CHIU MEI CHERRY v. YIP NGAN YUK AND ANOTHER

HCAP 36/2023

[2024] HKCFI 2824

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 36 OF 2023

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DECISION

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INTRODUCTION

1.  This is the plaintiff’s application for summary judgment which was made by a summons filed on 30 April 2024 (“the Summons”).

BACKGROUND

2.  The relevant background may be summarised as follows.

3.  The Deceased was born in 1954.

4.  The Deceased was married to the 1^st defendant in January 1981. The 2^nd defendant is their son who was born in the same year.

5.  The 1^st defendant and the Deceased last cohabited together in a flat in Tsuen Wan (“the Matrimonial Home”). The defendants are still residing there together.

6.  In around 2019, the Deceased began an extra marital relationship with the plaintiff. The plaintiff subsequently gave birth to a son of theirs in November 2021 (“the Younger Son”).

7.  At all material times, the Deceased owned the following land properties:

(1)  A unit located within Gold King Industrial Building (“the Gold King Property”);

(2)  A flat in Kiu Yu Mansion (“the Kiu Yu Mansion Property”);

(3)  The Matrimonial Home (in joint names together with the 1^st defendant).

8.  The Deceased had also purchased a property situated in Lai Chi Kok (“the Lai Chi Kok Property”) in 2018 but it was registered under the name of the 2^nd defendant.

9.  On 6 October 2021, the Deceased executed a will which was drafted in English (“the 2021 Will”), under which:

(1)  The defendants were appointed as executors;

(2)  The Deceased bequeathed all his right, title, benefit and interest in the Gold King Property to the 1^st defendant;

(3)  The Deceased bequeathed all his residuary estate to the defendants in equal shares.

10.  In around February 2022, the Deceased was diagnosed to be suffering from pancreatic cancer.

11.  On 15 June 2022, the Deceased executed another will which was also drafted in English (“the June 2022 Will”), under which the Deceased, inter alia:

(1)  appointed the 2^nd defendant as the executor;

(2)  bequeathed all his benefit and interest in the Gold King Property to the 1^st defendant;

(3)  bequeathed all his benefit and interest in the Kiu Yu Mansion Property to the Younger Son;

(4)  bequeathed all his residuary estate to the defendants in equal shares.

12.  Both the 2021 Will and the June 2022 Will were prepared by Ms Cho Mei Ting (“Ms Cho”) of Messrs. Cho Mei Ting & Co.

13.  On 26 July 2022, the Deceased executed yet another will (“the July 2022 Will”). This will was drafted in Chinese. Pursuant to this will, the Deceased bequeathed all his benefit and interest in the Gold King Property, the Kiu Yu Mansion Property, the Matrimonial Home, his company Wing Sing Cheung Engineering Company Limited and all his remaining assets to the plaintiff. He also bequeathed all his interest in the Lai Chi Kok Property held under the name of the 2^nd defendant to the plaintiff (in the event the plaintiff decided to sue the 2^nd defendant and obtain judgment against him successfully).

14.  The Deceased further declared in the July 2022 Will that:

“本人特此聲明，本人的妻子葉銀玉及兒子李世聞，在本人患上癌症住院後，對本人疏於照料; 並在本人因醫療及日常生活費用向他們尋求財政上的援助時，拒絕伸出援手。故此:

(a) 本人並未在本遺囑內向上述兩人作任何遺贈;

(b) 本人過世後的一切喪葬安排，由[原告人]全權決定; 葉銀玉及李世聞無權過問; 及

(c) 本人不希望葉銀玉及李世聞出席本人的任何喪葬儀式。”

15.  The July 2022 Will was prepared by Mr Alan Lin Hoi Bun (“Mr Lin”), a partner of Messrs. Wong Poon Chan Law & Co (“WPCL”), and was executed by the Deceased in the presence of Mr Lin and one Mr Lau Hing Hon Alex who is a clerk of WPCL (“the Clerk”).

16.  Immediately before the execution of the July 2022 Will, Dr Tam Ka Lok (“Dr Tam”), a psychiatrist, conducted a testamentary capacity and cognitive assessment on the Deceased. Dr Tam confirmed, among other things, that the Deceased had such capacity and understood the nature of making a will.

17.  The Deceased passed away on 8 September 2022.

18.  The plaintiff and the 1^st defendant filed Caveat on 9 September 2022 and 20 September 2022 respectively.

19.  On around 16 December 2022, the plaintiff applied for a grant of probate in respect of the July 2022 Will.

20.  A warning against the 1^st defendant as Caveator was served on her on 23 February 2023.

21.  On 3 March 2023, the 1^st defendant as Caveator entered an appearance.

22.  On 31 July 2023, the plaintiff commenced the present probate action to propound for the validity of the July 2022 Will.

23.  On 4 October 2023, the defendants filed a Defence and Counterclaim, and sought, among other things, to have the 2021 Will or alternatively the June 2022 Will be propounded in solemn form.

24.  As aforesaid, the plaintiff took out an application for summary judgment by virtue of the Summons on 30 April 2024.

SUMMARY JUDGMENT IN PROBATE ACTION

25.  It is now well established that the Court may grant summary judgment in a probate action. The relevant principles have been summarised succinctly by G Lam JA in Re Estate of Chan Fook Lai (Deceased) [2024] 1 HKLRD 29, [2023] HKCA 1177:

“2. That summary judgment can in principle be given in a probate action to propound a will in solemn form is not in dispute: Re Lau Siu Wah, Deceased [2005] 1 HKC 364, §§13-19; Re Estate of Yau Tung Hoi (HCAP 9/2016, 10 March 2017), §16. Such an application nevertheless needs to be approached with care, having regard to the special nature and features of a probate action, of the role of the court therein and of an order pronouncing in favour of a will, as explained in Choy Po Chun v Au Wing Lun [2012] 2 HKLRD 148, §§15-20. At the end of the day, the person propounding a will “must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable Testator”: Barry v Butlin (1833) 2 Moo PC 480, 482.

3. Summary judgment is, of course, for clear cases, whether in probate or other cases. Where the plaintiff has on his evidence established the constituent elements of his cause of action, it is for the defendant to show an issue in dispute that ought to be tried or that for some other reason there ought to be a trial. In setting up her defence the defendant must condescend upon particulars; the mere assertion in an affidavit of a given situation is not sufficient. Where the defendant has raised factual disputes, the court may nevertheless enter judgment summarily if the defendant’s allegations are not credible. But where the allegations cannot be dismissed in this way, the court will not conduct a trial by affidavit.”

OVERVIEW OF THE DEFENCE

26.  Mr Lau for the defendants contended that the plaintiff’s application for summary judgment should be dismissed because there are triable issues herein as follows:

(1)  The July 2022 Will was executed by the Deceased without the requisite testamentary capacity (“the Lack of Requisite Testamentary Capacity Defence”);

(2)  The circumstances surrounding the execution of the July 2022 Will raise questions about the requisite knowledge and approval by the Deceased (“the Want of Knowledge and ApprovalDefence”);

(3)  The July 2022 Will was procured by undue influence of the plaintiff over the Deceased (“the Undue Influence Defence”);

(4)  The July 2022 Will does not represent the true intentions of the Deceased as to the distribution of assets, properties and/or estate, and the 2021 Will should be the last and valid will of the Deceased (“the True Intention Defence”);

(5)  As the Deceased and the 1^st defendant have married since 1981, reasonable financial provisions should be made out of the net estate of the Deceased for the maintenance of the 1^st defendant pursuant to the Inheritance (Provision for Family and Dependents) Ordinance (Cap.481, Laws of Hong Kong) (“the Reasonable Financial Provisions Defence”).

DISCUSSION

The Lack of Requisite Testamentary Capacity Defence

27.  It is undisputed that the legal principles regarding testamentary capacity have been set out in Wong Tung Wai v Wong Tung Po[2023] HKCFI 1240 at [14] – [24] as follows:

“14. As to testamentary capacity, the statement by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565 (as endorsed by the Court of Appeal in Chiu Man Fu v Chiu Chung Kwan Ying (CACV 40/2012, 18 June 2013) at [52]) has also been cited by both sides. This laid down the following 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.’

15. As to the approach to this question of testamentary capacity, Chow J (as he then was) held in Choy Po Chun v Au Wing Lun (HCAP 7/2010, 4 July 2017) at [45] that:-

‘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.’

16. The Court should not too readily upset a will prepared by experienced solicitors on the ground of mental incapacity. In Hawes v Burgess [2013] WTLR 453, Mummery LJ stated:-

‘57 That said, it is, in my opinion, a very strong thing for the judge for 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 the testatrix understood that she was making a will and also understood the extent of her property.’

17. In Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387, Chan PJ stated at [15]:-

‘…the courts generally prefer the direct evidence of witnesses who actually saw and heard what happened to the opinion evidence of an expert …’

18. The Court of Appeal of New South Wales in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 stated at [65] as adopted by the English Court of Appeal in Simon v Byford [2014] WTLR 1097 at [17]:-

‘…However, evidence of such understanding [of the Deceased’s testamentary capacity] may come from non-expert witnesses. Indeed, perhaps the most compelling evidence of understanding would be reliable evidence (for example, a tape recording) of a detailed conversation with the deceased at this time of the will displaying understanding of the deceased’s assets, the deceased’s family and the effect of the will. It is extremely unlikely that medical evidence that the deceased did not understand these things would overcome the effect of evidence of such a conversation.’

19. For the case of an aged testator or a testator who has suffered a serious illness, there is a ‘golden rule’ that the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfied himself of the capacity and understanding of the testator, and records and preserves his examination and findings: Re LLC (Statutory Will) [2010] 3 HKLRD 16 at [144].

20. In Re Estate of Au Kong Tim [2018] 2 HKLRD 864, the Court of Appeal provided the following guidance on the application of the golden rule at [2.3]-[2.7]:

2.3 In view of the importance that the Court attaches to a will which has been executed before a solicitor in this way, proper groundwork should be undertaken by the solicitor who is charged with this task. The solicitor should not regard the task as merely a formal act. Although in Hong Kong instructions to prepare a will may often be given by the adult children of the testator who is elderly and not in good health, it behoves the solicitor who wishes to discharge his duty properly to meet the testator personally for the purpose of taking instructions or confirming the instructions. He should do this well before the day appointed for the execution of the will which by then is already prepared on the instruction given by someone other than the testator.

2.4 The enquiries made by the solicitor at such an appointment should, subject to the circumstances of each case, include the following, namely,

1) the age of the testator,

2) his health condition,

3) whether he has a surviving spouse,

4) the number of children and grandchildren he has,

5) whether there is someone other than his immediate family member dependent on him for support,

6) the beneficiaries he would like to provide for in his will,

7) his properties,

8) whether he has made a previous will,

9) whether he understands the new will will revoke the previous will,

10) whether he understands the difference between the new and the previous will.

2.5 The list is of course not exhaustive and the extent of the inquiry will depend on the circumstances of the case. In the case of an elderly and infirm testator, the solicitor should also follow the checklist referred to in paragraph 40 of the Chow J’s judgment below, namely, the checklist set out in the ‘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 testator is 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’.

2.6 The solicitor should ensure he follows the ‘golden rule’ referred to by Templeman J in Kenward v Adams (1975) The Times 29 November 1975, namely, 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.

2.7 While it is accepted that the golden rule does not lay down the law and merely contains prudent guidance for solicitors (Hoff v. Atherton [2005] WTLR 99 (C.A.) at [49] and In re Key, Decd [2010] 1 WLR 2020 at [7]), the words of Briggs J in In re Key, Decd are worth repeating :

‘8 Compliance with the golden rule does not, of course, operate as a touchstone of the validity of a will, nor does non-compliance demonstrate its invalidity. Its purpose, as has repeatedly been emphasised, is to assist in the avoidance of disputes, or at least in the minimisation of their scope. As the expert evidence in the present case confirms, persons with failing or impaired mental faculties may, for perfectly understandable reasons, seek to conceal what they regard as their embarrassing shortcomings from persons with whom they deal, so that a friend or professional person such as a solicitor may fail to detect defects in mental capacity which would be or become apparent to a trained and experienced medical examiner, to whom a proper description of the legal test for testamentary capacity had first been provided.’

21. The testator in Re Estate of Au Kong Tim was 92 years of age at the time of making the will, living in a care home and showing signs of infirmity; a state which the court said ‘cried out loudly for more detailed enquiry to be conducted by the solicitor’ (at [3]). The Court of Appeal found in that case that whilst the first instance judge had considered the first aspect of the Banks v Goodfellow questions about testamentary capacity (viz. if the deceased was capable of understanding the nature and the act of making the will and its effects), he had failed to make findings on the latter two aspects (i.e. whether the deceased was capable of understanding the extent of the property that he was disposing, and whether he was able to comprehend and appreciate the claims to which he ought to give effect), and there was insufficient evidence upon which draw inferences in regards to the same (at [54] to [65]). In such context, they emphasised the prudence of following the checklist (referenced at paragraph 2.5 of the decision, “Checklist”) and the golden rule so as to avoid possible disputes as to validity of the will in question (at [75] to [76]).

22. However, in Re Estate of Wong Yin Sheung[2019] HKCA 452, Kwan VP made it clear at [39]-[43] that much depends on the facts and evidence in any given case and there is no rigid rule that a party propounding a will would not be able to establish testamentary capacity if a solicitor failed to make proper enquiry and follow the golden rule. In that case, the solicitor had similarly failed to follow the Checklist or the golden rule, and there had been no questions asked as to other close relatives, the size of the estate or the nature of the assets. Nonetheless, the Court of Appeal observed that the judge may well have implicitly found that all three criteria were satisfied, and in any event made the distinction (in contrast to Au Kong Tim) that there was sufficient evidence upon which to draw the relevant inferences. See also: Chen Yue Jia James v Chen Maria[2020] HKCFI 2410 at [289]-[291].

23. The fact that a person is 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 133 per Poon J; Chan Chun Pui and Pang Woon Kam v Feng Cuixian (HCAP 13/2007, 24 July 2009) at 121-124 and 146 per Recorder A Ho SC.

24. However, the fact that the dispositions in a will are rational is an important factor or indicator of testamentary capacity. See: Banks v Goodfellow at 558 and 565-566; Hoff v Atherton [2005] WTLR 99 at [44] per Peter Gibson LJ.”

28.  The plaintiff relied on, inter alia, the following matters to support her submission that the testamentary capacity of the Deceased when the July 2022 Will was executed cannot be challenged:

(1)  The July 2022 Will was prepared by Mr. Lin, an experienced solicitor who has over 20 years of experience in wills and probate matters;

(2)  According to Mr. Lin’s evidence:

(a)  the Deceased gave clear instructions to him on 22 July 2022 in respect of:

(i)  a list of his assets which he would like to bequeath to the plaintiff;

(ii)  his beneficial ownership in the Lai Chi Kok Property which was registered under the name of the 2^nd defendant;

(iii)  his intention to bequeath the interest in the Matrimonial Home to the plaintiff which would require the execution of a notice of severance (the “Notice of Severance”);

(iv)  the reason why he would like to bequeath all his assets to the plaintiff rather than to the defendants.

(b)  Before the execution of the July 2022 Will, Mr. Lin went through a “Checklist for Execution of Will” (“the Checklist”) and a letter of consent (“theConsent Letter”) with the Deceased. He also explained the contents of the July 2022 Will and the Notice of Severance to the Deceased in the presence of the Clerk. Mr Lin was satisfied that the Deceased had the testamentary capacity to make the July 2022 Will and the same was made by him with his full knowledge of its contents voluntarily which reflected his true intent and wishes;

(c)  At all material times, the Deceased had always been very alert and knew full well the instructions and messages conveyed to Mr. Lin;

(3)  The contents of the July 2022 Will were modified and only confirmed by the Deceased after 3 drafts had been prepared;

(4)  The “golden rule” had been duly followed in the present case: Dr. Tam conducted the testamentary capacity and cognitive assessment on the Deceased immediately before the execution of the July 2022 Will, which lasted for about an hour (i.e. from 1pm to 2 pm on 26 July 2022). After the assessment, Dr. Tam issued a Medical Certificate and a Psychiatric Report which confirmed that the Deceased had sound mind and understanding ability, and was mentally fit to make the July 2022 Will.

29.  Mr Lau for the defendants submitted that the Medical Certificate and the Psychiatric Report are not “incontrovertible contemporaneous documentary evidence” as alleged by the plaintiff and that the “golden rule” was not adhered to. I do not accept such submissions:

(1)  First, Mr Lau criticised that Dr Tam did not sign the July 2022 Will as a witness. However, as recognised by Mr Lau himself, the “golden rule” does not require the medical practitioner involved to witness the execution of the will. Approval given by the doctor is also as good as his signing as a witness. In the present case, Dr Tam had recorded in the Medical Report the details of his discussion with the Deceased, which show that the Deceased had told him:

(a)  His major assets and properties (including those mentioned in [7] – [8] above as well as his engineering business);

(b)  His relationship with the plaintiff and the 1^st defendant respectively;

(c)  His intention to give all his assets to the plaintiff upon his death and the reason why he had made such a decision;

(d)  The reason why he did not include the defendants nor his own siblings as beneficiaries under his will.

Having known the above, Dr Tam still gave his opinion that the Deceased possessed the requisite testamentary capacity to make the July 2022 Will. This must amount to “approval” as mentioned by Cheung JA in Re Estate of Au Kong Tim [2018] 2 HKLRD 864, [2018] HKCA 210. In any event, as explained by Cheung JA in [2.7] thereof, the “golden rule” does not lay down the law and merely contains prudent guidance for solicitors. Even if there is any non-compliance with the “golden rule”, it does not necessarily mean that the will is invalid.

(2)  Second, Mr Lau submitted that Dr Tam was not provided with a copy of the July 2022 Will for him to assess the Deceased’s understanding of the distribution of his assets. As I mentioned above, the Deceased himself had informed Dr Tam how he would like to distribute his assets. In such circumstances the non-provision of a copy of the July 2022 Will is neither here nor there.

(3)  Third, Mr Lau criticised Dr Tam for raising no questions regarding the alleged “irrational dispositions”. With greatest respect, I wonder what the basis is for him to make such an attack, because the Medical Report only set out the content of the meeting and the findings made by Dr Tam. It is not a transcript of the conversation between Dr Tam and the Deceased. It is therefore not known whether, for example, the explanations given by the Deceased on the exclusion of the defendants as beneficiaries were volunteered by him or given upon queries made by Dr Tam. In any event, since the Medical Report clearly includes the Deceased’s explanation on his rationale of distribution, Mr Lau’s criticism is not justified at all.

(4)  Fourth, Mr Lau pointed out that there was no substantive discussion between Mr Lin and Dr Tam about the July 2022 Will. Insofar as it is alleged that as a result Dr Tam did not know the terms of the July 2022 Will, I disagree, for reasons explained under sub-paragraph (2) above. In fact, the lack of communication between Dr Tam and Mr Lin strengthened the reliability of the respective assessments because that shows that they had conducted their assessments independently.

(5)  Fifth, as far as Dr Tam’s assessment is concerned, Mr Lau stated that the defendants have discovered errors which are not accounted for when Dr Tam applied the Montreal Cognitive Assessment Hong Kong Version. He queried why Dr Tam decided to award the Deceased points in a number of questions, and suggested that if those points are not taken into account, then the test result would in fact show that there was at least “mild impairment” on the part of the Deceased. With greatest respect, this is a very bold submission, for neither Mr Lau nor the defendants is medical expert, nor do they have the marking scheme of the assessment. They are simply not in a position to challenge Dr Tam’s assessment.

(6)  Lastly, Mr Lau submitted that the weight to be accorded to Dr Tam’s assessment should be determined at trial. With respect, I do not agree. Before the defendants are able to pinpoint with credible evidence that there is any triable issue, it is a waste of time and cost to conduct a “full examination of the tests” as suggested.

30.  Mr Lau further challenged Mr Lin’s evidence in numerous ways. With respect, such effort is futile:

(1)  First, it was pointed out by Mr Lau that when Mr Lin first met the Deceased at the hospital, he did not do that alone but was accompanied by Mr. Alfred Leung (“Mr Leung”), who is a partner of Messrs. YTL LLP. He submitted that this begs the question whether it was the Deceased who provided him with the alleged “clear instructions” or whether those instructions went through Mr Leung instead. This submission was made in total disregard of Mr Lin’s evidence that it was the Deceased who “provided [him] with clear instructions”, “informed [him] that he provided all purchase monies” for the Lai Chi Kok Property, “told [him] […] that he intended to make a new will to bequeath all of his assets to the Plaintiff” and “specifically told [him] that […] he wished to bequeath his interest in [the Matrimonial Home] to the Plaintiff”.

(2)  Second, Mr Lau challenged Mr Lin’s evidence in that when the Deceased told him that the defendants had failed to take care of him when he was hospitalised and that they had failed to pay his medical fees, Mr Lin failed to ask any follow-up questions. Mr Lau drew this Court’s attention to the evidence which shows that the 1^st defendant had been paying for the Deceased’s medical fees until at least 17 July 2022. I wonder how Mr Lau could blame Mr Lin in this regard given it was not suggested that Mr Lin was aware of such a matter at the material time.

(3)  Furthermore, I note that according to the plaintiff’s evidence, the Deceased was angry at the defendants because they refused to settle the hospital bill for him upon his request made on 19 July 2022. Although the 1^st defendant had produced evidence in an attempt to cast doubt on such an assertion, the evidence indeed shows that she only paid for the Deceased’s medical expenses up to 17 July 2022. That in fact corroborates the plaintiff’s case. Insofar as it is suggested that the defendants could not pay further hospital bills because they were not allowed to visit the Deceased anymore, that argument must be rejected because according to the defendants’ pleaded case, they were not allowed to visit the Deceased after 12 July 2022, but yet the 1^st defendant could still pay hospital expenses for the Deceased on 17 July 2022.

(4)  Third, Mr Lau challenged the comprehensiveness of the Checklist, and alleged that Mr Lin should have, apart from ascertaining whether the Deceased had made a previous will, also asked the Deceased a number of other questions such as the number of previous wills, the dates of those previous wills and the beneficiaries and provisions thereunder. Such a nitpicking exercise, with respect, is unhelpful. After all, the ultimate question is 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 he ought to give effect”. In the circumstances of the present case, I am satisfied that the Deceased had a full understanding of the above. I do not accept the allegation that Mr Lin had departed from the guidance set out in Re Estate of Au Kong Tim (supra) at [2.3] – [2.5].

(5)  Mr Lau relied on the finding in Re Estate of Au Kong Tim (supra) and submitted that “the case cried out loudly for more detailed enquiry to be conducted”. With respect, this kind of quotation is unhelpful because whether further enquiries should have been made depends on the particular circumstances of the case before the Court.

(6)  Fourth, Mr Lau further submitted that that it was wrong for Mr Lin not to ask any question about why the provisions in the July 2022 Will radically departed from those in the June 2022 Will and the 2021 Will. This complaint is not understood, for such questions had clearly been covered by the Checklist, and the reason had also been clearly set out in Clause 8 of the July 2022 Will which was drafted by Mr Lin himself.

(7)  Fifth, Mr Lau challenged the Checklist by pointing out that some answers were written in English while some others were written in Chinese. He therefore suggested that it is uncertain whether those answers were indeed coming from the Deceased himself. Such an attack is totally without basis and should be rejected outright.

(8)  Sixth, Mr Lau queried whether Mr Lin had followed the 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 in the process. However, when opposing this application for summary judgment, it is for the defendants to show an issue in dispute that ought to be tried. In setting up the defence, the defendants must condescend upon particulars. Hence, it is not enough for Mr Lau to raise the so-called query, without pointing out concretely in what aspect it is alleged that Mr Lin had failed to follow the said checklist.

31.  Mr Lau further submitted that the following circumstances demonstrate the lack of testamentary capacity on the part of the Deceased when he executed the July 2022 Will.

32.  Firstly, it was said that the Deceased had deteriorating health since February 2022. Mr Lau reminded this Court that it was stated in Tristram and Coote’s Probate Practice (32^nd ed) at §34.46 that testamentary incapacity may arise from old age or illness. He also submitted that even the plaintiff accepted that the health condition of the Deceased “fluctuated upon execution of the June 2022 Will”.

33.  With respect, this submission does not assist the defendants at all, because even a person of old age or who is seriously ill may still have testamentary capacity. It all depends on the particular health condition of the testator at the time when the will is executed.

34.  Furthermore, it may be recalled that the Deceased had executed his 2^nd will in June 2022. Although the defendants have elected to choose the 2021 Will as the last and valid will of the Deceased (see further discussion below), Mr Lau accepted that the June 2022 Will is also recognised as a valid will under the Defence and Counterclaim. This stance has also been confirmed by Mr Lau at the hearing. This demonstrates that the suggestion that the deteriorating health since February 2022 does not necessarily mean that the Deceased lacked testamentary capacity since then.

35.  Secondly, Mr Lau relied on the fact that Ms Cho, who was responsible for preparing the 2021 Will and the June 2022 Will for the Deceased, had refused to prepare a further will for the Deceased in July 2022 upon the request of the Deceased on the grounds that:

(1)  the request was made shortly after the June 2022 Will was made;

(2)  the contents of the proposed will represented a radical departure from the previous wills.

36.  I should first of all point out that when I read the 1^st defendant’s Affirmation, it is unclear to me whether Ms Cho really had doubt on the testamentary capacity on the part of the Deceased. I only need to highlight the following paragraph of her evidence so as to demonstrate the confusion:

“Further, Ms Cho had refused the Deceased’s request, because the contents of the proposed will included radical departures from the previous wills which were both prepared by Ms Cho of Messrs. CMT. At that time, I believe that even Ms Cho was worried about the state of mind that the Deceased was in.”[1]

(emphasis added)

37.  It can be seen that the 1^st defendant only stated her belief rather than stating that such was Ms Cho’s belief. If it was the 1^st defendant’s own belief only that that was the reason of Ms Cho’s refusal of preparing another will for the Deceased, then that was only the 1^st defendant’s speculation.

38.  Unfortunately, Ms Cho has not made any affirmation to support the 1^st defendant’s defence. The reason for such a failure is unknown. All we know is that “the defendants have been liaising with Ms Cho to see if she could testify for the defendants in the upcoming trial”[2].

39.  In any event, taking the defendants’ case to the highest, even if Ms Cho really had doubt on the Deceased’s testamentary capacity, that is irrelevant because:

(1)  It appears that such a doubt only arose by reason of the wholesale change in the beneficiary of the Deceased’s estate, and that Ms Cho did not even try to find out why the Deceased would have such a change of mind. At this point, it may worth pointing out that it was Mr Lau himself who kept advocating that Mr Lin had failed to ask many questions when he came to the conclusion that the Deceased knew what he was doing. It is unclear why, logically, he would consider it appropriate that such standard should not be equally applicable in the case of Ms Cho’s conclusion;

(2)  No matter what, at the end of the day, the presence of testamentary capacity is strongly supported by Dr Tam and Mr Lin, both of whom only arrived at their conclusion after detailed examination of the Deceased.

40.  Thirdly, Mr Lau relied on the following circumstances surrounding the drafting of the July 2022 Will, namely:

(1)  The July 2022 Will was drafted during the Deceased’s hospitalisation;

(2)  It was drafted after the defendants had been denied family visitation access;

(3)  It was drafted about one month before the Deceased’s demise;

(4)  It was drafted shortly after the June 2022 Will;

(5)  It was drafted without regard to the welfare of the defendants and the Younger Son;

(6)  It was drafted in Chinese (as opposed to English).

41.  I do not understand how these matters, even being looked at together, may cast doubt on the Deceased’s testamentary capacity when the same had been confirmed by a specialist (Dr Tam) who is actually on the list of approved doctors for the purpose of section 2(2) of the Mental Health Ordinance (Cap.136, Laws of Hong Kong).

42.  Fourthly, Mr Lau emphasised that the contents of the July 2022 Will are not rational and make no sense at all. He also submitted that there could not be any argument between the Deceased and the defendants in early July 2022.

43.  On the rationality argument, what A Cheung J (as the Chief Justice then was) stated in Ip Wai Hung v Yip Man Chiu & Others (HCAP 15/2004, unreported, 19 December 2017) is instructive:

“170. After all, the law is not so presumptuous that unless the court can understand and find a rational basis for the dispositions made in a will by a testator, the will will never be admitted to probate. As I said, the law recognises that a testator is entitled to be moved by capricious, frivolous, mean or even bad motives. A testator may disinherit his children to gratify his spite or benefit charity to gratify his pride but the court must nevertheless uphold his will. A fortiori, where the testator had good reasons of his own for the contents of his will which were simply not fully known to the court.

171. Where the evidence is clear on knowledge and approval, where the attesting witnesses’ evidence is truthful and is accepted, and where the person who took instructions from the deceased and prepared the will for him to execute has given clear and firm evidence which is accepted by the court, the court cannot strike down the will simply because it does not understand why the testator has made the dispositions in the will. The court’s job is to make sure that the will represents his true wishes. The court has no right or jurisdiction to reject a testator’s will simply because it does not understand the testator’s rationale or agree with the way he has wanted his estate to be disposed of after his death. To a limited extent, the Legislature has stepped in to modify the general position by enacting the Inheritance (Provision for Family and Dependants) Ordinance (Cap 481). But then that is another story.

[…]

175. In Sharp v Adam, the court has accepted that a testator may make a valid will disinheriting his children out of capricious, frivolous, mean or even bad motives, and it is not the function of the court to substitute its own view of what the testator should have done. But the court has gone on to point out that it does not follow that the court should not look for a justification for the change in the will or enquire why the testator in that case disinherited his daughters. An irrational, unjust and unfair will must be upheld, the court has noted, if the testator had the capacity to make a rational, just and fair one, but it could not be upheld if he did not. It follows that the court must enquire why a testator has disinherited his children where there is a possibility that it is due to disease of the mind. The inquiry, the court has emphasised, must be directed to the testator’s soundness of mind (based on the facts of that case), and not to general questions of perceived morality (para 79) […].”

44.  In my view, the defendants’ argument boils down to this: if the Deceased had testamentary capacity, he would not have decided to ignore the 41 years of marriage between him and the 1^st defendant and to give everything to his mistress. The “irrationality” of the distribution of his estate was used to show his lack of testamentary capacity. While this Court fully appreciates that it is settled law that the rationality of the dispositions in a will is an important factor or indicator of testamentary capacity, the case authorities have understandably not gone so far as to say that if such dispositions are irrational, then that would necessarily mean that the testator does not have testamentary capacity. After all, the rationality of the distribution is just one of the indicators.

45.  In the present case, the Deceased’s testamentary capacity has been proved by virtue of the Medical Report and Mr Lin’s evidence. The Deceased has also explained his reason in the July 2022 Will itself. It is not up to this Court to say that because the reasons relied upon by the Deceased are wrong, the July 2022 Will should be struck down. Furthermore, as this Court pointed out, the defendants had indeed failed to show that they had paid for the Deceased’s hospital bills upon the Deceased’s request made on 19 July 2022. This corroborates the plaintiff’s case.

46.  Fifthly, Mr Lau spotted that the Deceased did not mention about the Lai Chi Kok Property in the Checklist and he therefore submitted that the Deceased may not know the extent of his assets. In my view, given it is evident that the Deceased had mentioned about this property to Dr Tam immediately before the execution of the July 2022 Will (not only about its existence but also the fact that it was registered under the name of the 2^nd defendant), I am of the view that its omission in the Checklist does not affect the ability of this Court to come to a view in relation to the ultimate question which this Court has to answer even at the Order 14 stage.

47.  Finally, it was submitted that the Deceased’s intention to give everything to the plaintiff could not be achieved because it would be likely for the 1^st defendant to apply for relief under the Inheritance (Provision for Family and Dependants) Ordinance (Cap.481, Laws of Hong Kong). Insofar as it is the defendants’ argument that this shows that the July 2022 Will is irrational and as a result this shows that he did not have testamentary capacity, I disagree. If the defendants’ logic is right, then that would mean that all the wills in those cases in which the surviving spouses have to make an application under the Inheritance (Provision for Family and Dependants) Ordinance cannot stand for lack of testamentary capacity. That cannot be right.

48.  Furthermore, it is evident by the Consent Letter that the Deceased knew well that those who are not included as beneficiaries in the July 2022 Will are at liberty to apply for relief pursuant to the Inheritance (Provision for Family and Dependants) Ordinance. Yet, the Deceased executed the July 2022 Will. This shows that the defendants’ argument in this regard is without substance.

49.  To conclude, it is my view that the defendants have failed to raise any triable issue in relation to the testamentary capacity on the part of the Deceased when he executed the July 2022 Will.

The Want of Knowledge and Approval Defence

50.  In Re Estate of Au Kong Tim (supra), Cheung JA had the following to say:

“2.8 It has been repeatedly said in the authorities that the fact that a will is prepared by a solicitor and is, on the face of it, properly executed by a testator in front of the solicitor after having had the contents read over to him provides strong evidence of the testator’s knowledge and approval of the contents of the will and represents the testator’s intention at the moment he executes the will. Hence in Gill v Woodall [2010] Ch 380 Lord Neuberger MR held that :

‘14. ..... 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 …’ ”

51.  There is no challenge to the plaintiff’s case that the July 2022 Will has been duly executed. With the above conclusion that the defendants have failed to raise any triable issue in relation to the testamentary capacity on the part of the Deceased at the material time, the “very strong presumption” referred to by Cheung JA is applicable herein.

52.  Mr Lau has drawn this Court’s attention to the case of Re Estate of Lau Heung[2019] HKCA 769 in which Lam VP (as he then was) referred to the trial Judge’s approach of not acting on the aforesaid presumption, but instead looking for affirmative evidence that the deceased therein knew and approved the contents of the will, and emphasized that the court would be vigilant and jealous in examining the evidence in this respect. However, it must be noted that the trial Judge therein took the said approach simply because he had proceeded on the basis that the second rule in Barry v Butlin (1838) 2 Moo PC 480 applied. Park B explained this rule as follows:

“The second [rule] is, that if a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased.” (at 482-483)

53.  The application of the said second rule has been extended to cases where a person takes a benefit under a will which he has been instrumental in preparing or obtaining without being its actual creator: see Fulton & Anor. V Andrew & Ors. (1874-1875) LR 7 HL 448 and Tchilingirian v Quzounian [2003] EWHC 1220 at [73].

54.  However, in the present case, there is no evidence that it was the plaintiff who referred Mr Leung (who introduced Mr Lin to the Deceased) to the Deceased. The second rule in Barry v Butlin is therefore inapplicable. Mr Lau tried to argue otherwise by relying on the fact that Mr Leung’s firm is now representing the plaintiff in this probate action. But the engagement of Mr Leung in this probate action must necessarily be after the passing of the Deceased. Hence, Mr Lau’s argument must fail.

55.  Having said that, the “strong presumption” is rebuttable. The question here is whether the defendants are able to raise any triable issue that the said presumption may be rebutted if this case goes to trial.

56.  In this regard, Mr Lau relied on the following circumstances which he described as “suspicious”:

(1)  The July 2022 Will was executed:

(a)  after the defendants had been denied family visitation access;

(b)  just about one month after the June 2022 Will;

(c)  without regard to the welfare of the defendants and the Younger Son.

(2)  Mr Lin was first contacted by Mr Leung who is the plaintiff’s solicitors herein;

(3)  There is dramatic departure from the previous wills;

(4)  Ms Cho had refused to prepare a new will for the Deceased in July 2022.

57.  In my view, there is nothing suspicious as alleged:

(1)  One must not forget that it is the defendants’ own admission that she had been removed by the Deceased from the visitors’ list[3]. It is a bare assertion on the part of the 1^st defendant that it was the plaintiff who instructed and influenced the Deceased to deny the 1^st defendant’s access to the Deceased at the hospital;

(2)  The Deceased had explained quite clearly why he had had a change of mind;

(3)  As aforesaid, there is no evidence which shows that the Deceased was referred to Mr Leung by the plaintiff. Insofar as it is the defendants’ argument that Mr Leung is the plaintiff’s solicitors in this action, one must not mix up the dates as the evidence shows, namely, that it was the Deceased who engaged the service of Mr Leung first, not the plaintiff;

(4)  The fact that the Younger Son is not mentioned is nothing suspicious at all, given the plaintiff would become the sole beneficiary under the July 2022 Will;

(5)  The fact that the Deceased had approached Ms Cho first before engaging Mr Lin through Mr Leung for the drafting of the new will in July 2022 actually shows that there is nothing suspicious in the whole incident.

58.  What A Cheung J stated in Ip Wai Hung (supra) at [74] must also be borne in mind:

“One must not be misled by the requirement that the court’s ‘suspicion’ be dispelled into thinking that unless each and every relevant or ‘suspicious’ circumstance has been satisfactorily explained, a will can never be successfully propounded, or more particularly, the court can never be satisfied that the testator has known and approved of the contents of the will. To do so would be to forget the ultimate aim of the exercise, namely to find out whether the testator really knew and approved of the contents of the will. Relevant or ‘suspicious’ circumstances are pointers. They are not the end in themselves. For the court’s ultimate task is to see whether the court’s ‘suspicion’ can be removed, ie the suspicion that the testator did not really know or approve of the contents of the will. Its task is not to see to it that each and every ‘suspicious’ circumstance surrounding the making of the will is satisfactorily explained, even though the two are to some extent, depending on the facts of each case, inter-related. One can easily imagine situations where because of the paucity of the evidence available or otherwise because very little is known about a testator, the court simply does not understand why a testator chose to dispose of his estate in the way set out in his will, yet there is the clearest evidence that he knew and approved of the contents. In those cases, the court’s duty is to pronounce in favour of the will.” (emphasis added)

59.  In my view, given the Deceased himself has explained the reasons why he decided to exclude the defendants as beneficiaries, coupled with his further explanation given to Dr Tam (when the Deceased was assessed) and Mr Lin (when the Checklist and the Consent Letter were gone through together), there is the clearest evidence that the Deceased knew and approved of the contents of the July 2022 Will. Indeed, the evidence in the present case is so strong that there is no doubt about the Deceased’s knowledge and approval even if the presumption does not apply and affirmative evidence has to be looked for.

60.  I should further add that even if the distribution under the July 2022 Will may be described as “irrational”, that does not mean that the Court should declare such a will invalid. On this matter, reference may also be made to Ip Wai Hung (supra):

“75. Furthermore, one must not forget the general principle in probate cases that a testator is quite entitled to be moved by capricious, frivolous, mean or even bad motives in making his will.

[…]

77. For as I say, the ultimate aim is to find out whether the testator knew and approved of the contents of the will. And as Williams has pointed out (at para 13-03):

‘The law does not call for a perfectly balanced mind, nor is a will to be pronounced against merely because the testator was moved by capricious, frivolous, mean or even bad motives. A testator may disinherit his children to gratify his spite or benefit charity to gratify his pride but the court must nevertheless uphold his will.’

78. In other words, if the entire evidence is such that the court can be satisfied, on the balance of probabilities, with the testator’s knowledge and approval of the contents of the will, despite the fact that there is, on the evidence, no satisfactory explanation for disinheriting the other children, the court should still pronounce for the will, although why the testator wanted to disinherit all his children but one would remain forever a mystery […]

79. But my point here is that everything depends on the balance of probabilities. And the focus of attention must always be and remain the testator’s knowledge and approval, rather than the dispelling of “suspicious circumstances” as an aim in itself.”

61.  It was further argued that given the 1^st defendant’s entitlement under the Inheritance (Provision for Family and Dependants) Ordinance, there is a triable issue as to whether the Deceased truly understood the contents and effect of the July 2022 Will. This argument is rejected. I have dealt with this argument above and the same reasoning is applicable here.

62.  In short, I do not think the defendants have been able to raise any triable issue in relation to the Deceased’s knowledge and approval of the contents of the July 2022 Will. It is clear and beyond argument that the Deceased knew exactly what he was doing – to leave everything after his death to the plaintiff.

The Undue Influence Defence

63.  I would gratefully adopt the summary of legal principles set out by Madam Recorder Rachel Lam SC in Wong Tung Wai v Wong Tung Po (supra) as follows:

“25. Undue influence in the law of probate is different from undue influence as understood in equity. It is more stringent in the sense that actual undue influence is required to be proved, and undue influence is not presumed in making a testamentary gift: Hubbard v Scott [2012] WTLR 29 at [2].

26. In Li Chi Loy v Li Lai Lan Candice [2008] 5 HKLRD 74 at [83], Poon J (as the Chief Judge then was) adopted the summary of undue influence in a probate litigation in Re Edwards [2007] WTLR 1387 at [47]:

‘… The approach that I should adopt may be summarised as follows:

(i) In a case of testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence.

(ii) Whether undue influence has procured the execution of a will is therefore a question of fact.

(iii) The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps, no more than a reminder of the high burden, even on the civil standard, that a claimant bears in providing undue influence as vitiating a testamentary disposition.

(iv) In the context undue influence means influence exercised either by coercion, in the sense that the testator’s will must be overborne, or by fraud.

(v) Coercion is pressure that overpowers the volition without convincing the testator’s judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator’s free judgment, discretion or wishes, is enough to amount to coercion in this sense.

(vi) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness’s sake to do anything. A ‘drip drip’ approach may be highly effective in sapping the will.

…

(ix) The question is not whether the court considers that the testator’s testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his disposition, the testator has acted as a free agent.”

27. As to the nature of the influence exerted that constitutes undue influence, Sir J.P. Wilde in Hall v Hall (1868) L.R. 1 P. & D. 481 at 482 held:

‘To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, -- these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator’s judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of someone else’s.’

28. Similarly, in Wingrove v Wingrove (1885) 11 P.D. 81 at 82-83, it was held:

‘To be undue influence in the eye of the law there must be – to sum it up in one word – coercion. It must not be a case in which a person has been induced, by means such as I have suggested to you, to come to a conclusion that he will make a will in a particular person’s favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he does not desire to do, that it is undue influence.

The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness’ sake, to do anything. This would equally be coercion, though without actual violence.

These illustrations will sufficiently bring home to your minds that even very immoral considerations either on the part of the testator, or of someone else offering them, do not amount to undue influence unless the testator is in such a condition, that if he could speak his wishes to the last, he would say, ‘this is not my wish, but I must do it’ …

There remains another general observation that I must make, and it is this, that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power, that the will such as it is, has been produced.’

29. ‘Victimisation’, ‘domination’ and ‘coercion’ are the words used in the authorities: Hubbard v Scott [2012] WTLR 29 at [46]. As Lord Haldane said in Craig v Lamoureux [1920] 1 AC 349 at [357], citing Boyse v Rossborough (1856) 6 HLC 2 at [52]:

‘In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis.’

30. As to the proof of actual undue influence, In Re Good (deceased), Carepeto v Good [2002] WTLR 801 at [126], it is held that in the absence of any direct evidence, coercion may be found by the court drawing inferences from the general circumstances.”

64.  The defendants relied on the following matters to establish that undue influence was exerted on the Deceased to execute the July 2022 Will for the sole benefit of the plaintiff to the exclusion of the defendants and even the Younger Son:

(1)  By virtue of the extra-marital relationship between the plaintiff and the Deceased, the plaintiff had influence over the Deceased. This is especially so after the Younger Son was born in November 2021;

(2)  The fact that there are triable issues surrounding the Deceased’s testamentary capacity and knowledge and approval of the contents of the July 2022 Will is indicative of the coercion exerted on him to bequeath all his assets to the plaintiff;

(3)  While both the 2021 Will and the June 2022 Will were written in English, the July 2022 Will was in Chinese. It was said that this begs the question whether the plaintiff was the mastermind behind the July 2022 Will;

(4)  Since February 2022, the plaintiff had exerted undue influence on the Deceased, as evidenced by how the Deceased succumbed to the plaintiff’s demands of using alternative medical treatments such as herbal tonics and seeing Chinese doctors rather than receiving radiation therapy;

(5)  On 8 July 2022, the plaintiff first threw a tantrum at home by throwing the Deceased’s items into the hallway, then prevented the defendants from driving the Deceased back to the Matrimonial Home, and threatened to die together with the defendants and the Deceased by attempting to pull the steering wheel while the 2^nd defendant was driving and when everyone was in the car. In the end, the Deceased succumbed to the plaintiff’s wishes by going to the hospital, as opposed to the Matrimonial Home (“the Car Incident”). This, it was said, shows the physical and mental state of the Deceased, and how the plaintiff was able to control and manipulate the Deceased;

(6)  Since 12 July 2022, the defendants were denied family visitation access to the Deceased at the hospital. Without the defendants around, the plaintiff could overbear the will of the Deceased more easily. Simply talking to the Deceased might be enough to fatigue his brain so that he might be induced for quietness’ sake to do anything, including the execution of the July 2022 Will;

(7)  There is clear evidence of dependence by the Deceased upon the plaintiff since at least February 2022 when the Deceased went to stay with the plaintiff. The plaintiff had made use of the Deceased’s complete dependence upon her for the everyday necessities of life to force him to make the July 2022 Will contrary to his own wish.

65.  It must be borne in mind that undue influence in this context means that the testator has been coerced into doing that which he does not desire to do, and that he is in such a condition, that if he could speak his wishes to the last, he would say, “this is not my wish, but I must do it”.

66.  I should also bear in mind that this is a summary judgment application. Therefore, even if the defendants’ case is weak, if they nonetheless succeed in raising an arguable case on undue influence, they should be allowed to have the issue decided at a full trial, rather than summarily in this application.

67.  However, having considered the matter very carefully, I am of the view that the defendants cannot even raise any arguable case in this regard, for the following reasons:

(1)  First and foremost, as I have emphasised above, the Deceased had explained his reasons time and again as to why he had decided to distribute his estate in the way he instructed in the July 2022 Will. The Deceased also made it clear that the execution of the July 2022 Will was not initiated by anybody else but his own will to do so (see the answer to Question 2 of the Checklist). This is very far from saying that “this is not his wish, but he must do it”;

(2)  It is far-fetched for the defendants to allege that the Deceased’s agreement to accept the plaintiff’s suggestion to use alternative treatment rather than radiation therapy may show that the Deceased would succumb to the plaintiff’s demands;

(3)  The defendants’ reliance on the Car Incident is incomprehensible, because, even taking their case to the highest, it was they (but not the Deceased) who succumbed to the demand of the plaintiff to take the Deceased to the hospital[4]. By any stretch of imagination, it cannot be understood as to why this incident may show “the physical and mental state of the Deceased, and how the plaintiff was able to control and manipulate the Deceased” as alleged in paragraph 30 of the 1^st defendant’s 1^st Affirmation which her counsel repeated in paragraph 47(5) of his submissions. Furthermore, if the 1^st defendant is right that the plaintiff had indeed thrown the Deceased’s belongings into the hallway and even screamed at them to take the Deceased away for the reason that she was not going to take care of him anymore[5], this in fact does not sit well with their suggestion that the plaintiff was able to make the Deceased change his mind on his distribution of his estate upon his demise particularly if we bear in mind the reason why the Deceased decided not to leave anything to the defendants as he himself explained;

(4)  The reliance of the extra-marital relationship as well as the birth of the Younger Son is futile, because the Deceased was still bequeathing most of his assets to the defendants by virtue of the June 2022 Will, which apparently was made after the birth of the Younger Son;

(5)  The reliance of the different language used in the drafting of the July 2022 Will is, with greatest respect, even more nonsense;

(6)  The allegation that “simply talking to the Deceased might be enough to fatigue his brain so that he might be induced for quietness’ sake to do anything, including the execution of the July 2022 Will” is made totally without evidential basis;

(7)  The allegation that there was complete dependence by the Deceased upon the plaintiff for his everyday necessities of life is actually contradictory to the 1^st defendant’s own pleaded case:

“Since the Deceased was diagnosed with pancreatic cancer, the 1^st Defendant would visit the Deceased every day and care for him. The 1^st Defendant’s daily visits continued until on or around 12 July 2012, whereby the Plaintiff and the 1^st Defendant had an argument at Gleneagles Hospital. During this altercation the police were called to Gleneagles Hospital. The Plaintiff then instructed and influenced the Deceased to deny the 1^st Defendant from family visitation access to the Deceased at Gleneagles Hospital thereafter […]

Although the 1^st Defendant was unable to visit the Deceased at Gleneagles Hospital after the July incident above, the Deceased’s sister Ms. Lee Po Chun (‘the Deceased’ Sister’) would visit the Deceased every day on behalf of the 1^st Defendant. The Deceased’ Sister would provide daily updates to the 1^st Defendant as to the health and well-being of the Deceased”[6]

68.  Mr Lau for the defendants apparently recognised the strength of the evidence of Mr Lin and the Medical Report. However, he submitted that the observations made by Mr Lin and Dr Tam are incomplete because:

(1)  Mr Lin only met the Deceased on 22 July 2022, and his service concluded on 26 July 2022 when the July 2022 Will was executed;

(2)  There is no evidence which shows that Dr Tam met the Deceased prior to his assessment of the Deceased on 26 July 2022;

(3)  The relationship between the plaintiff and the Deceased began in 2019.

69.  With respect, this argument was made in total disregard of the fact that the Deceased had made 2 wills in October 2021 and June 2022 respectively since the commencement of his extra-marital relationship with the plaintiff.

70.  All in all, it is my view that the defendants have failed to raise any triable issue in relation to their case of undue influence.

The True Intention Defence

71.  Mr Lau submitted that the 2021 Will is the last and valid will of the Deceased and represented his “best and true intentions because it was executed prior to the Deceased being diagnosed with cancer and before he was hospitalised and required various cancer treatment”.

72.  In the light of my decision above, this submission naturally falls away.

73.  Be that as it may, I should add that the defendants’ case in this regard is arbitrary and does not pay regard to the law but only their own preference.

74.  It may be recalled that the Deceased has made a total of 3 wills, namely, the 2021 Will, the June 2022 Will and the July 2022 Will.

75.  It is clear that, from the perspective of the defendants, they would prefer the 2021 Will most, because they would get everything in the Deceased’s estate thereunder.

76.  That must be the reason why they asserted in the body of their Defence and Counterclaim that the 2021 Will is “the Deceased’s last and valid will which expressed the true intentions of the Deceased”[7].

77.  However, they had not pleaded a single reason as to why, in the event their case on the July 2022 Will is accepted by the Court, the June 2022 Will should not become the last and valid will of the Deceased.

78.  Perhaps recognising that they in fact had no ground to challenge the June 2022 Will, they asked, among other things, for the following reliefs in the Prayers of their Counterclaim:

“(3) Probate of the [2021 Will] be propounded in solemn form, or a declaration that the 2021 Will be valid;

(4) Alternatively, probate of the [June 2022 Will] be propounded in solemn form, or a declaration that the June 2022 Will be valid”

79.  With greatest respect to the pleader (not Mr Lau), the running of such a case does not make sense.

The Reasonable Financial Provisions Defence

80.  This line of defence may be dealt with very briefly because this is totally misconceived.

81.  I am only required to refer to the Court of Appeal’s Judgment in Au-Yeung Yee Man v Wan Po Jun Mary Pauline (CACV 208/2009, unreported, 6 October 2010) in which Tang Ag CJHC (as he then was) accepted that a right to apply under the Inheritance (Provision for Family and Dependants) Ordinance as a dependant of the deceased does not amount to a defence to a probate action.

CONCLUSION

82.  I am satisfied that while the plaintiff has on her evidence established the constituent elements of her cause of action, the defendants have failed to show any issue in dispute that ought to be tried or that for some other reason there ought to be a trial.

83.  I therefore enter judgment summarily in favour of the plaintiff. I pronounce in solemn form for the force and validity of the Deceased’s will dated 26 July 2022.

COSTS

84.  The defendants shall bear the plaintiff’s costs of the action, including the costs of this application and all costs reserved, to be taxed if not agreed.

Mr Bryan Lee, instructed by YTL LLP, for the plaintiff

Mr Andrew Lau, instructed by Ivan Tang & Co, for the defendants