound mind, memory and understanding.  They also alleged that William wrongfully purporting to act as the lawful executor of the Deceased’s estate intermeddled with and caused loss to the Deceased’s estate.

10.  In his Defence and Counterclaim, William pleaded that the 2002 Will was revoked by the 2008 Will.  In paragraph 9, he pleaded instances in support of his assertion that the Deceased had testamentary capacity.  In paragraph 9(vii), he pleaded that the 1^st Plaintiff intermeddled with the Deceased’s estate by signing tenancy agreements in respect of a list of landed properties of the Deceased.  In paragraph 13(a), he sought pronouncement in solemn form of law for the validity of the 2008 Will.

11.  On 19 April 2010, William commenced probate action in HCAP 9 of 2010 (“HCAP 9”) against the 1^st Plaintiff as 1^st Defendant and Anthony as 2^nd Defendant seeking to pronounce for the validity of the 2008 Will and damages for their misappropriating funds belonging to the estate of the Deceased.

12.  On 1 November 2010, upon the application of the 1^st Plaintiff and Anthony, Master Levy struck out paragraphs 1 to 8 and 13(a) and (b) of William’s Statement of Claim in HCAP 9 relating to pronouncement for the validity of the 2008 Will, thereby confining that action to misappropriation of the estate of the Deceased and leaving the issue of validity of the 2008 Will to be determined under HCAP 7.

13.  On 28 January 2011, the Plaintiffs took out the present summons, pursuant to Order 14(1) of the RHC seeking summary judgment against William, effectively, pronouncement for the validity of the 2002 Will.

Legal principles applicable to Order 14 applications

14.  The legal principles applicable to an application for summary judgment under Order 14 of the RHC are well-known.  If the case comes within the scope of Order 14 and the plaintiff has satisfied the preliminary requirements for the proceedings, he is entitled to summary judgment unless the defendant can show he has a meritorious defence.  Order 14 applies to every action begun by writ other than an action which includes a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction or a claim by the plaintiff based on fraud or an admiralty action in rem and to actions to which Order 86 or Order 88 applies: Order 14 rule 1(2) and (3).  Order 86 applies to specific performance of a contract and Order 88 applies to mortgage actions.  The preliminary requirements are that the statement of claim must have been served on the defendant; the defendant must have given notice of intention to defend and the plaintiff must have filed an affidavit in support of the application which complies with the requirement of Order 14 rule 2: see Hong Kong Civil Procedure 2011 Note 14/1/3 and 14/4/1.  The machinery of Order 14 works on the basis that if the plaintiff’s application is properly constituted, he is prima facie entitled to judgment unless the defendant shows cause to the contrary or the application is dismissed: see Hong Kong Civil Procedure 2011 Note 14/4/1.

15.  To resist such an application, a defendant only needs to satisfy the court that he has a good defence to the claim on the merits, or that a difficult point of law is involved, or a dispute as to the facts which ought to be tried, or a real dispute as to the amount due which requires the taking of an account to determine, or any other circumstances showing reasonable grounds of a bona fide defence: see Hong Kong Civil Procedure 2011 Note 14/4/2; Banque de Paris et des pays-bas (Suisse) SA v Costa de Naray [1984] 1 Lloyd’s Rep 21 at 23, per Ackner LJ; ToyMajor Trading Co Ltd v Plastic Toys Ltd [2007] 3 HKLRD 345, per Ma CJHC, as he then was.  What the defendant says does not have to be believed but has to be capable of belief.  The test as laid down by Bokhary JA, as he then was, in Re Safe Rich Industries Ltd [1994] HKLY 183 is:

“The test at the summary stage is indeed as simple as whether the defendant’s assertions are believable. But it must be recognized – because failure to recognize it would create a debt-dodger’s charter – that whether the defendant’s assertions are believable is a question to be answered not by taking those assertions in isolation but rather by taking them in the context of so much of the background as [is] either undisputed or beyond reasonable dispute.”

But it must also be borne in mind that Order 14 procedure is for clear cases, i.e. cases in which there is no serious material factual dispute and if a legal issue, then no more than a crisp legal question as well decided summarily as otherwise: Crown House Engineering v Amec Projects Ltd 48 B.L.R. 32, per Bingham LJ.  The court must not embark on a mini trial on affidavits: see Mass International Ltd v Hillis Industries Ltd & Another [1996] 1 HKC 434 at 439, per P Chan J, as he then was.  As is often put, unless it is obvious that the defence put forward is frivolous and practically moonshine, summary judgement should not be granted.

16.  If the plaintiff’s case is verified and the court is satisfied that the defendant has no defence or no fairly arguable point to be argued, the court shall give judgment for the plaintiff: see Anglo-Italian Bank v Wells (1878) 38 L.T. 197 at 201, per Jessel MR.  If satisfied that the defendant has a defence or an arguable defence, the court may grant unconditional leave to the defendant to defend or leave subject to such conditions as the court sees fit.  A condition of paying some or all of the money or damages claimed into court, or giving security, is imposed where there is a good ground in the evidence for believing that the defence set up is a sham defence or the court “is prepared very nearly to give judgment for the plaintiff”.  In Unic Company (a firm) and Centus Development Limited [1988] HKC 643, per Godfrey J, as he then was, said: 

“… it is appropriate, in some cases, to give leave to defend only upon condition of making a payment into Court. A good example of this is the sort of case in which there is good ground for believing that the defence advanced is a sham defence, the sort of case (as it is sometimes said) in which the Master is prepared very nearly to give judgment for the plaintiff. Put another way, leave to defend, conditional on the full amount paid being paid into Court, may be ordered where there is little or no substance in the defence, or the case is almost one in which summary judgment should be ordered. And where the defence can be described as more than shadowy but less than probably conditional leave to defend may be given.”

DEFENDANT’S OBJECTIONS TO THE ORDER 14 PROCEDURE

17.  William objected to the application on the technical ground that, firstly, Order 14 procedure is inapplicable to probate action and, secondly, the Plaintiffs are precluded from making the Order 14 application by reason of their delay.

Whether Order 14 procedure is applicable to probate action

18.  William argued that Order 14 procedure is not applicable to probate action.  The answer to that argument is to be found in Order 14 rule 1(2) and (3) which I have referred to above.  Probate action does not fall within any of the exceptions under Order 14 rule 1(2) and (3). Indeed, summary judgment was granted by Deputy High Court Judge Poon, as he then was, in Sum Wan Piu Paul and Lau Siu Hong, HCAP 3/2004. 

The Plaintiffs’ delay

19.  William objected to the application on the ground of delay as the Plaintiffs did not issue the Order 14 application until more than eight months after they had served their Statement of Claim on him and that they offered no explanation in their affidavit filed in support of the application.  There is no express provision in the rules as to the time when an Order 14 application may be made.  It is of course a good practice for the application to be made promptly and to offer an explanation in case there is delay in invoking the procedure.  Delay as such is not a ground for refusing the application.  However, it has some bearing if the delay reflects a lack of genuine belief that the defendant has no meritorious defence.  The court will have to examine the plaintiff’s case with more circumspection.  If the delay has occasioned prejudice to the defendant, for example, the defendant has incurred costs in the preparation of defence, there will be more force in the argument that the action should be allowed to take its course.  The policy behind Order 14 procedure is to prevent a defendant from delaying the plaintiff from obtaining judgment in a case in which the defendant clearly has no defence to the plaintiff’s claim.  Delay on the part of the plaintiff is inconsistent with this policy.  The longer the delay, the less is the purpose to be served by this summary procedure.  However, if in fact the defendant has no meritorious defence, it serves no purpose for the action to go on.  It will be in the interest of justice that the action should be brought to a conclusion despite the delay on the part of the plaintiff.  Thus, delay by itself, is not a ground for refusing the application.  It is all a matter of balancing the interest of the parties and finding where the interest of justice lies.

20.  On the facts of the present case, the Plaintiffs filed their Statement of Claim on 12 May 2010.  William filed his Defence and Counterclaim on 14 June 2010.  The Plaintiffs then filed their Reply and Defence to Counterclaim on 22 November 2010.  Then two months later, they took out the present application.  In the meantime, William had not done anything other than preparing a Reply to the Plaintiffs’ Defence to Counterclaim, which he had neglected to file within time.  He has not incurred significant costs.  He has not argued he suffered any prejudice.  The parties’ position has not changed. The Plaintiffs did not obtain any technical advantage by delaying the application.  The delay is not significant.  In the circumstances, I give little weight to the delay in the exercise of my discretion in dealing with this application.

WHETHER THE DEFENDANT HAS A CREDIBLE DEFENCE

21.  There is no dispute that the 2002 Will was duly executed by the Deceased in the presence of two witnesses and that at the time of execution the Deceased had the necessary testamentary capacity to do so.  William’s defence is that the 2002 Will was revoked by the 2008 Will.  The Plaintiffs’ assertion that William has no defence to the action is based on their belief that the 2008 Will was not executed by the Deceased and that at the time of execution the Deceased had no testamentary capacity as he was suffering from dementia.  The Plaintiffs have satisfied the requirements under Order 14 rule 1.  The burden is on William to show a credible defence in that the 2008 Will was executed by the Deceased and at the time of execution the Deceased had testamentary capacity.  If William fails to show he has a credible defence based on either of the above grounds, the Plaintiffs are entitled to judgment.   

Execution of the 2008 Will

22.  In the face of the 2002 Will which was not disputed, the spring board of William’s argument on the validity of the 2008 Will is that the Deceased was a traditional Chinese man with a strong sense of male chauvinism and had a change of mind after execution of the 2002 Will.  He relied on the fact that in 1976 the Deceased made a will bequeathing all his real and personal properties to him and Anthony with nothing to Gloria.  He said that between 2002 and 2006, he and his wife had made regular visits to the Deceased who was then living in Provident Centre in North Point.  During those visits, the Deceased told William that he had no intention to give any share of his estate to his granddaughters.  William argued that the 2008 Will was to give effect to that intention.

23.  I do not think William’s argument based on the Deceased’s chauvinism credible when tested against the indisputable surrounding circumstances.  It was true that in 1976, the Deceased excluded Gloria from his will.  But Gloria had left the family as early as 1968 to live in Canada, perhaps to pursue her married life or for whatever reason.  Therefore, exclusion of Gloria from the will in 1976 was, in my view, neither here nor there.  On the other hand, the mind of the Deceased, were he chauvinistic, must have drastically changed during the twenty-six years since 1976 as reflected in his 2002 Will when he excluded both of his sons from his 2002 Will and bequeathed all his estate to his two grandsons and four granddaughters in equal share.  His sons were to receive nothing from his estate, the majority of which were to go to his female descendants.  He must have good reasons to exclude his sons from the 2002 Will.  There were some allegations about William’s unbecoming conduct.  But I do not wish to speculate.  Whatever were the reasons, the Deceased’s thinking must have fundamentally changed.  The 2002 Will cast serious doubts on the veracity of William’s evidence.  In the absence of any reason offered by William, such as all the granddaughters’ behaviour or whatever, it is difficult to believe that as soon as or soon after making such a drastic change in his thinking and philosophy as reflected in the 2002 Will, the Deceased would have turned around and told William that he had no intention to give any share of his estate to his granddaughters and would change his will later.  If the Deceased had really changed his mind again, there was no reason why he did not change his will soon after but waited until six years later.  I reject William’s argument based on the Deceased’s chauvinism, but I take note of his evidence about what the Deceased had allegedly told him during 2002 through to 2008.

24.  As to the purported signature of the Deceased on the 2008 Will, the Plaintiffs disputed it was signed by the Deceased for the following reasons.  The Deceased almost invariably signed his name in English throughout his lifetime, but the signature on the 2008 Will was done in Chinese.  No reason was proffered by William as to why the Deceased would chose to put on a signature totally different from what    he had always been using on such an important legal document.  The Plaintiffs exhibited two signatures of the Deceased done in Chinese from documents the authenticity of which was not in dispute and William’s signature done in Chinese.  They invited the Court to compare those signatures with the purported signature of the Deceased in the 2008 Will and to note the dissimilarities between that signature and the undisputed signatures of the Deceased and the similarities between that signature and the signature of William.

25.  In my view, such a comparison would be a futile exercise for any of the following reasons.  The Court is unassisted by any handwriting expert.  The number of control signatures was clearly inadequate even for an expert to form any reliable opinion.  The control signatures were not done within a reasonably contemporaneous period.  I have examined   other signatures of the Deceased done in English.  They showed gradual deterioration in the signatures.  In my view, towards the later years of his life, the Deceased’s signature changed drastically and lost what appeared to me to be its characteristics.  That may probably be contributed by the large left chronic subdural haematoma found in his brain on 3 May 2008, half a year before the date of execution of the 2008 Will.  In my view, there is insufficient evidence for me to form even a provisional view on  the authenticity or otherwise of the signature on the 2008 Will.  And in any event, the Court should not engage in speculation, let alone to conduct a mini trial on affidavit evidence.  I decline the Plaintiffs’ invitation to compare the signatures and to form any view on the authenticity or otherwise of the purported signature of the Deceased on the 2008 Will.

26.  As to the execution of the signature, William said in his affirmation that he assisted the Deceased in signing the 2008 Will in that he “lifted the elbow of the Deceased so that he could put his hand on the detachable table to sign the last Will”.  The Plaintiffs argued that it was a half-hearted denial conceding the signature was not done by the Deceased and echoed the different account of how the signature was made as related by William to Gloria.

27.  According to Gloria, she visited the Plaintiffs in early 2010 and learned about the 2008 Will.  She considered the purported signature of the Deceased curious.  She met with William and questioned him. William replied that he held the Deceased’s hand to write the signature. William denied he had told Gloria such.  He said what he told Gloria was that he lifted the elbow of the Deceased so that the Deceased could put   his hand on the detachable table to sign the will.  Again, I do not wish to engage in a mini-trial on affidavit.  For the purpose of assessing whether   a credible defence is shown, I shall proceed on the basis of William’s evidence.

28.  William argued that the execution of the 2008 Will was not invalidated by the assistance he rendered as section 5(1)(a) of the Wills Ordinance expressly provides that no will shall be valid unless it is in writing and signed by the testator, or by some other person in his presence and by his direction.  He submitted, quoting Williams, Mortimer and Sunnucks on Executors at pages 124 and 125, that it is sufficient signing if a testator put his mark on his will, even though he could write and even where his hand is guided.  He also referred to Wilson v Beddard (1841) concerning a will signed by a very sick testator a day before his death.   The testator signed with a mark with his hand guided.  Sir Shadwell,   Vice-Chancellor, said:

“… For the Statute of Frauds requires that a will should be signed by the testator or by some other person in his presence and by his direction; and I wish to know if a dumb man, who could not write, were to hold out his hand for some person to guide it and were then to make his mark, whether that would not be a sufficient signature of his will. In order to constitute a direction, it is not necessary that anything should be said. If a testator, in making his mark, is assisted by some other person and acquiesces and adopts it; it is just the same as if he had made it without any assistance.”

I accept these legal propositions.  Thus, on Gloria’s evidence, even if the signature was done with the assistance of William to the extent of guiding the hand of the Deceased, it nevertheless was a signature of the Deceased, provided it was done with the necessary intention.  On William’s evidence, the signature was signed by the Deceased.

29.  William fortified his evidence with a letter dated 8 October 2009 from Messrs TAYY in reply to the Plaintiffs’ solicitors’ enquiry. The letter confirmed that the content of the 2008 Will had been read over and explained by Yeung to the Deceased who confirmed his understanding of the will before execution; that Yeung and Lau were both satisfied as to the mental capacity of the Deceased at the time of the execution and that the Deceased executed the will with the assistance of William in the presence of Yeung and Lau.  Now, Yeung is a partner of Messrs TAYY and Lau is a qualified solicitor.

30.  Mr Hon, counsel for the Plaintiffs, argued that Messrs TAYY’s letter should be read in the light of the subsequent correspondence between them and the Plaintiffs’ solicitors and viewed with circumspection.  The Plaintiffs’ solicitors wrote to Messrs TAYY    on 11 June 2010 administering a series of questions in the form of interrogatory relating to the circumstances of execution of the 2008 Will and asked for production of supporting documents.  In their reply on the same day, Messrs TAYY declined to answer the interrogatory and said that Yeung and Lau were prepared to testify as to the circumstances of the execution at trial.  Mr Hon submitted that the attitude of Messrs TAYY was evasive.  I disagree.  Messrs TAYY were not a party to the proceedings.  They were not even William’s solicitors on record for the purpose of this litigation.  They have no obligation to answer the interrogatory or to produce documents.  In fact they should not, at least not without the direction of William.  I refuse to draw any adverse inference against Messrs TAYY, Yeung or Lau for that matter.  Had the interrogatory been directed at Williams, it would have been otherwise.  That said, it is of course, highly unsatisfactory for William not to have filed an affirmation from Yeung or Lau if he wished to rely on their evidence to boost his credibility and to support his case that the signature was signed by the Deceased as well as for the purpose of his other defence that at the time of execution the Deceased had testamentary capacity.

31.  In conclusion, in respect of this defence, I think William has shown he has an arguable defence.

The Deceased’s testamentary capacity

32.  The Plaintiffs also challenged the validity of the 2008 Will on the basis that the Deceased had no testamentary capacity at the time of execution of the will.  The Plaintiffs relied on two medical reports from two different medical practitioners in September 2007 and March 2008 and two reports from the Hospital Authority extracted from its records, other non-medical documentations and three episodes involving the Deceased.    I shall analyse the medical reports and the other evidence in due course.  For the time being, I shall first deal with the issue of burden of prove.  William argued that those reports and documentations were not sufficient to prove that the Deceased was suffering from dementia.  He argued that the Plaintiffs have the burden of proving that the Deceased was suffering from dementia at the time of execution of the 2008 Will and had the obligation to call the makers of the reports for him to cross-examine.  He submitted that he could rely on the evidence of the letter dated 8 October 2009 from Messrs TAYY to prove that the Deceased was of sound mind at the time of execution of the 2008 Will.

33.  There is no dispute about due execution of the 2002 Will.  It is common ground that the Deceased had testamentary capacity in 2002.  It is William’s case that the capacity continued at least until making of the 2008 Will and it was William who sought to raise the 2008 Will as a defence.  But a major challenge to the validity of the 2008 Will is that the Deceased had no testamentary capacity to execute the will.  To raise the 2008 Will as a defence, William has to prove its validity.  He has to discharge the legal burden of proving due execution and testamentary capacity.  I have dealt with the question about execution in the above section.  Usually, an adult person is presumed to have the necessary mental capacity for his acts. However, there is an abundance of evidence presented by the Plaintiffs that since 2006 the Deceased had been suffering from dementia.  These include two medical reports from two different medical practitioners in September 2007 and March 2008, two reports from the Hospital Authority extracted from its records of the Deceased, other non-medical documentations and evidence from the Plaintiffs relating to three episodes involving the Deceased.  In my view, those evidence are sufficient to discharge the Plaintiffs’ evidential burden of proving the Deceased’s lack of testamentary capacity.  The legal burden of proving testamentary capacity rests fairly and squarely on the shoulders of William.  Having settled the question of burden of proof, I now turn to examine the Plaintiffs’ evidence and then William’s.

34.  The first medical report was given by Dr Ko of Standard Medical Associates dated 2 September 2007.  It was a two-line report. In that report, Dr Ko certified as follows:

“It is to certify that the above named gentlemen is suffering from dementia which would affect his ability in judgment.”

William challenged the report for its lack of basis for the opinion.  The report is not a very helpful one.  Dr Ko’s qualification and his specialty were not shown on the report.  He also gave no basis for his opinion.  Nevertheless, he purported to be a medical practitioner, which is not challenged by William.  There could be no doubt that he had been specifically asked to examine the Deceased and give an opinion on his mental condition and he gave the opinion that the Deceased was suffering from dementia.  Unsatisfactory though the report may be, I consider it sufficient to discharge the Plaintiffs’ evidential burden.

35.  The second medical report was a medical examination report prepared by Dr Au dated 4 March 2008 upon admission of the Deceased into Lord Kindness Elderly Rehabilitation and Care Centre. Apparently, Dr Au was under a duty to examine the Deceased for the purpose of admitting him in the elderly centre.  In Part II of the report, Dr Au took a medical history of the Deceased, noting that the Deceased had a history of “senile dementia” and was being treated with daoxil and aricept.  He must be satisfied that the Deceased was suffering from senile dementia in view of the medication the Deceased was receiving.  He conducted a physical examination on the Deceased and recorded in Part III of the report that he had examined the Deceased’s central nervous system and noted that the Deceased was suffering from dementia and general weakness.  In Part IV of the report about functional assessment of the Deceased, Dr Au noted that the Deceased had normal vision and hearing but suffered from mild dementia.  William argued that the degree of dementia noted was only mild and the Deceased was noted to have normal vision and hearing.  The report was prepared by a medical practitioner under a duty to examine and report on the physical and mental health condition of a patient to be admitted to the elderly home under his care.  He noted that the Deceased had a history of dementia and found that he was in fact suffering from dementia, albeit of a mild degree.  That falls far short of proving that the Deceased had testamentary capacity.   

36.  Next, the Plaintiffs relied on two reports prepared by the Hospital Authority in February 2010 based on the records of the Queen Mary Hospital and Tung Wah Hospital.  The report from Dr Taw of        the Department of Neurosurgery of Queen Mary Hospital noted the Deceased’s admission to Queen Mary Hospital on 27 April 2008, less than two months after he commenced residence in Lord Kindness Elderly Rehabilitation and Care Centre.  It was not clear what was the reason      for that admission.  The report noted that the Deceased was presented   with decreased general condition and showed right sided weakness.  A computed tomograph scan revealed a large left chronic subdural haematoma with significant midline shift.  Urgent burr hole drainage of left chronic subdural haematoma was performed on 28 April 2008.  The report noted that the Deceased had a history of dementia and that he gradually improved post-operation to having spontaneous eye movements with confused speech but was able to follow commands.  The Deceased was then transferred to Tung Wah Hospital on 3 May 2008 and then discharged on 9 May 2008.  The doctors of Tung Wah Hospital also noted that the Deceased had dementia.

37.  Though no formal investigation of the Deceased mental condition was conducted, the doctors who treated the Deceased in the two hospitals noted that he had dementia.  The doctors who took note of that were under a duty to examine and prepare an accurate record of the patient under their care.  They must have satisfied themselves that the Deceased was suffering from dementia.  Weight could reasonably be given to these two reports.  In my view, they are sufficient to discharge the Plaintiffs’ evidential burden of moving that the Deceased was suffering from dementia a few months prior to execution of the 2008 Will.

38.  In addition, the Plaintiffs also rely on a referral to a geriatric consultant prepared by a houseman, Dr Chan of Queen Mary Hospital dated 29 April 2009 for the purpose of treating the Deceased’s hypertension condition.  In the referral, Dr Chan remarked the Deceased as “barely communicable” and as suffering from dementia for which the Deceased was receiving follow up treatment with aricept prescribed by a private medical practitioner.  This referral was prepared eight months after the execution of the 2008 Will.  It indicated that the Deceased had been receiving treatment for dementia.  Probably that information came from the family members of the Deceased.  It nevertheless was a contemporaneous piece of evidence which corroborated the two medical reports mentioned in the above paragraph.

39.  Besides these four medical reports and a referral, there are other non-medical documentations which also support the Plaintiffs’ case that the Deceased was suffering from dementia.  One bundle of documents included the Deceased’s application for welfare assistance and disability allowance and an authorisation dated 13 June 2008 issued by the field unit of the Social Welfare Department authorising the 1^st Plaintiff to process the application on behalf of the Deceased as the Deceased was incapable of expressing himself.  Though the authorisation was not issued by a medical practitioner, it was nevertheless issued by a public officer under a duty to look after the welfare of applicants for welfare assistance.  The officer must have satisfied herself that the Deceased was incapable of expressing himself before giving the 1^st Plaintiff authorisation to make application for welfare assistance on the Deceased’s behalf.

40.  Another non-medical documentation is an assessment form prepared by a health care assistant of Lord Kindness Elderly Rehabilitation and Care Centre in relation to the use of controlled medication by the Deceased.  That assessment was made on 16 February 2009, five months after the alleged execution of the 2008 Will.  The health care assistant noted that the Deceased had dementia.  That was not a medical report and was not prepared by a qualified medical practitioner.  The health care assistant might have made the remark based on his observation of the Deceased’s behaviour or from the records of the care centre.  Nevertheless, it is some evidence of the behaviour of the Deceased as observed by a third non-interested party who was under a duty to make observation of the Deceased.

41.  Lastly, the Plaintiffs also relied on three episodes involving the Deceased.  According to the 1^st Plaintiff, on 20 August 2007 the Deceased left his home in Provident Centre in North Point. Neither the Deceased’s wife nor their Philippine maid could stop him.  The 1^st Plaintiff searched for the Deceased in the vicinity of North Point.  She reported the incident to a patrolling police officer who offered her a lift on a police vehicle to look for the Deceased.  During the course of the search, the police officer was informed that a male matching the description of the Deceased was found wandering in Caine Road and then detained in Central Police Station.  The 1^st Plaintiff then found the Deceased in Central Police Station.  The Deceased was wearing pyjamas and had no document of identity with him.  According to the police, the Deceased was found wandering around in Caine Road Garden.  When approached by the police, the Deceased had no idea where he was going, where he lived and why    he was there.  He was hence taken to Central Police Station.  According to the 1^st Plaintiff, the Deceased was under the misapprehension that his wife was arrested and was being tried and he was waiting for his wife so that they could go home together.  The 1^st Plaintiff’s account of this incident was corroborated by a letter from the police dated 5 May 2010 to the       1^st Plaintiff, in which the police gave the following account of the incident:

“We received a report on 2007-08-20 from the public that an old man, later known as AU Kwong-tim, 91 years old, was found wandering inside Caine Road Garden, Caine Road, Central. The old man was then located and brought back to Central Police Station for enquiry. Upon checking with the record from Hospital Authority, we could finally contact his son and send the old man back home with your assistance.”

William disputed that the incident showed the Deceased was suffering from dementia.  He said that he was living in Caine Road and the Deceased was visiting him that morning, but then the Deceased took a walk in the vicinity as he came too early in the morning.  He challenged the Plaintiffs’ evidence and put the Plaintiffs to strict proof that the Deceased had no idea where he was going.

42.  William’s challenge was hopeless and demonstrated the total lack of good faith and credibility in his defence.  The 1^st Plaintiff’s account was independently corroborated by the police letter which must be credible evidence from an independent and credible source.  According to that letter, the Deceased was seen by the public wandering inside Caine Road Garden.  If the Deceased could give an account of himself, the police would not have found it necessary to take him to Central Police Station and make enquiry with the Hospital Authority.  Apparently, it was through the Hospital Authority that the police came into contact with William.  If the Deceased intended to visit William but took a stroll in the garden, he would have told the police and the police would have verified that and handed him to William in Caine Road without taking him to Central Police Station and without handing him over to the 1^st Plaintiff who later arrived at the police station.  It was beyond dispute that the Deceased left his home in Provident Centre in his pyjamas and wandered all the way to Caine Road, found by the public wandering in a strange manner and then reported to the police.  It was also beyond dispute that the Deceased could not give an account of himself, where he lived, where he was going, what he was doing and why he was in Caine Road.  The 1^st Plaintiff’s account that the Deceased left home for no reason and then was under the illusion that his wife was being tried and was waiting for her in the police station must be truthful.  This episode showed clearly that on 20 August 2007, two weeks before Dr Ko’s report, the Deceased demonstrated symptoms of dementia.  It also corroborated the medical finding of Dr Au six months later that the Deceased had dementia and the same finding in the other medical reports.  In August 2007, the Deceased was disorientated in time and space and was wandering about in Caine Road where he and his family lived in long forgotten time.

43.  Gloria also mentioned two similar episodes which happened earlier in January 2006 when she was visiting Hong Kong.  She happened to see the Deceased wandering in Des Voeux Road Central where his office used to be.  The Deceased had lost his way home.  Again, on another occasion, the family was having meal at a restaurant, after the Deceased had been to the washroom, he forgot where he was and sat at another table.

44.  On the basis of the four medical reports, the referral, the    non-medical documentations and the three episodes, I have no difficulties in holding that the Plaintiffs have more than discharged their evidential burden of proving that the Deceased was suffering from dementia before the alleged execution of the 2008 Will which cast the legal burden on William to show he had an arguable defence that the Deceased had testamentary capacity when he executed the 2008 Will.  I now turn to William’s evidence.

45.  William mentioned nothing about the circumstances of the execution of the 2008 Will in his four affirmations filed for the purpose of this application.  He said in his affirmation dated 29 April 2010:

“[The Deceased] signed upon the last Will in the presence of a solicitor and a then trainee solicitor of [Messrs TAYY] on 5^th September, 2008.  The said witnesses can testify as to its due execution.  There is now produced and shown to me marked “AWL-9” a copy of the receipt issued by the said solicitors to my father for professional services provided to him in respect of the last Will”

William said in the course of his submission that the Deceased asked William to find a solicitor for the purpose of making a will for him.  William did not know Yeung and Lau of Messrs TAYY personally and he paid Messrs TAYY $2,000 for preparing and witnessing the execution of the 2008 Will.

46.  In his affirmation dated 17 March 2011, which was in reply   to the 1^st Plaintiff’s 5^th affidavit dated 28 January 2011 disputing the Deceased had mental capacity to execute the 2008 Will, William only referred to the letter dated 8 October 2009 from Messrs TAYY to the Plaintiffs’ then solicitors as evidence that the Deceased had mental capacity at the time of the execution of the 2008 Will.  The letter reads:

“We refer to your letter of 8^th October 2009 and would like to reply as follows:

(1) the said Will dated 5^th September 2008 was executed by Au Kong Tim, deceased at [Lord Kindness Elderly Rehabilitation and Care Centre of ... on 5^th September 2008 in the presence of our partner Mr Yeung Wai Chung and our trainee solicitor Mr Lau Wah Shun Edwin.

(2) the content of the said Will had been read over and explained to Au Kong Tim, deceased, by our partner Mr Yeung Wai Chung and he verbally confirmed to Mr Yeung of his understanding to the said Will before execution.

(3) Mr Yeung and Mr Lau were both satisfied as to the mental capacity of Au Kong Tim, deceased, at the time of his execution of the said Will.

(4) Au Kong Tim, deceased, executed the said Will by signing his surname onto the said Will with the assistance of Mr Au Wing Lun in the presence of both our Mr Yeung and Mr Lau.”

The letter confirmed that Yeung and Lau were present with William during the execution of the 2008 Will, that Yeung had read over and explained the will to the Deceased who verbally confirmed that he understood the will, that the Deceased executed the will and that Yeung and Lau were satisfied as to the mental capacity of the Deceased.

47.  When considering the issue of execution, I find in favour of William that he has demonstrated an arguable defence that the 2008 Will was signed by the Deceased.  I commented that Messrs TAYY as a       non-party and not representing William had no obligation to provide particulars to the Plaintiffs’ solicitors’ enquiries about the circumstances of execution of the 2008 Will.  What was sufficient in proving an arguable defence based on execution (not due execution) may not be sufficient  when it comes to the issue of showing an arguable defence based on the Deceased’s testamentary capacity. To resist an Order 14 application, the defendant has to show not just a defence but that the defence is believable.  He has to condescend to particulars as the circumstances so require.  In   the light of the very compelling evidence raised by the Plaintiffs in challenge of the Deceased’s testamentary capacity, William’s evidence in his affirmation dated 29 April 2010 and Messrs TAYY’s letter dated         8 October 2009 were inadequate.  There was a glaring lack of particulars and the circumstances of execution of the 2008 Will and how Yeung and Lau were satisfied of the Deceased’s testamentary capacity. 

48.  Yeung and Lau were not medical practitioners. They were    in no position to certify that the Deceased had mental capacity. The Deceased had not been their client before.  They did not even know the Deceased before the execution of the 2008 Will.  Apparently, they had not taken instructions from the Deceased as to the making of the 2008 Will and the instructions came indirectly from William.  The Deceased was an old man, aged 92.  A solicitor instructed to prepare and witness the execution of a will is not performing a clerical or mechanical function but a professional function.  Particularly if the testator is such an old man who had never been his client before, a solicitor has a heavy burden to make sure that the testator has mental capacity and that he understands the will he is making.  He has to take full instructions from the testator or confirm with him the instructions received from another source.  Yeung and Lau had not given any witness statement or affirmation.  William who was present at the time of execution mentioned nothing of the enquiries Yeung and Lau had made to satisfy themselves that the Deceased had testamentary capacity.  Messrs TAYY declined giving particulars of the circumstances of the execution.  I ask myself rhetorically, what can a solicitor make out of a $2,000 dollar will?  It was not enough to pay Yeung and Lau for half an hour of their time.  I do not wish to say too much as to what they should have done, just in case a trial may become necessary.  Suffice it is to say, there was a glaring lack of particulars as to what Yeung and Lau have done to satisfy themselves that the Deceased had testamentary capacity. In the light of the nature of evidence of the Deceased’s dementia which the Plaintiffs have revealed in their affidavits, William’s evidence as it stands is wholly inadequate.  William utterly failed to condescend to particulars.  It is true that he had no opportunity to arrange a medical examination of the Deceased by his own expert as the Deceased had already passed away.  But there was nothing to prevent William from adducing evidence from Yeung and Lau, or at least from himself, as to what Yeung and Lau had done to satisfy themselves that the Deceased had testamentary capacity. 

49.  For the above reasons, I conclude that William has failed to show he has a credible defence that the Deceased had testamentary capacity at the time of execution of the 2008 Will.  He may perhaps have credible evidence that the Deceased had testamentary capacity, but he    has chosen not to show me.  In the light of the two medical reports from  Dr Ko and Dr Au, the two medical reports from the Hospital Authority,   Dr Chan’s referral and the three episodes involving the Deceased, I do not really think William can show a credible defence.  His argument about the episode on 20 August 2007 demonstrated a lack of good faith in his conduct of this litigation.  His assertion about the Deceased’s change of mind in not giving any part of his estate to the granddaughters is incredible.  His assertion about the 2008 Will is highly suspicious.  His defence is most probably a sham defence.

50.  However, out of respect for Yeung and Lau, who are solicitors and officers of the court, I am prepared to give William conditional leave to defend.  The probate action is likely to be very costly.  William is not a beneficiary under the 2002 Will.  Obviously, he will not be able to pay his costs if he loses and the estate will suffer.  I therefore would only grant him leave to defend on condition that he pays security for the Plaintiffs’ costs initially in the sum of $500,000 within one month and that there      be liberty to apply should the amount of security become inadequate and the costs of this application with certificate for counsel shall be in the cause of the main action.  In default of payment of the security, William’s defence shall be struck out and judgment shall be entered in terms of    sub-paragraphs (1), (2), (3) of paragraph 1 of the Plaintiffs’ summons dated 28 January 2011, that paragraph 13(a) of the Defendant’s counterclaim be struck out and that the Plaintiffs shall have costs of the application with certificate for counsel on an indemnity basis, to be taxed if not agreed.   

CONCLUSION

51.  Accordingly, I grant the Defendant leave to defend under Order 14 rule 4 on condition that he pays security for the Plaintiffs’ costs initially in the sum of $500,000 within one month, that there be liberty to apply should the amount of security become inadequate and that costs of this application with certificate for counsel shall be in the cause of the main action. 

52.  However, in default of payment of the security, the Defendant’s defence shall be struck out and judgment shall be entered automatically in terms of sub-paragraphs (1), (2), (3) of paragraph 1 of   the Plaintiffs’ summons dated 28 January 2011, that paragraph 13(a) of  the Defendant’s Defence and Counterclaim be struck out and that the Plaintiffs shall have costs of the application with certificate for counsel on an indemnity basis, to be taxed if not agreed.  

53.  The Defendant’s application for leave to file and serve his Reply to the Plaintiffs’ Defence to Counterclaim out of time under     Order 18 rule 4 is allowed with costs to the Plaintiffs.

Mr Kevin Hon, instructed by Messrs Gloria Chan & Co., for the Plaintiffs

Defendant: act in person, present

HCAP7/2010
HCAP9/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 7 OF 2010

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BETWEEN

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J U D G M E N T

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1.  Granting extension of time for filing pleadings is a case management decision and Mr Au is trying to appeal against the Master’s decision in a case management matter. Moreover, Mr Au had actually informed the Master that he had no objection to the extension and the Master granted the extension accordingly.

2.  The only point Mr Au makes this morning which has any substance is about the lack of a summons for extension of time. I do not think it takes him anywhere because, since it is a case management decision, the Master could exercise the discretion on her own motion even without a summons.  For things like this, bearing in mind the history of the matter, since there is a summons to strike out and also a summons for consolidation, I do not think the Master can be criticised for exercising her discretion in this manner.  It is quite usual that these things were done even without any time summons, particularly in light of the indication by Mr Au to the Master that he had no objection to the extension.

3.  Since this appeal is utterly hopeless, it should not have been brought in the first place.  I dismiss it unhesitatingly.

(Submissions on costs)

4.  I order Mr Au to pay the costs of Madam Choy in this appeal and the costs are to be paid forthwith.  I will fix the costs summarily, by reference to the statement of costs with some deductions on account of some items which I consider to be slightly on the high side.  I will fix the costs summarily at $50,000, pursuant to Order 62 rule (4)(b).  As I said, the costs have to be paid forthwith in the light of the fact that this is an appeal which should never have been brought in the first place.

Representations:

Defendant in HCAP7/2010 and Plaintiff in HCAP9/2010, in person

Mr Kevin Hon, instructed by Gloria Chan & Co., for the 1st Plaintiff in HCAP7/2010 and for the 1st Defendant in HCAP9/2010

2nd Plaintiff in HCAP7/2010 and 2nd Defendant in HCAP9/2010, represented by Yung, Yu, Yuen & Company, excused

Please refer to CACV149/2011, CACV157/2011 & CACV182/2011 for the relevant appeal(s) to the Court of Appeal.

Please refer to CACV149/2011, CACV157/2011 & CACV182/2011 for the relevant appeal(s) to the Court of Appeal.

Please refer to CACV149/2011, CACV157/2011 & CACV182/2011 for the relevant appeal(s) to the Court of Appeal.

HCAP 7/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 7 OF 2010

_________________________

_________________________

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D E C I S I O N

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BACKGROUND

1.  There are two wills in respect of the estate of the Deceased – one was purportedly executed in 2002, and another in 2008.  The Plaintiffs are two of the executors appointed in the 2002 will, and the Defendant, one of the executors in the 2008 will.

2.  The Plaintiffs have brought the present probate claim to propound the 2002 will, and at the same time a caveat has been entered against the sealing of a grant in respect of the Deceased’s estate.  The Defendant has also brought a separate probate claim to propound the 2008 will.

3.  The Plaintiffs issued the present summons under Order 76 r.14 of the Rules of High Court and S.40 of the Probate and Administration Ordinance Cap.10 (“PAO”) for the appointment of an administrator pendent lite (“administrator PL”) or administrator pending determination of the probate claims.

4.  Both parties agree that an administrator PL should be appointed.  The only issue between them is who should be appointed.

PROPOSED ADMINISTRATOR PL

5.  In the summons, the Plaintiffs ask the Court to appoint Hang Seng (Trustee) Limited (“HS Trustee”) or other suitable person(s) to be the administrator PL.

6.  Apart from HS Trustee, the Plaintiffs have further proposed accountants from three accountant firms.  They are Miss Chan Wai Hing and Mr. Morrison of Messers. Mazars, Mr. Yuen of UHY Vocation HK CPA Limited, Mr. Eric Ng of Messrs. C.Y. Ng & Co, all of whom are certified public accountants.

7.  The Defendant, however, objects to all the candidates the Plaintiffs proposed. 

8.  In relation to HS Trustee, it is contended that there would be a conflict of interest because its connected company, Hang Seng Bank has allegedly been involved with the disputes of the Deceased’s estate by “unlawfully clearing void cheques and paid into said bank accounts maintained with it by my father (i.e. the Deceased) prior to his death”[1] (words in bracket inserted).  Further, the Defendant submitted that since his mother (the Deceased’s surviving widow) has been the said bank’s long-standing customer, it has allegedly taken side with his mother by refusing to provide information relating to the Deceased’s accounts. The Defendant therefore has doubt on HS Trustee’s neutrality should it be appointed to handle the Deceased’s estate.

9.  In respect to the other proposed administrators PL, the Defendant’s only objection is that they are accountants of relatively smaller firms and are not suitable to deal with such a substantial estate such as the Deceased’s. He submitted that accountants from the city’s top firm should be chosen instead.

10.  The Defendant counter-proposes Mr. Peter Wong and Mr. Alan Tang of Grant Thornton to be appointed.

11.  The Plaintiffs however object to the appointment of the Defendant’s proposed administrators PL because they said that the proposed administrators PL have not provided (as their own proposed candidates have) a cap on the costs of the interim administration.

DISCUSSION

12.  The court will only appoint an administrator PL if it is satisfied that such appointment is expedient in the circumstances.  When rival candidates are proposed, the court will choose.  Often an accountant unconnected with the probate claim may be more suitable.[2]

13.  With these principles in mind, I would consider the choices that have been put forward by the parties.

14.  The size of the Deceased’s estate – which comprises a large numbers of blue-chip stocks (with a value of about HK$500 million, yielding an annual dividends of about $23 million) and over 20 landed properties (about $200 million), most of which are rented out with a monthly rental income of about $500,000) – can be described as substantial. Since the death of the Deceased in July 2009, a number of rent-related actions in relation to the Deceased’s properties have been commenced and are still active in the District Court as a result of the disputes over the Defendant’s  entitlement to collect rent payments from the tenants.

15.  The pending probate actions mean that the Plaintiffs and the Defendant, being respective executors appointed by the two disputed wills, would not cooperate in the administration of the Deceased’s assets. The ongoing disputes would adversely harm the interests of the beneficiaries, and such harm is already evident by the litigations in the District Court.

16.  The facts of this case, in my view, undoubtedly justify the necessity and expediency for the appointment of an administrator to deal with the Deceased’s estate, especially in respect of rental matters.

17.  Concerning the proposed candidates, I note that apart from HS Trustee, all the candidates – be they from a bigger firm (such as Grant Thornton) or a smaller one (such as CY Ng & Co)- are accountants with little experience (at least from the papers that are placed before me) in estate administration.  Their experiences and areas of practice seem to be mainly in corporate restructure and insolvency.

18.  HS Trustee is the only corporation candidate specializing in trust matters.   Although the Plaintiffs have not provided its qualifications and experiences, HS Trustee enjoys a good reputation in Hong Kong, and is known to have experiences in trust matters and estate administration.  In view of the substantial size of the estate, I think HS Trustee should be in a much better financial position to give security (if required) than any of the proposed accountants.  Further, if HS Trustee is a trust corporation, there is a slim chance that security would be required. Hence, a further factor in its favour.

19.  In preferring HS Trustee to other candidates, I have taken into account the allegations by the Defendant about its alleged lack of neutrality.  However, I find that the basis of attack is unfounded.  The activities Heng Sang Bank has allegedly engaged are unconnected with estate administration. Even if they were, I do not think such alleged activities by Heng Sang Bank would have any effect on the neutrality of the HS Trustee.

20.  Further, an administrator PL when appointed is in the same position as a general administrator, both of whom owe to the beneficiaries a number of fiduciary duties such as a duty to act in good faith and for the interests of the beneficiaries.

21.  Furthermore, as the chance of HS Trustee being required to provide security is low, it should be able to obtain a grant more speedily than the other proposed candidates -whom would likely be required to provide security.

22.  In the circumstances, I am inclined to think, on balance, HS Trustee will be a more suitable candidate.

PROCEDURAL REQUIREMENTS

23.  In England, when an application is made for the appointment of an administrator PL, the applicant – apart from filing an affidavit in support by setting out the name of a proposed administrator, his qualifications, and the value of the estate to be administered – is also required to furnish with the court the following documents:

(i)        An affidavit of fitness of the proposed administrator by some disinterested person, and

(ii)       The consent to act[3].

24.  We do not yet have the corresponding rules in Hong Kong.  I am of the view that these documents are essential before an appointment should be made.  I also think that the said English practice should  be applied to our practice here by the operation of S. 72(2), PAO[4]. Thus, in an application for an appointment for an administrator PL, an applicant will be required to furnish to the court documents in paragraph 23 above.

25.  In view of its specialized practice and the reputation HS Trustee enjoys, I am inclined to waive the requirement of filing of an affidavit of fitness in this case.

SCOPE OF POWERS

26.  Both parties agree that the administrator PL should have the powers of a general administrator.  I however observe that in the Plaintiffs’ affidavit in support (at paragraph 32 of the Affidavit of Choy Po Chun), it is deposed that the administrator PL is only “for collecting and receiving the rents of all landed properties of the Deceased”.

27.   In the circumstances, I am slightly uncomfortable to entrust the administrator PL with general power, but inclined to think that its power should be limited to the collection and receiving of rents.

28.  Since my view runs contrary to the shared views of both parties, I would receive further submissions before deciding on the scope of its power.

ORDER AND DIRECTIONS

(A)  ORDER

29.  Before the HS Trustee is to be appointed to act as the administrator PL, I require the Plaintiffs to file and serve the following documents within 7 days of the handing down of this judgment:

(i) A confirmation that whether HS Trustee is a trust corporation. If yes, a certificate under S.78 Trustee Ordinance (Cap.29) is to be furnished, and

(ii) The consent to act[5].

(B)  DIRECTIONS

30.  Before deciding on whether general or limited power is to be given to the administrator PL, I direct parties to make further submissions.  I have originally fixed a hearing to be held on the same day of the handing down of the judgment (6 May 2010) for consequential directions (if necessary).  As the Plaintiffs are now required to furnish further documents, I do not think it is practicable to hold the hearing on that day.  Such hearing should be held after the required documents are filed.  Hence, I vacant the hearing on 6 May, and direct the parties to fix a hearing (with 1 hour reserved) on the earliest possible date, but not before the lapse of 7 days.

31.  In the directions hearing, I would also deal with ancillary matters relating to the filing of accounts by and remuneration of the administrator PL as well as the costs of this application.

32.  Parties are to lodge and serve written submissions in respect of the matters above at least 3 days before the adjourned directions hearing.

Mr. Kevin Hon instructed by Messrs Gloria Chan & Co for Plaintiffs.

The Defendant, Mr. Au Wing Lun also known as Au Wing Lun William, appearing in person.

[1] Affirmation of Au Wing Lun filed on 29 April 2010, para. 24.

[2]    See Williams, Mortimer & Sunnuck, “ Executors, Administrators and Probate” (19^th ed.), 24-51 and 24-52.

[3]    See Williams, Mortimer & Sunnuck (supra) at para.24-54. and D’Costa, Winegarten & T. Synak, “Tristram and Coote's Probate Practice” (30^th ed.)  para. 38.01 at p.858.

[4]    S.72 (2), PAO, “ In all such business in respect of which no provision is made by probate rules and orders, the practice and procedure for the time being in force in the Probate Registry in England should be deemed to be in force in the court and the Registry.

[5]     See Williams, Mortimer & Sunnuck (supra) at para.24-54. and D’Costa, Winegarten & T. Synak, “Tristram and Coote's Probate Practice” (30^th ed.)  para. 38.01 at p.858.