HCAP3/2021

A A B B HCA 439/2020 and HCAP 3/2021 C C [2025] HKCFI 4788 (Heard together) D D HCA 439/2020 E E IN THE HIGH COURT OF THE F HONG KONG SPECIAL ADMINISTRATIVE REGION F COURT OF FIRST INSTANCE G G ACTION NO 439 OF 2020 H H BETWEEN I I TAN CHENG GAY 1st Plaintiff J TAN YOK KOON 2nd Plaintiff J TAN CHOO PIN 3rd Plaintiff K K L and L M M TAN CHOO SUAN 1st Defendant N TAN CHOO SUAN, the personal representative of the 2nd Defendant N estate of NG GIOK OH, deceased O TAN CHIN HOON 3rd Defendant O P P Q AND Q HCAP 3/2021 R R IN THE HIGH COURT OF THE S S HONG KONG SPECIAL ADMINISTRATIVE REGION T COURT OF FIRST INSTANCE T PROBATE ACTION NO 3 OF 2021 U U V V A - 2 - A B B BETWEEN C C TAN CHOO PIN 1st Plaintiff D TAN CHENG GAY 2nd Plaintiff D rd TAN YOK KOON 3 Plaintiff E E F and F G G TAN CHOO SUAN 1st Defendant H TAN CHOO SUAN, the executrix of the of the estate 2nd Defendant H of NG GIOK OH, deceased I I J J (Heard Together) K K Before: Deputy High Court Judge Alan Kwong in Court L L Dates of Hearing: 12-13, 15, 18-19, 21-22, 25, 27-29 August 2025 and M 1-2, 26 September 2025 M N Date of Judgment: 30 October 2025 N O O P JUDGMENT P Q Q A. Introduction R R S 1. This is the trial in respect of 2 actions that involve members S of the Tan family, who are no strangers to litigation. T T U U V V A - 3 - A B 2. The first action, ie HCA 439 of 2020 (the “Elison Action”), B concerns the beneficial ownership of a bank account maintained with C C Credit Suisse (the “Credit Suisse Account”) held by a corporate vehicle D named Elison International Limited (“Elison”). D E E 3. The second action, ie HCAP 3 of 2021 (the “Probate F F Action”), concerns the validity of various wills and a codicil executed by G the parents of the Tan family during the period from April 2006 to G May 2008. H H I B. Material Background I J J B1. General Background K K 4. The late Mr Tan Kiam Toen (hereinafter “Father”) was the L L patriarch of the Tan family. He passed away on 15 November 2008 at the M age of 89. M N N 5. Father was married to Madam Ng Giok Oh (hereinafter O “Mother”) in 1943. Mother passed away on 28 February 2022 at the age O of 99. P P Q 6. Father and Mother had 5 children, namely:- Q R R (1) Madam Tan Choo Suan (“TCS”), who was born in 1944; S S (2) Mr Tan Cheng Gay (“TCG”), who was born in 1947; T T U U V V A - 4 - A B (3) Mr Tan Yok Koon (“TYK”), who was born in 1948; B C C (4) Madam Tan Choo Pin (“TCP”), who was born in 1950; and D D (5) Mr Tan Chin Hoon (“TCH”), who was born in 1951. E E F 7. Father was a self-made entrepreneur who accumulated a F substantial amount of wealth during his lifetime. Back in 1961, he set up a G G Singaporean company named Afro-Asia Shipping Company (Pte) Limited H (“AAS”), whose assets include the shares of a publicly listed company H named EnGro Corporation Ltd (“EnGro”). Other shares in EnGro are I I held by a Hong Kong company named Afro-Asia International Enterprises J Pte Ltd (“AAIE”). J K K 8. Father, being a traditional patriarch, desired and expected his L children to enter the family business and made contributions thereto. L M M 9. In the circumstances, TCG, TYK, TCP, and TCH worked in N N the family business. AAS is of great significance to them. AAS was where O they worked directly or indirectly throughout their careers. It is not in O dispute that after 1974 (when Father and Mother moved to Hong Kong P P permanently), TCG, TYK, TCP and TCH were involved in the day-to-day Q operation of AAS. Q R R 10. TCS was the only child who pursued an independent career S outside of the family business. Whilst she worked in AAS from 1969 to S 1974, she soon pursued further studies overseas. Having obtained a T T U U V V A - 5 - A B doctorate degree and worked in Australia, TCS worked for the World B Bank in the United States from 1982 to 1993. C C D 11. In 1993, TCS (who had been unmarried and childless) moved D to Hong Kong in order to take care of Father and Mother (who were of E E advanced ages at the time). According to Vinodh Coomaraswamy J 1 of the F Singaporean High Court (whose findings will be further elaborated F below):- G G H “In 1993, TCS made the decision to re-enter her parents’ lives H after having been away for most part of the two preceding decades. [Father] and [Mother] gradually fell under TCS’s I I influence over the years. This influence became most profound after the Bajumi litigation ended in 2004. It is impossible to say J whether TCS acquired and exercised this influence as a result J of a deliberate plan or as the natural consequence of the increase in the amount of time which TCS spent with [Father] K and [Mother] when they were most in need of her care and K required the assistance in decision-making. But the influence L was real in the case of [Father] and is real and ongoing in the L case of [Mother]” 2 M M 12. It appears that as a result of TCS’s involvement in the lives N and personal affairs of Father and Mother as well as the affairs of AAS N and/or AAIE, the relationship between TCS, Father, and Mother on the O O one hand and on the other hand TCG, TYK, TCP, and TCH had P deteriorated. The dispute and discord culminated in a litigation in the High P Court of Singapore under HCS No 250/2010 (the “Singaporean 570 Q Q 3 Action”), which TYK, TCP and TCH commenced in 2010 shortly after R Father passed away in November 2008. R S 1 S He was the trial judge of the Singaporean 570 Action (defined below) 2 See para 183 of the first instance judgment of the Singaporean 570 Action (defined below) 3 T According to paragraph 14 of the first instance judgment of the Singaporean 570 Action, TCG had no T desire to sue his own mother, and as such he was not a plaintiff. However, TCG was sued by TCS and Mother as the 4th defendant to their counterclaims. U U V V A - 6 - A B B 13. The subject matter of the Singaporean 570 Action concerned, C C inter alios, the beneficial ownership of the shareholding in AAIE and D AAS. For present purposes, it is unnecessary to dwell on the details of the D findings and analysis of the Singaporean High Court. It suffices to say that E E TYK, TCP, TCH, and TCG 4 were the successful parties. Vinodh F Coomaraswamy J (whose findings were subsequently affirmed by the F Singaporean Court of Appeal) held that 70% of the shareholding in AAIE G G and 97.78% of the shareholding in AAS were held for members of the H whole family, not for Father alone. In light of her unsatisfactory conduct, H Vinodh Coomaraswamy J ordered TCS to pay part of TCG, TYK, TCH, I I and TCP’s costs on an indemnity basis. J J 14. For present purposes, it is also worth mentioning that:- K K L L (1) Vinodh Coomaraswamy J made the following observations M regarding TCS’s relationships with her siblings and parents:- M N N “I do not doubt that TCS, like the rest of [Father]’s children, deeply loves both of her parents. It is also undisputed that she O has been the main caregiver for her aged parents since 1993. O But I find that TCS is, or perceives herself to be, alienated from her family- and particularly from her siblings, as opposed to P P her parents- for two reasons. First, [Father] tended to favour his sons over his daughters. This is unfortunate, but it is typical of Q his generation. I have no doubt that TCS, given her undoubted Q intelligence and her status as the eldest child, felt that favouritism most acutely. Second, TCS was, by her own R election, the only child of the family who did not build a career R in the family business. TCP and TCH devoted their entire S working lives to the family business. TCG and TYK each gave S up their professions to build their careers in the family business. T T 4 As mentioned, although TCG was reluctant to join the Singaporean 570 Action as a plaintiff, he was sued by TCS and Mother as the 4th defendant to their counterclaims. U U V V A - 7 - A B TCS deliberately chose to build her career, successful as it was, B outside the family business.5 C All of this clearly still rankles with TCS. As TCS herself puts it, C she believes that [Father] saw her as “the unmarried daughter [who] didn’t…live up to his aspirations of a successful D D entrepreneur.”6 E E (2) The Singaporean Court of Appeal was critical of TCS’s F conduct and the way in which she treated her siblings. As F stated in its judgment:- G G H “TCS admitted that she had removed TCP and TCH because, H as employees and as the company secretary and director respectively, they were not giving her due respect as a director, I I chairman and shareholder. In our view, her removal of TCP and TCH was, in truth, a move calculated to provoke, J intimidate and embarrass them. If TCH and TCP were really J disruptive and had kept harassing TCS, it is regrettable but it remains their prerogative as the (beneficial) owners of the K company to act according to their own lights within the K boundaries of the law; TCS should have ceded control to them L and not have ousted them from AAS.7 L TCS instigated and precipitated the litigation by removing M TCH and TCP as director and company secretary. She M unceremoniously removed them from AAS and subsequently drew her siblings into a long-drawn suit and subsequently even N N tried to reimburse her own costs from [Father]’s estate…she was motivated by personal financial gain and/or a personal O vendetta against the four siblings; over the course of trial she O traduced her late father’s name by calling him a liar and a coward, and sought to humiliate the four siblings by painting P P them as greedy children after their late father’s estate.”8 Q Q 15. Despite the conclusion of the Singaporean 570 Action, the R disputes between TCS and her siblings have not come to an end. The R parties have disputes regarding (i) the beneficial ownership of the Credit S S 5 Para 181 of the first instance judgment in the Singaporean 570 Action T 6 Para 182 of the first instance judgment in the Singaporean 570 Action T 7 Para 221 of the Singaporean Court of Appeal’s judgment in the Singaporean 570 Action 8 Para 238 of the Singaporean Court of Appeal’s judgment in the Singaporean 570 Action U U V V A - 8 - A B Suisse Account (which is the subject matter of the Elison Action); and B (ii) the validity of the wills and a codicil executed by Father and Mother C C between April 2006 and May 2008 (which are the subject matters of the D Probate Action). D E E 16. It would be helpful to set out the respective case of the parties F in the two Actions separately. F G G B2. The Elison Action H H The Case of TCG, TYK and TCP9 I I J 17. On 22 June 1995, Elison was set up pursuant to Father’s J instructions in the British Virgin Islands. It is not in dispute that Elison K K has never carried on any business operation, and Elison’s only activity L was to hold the Credit Suisse Account. L M M 18. After Elison was set up, on 18 October 1995, pursuant to N N Father’s instructions:- O O (1) TCS and Mother became the first and only directors of Elison; P P and Q Q (2) TCS and Mother became the only registered shareholders of R R Elison, and each of them was allotted one bearer share. S S 9 They are the Plaintiffs of the Elison Action. TCS and Mother are the 1 st and 2nd Defendants. Whilst TCH’s interests align with TCG, TYK and TCP, he refused to join the Elison Action as a plaintiff, T T and it appears that he did not want to sue Mother, As such, TCH was joined as the 3 rd Defendant. However, he did not participate in the proceedings and was not a witness. U U V V A - 9 - A B B 19. Pursuant to Father’s instructions, on 13 November 1995, TCS C C and Mother passed a board resolution for Elison to set up the Credit Suisse D Account with Credit Suisse’s Zurich head office. The Credit Suisse D Account could be operated by Father, Mother, or TCS in a single capacity. E E F 20. Importantly, from 12 December 1995 to 29 March 1996, the F following events took place:- G G H (1) On 13 November 1995, Father signed a form titled H “Verification of the Beneficial Owner’s Identity (Form A)” 10 I I (the “1 st Form A”). It was declared that the 5 children, J namely TCS, TCG, TYK, TCP, and TCH (collectively the J “5 Siblings”), were the beneficial owners of the assets K K deposited with Credit Suisse under the Credit Suisse L Account11. L M M (2) On 12 December 1995, Mother and TCS signed a further N N form titled “Verification of the Beneficial Owner’s Identity O (Form A)” 12 (the “2nd Form A”). It was declared that the O 5 Siblings were the beneficial owners of the assets deposited P P with Credit Suisse under the Credit Suisse Account13 Q Q R R 10 Core Bundle, Tab 1, page 1 11 S It was declared that each of the 5 Children was 20% beneficial owner of the assets deposited with S Creduit Suisse. 12 Core Bundle, Tab 2, page 3 T T 13 Ditto U U V V A - 10 - A B (3) On 29 March 1996, Mother and TCS signed a further form B titled “Verification of the Beneficial Owner’s Identity C C (Form A)”14 (the “3rd Form A”). Again, it was declared that D the 5 Siblings were the beneficial owners of the assets D deposited with Credit Suisse under the Credit Suisse E E Account15. F F (The 1st Form A, the 2nd Form A, and the 3rd Form A are hereinafter G G collectively referred to as the “Form As”.) H H 21. It is common ground that TCG, TYK, TCP, and TCH were I I not informed of the existence of the Credit Suisse Account as well as the J J existence of Elison. According to the re-amended statement of claim16 of TCG, TYK, and TCP in the Elison Action 17, they discovered the Credit K K Suisse Account under the following circumstances:- L L M (1) In March 2018, TYK received an email from some corporate M managers in the BVI requesting payment of fees in respect of N N Elison. However, he did not pay attention to the matter as he O was clueless about Elison. O P P (2) TCG, TYK, and TCP only discovered the existence of the Q Credit Suisse Account and Elison as a result of the Q R R 14 Core Bundle, Tab 3, page 4 15 Ditto S S 16 See para 17 T T 17 Whilst TCH’s interests align with those of TCG, TYK and TCP, he was not a plaintiff in the Elison Action, and he was joined in the Elison Action was the 3rd defendant. U U V V A - 11 - A B application for 3rd party discovery against Hastings under B HCMP 1192/2018 in relation to the wills and codicils C C executed by Father. D D (3) Pursuant to the order made by Marlene Ng J on E E 29 January 2019, various documents that show the existence F of the Credit Suisse Account and Elison came to light. Upon F examining these documents, they became aware that the 5 G G Siblings were the beneficial owners of the Credit Suisse H Account in equal shares. H I I 22. Apart from the Form As, TCG, TYK, and TCP also J relied on the following contemporaneous documents/records produced by J Hastings:- K K L (1) According to TCS’s note of instructions to L Ms Hwang Sok Inn of Hastings (hereinafter “Ms Hwang”) M M dated 18 March 200918, Father did inject his personal funds N into the Credit Suisse Account under Elison’s name, and N under the Form As, the 5 Siblings were declared to be the O O beneficial owners of the Credit Suisse Account. P P (2) According to the attendance notes prepared by Ms Hwang 19 Q Q 20 in respect of a conference on 18 March 2009 , TCS gave R R 18 Bundle B1, Tab 86, page 608 S S 19 The person who prepared the attendance note was “SI”. This is the abbreviation of the Ms Hwang’s name (ie Hwang Sok Inn). T 20 T Bundle B1, Tab 87, pages 609 to 610. The conference was attended by TCS, Mr John Brewer of counsel, Mr Bruce Fu of Hastings and Ms Hwang herself U U V V A - 12 - A B instructions that under the 3rd Form A, she and Mother did B declare that the 5 Siblings were the beneficial owners of the C C Credit Suisse Account in equal shares. D D (3) The note dated 30 April 2009 from Ms Hwang to E E Mr John Brewer of Counsel contained a draft letter to F Credit Suisse prepared by Hastings (as solicitors for Elison). F In this letter, Credit Suisse was requested to update the list of G G beneficial owners in respect of the balance in the H Credit Suisse Account from the 5 Siblings to Mother. TCG, H TYK, and TCP contended that this was an illegitimate I I attempt to nullify and/or conceal their beneficial ownership J over the Credit Suisse Account. J K K 23. Relying on the contents of the Form As as well as the L contemporaneous notes/records produced by Messrs Hastings, L Mr Victor Dawes SC, leading Ms Bonnie Cheng and Mr Brian Lee, (for M M TCG, TYK and TCP) submitted that a trust over the Credit Suisse N Account was created by express declaration, words, and/or conduct. N O O 24. TCG, TYK, and TCP also relied on the pre-action letter dated P 19 September 201921 from TCS’s former solicitors, namely ONC Lawyers. P In this letter, ONC Lawyers admitted (i) the existence of the Form As; Q Q (ii) the fact that Elison was incorporated upon the instructions of Father; R R and (iii) the fact that in April 1996, Father injected his personal funds into the Credit Suisse Account. However, it was contended that the Form As S S were executed solely for the purpose of satisfying the due diligence T T 21 Bundle B1, Tab 119, pages 685-688 U U V V A - 13 - A B requirements under Swiss laws, and there was no intention to create any B trust. As such, pursuant to Father’s instructions, the funds in the Credit C C Suisse Account were used for (i) personal investments; (ii) paying the D school fees of TYK’s children; and (iii) defraying Father and Mother’s D personal, living and travelling expenses. E E F 25. In their amended defence22, TCS and Mother also alleged that F between April 1996 and 2006, the funds in the Credit Suisse Account G G were, in accordance with their wish, used for, inter alios, (i) investment in H stocks and securities; (ii) making payments to TCS in accordance with her H ½ beneficial interest; and (iii) defraying the legal expenses for various I I lawsuits. J J 26. In these premises, it is TCG, TYK, and TCP’s case that:- K K L (1) There were breaches of trust by Elison as the funds in the L Credit Suisse Account were used for purposes unrelated to M M TCG, TYK, TCP, and TCH. N N O (2) TCG, TYK, TCP, and TCH are entitled to seek proprietary O relief, and recover the funds that were withdrawn from the P P Credit Suisse Account and/or their identifiable substitutes. Q Q (3) TCS and Mother, as directors of Elison, dishonestly assisted R R in the said breaches of trust and unconscionably received the S trust funds. Thus, they are liable to pay equitable S compensation and/or damages. T T 22 See para 41 U U V V A - 14 - A B B The Case of TCS and Mother23 C C D 27. Whilst TCS and Mother admitted that Elison had no business D operation, they asserted that Elison was set up for the purpose of holding E E assets beneficially belonging to themselves. In this connection, F Mr Edward Tang, together with Ms Clara Wong, (for TCS and Mother) F submitted that this was the reason why:- G G H (1) Only TCS and Mother (i) were appointed as directors of H Elison and (ii) became registered shareholders of Elison; and I I J (2) Father never informed TCG, TYK, TCP, and TCH about the J existence of the Credit Suisse Account. K K L 28. In the premises, on 18 April 1996 and 29 May 1996, TCS and L Mother deposited US$3,000,000 and US$1,000,000 into the Credit Suisse M M Account. The funds came from another account maintained with Credit N N Suisse bearing account number 9857116 LIKELY (hereinafter the “Likely O Account”), which was jointly held by TCS and Mother. O P P 29. However, TCS and Mother were not in a position to deny the Q genuineness of the Form As. In this connection, they contended that the Q purpose of filing the same was to comply with Credit Suisse’s anti-money R R laundering policy, and as such there was no intention to create a trust at all. S S 23 Mother passed away on 28 February 2022 after the Elison Action was commenced. Pursuant to a T T carry on order dated 24 August 2022, the Elison Action was ordered to be continued against Mother’s estate, which has been represented by TCS as the sole executrix thereof. U U V V A - 15 - A B 30. Insofar as the creation of trust is concerned, TCS and Mother B contended that the trust alleged by TCG, TYK, and TCP (the existence of C C which is denied) concerned future properties. As such, the same is D anyhow void for want of certainty of subject matter and failure of proper D constitution. E E F 31. TCS and Mother also contended that the Plaintiff’s claims F against them are time-barred. They relied on the fact that during the trial G G of the Singaporean 570 Action back in April 2013, TYK was cross- H examined in relation to his knowledge about Elison 24. As such, had TYK, H TCG, and TCP pursued an enquiry with reasonable diligence, they could I I have discovered the alleged breach of trust by April 2013. J J B3. The Probate Action K K L The Case of TCS and Mother25 L M M 32. It is not in dispute that on 21 April 2006, Father executed a N N will (the “2006 Will”) 26 , which was prepared by Mr Hoon Tai Meng O (“Mr Hoon”). He is an advocate and solicitor who has been practicing in O Singapore. P P Q 33. In gist, the 2006 Will provides that:- Q R R 24 This was in the context of TCS purchasing 1.419 million shares in Engro, and it was TCS’s case that these shares were bought with Father’s money as a gift to her. S S 25 Mother passed away on 28 February 2022 after the Probate Action was commenced. Pursuant to a carry on order dated 21 October 2022, the Probate Action was ordered to be continued against T Mother’s estate, which has been represented by TCS as the sole executrix thereof. T 26 Core Bundle, Tab 6, pages 11 to 13 U U V V A - 16 - A B (1) TCS and TCP be appointed as joint executrixes and trustees B of Father’s estate; C C D (2) 50% of Father’s estate be bequeathed to Mother, and the D remaining 50% be bequeathed to the 5 Siblings in equal E E shares of 10% each. F F 34. The 2006 Will was witnessed by Mr Hoon and Dr Clyde G G Lane. H H 35. According to the pleaded case of TCS and Mother27, Father I I was misled by TCP to believe that the 2006 Will was a document J executed for the purpose of giving effect to a letter of undertaking that J dealt with the distribution of the shares in AAIE. As such, the 2006 Will is K K invalid, and it does not reflect the testamentary intent and wish of Father. L L 36. TCS and Mother relied on the evidence of Dr Wong Ling M M Yuen (hereinafter “Dr Wong” ). She specializes in otorhinolaryngology, 28 N N and treated Father on various medical issues (such as diabetes, respiratory O infection, nasal itchiness, and nose bleeding) from October 2005 onwards. O According to Dr Wong (who testified in court):- P P Q (1) In 2006 to 2007, Father told her about his displeasure with Q the children in Singapore (ie TCG, TYK, TCP, and TCH). R R Although Father provided for them and gave them good S education, they neither respected nor cared for him. S 27 T See para 15 of the amended defence and counterclaim T 28 She is also known as Dr Flora Wong U U V V A - 17 - A B B (2) Father told her that his daughter in Singapore (ie TCP) C C deceived him into signing a document, which turned out to be D the 2006 Will. D E E 37. Dr Wong’s evidence is corroborated by the evidence of F Ms Hwang, who was a consultant of Hastings. According to Ms Hwang F (who testified in court):- G G H (1) In early 2007, TCS introduced her to Father and Mother at a H dinner. On this occasion, Father chatted with her in I I Malaysian Hokkien (a dialect that she spoke). Father J candidly told her that he was disappointed with some of his J children who were not filial in his views. He was also critical K K of his sons’ choices of spouses. L L (2) On a Saturday in around February or March 2007, Father M M requested to meet her on an urgent basis at his home in N N Hong Kong29. Father was visibly upset. He showed her the O 2006 Will, and repeatedly told her (in the Hokkien dialect) O that this document did not reflect his wish. In response, she P P informed Father that it was possible to revoke the 2006 Will Q by making a new one. Q R R (3) In light of the advanced age of Father, she informed TCS that S it was necessary to engage a psychiatrist to assess Father’s S mental capacity, and it was preferable that such a psychiatrist T T 29 This was the Bowen Property (defined below) at 7C Bowen Road. U U V V A - 18 - A B could speak the Hokkien dialect. Eventually, she and B Mr Fu Chi Kai (hereinafter “Mr Bruce Fu”), an associate C C solicitor of Hastings, managed to identify Dr Chen Char-Nie D (“Dr Chen”). D E E 38. Initially, a meeting was scheduled for Ms Hwang and F Mr Bruce Fu to meet Father in person. F G G 39. However, it transpired that Father was suddenly admitted to H Canossa Hospital for treatment of twisted intestine (Volvulus). H I I 40. In the circumstances, on 26 March 2007, TCS attended J Hastings’s office alone. There, TCS informed Ms Hwang and J Mr Bruce Fu that Father wanted to (i) make a new will and (ii) appoint her K K as the sole executrix under the new will. Ms Hwang and Mr Bruce Fu L informed TCS that they had to take instructions directly from Father L independently. According to Ms Hwang and Mr Bruce Fu (who also M M testified in court), they were told by TCS that Father wanted to meet them N N urgently in order to finalize the new will. O O 41. On 29 March 2007, Ms Hwang and Mr Bruce Fu attended P P Canossa Hospital to meet Father and to take instructions from him directly. Q The process took about an hour. Ms Hwang and Mr Bruce Fu were of the Q view that Father was of sound mind. Father had no difficulty in R R (i) communicating with them and (ii) understanding what they said to him. S S 42. According to Ms Hwang:- T T U U V V A - 19 - A B (1) Father’s objective was to revoke the 2006 Will, which did not B represent his wish. C C D (2) Father’s wish was simple and clear, in that he wanted to give D the entirety of his estate to Mother, and should Mother E E predecease him, his assets would be given to charity. F F (3) Father also made it clear that since his children were very G G well provided for during his lifetime and financially H comfortable, it would not be necessary to bequeath any assets H to them. I I J 43. According to Mr Bruce Fu:- J K K (1) Father wished to revoke the 2006 Will, and leave the entirety L of his estate to his wife, and afterward to charity. L M M (2) Father was worried that if anything unfortunate happened to N N him during his stay in the hospital, his assets would be dealt O with according to the 2006 Will. O P P (3) Father did not want to bequeath his assets to his children as Q they had received enough from him. Q R R (4) Father wanted to utilize his assets to help the needy. He S indicated that whilst 1/3 of his assets should be used for S charitable purposes in Hong Kong, 2/3 of his assets should be T T used for charitable purposes in his native county, namely U U V V A - 20 - A B Shanting Village, Maxiang Town, Xiangan District, Fujian B Province as well as Xiamen. C C D 44. Having taken instructions from Father, Mr Bruce Fu returned D to office and drafted a will in Chinese (hereinafter the “Father’s 2007 E E Will”)30. In gist, Father’s 2007 Will provides that:- F F (1) TCS be appointed as the sole executrix and trustee of G G Father’s estate; H H (2) The entirety of Father’s estate be bequeathed to Mother; I I J (3) However, in the event that Mother predeceases Father or dies J within 30 days after the death of Father, 1/3 of Father’s estate K K would be donated to charities in Hong Kong and the L remaining 2/3 of Father’s estate would be donated to charities L in Shanting Village, Maxiang Town, Xiangan District, Fujian M M Province and Xiamen; N N O (4) The executrix and trustee should decide the charitable O organizations that receive the donations; P P Q (5) Since Father’s children and descendants have received Q adequate and appropriate care during his lifetime, Father does R R not intend to bequeath any assets to them. S S T T 30 Core Bundle, Tab 9, pages 18 to 19 U U V V A - 21 - A B 45. On 30 March 2007 (ie the next day), Ms Hwang and B Mr Bruce Fu visited TKT again at Canossa Hospital for the purposes of C C (i) explaining the 2007 Will to Father; and (ii) executing Father’s 2007 D Will. Before these were done, Father was examined and assessed by D Dr Chen, who is an experienced psychiatrist and who has been practicing E E medicine in Hong Kong since 1981. F F 46. According to Dr Chen (who testified in court):- G G H (1) He had extensive conversations with Father in Mandarin H Chinese and the southern Fujianese dialect (mixed I I occasionally with English). J J (2) Father was alert and sharp despite his old age. K K L (3) Father understood that he interviewed him for the purpose of L making a will. M M N N (4) Father had good memory of past events. O O (5) A Chinese version of the Mini-Mental State Examination was P P carried out, and Father obtained a full score of 30. Q Q (6) Despite his fragile physical appearance, Father’s mental R R capacity was amazingly normal and good with a well- S preserved ability to maintain social interactions. He spoke S with confidence and in a good tone. T T U U V V A - 22 - A B 47. In the premises, Dr Chen was satisfied that Father had good B mental capacity. He certified that Father was fit to make a will and to deal C C with his testamentary affairs. D D 48. In light of Dr Chen’s confirmation, Mr Bruce Fu explained E E the contents of Father’s 2007 Will, and Father confirmed with Mr Bruce F Fu and Ms Hwang that he knew and approved the contents thereof. F G G 49. Meanwhile, Dr Wong (who was responsible for treating H Father’s medical issues at the time) also confirmed that Father completely H understood the effect of his 2007 Will and could, in his own words, I I describe how he intended to dispose of his assets. According to Dr Wong, J what Father said was compatible with the contents of his 2007 Will. J K K 50. In the circumstances, Father executed his 2007 Will. The L process was witnessed by (i) Ms Hwang; (ii) Mr Bruce Fu; (iii) Dr Chen; L and (iv) Dr Wong. M M N N 51. Meanwhile, Mother also executed a will (hereinafter O “Mother’s 2007 Will”)31, the contents of which mirror Father’s 2007 Will. O Mother’s 2007 Will was also prepared by Mr Bruce Fu. It provides that:- P P Q (1) TCS be appointed as the sole executrix and trustee of Q Mother’s estate; R R S (2) The entirety of Mother’s estate be bequeathed to Father; S T T 31 Core Bundle, Tab 10, pages 21 to 22 U U V V A - 23 - A B (3) However, in the event that Father predeceases Mother or dies B within 30 days after the death of Mother, 1/3 of Mother’s C C estate would be donated to charities in Hong Kong and the D remaining 2/3 of Mother’s estate would be donated to D charities in Shanting Village, Maxiang Town, Xiangan E E District, Fujian Province and Xiamen; F F (4) The executrix and trustee should decide the charitable G G organizations that receive the donations; H H (5) Since Mother’s children and descendants have received I I adequate and appropriate care during her lifetime, Mother J does not intend to bequeath any assets to them. J K K 52. The purpose of arranging Mother to execute her 2007 Will L simultaneously was to ensure that if Father predeceases Mother, the assets L which Mother inherits from Father would be utilized for donation in M M favour of charities. However, the arrangement fell short of dealing with N N the possibility that it would be open to Mother to revoke her 2007 Will, in O which case the assets that Mother inherited from Father would not be O utilized for charitable donation. P P Q 53. In the following months after Father and Mother’s 2007 Q Wills were executed, Mr Bruce Fu continued to advise Father as to R R how to minimize the risk that his 2007 Will be challenged by the S 5 Siblings in the future. As Father appreciated that some of the S 5 Siblings might challenge his 2007 Will, he instructed Mr Bruce Fu and T T Ms Hwang to (i) prepare another will that was more comprehensive U U V V A - 24 - A B and (ii) prepare a statutory declaration (the “1st Statutory Declaration”)32 B that set out his testamentary wish in detail. To this end, Mr Brewer and Mr C C Warren Chan SC were instructed to act for Father. D D 54. Father eventually executed the 1st Statutory Declaration on E E 31 January 2008. This document, in detail, set out, inter alios, (i) how F Father accumulated his wealth and the history of his business ventures; F (ii) the history of the Tan family and the background (including education G G and careers) of the 5 Siblings; (iii) Father’s view that the 5 Siblings had H received more than enough and were well off; (iv) Father’s poor H relationship with TCG, TYK and TCH after 2004; (v) the fact that I I 2006 Will did not represent Father’s testamentary wish; (vi) Father’s wish J that the shareholding in AAIE and EnGro be distributed amongst J members of the Tan family, and his remaining assets be donated for K K charitable purposes. L L 55. According to Mr Bruce Fu:- M M N N (1) Mr Brewer was in charge of preparing the Statutory O Declaration, and the same was settled by Mr Warren Chan O SC. P P Q (2) On various occasions, he and Ms Hwang accompanied Q Mr Brewer to attend Father’s home for the purposes of taking R R instructions from Father. S S T T 32 Bundle B2, Tab 147, pages 962 to 998 U U V V A - 25 - A B (3) Since Mr Brewer drafted the Statutory Declaration in English, B he had to translate the same into Chinese for Father’s perusal. C C Whilst Father read the drafts of the Statutory Declaration D word for word, he read and explained the contents, paragraph D by paragraph, for Father’s comments and confirmation. E E F (4) In light of Father’s comments, the draft Statutory Declaration F was amended several times before the contents were finalized. G G H 56. Meanwhile, Mr Bruce Fu prepared two draft wills for H Father 33 . One of them covered the assets in Singapore, and the other I I covered the assets outside of Singapore. Initially, it was envisaged that J Father would execute the Statutory Declaration as well as the two draft J wills at the office of Hastings on 31 January 2008. K K L 57. On 31 January 2008:- L M M (1) Dr Chen interviewed and examined Father again. According N N to Dr Chen:- O O (a) Father appreciated that the purpose of the interview P P was concerned with making wills. He was articulate in Q southern Fujianese. He spoke spontaneously and Q responded to questions without pauses, and the flow of R R the conversation was normal. S S T T 33 Bundle B2, Tab 147(2), pages 1000 to 1004; Bundle B2, Tab 147(1), pages 1005 to 1009 U U V V A - 26 - A B (b) Father, on his own volition, said that he was B discontented with his children in Singapore. Whilst C C TCG hardly visited him and Mother, TCP procured D him to sign an English document (which he did not D understand) and it transpired that such a document was E E a will (ie the 2006 Will) that did not reflect his F testamentary wish. F G G (c) A follow-up Mini-Mental State Examination was H carried out, and Father obtained a full total score of H 28.5. He demonstrated extremely good cognitive I I power. J J (d) In the circumstances, it was concluded that Father K K possessed good mental capacity and excellent L cognitive capacity. He was fit to manage his own L affairs and to make a will. M M N N (2) After Dr Chen confirmed that Father had mental capacity to O execute a will, Mr Bruce Fu began to explain the draft wills O to Father, and he reminded Father that when his assets were P P devolved unto Mother after his death, those assets would Q belong to Mother absolutely, and as such Mother would be in Q a position to dispose of them in whatever way she wished. R R S (3) Having considered the advice of Mr Bruce Fu, Father had S some second thoughts. He merely executed the Statutory T T U U V V A - 27 - A B Declaration, and instructed Mr Bruce Fu to explore the B feasibility of making mutual wills or a joint will. C C D 58. In the premises, Mr Bruce Fu approached Mr Nelson Miu of D Counsel for advice, and a meeting took place on 1 February 2008. As E E evidenced by his advice dated 4 February 200834, Mr Nelson Miu took, F inter alios, the views that (i) it would be desirable to execute one will that F dealt with all the assets owned by Father and Mother globally; and (ii) it G G would be possible for the deceased spouse to create a life interest in H favour of the surviving spouse with regard to the income arising from the H capital of the assets, and the capital of the assets should only be donated to I I charity after both spouses pass away. As such, Mr Miu prepared the draft J of a joint will of Father and Mother in English, and Mr Bruce Fu J translated the same into Chinese. K K L 59. As evidenced by his email dated 5 February 2008 (at 13:08)35, L in a telephone conversation that took place in the morning on the same M M day, Mr Bruce Fu explained the advantages and disadvantages of the N N approach proposed by Mr Nelson Miu, and Father accepted that he and O Mother would make one will that dealt with their assets worldwide. O P P 60. In the circumstances, it was unnecessary to conduct a Q physical meeting, and Father and Mother were requested to attend Q Hastings’s office on the next day (ie 6 February 2008) to execute the joint R R will (the “2008 Joint Will”)36. S S 34 Bundle B6, Tab 231, pages 2614 to 2633 35 T Bundle B6, Tab 236, page 2674 T 36 Core Bundle, Tab 11, pages 24 to 27 U U V V A - 28 - A B B 61. On 6 February 2008, Father and Mother attended the office C C of Hastings, where they met Ms Hwang, Mr Bruce Fu as well as D Mr Brewer. This was the Chinese New Year’s Eve, and Dr Chen (who D previously examined Father on two occasions) were not available. As such, E E Dr Chan Wai Man (“Dr Chan”), who is a medical doctor specializing in F gastroenterology and hepatology and who treated Father from February F 2007 to November 2008, was arranged to examine Father. Dr Chan was of G G the view that Father was fully oriented and mentally normal, and as such H he possessed testamentary capacity. H I I 62. According to Mr Fu:- J J (1) After Dr Chan confirmed that both Father and Mother were K K of sound mind and mentally fit to make a will, he asked L Father and Mother to read the contents of the 2008 Joint Will L carefully. M M N N (2) After Father and Mother completed the exercise, he O explained the contents of the 2008 Joint Will to them, O paragraph by paragraph, in Cantonese. P P Q (3) He paused at different intervals and asked if Father and Q Mother understood the contents and had any questions. Each R R and every time, Father and Mother indicated that they S understood the contents and had no questions. S T T U U V V A - 29 - A B 63. In the circumstances, Father and Mother executed the 2008 B Joint Will. The process was witnessed by (i) Dr Chan and (ii) Mr Fu. In C C gist, the 2008 Joint Will37 provides that:- D D (1) TCS be appointed as the sole executrix and trustee for E E Father’s and Mother’s estates; F F (2) Should one of Father or Mother predecease the other, the G G surviving spouse shall be entitled to the income for life of the H predeceased spouse’s entire residuary estate after payment of H debts, funeral and testamentary expenses; I I J (3) Upon the death of both Father and Mother:- J K K (a) HK$100 million would be donated for charitable L purposes in Hong Kong; L M M (b) HK$100 million would be donated for charitable N N purposes in Shanting Village, Maxiang Town, Xiangan O District, Fujian Province and Xiamen; O P P (c) the residuary estate would be donated to (i) the Q Singapore Buddhist Lodge; (ii) National University of Q Singapore; (iii) top-ranked universities (for setting up R R scholarships for students of Chinese descent); (iv) S other entities in Singapore for the care of the aged and S T T 37 Core Bundle, Tab 11, pages 24 to 27 U U V V A - 30 - A B entities in Singapore that provide medical and/or social B services; and C C D (d) the executrix and trustee shall exercise absolute D discretion to decide the organizations receiving the E E donations, the amounts of the donations and the way in F which the donations are to be made. F G G (4) Since Father and Mother’s children and descendants have H received adequate and appropriate care during their lifetime, H they do not intend to bequeath any assets to them. I I J 64. It was Mr Bruce Fu’s evidence that:- J K K (1) TCS was not present when (i) Father and Mother were L examined by Dr Chan; (ii) the contents of the 2008 Joint Will L were explained to Father and Mother; and (iii) the 2008 Joint M M Will was executed by Father and Mother. N N O (2) TCS (together with a domestic helper) merely attended O Hastings’s office to pick up Father and Mother after the P P process was completed. Q Q 65. The next material event took place on 8 May 2008 when R Father and Mother executed a joint codicil (the “2008 Joint Codicil”)38. R This document was prepared by Hastings, and the execution thereof was S S T T 38 Core Bundle, Tab 12, pages 29 to 31 U U V V A - 31 - A B witnessed by (i) Dr Chan and (ii) Mr Bruce Fu. In gist, the 2008 Joint B Codicil provides that:- C C D (1) TCS was arranged to become the third joint tenant of the D property at 14 Daymar Place, Castle Cove, Sydney, Australia E E (the “Sydney Property”) on 24 May 2003, and as such TCS F would automatically become the sole owner thereof by F operation of law after the demise of Father and Mother; and G G H (2) Father and Mother’s property in Hong Kong, ie Flat 504, H Bowen Mansion, 7C Bowen Road, Hong Kong (the “Bowen I I 39 Property”) , be inherited by TCS after their demise. J J 66. On the occasion when the 2008 Joint Codicil was executed, K K nd Father further executed his 2 statutory declaration that was also dated 8 L May 2008 (the “2nd Statutory Declaration”)40. Father stated:- L M M (1) the circumstances in which he was led by TCP to execute the N N 2006 Will, and the fact that the contents thereof did not O represent his testamentary wish; and O P P (2) the reasons why he and Mother wished to donate their assets Q to charity upon their demise: ie (i) they provided very well Q for their children; (ii) the children should rely on themselves; R R S S 39 This was held under a joint tenancy under Father and Mother’s names. The Bowen Property was the T home of Father and Mother when they were in Hong Kong. T 40 Bundle B2, Tab 150, pages 1084 to 1090 U U V V A - 32 - A B and (ii) they wished to make contributions to the society and B help those who were less fortunate. C C D 67. According to TCS, she only knew about the existence of the D 2008 Joint Codicil after the same was executed, and she was not privy to E E the discussion between Father and Mother. As such, she could not have F exerted any influence on them. F G G 68. By reason of the matters set out hereinabove, TCS’s stance is H that:- H I I (1) The 2008 Joint Will and the 2008 Joint Codicil evince the J testamentary wish of Father and Mother, and the same are J valid. K K L (2) Whilst Father’s 2007 Will and Mother’s 2007 Will were L superseded by the 2008 Joint Will and the 2008 Joint Codicil, M M the same represented the testamentary wish of Father and N N Mother at the time. O O (3) Father did not approve the contents of the 2006 Will, and the P P same did not represent his testamentary wish. In any event, Q the 2006 Will was revoked and superseded by Father’s 2007 Q Will as well as the 2008 Joint Will and the 2008 Joint Codicil. R R S The Case of TCG, TYK, and TCP41 S 41 They are the Plaintiffs of the Probate Action. TCS and Mother are the 1 st and 2nd Defendants. TCH T T refused to join the Probate Action as a plaintiff. He did not participate in the proceedings and was not a witness. U U V V A - 33 - A B B 69. The stance of TCG, TYK, and TCP is that:- C C D (1) Father did not know and approve the true contents of (i) his D 2007 Will; (ii) the 2008 Joint Will; and (iii) the 2008 Joint E E Codicil; F F (2) TCS, by undue influence, procured the execution of (i) G G Father’s 2007 Will; (ii) the 2008 Joint Will; and (iii) the 2008 H Joint Codicil; and H I I (3) The 2006 Will evinces Father’s testamentary wish, and the J same is last valid will made by Father. J K K 70. TCG, TYK, and TCP heftily rely on the evidence of L Mr Hoon. He informed the court that he took direct instructions from L Father in Singapore and that he did fully explain the contents of the 2006 M M Will to Father. In his submissions, Mr Dawes (for TCG, TYK, and TCP) N N emphasized that as found by the Singaporean High Court, Mr Hoon was a O disinterested third party who was unshaken under cross-examination. In O the circumstances, Mr Dawes submitted that the 2006 Will (the contents P P of which are simple and straightforward) reflects Father’s testamentary Q intention, and it was unlikely that he would change his mind drastically Q within a short period of time. Mr Dawes also pointed out it is TCS’s case R R that TCP provided a copy of the 2006 Will to Father, and TCP would not S have done so, had she intended to trick Father into executing the 2006 S Will. T T U U V V A - 34 - A B 71. As a separate point, relying on the findings made by the B Singaporean courts in the Singaporean 570 Action (see paragraph 11 C C above), Mr Dawes reminded this court that (i) TCS exerted considerable D influence over Father and Mother in their twilight years; and (ii) TCS was D closely involved in the process of preparing the two sets of 2007 Wills and E E the 2008 Joint Will. F F 72. Further, Mr Dawes also contended that there were glaring G G inconsistencies between (i) the instructions provided to Hastings and (ii) H the contents of the two sets of 2007 Wills as well as the 2008 Joint Will. H I I 73. In this connection, Mr Dawes emphasized that according to J Mr Bruce Fu, Father’s wish was to “leave the entirety of his estate to J [Mother], and afterward to charity.” Mr Dawes then went on to make two K K points. L L 74. First:- M M N N (1) Only a mutual will or a “joint and mutual” will (both of O which are premised on an enforceable agreement that the O testamentary distribution cannot be altered by the surviving P P spouse) could achieve the effect alleged by Mr Bruce Fu: see Q Williams, Mortimer & Sunnucks (22nd Ed) at paras 10-13 and Q 10-24. R R S (2) However, neither the 2007 Wills executed by Father and S Mother nor the 2008 Joint Will constituted mutual wills T T U U V V A - 35 - A B and/or “joint and mutual wills” as they did not contain a B provision against alteration and/or revocation. C C D (3) In the premises, Mr Dawes suggested that it would be open to D Mother (ie the surviving spouse in the present case) to revoke E E the 2008 Joint Will subsequently (in which event Father’s F assets could not be utilized for charitable purposes). F G G (4) In fact, Mother did revoke the 2008 Joint Will after Father H passed away. On 12 February 2015, Mother executed a new H will (“Mother’s 2015 Will”) whereby she (i) revoked all her I I previous wills, (ii) appointed TCS as the sole executrix of her J estate, and (iii) bequeathed all her immovable and movable J assets to TCS. K K L 75. Second:- L M M (1) Under Father’s 2007 Will, Father’s assets would only be N N given to Mother in the event that Father predeceases Mother. O This, Mr Dawes submitted, is different from Father’s O instruction that Father’s estate should go to Mother first and P P thereafter to charity. Q Q (2) As regards the 2008 Joint Will, Mr Dawes pointed out that R R according to the advice of Mr Nelson Miu in an email dated S 4 February 2008 at 5:50pm 42 , it would be open to TCS to S appoint herself as the beneficiary since clause 10 of the initial T T 42 Bundle B6, Tab 229, page 2596 U U V V A - 36 - A B draft was not exclusively charitable, and as such the ultimate B destination of the assets may be not necessarily charities (as C C contemplated by Father). Although clause 10 of the initial D draft of the 2008 Joint Will (which contains a problematic D phrase) was removed eventually, Mr Nelson Miu, in his E E email dated 6 February 2008 at 16:3243, indicated that he had F some “little lingering doubt” as to whether clause 9(4) of the F revised or final draft was laden with the same ambiguity. G G This issue was not addressed at all. Hastings simply went on H to arrange Father and Mother to execute the 2008 Joint Will, H despite the “little lingering doubts” expressed by Mr Nelson I I Miu. J J 76. As will be further elaborated below, TCG, TYK, and TCP K K also contended that:- L L (1) The purported testamentary intention of Father (as evidenced M M by the documents disclosed by Hastings) was inconsistent, N N ambulatory and ever-changing. O O (2) Hastings (ie Ms Hwang and Mr Bruce Fu) conspicuously P P failed to take adequate contemporaneous records that Q evidence the instructions given by Father and the advice that Q he received. R R S S T T 43 Bundle B6, Tab 246, page 2739 U U V V A - 37 - A B (3) TCS was heftily involved in giving instructions to Ms Hwang B and Mr Bruce Fu on Father’s behalf, and they did not C C independently verify these instructions with Father. D D (4) Father and Mother’s 2007 Wills as well as the 2008 Joint E E Will were prepared hastily. F F (5) There was an alleged “concerted effort” in creating a will G G with legal effect that is not apparent from the face of its H wording. H I I C. Legal Principles on Assessing Credibility J J 77. In Lee Fu Wing v Yan Paul Po Ting [2009] 5 HKLRD 513 at K K 534, DHCJ Au (as Au JA then was) set out the well-established approach L to assessing credibility. In the course of assessing the credibility of a L party’s case, the court shall consider the following matters: M M N N (1) whether the party’s case is inherently plausible or implausible; O O (2) whether the party’s case is, in a material way, contradicted by P P other evidence (documentary or otherwise) which is Q undisputed or indisputable; Q R R (3) where it is shown that a witness has been discredited over S one or more matters to which he has given evidence using the S above tests, this is relevant to the assessment of his overall T T credibility; and U U V V A - 38 - A B B (4) the demeanour of the witnesses. C C D 78. In the context of adjudicating a dispute in relation to an D alleged oral agreement or understanding, in Joint and Several Trustees of E E the property of Yeung Wing Sing v Yeung Wing Sing & Anor [2021] F HKCFI 2018 at para 26, Recorder Yvonne Cheng SC (as Cheng J then F was) pointed out that: G G H (1) contemporaneous written documents and documents which H came into existence before the problems in question emerged I I are of the greatest importance in assessing credibility; J J (2) in deciding whether to accept a witness’s account, K K importance should also be attached to the inherent likelihood L or unlikelihood of an event having happened, or the apparent L logic of events; M M N N (3) care should be taken in regard to the consistency of the O witness’s evidence with undisputed or indisputable evidence, O and the internal consistency of the witness's evidence; P P Q (4) care should be taken in drawing conclusions about Q truthfulness and reliability solely or mainly from the R R appearance of a witness or from the assessment of a witness’s S character; and S T T U U V V A - 39 - A B (5) witnesses’ credibility should be tested by reference to the B objective facts proved independently of their testimony, and C C to the court should consider their motives and the overall D probabilities. D E E D. Deliberation: the Elison Action F F D1. Factual Findings G G H 79. Having considered the inherent probabilities, the apparent H logic of events, the contemporaneous documents, the parties’ objective I I conduct, the evidence of the witnesses, and counsel’s submissions, I find J that:- J K K (1) Elison was set up pursuant to Father’s instruction, and it was L a corporate vehicle used for the sole purpose of holding the L Credit Suisse Account. M M N N (2) Father’s intention was that the 5 Siblings should become O beneficial owners of the Credit Suisse Account in equal O shares. P P Q (3) This was why Father deposited a sum of US$4 million into Q the Credit Suisse Account in April 1996. This fund did not R R belong to Mother and/or TCS beneficially. S S (4) TCS and Mother shared Father’s intention that the assets T T under the Credit Suisse Account and the rights and interests U U V V A - 40 - A B in relation thereto belonged to the 5 Siblings beneficially. B This was the reason why they executed the 2 nd and 3rd Form C C As, declaring that the assets under the Credit Suisse Account D belonged to the 5 Siblings beneficially. D E E 80. I make these findings for the following reasons. F F 81. First of all, the contents of 3 sets of Form As amply G G demonstrate it was intended that the Credit Suisse Account were held on H trust for the 5 Siblings in equal shares. There is no suggestion that Father, H Mother, and TCS were unable to understand the same. When TCS gave I I oral evidence, she fairly admitted that the instruction regarding the Form J As came from Father44. It is obvious that Father intended that the Credit J Suisse Account be beneficially owned by the 5 Siblings, and TCS and K K Mother accepted Father’s decision. This was the reason why they L executed the 2nd and 3rd Form As. L M M 82. Second, I have no hesitation in rejecting TCS’s pleaded case N N that the 5 Siblings were named as the beneficial owners for the purposes O of fulfilling the formalities required by Credit Suisse. There is neither O truth nor substance in this assertion. Had Father, Mother, and TCS P P intended that Mother and TCS should become the beneficial owners of the Q Credit Suisse Account, they could have stated so in the Form As. There Q was no reason why they would have named the 5 Siblings as the beneficial R R owners in equal shares in the Form As. This was wholly inexplicable. In S this connection, articles 1 and 3 of the Swiss banks’ code of conduct 45 S 44 T Day 10, before morning break T 45 Bundle B1, Tab 125, pages 705 and 708 U U V V A - 41 - A B expressly provide that, in case of doubt, a Swiss bank should obtain a B declaration from its client by means of a Form A that sets forth the C C identity of the beneficial owner of the assets deposited with the bank. D When TCS was cross-examined by Mr Dawes46, she fairly acknowledged D that it was important to provide true and accurate information to Credit E E Suisse with regard to the beneficial ownership of the Credit Suisse F Account. However, TCS was unable to provide any explanation as to why F the beneficial owners stated in the Form As were the 5 Siblings, instead of G G Mother and herself. H H 83. Third, TCS’s suggestion that Mother and herself are the I I beneficial owners of the Credit Suisse Account is an ex post facto J assertion that is plainly untrue. TCS’s note of instructions to Ms Hwang J dated 18 March 200947 as well as Ms Hwang’s attendance note in respect K K 48 of the conference on 18 March 2009 show that TCS, Ms Hwang, and L Mr Brewer discussed how to deal with the Credit Suisse Account. Had L TCS believed that Mother and herself were the beneficial owners of the M M Credit Suisse Account, this would have been one of the first things that N N TCS informed Ms Hwang and Mr Brewer. However, not an iota in O contemporaneous records show that TCS made an assertion that the O beneficial ownership of the Credit Suisse Account was vested in Mother P P and herself. Q Q 84. Fourth, TCS’s suggestion that the funds deposited into the R R Credit Suisse Account originated from Mother and herself is also an S S 46 Day 10, before morning break 47 T Bundle B1, Tab 86, page 608 T 48 Bundle B1, Tab 87, pages 609 to 610 U U V V A - 42 - A B untrue ex post facto assertion. In this regard, TCS’s case and assertions B have undergone a sea change:- C C D (1) As stated in her note of instructions to Ms Hwang 49 dated D 18 March 2009, TCS unequivocally asserted that “[Father] E E injected his personal funds into [Elison]’s account with F Credit Suisse”. F G G 50 (2) In the letter dated 19 September 2019 from ONC Lawyers , H it was also unequivocally stated that Father injected his H personal funds into the Credit Suisse Account in April 1996. I I 51 As admitted by TCS when she gave oral evidence , ONC J took instructions from her52. J K K (3) In paragraph 37 of the initial defence filed on 6 October 2020, L TCS admitted53 that Father and Mother deposited a sum of L US$4 million into the Credit Suisse Account. M M N N (4) However, when TCS amended the defence on O 7 October 2022 54 , she deleted the aforesaid admission and O asserted that (i) the aggregate sum of US$4 million in the P P Credit Suisse Account originated from the Likely Account Q Q 49 Bundle B1, Tab 86, page 608 R 50 R See para 6 of the Letter [Bundle B1, Tab 119, 685-686]. 51 Day 10, morning break S S 52 ONC Lawyers were TCS and Mother’s former solicitors. 53 T Bundle A2, Tab 14, page 74 T 54 For the date of amendment, see Bundle A2, Tab 14, page 71 U U V V A - 43 - A B and (ii) she and Mother were the beneficial owners of the B sum of US$4 million55. C C D (5) TCS’s new case is hardly credible. As pointed out by D Mr Dawes, in light of the amount of money involved, it is E E unbelievable that TCS would have forgotten that the sum of F US$4 million came from herself and Mother. F G G 56 (6) In her witness statement , TCS explained that contrary to her H initial impression, she managed to discover some new H documents after she changed legal representatives. As will I I be elaborated in the paragraph immediately hereinbelow, the J new documents do not show that TCS and Mother were the J beneficial owners of the sum of US$4 million at all. K K L (7) In any event, when TCS was cross-examined by Mr Dawes 57, L she admitted that the sum of US$4 million:- M M N N (a) did not belong to herself; O O (b) did not belong to Mother (who was a housewife); and P P Q (c) could only belong to and originate from Father. Q R R S S 55 Paragraph 37 of the amended defence 56 T Paragraph 18 T 57 Day 10, before morning break U U V V A - 44 - A B (8) This admission (which is consistent with (i) the contents B of the attendance notes 58 and instructions 59 in respect C C of the conference on 18 March 2009 (ii) ONC’s letter dated D 19 September 2019 60 ; and (iii) the deleted pleas in D paragraph 37 of the initial defence filed on 6 October 2020) E E is fatal to TCS’s new case. F F 85. Fifth, the new bank documents from TCS do not show that G G the sum of US$4 million belonged to and/or originated from her and H Mother:- H I I (1) TCS relied on the following bank documents: (i) the contract J in respect of the Likely Account61; (ii) a bank statement in J respect of the Likely Account showing that a sum of K K 62 US$2,999,979 was deposited on 30 November 1995 ; (iii) a L credit advice showing that the said sum of US$2,999,979 L was deposited into the Likely Account pursuant to the M M 63 instruction of Mr Lau Bing Sum ; (iv) a confirmation dated N N 17 April 1996 showing that Elison placed US$3 million for O time deposit; and (v) a letter dated 27 May 1996 requesting O Credit Suisse to transfer approximately US$1 million to P P Elison in the next few days upon receiving the sum. Q Q 58 Bundle B1, Tab 87, pages 609 to 610 R 59 R Bundle B1, Tab 86, page 608 60 See para 6 of the Letter [Bundle B1, Tab 119, 685-686] S S 61 Bundle B1, Tab 60, pages 552 to 556 62 T Bundle B1, Tab 61, page 556 T 63 Bundle B1, Tab 62, page 557 U U V V A - 45 - A B (2) As pointed out by Mr Dawes, the aforesaid bank documents B do not show that:- C C D (a) The sum of US$2,999,979 deposited into the Likely D Account on 30 November 1995 came from Mother or E E TCS; F F (b) The sum of US$1 million came from Mother or TCS; G G H (c) The sum of US$3 million was actually transferred to H the Credit Suisse Account from the Likely Account; I I J (d) A sum of US$1 million was actually paid into the J Likely Account and subsequently transferred to the K K Credit Suisse Account; and L L (e) The beneficial owners of the assets deposited with the M M Likely Account were TCS and Mother. N N O (3) The aforesaid bank documents only show that:- O P P (a) Mr Lau Bing Sum deposited US$2,999,979 into the Q Likely Account on 30 November 1995; Q R R (b) As of 17 April 1996, Elison had US$3 million, and the S sum was placed on a time deposit; and S T T U U V V A - 46 - A B (c) On 27 May 1996, TCS requested Credit Suisse to B transfer a sum of US$1 million (which was expected to C C be received in the next few days) to Elison. D D (4) Despite the incomplete documentation, Mr Dawes did not E E seriously dispute the fact that a sum of around US$3 million F found its way to the Credit Suisse Account via the Likely F Account. On the evidence, it appears that this was the case. G G There was no other explanation as to why there was an H aggregate sum of US$4 million in the Credit Suisse Account. H I I (5) In this connection, apart from admitting that the aggregate J sum of US$4 million originated from Father, TCS also J admitted 64 that Mr Lau Bing Sum was a relative of his K K parents, and he was instructed by Father to effectuate the L transfer of the fund. L M M (6) In light of TCS’s admissions, I have no doubt that the sums N N that were paid into the Credit Suisse Account originated from O Father and that the same did not belong to TCS and/or O Mother. P P Q 86. Sixth, I do not lose sight of the fact that Father did not inform Q TCG, TYK, TCP, and TCH about the existence of the Credit Suisse R R Account. In light of the overwhelming circumstances in favour of the case S of TCG, TYK, and TCP, I am of the view that this factor is incapable of S showing that Father did not intend to benefit the 5 Siblings equally. There T T 64 Day 11, before morning break U U V V A - 47 - A B could be various reasons why Father would wish to be opaque or simply B did not bother to inform his children about the arrangement. Whilst I did C C not have the benefit of hearing Father’s explanation, it appears to me that D objective intention of Father was crystal clear. In my view, he did intend D to benefit his children equally. After all, Father, being the patriarch of the E E family, was the one who gave instructions to set up Elison65, whose only F activity was to hold the Credit Suisse Account. As admitted by TCS66, she F and Mother (i) followed Father’s instructions regarding the matters of G G Elison and (ii) allowed Father to hold out himself as having authority to H act on behalf of Elison. TCS also admitted67 that Father was involved in H opening the Credit Suisse Account, and he gave instructions for her and I I nd rd Mother to execute the 2 and 3 Form As (which list the 5 Siblings as the J beneficial owners in equal shares). Had Father intended that the beneficial J owners of the Credit Suisse Account be TCS and Mother, he would have K K st (i) stated so in the 1 Form A and (ii) instructed TCS and Mother to state L so in the 2nd and 3rd Form As. This was not what happened. I have no L doubt that as reflected by the contents of the three sets of Form As, M M Father’s intention (which was shared by TCS and Mother) was that the 5 N N Siblings should become the beneficial owners of the Credit Suisse O Account in equal shares. O P P 87. Seventh, Mr Tang and Ms Wong submitted that as evidenced Q by the contents of Father’s 2007 Will and the 2008 Joint Will, Father did Q not have the intention to benefit the 5 Siblings in equal shares. This R R submission simply conflates Father’s testamentary intent in regard to his S S 65 See paragraph 4 of ONC’s Letter dated 19 September 2019 [Bundle B1, Tab 119, page 685] 66 T Day 10, before morning break T 67 Day 10, before morning break U U V V A - 48 - A B personal assets in 2007 and 2008 with Father’s intent in regard to the B assets held under the Credit Suisse Account back in 1995/1996. As will be C C elaborated below in Section E , I find that as of 2007 and 2008, Father did D have the testamentary intent to donate his personal wealth to charity. D However, it does not follow that back in 1995/1996, Father did not want E E the 5 Siblings to benefit from the assets held under the Credit Suisse F Account, including the sum of US$4 million. As pointed out, Father F repeatedly ensured that the 5 Siblings were listed as the beneficiaries of G G the Credit Suisse Account under the Form As. Had Father intended that H the 5 Siblings should not benefit from the sum of US$4 million, he would H not have made arrangements and given instructions for depositing the sum I I with the Credit Suisse Account. J J D2. Constitution of the Trust K K L Legal Principles L M M 88. It is trite that an express trust can be constituted by N N declaration, and the settlor is presumed to intend the consequence of his or O her words and action: see Lewin on Trusts (20th Ed) at para 3-004. O P P 89. An express trust has to satisfy the requirement of the three Q certainties of (i) intention; (ii) subject matter; and (iii) object: see Lewin Q th on Trusts (20 Ed) at para 5-004 R R S 90. Insofar as intention is concerned, it has been suggested that S technical or formal words are not required for creating an express private T T trust. What is required is a sufficiently clear manifestation to create such a U U V V A - 49 - A B trust. In Lee Sai Nam v Li Shu Chung & Ors (HCA 1711/2009, B 9 December 2015) at para 85, DHCJ Leung (as Leung J then was) C C stated:- D D “Mr Wong submitted that technical or formal words are not required for the creation of an express private trust. What was E required was a sufficiently clear manifestation of an E intention to create such a trust, whilst words such as “trust” or “confidence” or the like are not a must: see Hudson, The Law F F of Trusts (2nd Ed) at §2.03; and at§2.04: G ‘Thus, in appropriate circumstances, an express trust G may be created by means of an informal declaration, or may be inferred from the acts of the settlor or the H H circumstances of the case. So, in Paul v. Constance, the words ‘the money is as much yours as mine’, referring I to moneys in a bank account, were held, in the I circumstances of the case, to have created a trust. A similar result was reached in Rowe v Prance, where the J legal owner of a yacht referred to it, in many J conversations with his mistress, as ‘ours’ or as ‘our K boat’.’” K (emphasis added) L L M Certainty of Intention M N N 91. Whilst the 1st Form A was executed by Father (who was, on O TCS’s admission68, a de facto director of Elison), the 2 nd and 3rd Form As O were executed by TCS and Mother (who were, on records, Elison’s P P directors). Q Q 92. There is no question that Father, TCS and Mother had R R authority to act on Elison’s behalf. TCS did not suggest otherwise. S S 68 Day 10, before morning break. As pointed out in paragraph 86 above, TCS admitted that she and T T Mother (i) followed Father’s instructions regarding the matters of Elison; and (ii) allowed Father to hold out himself as having authority to act on behalf of Elison. U U V V A - 50 - A B 93. In my view, the intention manifested by the contents of three B sets of Form As could not be clearer. The three sets of Form As provide C C that:- D D “the undersigned hereby declares the beneficial owner of the assets deposited with the bank is [(i) TCS (20%); (ii) TCG E (20%); (iii) TYK (20%); (iv) TCP (20%); and (v) TCH 20%]”. E F F 94. I have no doubt in finding that Father, TCS, and Mother, G acting for and on behalf of Elison, had made repeated declarations G evincing and manifesting an intention that the rights and assets relating to H H the Credit Suisse Account were held on trust for the 5 Siblings in equal I shares. I J 95. Accordingly, the requirement of certainty of intention is J satisfied. K K L Certainty of Subject Matter L M 96. As regards the certainty of subject matter, TCS raised a M technical argument. She suggested that the funds that were subsequently N N injected into the Credit Suisse Account were future assets that did not O exist at the time when the trust was constituted. As such, the requirement O of certainty of subject matter was not satisfied. P P Q 97. I disagree with TCS’s contention, which is based on an Q incorrect legal assumption that a bank account consists of monies. Whilst R R a layman may take the view that this is the case, as a matter of law, this is S not the position. S T 98. Mr Dawes helpfully referred to Foskett v McKeown [2001] 1 T AC 102 at 127H to 128B. As pointed out by Lord Millet, there is no U U V V A - 51 - A B money in a bank account; instead, there is merely a “single debt of an B amount equal to the balance standing to the credit of the account holder”. C C His Lordship stated:- D D “We speak of money at the bank, and of money passing into and out of a bank account. But of course the account holder E E has no money at the bank. Money paid into a bank account belongs legally and beneficially to the bank and not to the F account holder. The bank gives value for it, and it is F accordingly not usually possible to make the money itself the subject of an adverse claim. Instead a claimant normally sues G the account holder rather than the bank and lays claim to the G proceeds of the money in his hands. These consist of the debt H or part of the debt due to him from the bank. We speak of H tracing money into and out of the account, but there is no money in the account. There is merely a single debt of an I amount equal to the final balance standing to the credit of I the account holder.” (emphasis added) J J 99. In my view, Mr Dawes was correct in pointing out that what K K Elison, being the holder of the Credit Suisse Account, had was a legal L right to demand Credit Suisse to make payment in respect of an amount of L money that did not exceed the balance standing to the credit. This legal M M right was a chose in action. N N 100. In the premises, the subject matter of the trust was such a O chose in action. This chose in action was not a future property as alleged. O Instead, it was a right that had always existed and owned by Elison since P P the date when the Credit Suisse account was set up (ie 12 December 1995). Q I do not see any reason why Elison (and/or its directors) might not declare Q that such a chose in action be held on trust for the 5 Siblings. R R S 101. If TCS’s argument were correct, extreme inconvenience S would arise. Like the present case, there are reasons why a person would T T wish to create a trust account for the benefit of others. In a typical case, U U V V A - 52 - A B the intention of the settlor is that the right to demand payment in respect B of the balance standing to the credit of the trust account should C C beneficially belong to the beneficiaries. If TCS’s argument were correct, D the implication is that whenever a further sum is deposited into the trust D account after the trust over the bank account was declared or constituted, E E the credit or debt in respect of the further sum would not fall within the F preexisting trust. Thus, whenever a further sum is deposited, the settlor F will have to make a fresh declaration of trust in order to create a new trust G G over the further deposit. The extreme inconvenience involved is H unthinkable, and the practical outcome is simply absurd. H I I 102. For all the above reasons, I reject TCS’s argument regarding J future property. I find that the requirement of certainty of subject matter is J satisfied. K K Certainty of Object L L M 103. The trust in question involves a fixed list of beneficiaries, M namely the 5 Siblings (whose identities are unequivocally set out in the N N Form As). O O 104. There is no question that the requirement of certainty of P object is satisfied. P Q Q Sum Up R R 105. For all the above reasons, I hold that the requirement of the S three certainties, ie (i) certainty of intention; (ii) certainty of subject matter; S and (iii) certainty of object, is satisfied. Accordingly, a trust over the T T rights relating to the Credit Suisse account was validly constituted. U U V V A - 53 - A B B 106. I further find that:- C C (1) the beneficial owners of the Credit Suisse Account are the D D 5 Siblings; and E E (2) the right to demand payments from Credit Suisse in respect F F of the balance standing to the credit of the Credit Suisse G Account (which is a chose in action) belongs to the 5 Siblings G beneficially in equal shares. H H I D3. No Resulting Trust I J J 107. The doctrine of resulting trust is a legal presumption that has K no application when the actual intention is clear: see Liu Wai Keung v Liu K Wai Man [2013] 5 HKLRD 9 at paras 44 to 45 (per G Lam J, as Lam JA L L then was). M M 108. In light of the findings and analysis set out in Sections D1 N N and D2 above, I find and conclude that:- O O (1) The sum of US$4 million that was deposited with Credit P Suisse under the Credit Suisse Account previously belonged P to Father, not TCS and Mother. Q Q R (2) When Father deposited the said sum, his intention was to R benefit the 5 Siblings. Mother and TCS knew and accepted S S that this was the case. T T U U V V A - 54 - A B 109. In the premises, there is no room for TCS and Mother to rely B on the doctrine of resulting trust. They did not even own the fund in C C question. Having executed the Form As, TCS and Mother knew (and D ought to know) that the beneficial owners of Credit Suisse Account were D the 5 Siblings. Had TCS and Mother owned the sum of US$4 million, the E E same would not have been deposited with Credit Suisse under the Credit F Suisse Account at all. F G G D4. The Liability of TCS and Mother H H Breach of Trust I I J 110. As expressly admitted in their pleaded case (see paragraphs J 33(3), 39(1b) and (1c) and 41 of their amended defence), TCS and Mother K K (who were the directors of Elison on records and signatories of the Credit L Suisse Account) treated themselves as the beneficial owners of the Credit L Suisse Account, and they used the funds withdrawn therefrom for M M purposes that were unrelated to the 5 Siblings, including investment in N N stocks and securities, defraying litigation expenses and defraying living O and travelling expenses. O P P 111. Whilst there was indisputably no less than US$4 million Q standing to the credit of the Credit Suisse Account at one stage, TCS was Q only able to provide documentary evidence showing how US$439,150 R R (out of US$4 million) was utilized69. As to the sum of US$439,150, only S US$550 and US$600 were concerned with the corporate services rendered S to Elison. T T 69 See TCS’s witness statement (Bundle A1, Tab 20, page 181) U U V V A - 55 - A B B 112. In other words, in regard to the sum of US$4 million:- C C D (1) TCS was only able to account for an aggregate sum of D US$1,150 (ie US$550 plus US$600). E E F (2) On TCS’s admission, US$438,000 (ie US$439,150 less F US$1,150) was used for purposes unrelated to the 5 Siblings. G G H (3) The balance of US$3,560,850 (ie US$4 million less H US$438,000 less US$1,150) had been unaccounted for. I I J 113. In paragraph 20 of her witness statement70, TCS stated that J she and Mother allegedly owned the sum of US$4 million, and as such K K they “have always used it however [they] wished to, without recourse to L any other person including [Father]”. L M M 114. In light of this admission, I have no doubt that TCS and/or N N Mother had received, disposed of, and/or spent an aggregate sum of O US$3,998,850 (ie US$438,000 plus US$3,560,850). O P P 115. It is plain that there were breaches of trust. Q Q Dishonest Assistance R R 116. Elison (being a company) could only act through TCS and S S Mother (who are its directors). T T 70 Bundle A1, Tab 20, page 181 U U V V A - 56 - A B B 117. TCG, TYK, and TCP contended that TCS and Mother are C C liable on the basis of dishonest assistance. D D 118. The elements of dishonest assistance are summarized in E E China Metal Recycling (Holdings) Ltd & Anor v Chun Chi Wai & Ors F [2021] HKCFI 378 at paras 76 to 79 (per DHCJ MK Liu) citing Grupo F Torras SA v Al-Sabah (No 5) CLC 1469 at 1664A-B (per Mance J, as he G G then was). In short, the plaintiff has to show that:- H H (1) There was a breach of trust by someone. I I (2) The defendants assisted. In this connection, the plaintiff has J J to show that the defendants’ acts, conduct, or omission had K some causative impact. It is not necessary to show causation, K and it suffices to show that the defendants’ acts, conduct, or L L omission rendered the breach of trust “easier than it would M otherwise have been”. M N N (3) There was dishonesty on the part of the defendants. In this O connection, the test is objective. It suffices to show that the O conduct complained of is dishonest by the standards of P P ordinary and reasonable people71. Q Q (4) A loss is resulted. In this connection, once liability is R R established, the defendants are liable for all loss and damage S S 71 A dishonest state of mind may consist in knowledge that the transaction is one in which the defendant T T cannot honestly participate or a suspicion combined with a conscious decision not to make enquiries which might result in knowledge. U U V V A - 57 - A B resulting from the breach of trust which has been dishonestly B assisted. C C D 119. I have no hesitation in finding that each of the aforesaid D requirements for establishing dishonest assistance is satisfied:- E E F (1) As mentioned, funds were withdrawn from the Credit Suisse F Account for TCS and Mother’s personal purposes. There G G were plainly breaches of trust. As pointed out in paragraphs H 111 to 114 above, insofar as the sum of US$4 million was H concerned, TCS was only able to account for US$1,150 I I (which was utilized for defraying corporate expenses). Whilst J US$438,000 was spent on purposes unrelated to the J 5 Siblings, US$3,562,000 had been unaccounted for. In light K K of TCS’s admission72, there is every reason to believe that the L balance sum of US$3,562,000 had been received, spent, L and/or disposed of by TCS and Mother. M M (2) The breaches of trust were on admission orchestrated by TCS N N and Mother, who were the only directors of Elison on records O O and signatories of the Credit Suisse Account. There is no question that TCS and Mother assisted the breaches of trust. P P Q (3) TCS and Mother were objectively dishonest. Having Q executed the 2nd and 3rd Form As, they knew (and ought to R R know) that the 5 Siblings were the beneficial owners of the S Credit Suisse Account. Further, for the reasons explained S above, they also knew that the funds deposited into the Credit T T 72 See paragraph 20 of her witness statement (Bundle A1, Tab 20, page 181). U U V V A - 58 - A B Suisse Account did not belong to them beneficially. In the B circumstances, they should not have withdrawn sums from C C the Credit Suisse Account and utilized such sums for their D own purposes. I do not lose sight of Mr Tang’s observation D that members of the Tan family maintained another bank E E account that was referred to as “the number 2 account” and F that the funds deposited thereunder were available for F members of the Tan family. In my view, the matters relating G G to “the number 2 account” are simply irrelevant to the H question of whether TCS was objectively dishonest in regard H to her conduct relating to the Credit Suisse Account. As I I pointed out by Mr Dawes, the arrangements in respect of the J two bank accounts were simply different. J K K (4) As a result of TCS and Mother’s act and conduct, the credit L standing to the balance of the Credit Suisse Account was L reduced, and the 5 Siblings (except TCS) did not take any M M benefit. Accordingly, the 5 Siblings (except TCS) must have N suffered loss and damage. N O O 120. In the premises, I find that TCS and Mother are liable to TCG, P TYK, TCP, and TCH on the basis of dishonest assistance. P Q Q Knowing Receipt R R 121. The requirements for establishing knowing receipt are set out S S in China Metal Recycling (Holdings) Ltd (supra) at paras 84 to 87, citing T Lewin on Trust (20th Ed) at para 42-023 and El Ajou v Dollar Land T U U V V A - 59 - A B Holdings plc [1994] 2 All ER 685 at 700g (per Hoffman LJ, as he then B was). The Plaintiff has to show that:- C C D (1) there is a property subject to a trust; D E E (2) the property is transferred; F F (3) the transfer is in breach of trust; G G H (4) the property (or its traceable proceeds) is received by the H defendant; I I J (5) the receipt is for the defendant’s own benefit; and J K K (6) the defendant receives the property with the requisite L knowledge. L M M 122. For the reasons set out above, I am satisfied that each of these N N requirements is satisfied. It is hardly disputable that TCS and Mother O withdrew funds from the Credit Suisse Account, and they used the funds O for their personal purposes. As mentioned, I have no doubt in finding that P P TCS and Mother, who executed the 2nd and 3rd Form As, must know that Q the 5 Siblings were the beneficial owners of the Credit Suisse Account. Q R R 123. Accordingly, I find and conclude that TCS and Mother are S also liable to TCG, TYK, TCP, and TCH on the basis of knowing receipt. S T T Proprietary Claim U U V V A - 60 - A B B 124. As pointed out by the learned authors of Lewin on Trust C C (20th Ed) at para 4-025, in order to pursue proprietary remedies in equity, D it suffices to establish the first four of the requirements set out in D paragraph 121 above. E E F 125. This is consistent with the well-established principle that F when property is obtained by fraud or unconscionable conduct, equity G G imposes a constructive trust on the fraudulent or unconscionable recipient H so that the property is recoverable and traceable in equity: see H Westdeutsche Landesbank Girozentrale v Islington London Borough I I Council [1996] AC 669 at 716C-D. J J 126. In Predicine Holdings Ltd v Bianchi (Hong Kong) Ltd [2021] K K HKCFI 123 at para 90, Coleman J stated:- L L “When property is obtained by fraud, equity imposes a M M constructive trust on the fraudulent recipient, so that the money is recoverable and traceable in equity. Even if the recipient is N not a party to the fraud, if his state of knowledge is such as to N make it unconscionable for him to retain the money, the defrauded claimant has a tracing remedy, that is the property is O held on constructive trust for the claimant.” O P 127. For the reasons elaborated above, I am satisfied that the first P four of the requirements set out in paragraph 121 above are satisfied. Q Q R R 128. Furthermore, having said that TCS and Mother knew (and ought to know) that the beneficial owners of the Credit Suisse Account are S S the 5 Siblings, I am also satisfied that they were unconscionable in T T receiving and/or retaining the funds that were withdrawn therefrom. U U V V A - 61 - A B B 129. I am satisfied that TCG, TYK, TCP and TCH are entitled to C C seek equitable proprietary reliefs against TCS and Mother. D D D5. The Claims are Time-Barred? E E F 130. However, TCS on behalf of herself and Mother’s estate F contended that the claims brought by TCG, TYK, and TCP had been time- G G barred.73 H H 131. Order 18, rule 8(1) provides that:- I I J “a party must in any pleading subsequent to a statement of J claim specifically plead any matter, for example…any relevant statute of limitation (a) which he alleges makes any K claim of the opposite party not maintainable.” (emphasis K added) L L 132. In their defence74, TCS and Mother alleged that TCG, TYK, M M and TCP should have known about the trust over the Credit Suisse N Account by reason of the cross-examination of TYK in the Singaporean N 570 Action back in April 2013. Although TCS and Mother alleged that O O TCG, TYK, and TCP’s claims had been time-barred, they failed to plead P the applicable provisions of the Limitation Ordinance (Cap 347). P Q Q 133. In the premises, it is doubtful as to whether it is open to TCS R and Mother to pursue a limitation defence based on the provisions in the R Limitation Ordinance. S S 73 T See amended defence, para 50 T 74 Paragraph 50 U U V V A - 62 - A B B 134. In any event, putting aside the pleading point, I disagree with C C TCS and Mother’s suggestion that the limitation period should start to run D in April 2013. D E E 135. In this connection:- F F (1) TCG, TYK, and TCP’s case against TCS and Mother is based G G on fraud and concealment, and it is common ground TCG, H TYK, TCP, and TCH had not been informed of the existence H of Elison and the Credit Suisse Account. I I J J (2) Although TYK was cross-examined in regard to the existence of Elison at the trial of the Singaporean 570 Action, this was K K in the context of exploring the funds used by TCS for L L purchasing 1.419 million shares in EnGro 75 . The cross- M examination did not even touch upon the Credit Suisse M Account and/or the Form As. TYK was merely asked N N whether he was familiar with a company named Elison, and O he simply answered “not at all”76. O P P (3) In the premises, I fail to see how TCS and Mother could Q seriously suggest that by reason of the trial of the Q Singaporean 570 Action, TCG, TYK, and TCP should have R R carried out an investigation to ascertain whether they had an S S 75 This was admitted by TCS and Mother in paragraph 50(1) of their amended defence and counterclaim. T T 76 See extract of the transcript of TYK’s oral evidence in the Singaporean 570 Action [Bundle B1, Tab 127, page 734 (lines 15 to 27)] U U V V A - 63 - A B interest in the bank account(s) held by Elison. This B suggestion does not make sense to me. C C D 136. Meanwhile, I accept TCG, TYK, and TCP’s case 77 (which D was not seriously challenged during cross-examination and E E which was corroborated by the contemporaneous records) that only on F 26 February 2019 did their solicitors, pursuant to the order dated F 29 January 2019 made by Marlene Ng J in the discovery proceedings G G under HCMP 1192/2018, receive the materials (ie various attendance H notes prepared by Hastings) that shed light on (i) the existence of the H Credit Suisse Account and (ii) the trust arrangement in respect thereof. I I J J 137. In the circumstances, prior to February 2019, TCG, TYK, and TCP could not have carried out any investigation in respect of the K K matters relating to the Credit Suisse Account, and they could not have L L discovered the existence of the trust arrangement in respect thereof as well M as the wrongdoings on the part of TCS and Mother (which have been M concealed). N N O 138. Thus, even if it is open to TCS and Mother to pursue a O limitation defence, TCG, TYK, and TCP would be entitled to invoke P P section 26 of the Limitation Ordinance to postpone the limitation period. Q Q 139. Obviously, it would take time for TCG, TYK, and TCP as R R well as their legal advisors to review and analyze the materials produced S by Hastings. In my view, in light of the factual complexity and number of S documents involved, they could only have, with due diligence, discovered T T 77 See re-amended statement of claim, para 17 U U V V A - 64 - A B the existence of the Credit Suisse Account and the trust arrangement in B respect thereof three months after the documents were produced. This C C would be 26 May 2019 (ie three months after 26 February 2019). D D 140. Accordingly, the claims brought by TCG, TYK, and TCP in E E the Elison Action (which was commenced on 6 May 2020) could not be F time-barred as alleged. F G G 141. For completeness, it should be reiterated that TCG, TYK, and H TCP have established a proprietary claim in equity78: see paragraphs 124 H to 129 above. Under section 20(1)(b) of the Limitation Ordinance, TCG, I I TYK, and TCP’s proprietary claim in equity (which is based on a J substantive constructive trust) is not subject to any limitation period. J K K 142. In the premises, TCS and Mother cannot rely on the L limitation defence to absolve themselves from liability. L M M D6. Sum Up N N 143. For all the above reasons, TCS and Mother have failed to O O raise any valid defences to the claims brought by TCG, TYK, and TCP. P P 144. As mentioned in paragraphs 79(3), 85 to 87, 108 to 109, and Q Q 110 to 114 above, there was, at least, US$4 million standing to the credit R of the Credit Suisse Account at one stage, and only US$1,150 was used R for the legitimate purpose of defraying Elison’s corporate expenses. I find S S T T 78 Re-amended statement of claim, para 21. U U V V A - 65 - A B that the remaining sum of US$3,998,850 was unaccounted for and had B been received, spent, and/or disposed of by TCS and Mother. C C D 145. In the premises, I am satisfied that TCG, TYK, and TCP are D entitled to seek equitable compensation against TCS and Mother on the E E basis of dishonest assistance and knowing receipt to the extent of F US$2,399,310 (ie 60%79 x US$3,998,850). F G G 146. I am also satisfied that as TCS and Mother had H unconscionably received and/or disposed of the sum in question (part of H which belonged to TCG, TYK, and TCP beneficially), a constructive trust I I 80 has arisen : see Westdeutsche (supra) at 716C-D; and Predicine Holdings J Ltd (supra) at para 90. J K K 147. There should be:- L L (1) An enquiry and/or account in respect of (i) all the funds that M M were transferred to and away from the Credit Suisse Account; N N (ii) the traceable proceeds or substitutes in respect of the O funds transferred away from the Credit Suisse Account; and O (iii) the traceable proceeds or substitutes that had been P P received and/or retained by TCS and Mother; and Q Q R R S S 79 Whilst there are 5 beneficiaries (ie the 5 Siblings), TCG, TYK and TCP are the plaintiffs in the proceedings under the Elison Action. T 80 T For the avoidance of doubt, I am satisfied that this is also a valid basis for TCG, TYK, and TCP to seek recovery of the aforesaid sum of US$2,399,310 against TCS and Mother. U U V V A - 66 - A B (2) An order that TCS and Mother are liable to pay TCG, TYK, B and TCP all sums found due to them upon the said enquiry C C and/or account. D D E. Deliberation: the Probate Action E E F E1. The Plaintiffs’ Claims under the Probate Action constitute an Abuse F of the Court’s Process? G G H 148. As early as 2013, TCG, TYK, TCP, and TCH commenced H HCMP 246/2013 asking the court to construe the 2008 Joint Will, and I I TCS and the Secretary for Justice were respectively joined as the 1 st and J 2nd defendants. The main issue in dispute was whether (as TCS contended) J the phrase “我們名下所有（不論在世界任何地方）的財產” under K K clause 2 of the 2008 Joint Will subsumes all assets belonging to Father L beneficially, including assets that were held on trust for him. The case L eventually went to the Court of Final Appeal: see judgment dated M M 5 November 2015 under FACV 3/2015 ((2015) 18 HKCFAR 430). The N Court of Final Appeal answered the question in the affirmative and N rejected the contentions advanced by TCG, TYK, TCP, and TCH. It was O O held that the phrase in question (ie “我們名下…的財產”) covered all P P properties belonging to Father. Q Q 149. In their opening submissions, Mr Edward Tang, together with R R Ms Clara Wong, raised a preliminary objection. They submitted that under S the proceedings in HCMP 246/2013, TCG, TYK, and TCP elected to S accept that the 2008 Joint Will is the last valid will of Father. T T U U V V A - 67 - A B 150. In the premises:- B C C (1) Relying on First National Bank plc v Walker (2001) 1 FLR D 505 81 , Mr Tang and Ms Wong submitted that TCG, TYK, D and TCP’s act of bringing the Probate Action constituted an E E abuse of the court’s process, and this was tantamount to F mounting a collateral attack against the Court of Final F Appeal’s ruling in FACV 3/2015. G G H (2) They further relied on the wider Henderson doctrine82, and H contended that as TCG, TYK, and TCP could have disputed I I the validity of the 2008 Joint Will in the previous J proceedings under HCMP 246/2013 and FACV 3/2015, they J should not be allowed to litigate the same issue in the present K K proceedings. L L 151. For the following reasons, I reject Mr Tang and Ms Wong’s M M submissions. N N O 152. First of all:- O P P Q Q 81 In that case, a wife sought to rely on the existence of a charging order to obtain an adjustment order in ancillary relief proceedings. However, she later sought to deny the validity of the charging order R R on the ground of undue influence by the husband. The English Court of Appeal held that it was not open to the wife to “approbate and reprobate” (see para 55), and her conduct amounted to an abuse of the court’s process (see para 77). Alternatively, the wife was regarded as having made an election S S of absolving the husband’s wrong of undue influence (see para 82). 82 See Johnson v Gore Wood [2002] 2 AC 1 at 29H to 31F, which has been followed in Hong Kong T T (see Chiang Lily v Secretary for Justice [2009] 6 HKC 234 at paras 55 to 66; Ko Hon Yue v Chiu Pik Yuk & Ors, (FACV 8/2011, 23 February 2012) at paras 82 to 83 U U V V A - 68 - A B (1) The starting point is the well-established principle that issues B in dispute in a litigation are defined according to the parties’ C C pleadings, and a litigant should not seek to “slip in” an D unpleaded issue. In Kwok Chin Wing v 21 Holdings Ltd D (2013) 16 HKCFAR 663 at para 21, Ma CJ stated:- E E F “It should by now really be quite unnecessary to issue yet F another reminder on the rationale behind pleadings. The basic objective is fairly and precisely to inform the other party or G parties in the litigation of the stance of the pleading party G (in other words, that party’s case) so that proper preparation is made possible, and to ensure that time and H H effort are not expended unnecessarily on other issues:- Wing Hang Bank Limited v Crystal Jet International Limited [2005] I 2HKC 638, at 643G-H (para 6(1)).. It is the pleadings that will I define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will J J be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be K acceptable for unpleaded issues to be raised out of the K evidence which is to be or has been adduced. As the Court of Appeal remarked in Wing Hang Bank Limited v Crystal Jet L International Limited at 643H-I (para 6(2)) :- L ‘(2) In a trial, particularly where evidence is given by M M witnesses, it becomes extremely important that each side knows exactly what are the live issues. Where N issues are sought to be introduced that have not been N adequately or properly pleaded, amendments must be sought unless the consent of the other party or parties O O has been obtained. It will simply not do for unpleaded issues to be ‘slipped in’ when evidence is being given P in the hope that the other side is not sufficiently alert to P object.’” (emphasis added) Q Q (2) For reasons best known to TCS and/or her advisors, TCS did R not plead the factual bases for alleging (i) that the claims in R the Probate Action constituted an abuse of the court’s process; S S and (ii) TCG, TYK, and TCP are barred or estopped from T pursuing the claims in the Probate Action. T U U V V A - 69 - A B B (3) In my view, this is not a matter of sheer technicalities. As C C pointed in Total Lubricants HK Ltd v De Chanterac (No 2) D [2013] 2 HKLRD 383 at para 30 (per Kwan JA, as Kwan VP D then was), the question of whether there is an abuse of the E E court’s process depends on the facts of the case as well as the F precise circumstances, and it would be wrong to adopt a F dogmatic approach. G G H (4) In the premises, as a matter of substantive fairness, TCG, H TYK, and TCP were entitled to know the precise factual and I I legal bases of TCS’s complaints, such that they would be in a J position to (i) know the case that they were required to meet J and (ii) come up with a full response. K K L (5) Without knowing the precise factual and legal bases of TCS’s L complaints, TCG, TYK, and TCP were not in a position to M M plead and come up with a full response as to, inter alios,:- N N O (a) the factual matters that were known to them when the O previous proceedings took place; P P Q (b) the factual matters that were not known to them when Q the previous proceedings took place; R R S (c) the stance that they adopted in the previous S proceedings; T T U U V V A - 70 - A B (d) the assertions that were raised or pursued in the B previous proceedings; C C D (e) the assertions that were not raised or pursued in the D previous proceedings; E E F (f) the reason(s) why they adopted their stance in the F previous proceedings; and G G H (g) the reason(s) why certain assertions were pursued (or H not pursued) in the previous proceedings. I I J (6) The aforesaid matters are highly pertinent. TCG, TYK, and J TCP have been deprived of the opportunity to come up with a K K full response. L L (7) I am not of the view that it is open to TCS to pursue her M M unpleaded case that (i) TCG, TYK, and TCP’s claims in the N N Probate Action constitute an abuse of the court’s process; and O (ii) TCG, TYK, and TCP are barred or estopped from O pursuing the claims in the Probate Action. P P Q 153. Second:- Q R (1) As shown by the pleas contained in TCG, TYK, and TCP’s R amended statement of claim in the Probate Action and as S S evidenced by the contemporaneous documents, it is obvious T T that the TCG, TYK, and TCP’s case in the Probate Action is U U V V A - 71 - A B built upon the documents that were disclosed pursuant to the B discovery application under HCMP 1192/2018. C C D (2) It appears that after reviewing the documents disclosed by D Hastings, TCG, TYK, and TCP took the view that there are E E grounds for contending that (i) Father might not have known F and approved the contents of the 2008 Joint Will; and (ii) F Father acted under TCS’s undue influence. G G H (3) The question of whether there are merits in the grounds H pursued by TCG, TYK, and TCP (which will be addressed I I in Section E3 below) is a separate matter. For present J purposes, it suffices to say it is obvious that some further J evidence came to light after the previous proceedings in K K HCMP 246/2013 and FACV 3/2015 were concluded. It does L not appear to me that TCG, TYK, and TCP’s conduct was L grossly abusive and/or unreasonable. I am of the view that M M they are entitled to their days in court. N N O 154. Third:- O P P (1) It is important not to lose sight that a probate action is an Q action in rem, and the probate court’s findings will bind all Q persons who have a rival claim. In the premises, the probate R R court’s function is “inquisitorial” in nature, and the probate S court will, at trial, make a “positive finding” as to the validity S or invalidity of a will: see Choy Po Chun v Au Wing Lun T T [2012] 2 HKLRD 148 at para 16 (per Cheung JA); U U V V A - 72 - A B Li Cheong v Lee Kwai Tai (2020) 23 HKCFAR 116 at para B 42 (per Fok PJ). C C D (2) As Claims J said in In re Muirhead [1971] P 263 at 265 D (cited in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387 E E at para 643):- F F “…it is the duty of the Court of Probate to give effect, if it can, G to the wishes of the testator as expressed in the testamentary G documents.” H H (3) Bearing in mind the unique nature of the probate court’s I I jurisdiction, I am not inclined to the view that the stance J adopted by TCG, TYK, and TCP in the previous litigations J constitute a valid reason that prevents this court from (i) K K discharging its “inquisitorial” function and (ii) making L “positive” findings regarding the state of affairs in relation to L Father’s testamentary intent and the wills that he made. M M N E2. Legal Principles N O O 155. As explained in Nina Kung v Wong Din Shin (2005) 8 P HKCFAR 387 at paras 171 to 178:- P Q Q (1) The party who propounds a will carries the legal or R persuasive burden of satisfying the court that it is the will of R the deceased. S S T T U U V V A - 73 - A B (2) The standard of proof is the balance of probabilities. This B means that the proponent of the will has the persuasive C C burden of proving on the balance of probabilities that: (i) D there was due execution of the will; (ii) the testator was of D testamentary capacity; and (iii) the testator knew and E E approved the contents of the will. F F Knowledge and Approval G G H 156. The will must represent the testator’s testamentary intention, H and the testator must approve the contents and effect of the will. It is not I I enough if the testator merely knew the words contained in the will: see J Theobald on Wills (19th Ed) at paras 4-042 to 4-044 and 4-053; Gill v J Woodall [2011] Ch 380 at para 71; and Re Estate of Lau Heung [2020] 2 K K HKC 19 at para 84. L L 157. Where a party disputes the validity of a will for want of M M knowledge and approval, it carries the evidential burden of putting the N N relevant ground of challenge in issue. If the evidence adduced is O sufficiently cogent to raise an issue, the court, when assessing the O evidence as a whole, will decide whether the proponent of the will has P P discharged the persuasive burden in relation to the relevant facts on the Q balance of probabilities: see Nina Kung (supra) at para 176. Q R R 158. It has been suggested that:- S S (1) Where the will was duly executed and the testator had the T T requisite testamentary capacity, knowledge and approval of U U V V A - 74 - A B the testator is rebuttably presumed: see Nina Kung (supra) at B para 206. C C D (2) As “a matter of common sense and authority”, if a will has D been properly executed after being prepared by a solicitor E E and read over to the testator, this raises a “very strong F presumption” that the will represents the testator’s intention F at the material time when he executed the will: see Gill v G G Woodfall (supra) at para 14 (per Lord Neuberger MR). H H (3) Evidence that the will was read over to or by the deceased is I I the “most satisfactory evidence” to establish knowledge J and approval: see Li Wai Chu & Anor v Li Wai Ling (HCAP J 6/2012, 20 June 2017) at para 129 (per DHCJ Kent Yee). K K L 159. However, the inquiry undertaken by the court is necessarily L fact-sensitive in nature: see Nina Kung (supra) at para 206. The M M suspicious circumstances that the court will take into account include the N N following:- O O (1) a beneficiary was involved in drawing up the will or those P P who drew up the will are closely related to the beneficiary; Q Q (2) the contents of the will in question radically depart from the R R contents of the previous wills; S S (3) the evidence of the propounder of the will is unsatisfactory; T T U U V V A - 75 - A B (4) suspicious circumstances relating to the execution of the will; B C C (5) lack of contemporaneous documents in relation to the D preparation and execution of the will; and D E E (6) refusal to call doctors who witnessed the execution of the will F to give evidence. F G G see Nina Kung (supra) at para 218; and Re Estate of Lim Por Yen [2025] H HKCFI 1401 at paras 207 to 208 (per Wilson Chan J). H I I 160. If some “triggering” suspicious circumstances exist, the J propounder of the will is required to adduce affirmative evidence to prove J on the balance of probabilities that the will was executed with the K K testator’s knowledge and approval: see Nina Kung (supra) at para 218; L and Re Estate of Lim Por Yen (supra) at para 78. L M M 161. After all, the court will consider all the relevant factual N N matters, including the testator’s character, state of mind, preference, and O likely desire, as well as the circumstances in which the will in question O was drafted and executed: see Gill v Woodall (supra) at para 14. P P Q Undue Influence Q R R 162. Where a person seeks to challenge a will on the ground of S undue influence, he bears the persuasive burden to establish undue S influence, and the person seeking to propound the will does not carry a T T U U V V A - 76 - A B burden to disprove undue influence: see Nina Kung (supra) at paras 177 B to 178. C C D 163. The burden of proving undue influence is a high one. There is D no presumption of undue influence, and actual undue influence must be E E proven as a matter of fact: see Li Chi Loy v Li Lai Lam Candice [2008] 5 F HKLRD 74 at para 83 (per Poon J, as Poon CJHC then was). F G G 164. It has been suggested that:- H H (1) In the present context, undue influence means influence I I exercised either by coercion (in the sense that the testator’s J will must be overborne) or by fraud. J K K (2) Coercion is pressure that overpowers the volition without L convincing the testator’s judgment, and this is distinguished L from mere persuasion, appeals to ties of affection, or pity for M M future destitution, all of which are legitimate. N N O (3) Pressure causing a testator to succumb for the sake of a quiet O life or escaping from distress of mind or social discomfort (if P P carried out to an extent that overbears the testator’s free Q judgment, discretion, or wish) is enough to amount to Q coercion, even though no force or violence is used. R R S (4) Undue influence may also take the form of control, S domination, or emotional pressure over a period of time, such T T that a person is so controlled, crushed, intimidated, or U U V V A - 77 - A B dominated that he will do almost anything to please the B abuser, avoid conflict with him/her, or to have a peaceful C C existence. D D (5) A person in the final days of his life may have become so E E weak and feeble that very little pressure will be sufficient to F bring about the desired result. He may be so fragile and F fatigued that he is willing to do anything asked of him for the G G sake of quietness. This could constitute coercion. H H (6) The court may draw inferences from the general I I circumstances, and undue influence occurs where the testator J is coerced into doing things that he does not desire to do. J K K See Wong Tug Wai v Wong Tung Po [2023] HKCFI 1240 at paras 25 to L 30; and Walker v Walker & Anor [2007] All ER (D) 418 (March) at L para 221. M M N E3. Factual Findings on Father’s Testamentary Intent N O O 165. It is incumbent on this court to make positive findings as to P (i) Father’s testamentary wish; and (ii) the validity or invalidity of the P 2006 Will, Father’s 2007 Will, the 2008 Joint Will, and the 2008 Joint Q Q Codicil. R R 166. Having considered the inherent probabilities, the apparent S S logic of events, the contemporaneous documents, the parties’ objective T T U U V V A - 78 - A B conduct, the evidence of the witnesses, and counsel’s submissions (the B details of which are elaborated hereinbelow), I find that:- C C D (1) As of March 2007, Father wished to disown the 2006 Will. D He was adamant that the 2006 Will did not reflect his E E testamentary wish and thus the same should be revoked as F soon as possible (see paragraphs 168, 170(18)-(19), 171, 198 F and 199 below). G G H (2) From March 2007 onwards, Father’s testamentary wish had H been consistent, and the same can be broadly summarized as I I follows:- J J (a) There was tension in the relationships between Father, K K on the one hand, and, on the other hand, TYK, TCG, L TCP, and TCH. L M M (b) Father took the view that he had (i) provided good N N education to the 5 Siblings, (ii) provided adequately for O the 5 Siblings. As such, the 5 Siblings were financially O comfortable. P P Q (c) In the premises, Father’s wish was that: (i) if he passes Q away, Mother should be adequately provided for; and R R (ii) when both he and Mother pass away, his personal S assets should be donated to charity. S T T U U V V A - 79 - A B (see paragraphs 168, 170, 171, 172, 173, 181, 182, and 183 to 195 B below) C C D (3) In the circumstances, Father, via TCS, approached Hastings’s D Ms Hwang for the purpose of executing a new will. E E However, before the meeting that was initially scheduled on F 27 March 2007 took place, Father was hospitalized due to F twisted intestine (Volvulus). (see paragraphs 196(1) & (2)(a)- G G (c) and below) H H (4) On Father’s volition, Hastings’s Ms Hwang and Mr Bruce Fu I I took instructions from him at Canossa Hospital in the J afternoon on 29 March 2007. Father wanted them to prepare J a new will for execution as soon as possible. (see paragraphs K K 168(3)-(6), 170(1)-(10), 196, and 197(1) below) L L (5) Based on Father’s instructions, Mr Bruce Fu drafted Father’s M M 2007 Will and Mother’s 2007 Will. The two sets of 2007 N N Wills were drafted up by the evening on 29 March 2007. Mr O Bruce Fu explained the contents of the 2007 Will to Father O over the phone in the morning on 30 March 2007. Father was P P contented. (see paragraphs 170(1)-(10) and 196 below) Q Q (6) Upon obtaining Dr Chen’s confirmation that Father and R R Mother were mentally fit to deal with their testamentary S affairs, on 30 March 2007, Mr Bruce Fu, again, read out and S explained the contents and effect of the sets of 2007 Wills to T T Father and Mother at Canossa Hospital. On this occasion, U U V V A - 80 - A B Father carefully and seriously read and approved the contents B of the 2007 Wills, and he understood the effect thereof. In the C C circumstances, Father and Mother duly executed their D 2007 Wills in the presence of (i) Dr Wong; (ii) Dr Chen; D (iii) Ms Hwang; and (iv) Mr Bruce Fu. (see paragraphs 168 E E and 169(1), (3), (4), (5) & (6) below) F F (7) Despite his old age and physical conditions, Father was G G mentally sharp and alert. He did not have the slightest H difficulty in (i) explaining his thoughts to others and (ii) H understanding the words spoken by others. (see paragraphs I I 168(1), (2), (4) & (5) and 202 below) J J (8) Father and Mother’s 2007 Wills reflect and evince Father’s K K testamentary intent at the time, and the contents were known L to and duly approved by him. Father also appreciated the L effect of the two sets of 2007 Wills. Father was not coerced M M or pressurized to execute his 2007 Will, and he was not N N subject to any undue influence. (see paragraphs 168, 169, O 170(1)-(10) & (20)-(25), 171, 172, 173, 174, 181, 182, 196, O 197(1), 202, 203, 204, 205, 207, 208, 209, 210, and 211 P P below) Q Q (9) However, the two sets of 2007 Wills had a loophole, in that if R R Father predeceases Mother, it would be open to Mother to S revoke her 2007 Will subsequently, in which case the assets S that Mother inherits from Father may not be used for T T charitable purposes. At the time when the two sets of 2007 U U V V A - 81 - A B Wills were executed, Father appreciated the loophole. B However, in light of the trust between Father and Mother, C C Father was contented with the arrangement under the two sets D of 2007 Wills. (see paragraphs 170(20)-(25) and 182(4) D below) E E F (10) After the two sets of 2007 Wills were executed, Hastings F were engaged to prepare (i) a statutory declaration that set out G G Father’s background, history, thoughts, and wish; and (ii) H fresh wills with more comprehensive contents to be executed H by Father and Mother. (see paragraphs 171, 190 and 191 I I below) J J (11) Insofar as the statutory declaration is concerned, Mr Brewer K K was engaged to take charge of the process. From May 2007 L to January 2008, Father attended at least four physical L meetings where Mr Bruce Fu and Mr Brewer took M M instructions from him directly. (see paragraph 171 below) N N O (12) The drafts of the 1st Statutory Declaration of Father had been O amended several times pursuant to Father’s instructions. P P Whilst Father had read the contents of the 1st Statutory Q Declaration, Mr Bruce Fu had also read and explained the Q contents to Father. Father duly approved the contents of the R R 1st Statutory Declaration. (see paragraph 171 below) S S T T U U V V A - 82 - A B (13) The 1st Statutory Declaration reflects and evinces Father’s B testamentary intent set out in subparagraph (2) hereinabove. C C (see paragraph 171 below) D D (14) As reflected by the contents of the 1st Statutory Declaration, E E Father erroneously assumed that he was still the beneficial F owner of the shareholding in AAIE/EnGro and AAS and he F intended that such shareholding be given to members of the G G Tan family pursuant to an intended deed of family H arrangement to be effectuated during his lifetime. If the H 5 Siblings did not accept the arrangement under the deed of I I family arrangement, the shareholding would be given to J charity. (see paragraphs 171(8), 184, 185, 188, and 189 J below) K K L (15) Father executed the 1st Statutory Declaration at the office of L Hastings on 31 January 2008. Before Father executed the 1st M M Statutory Declaration, Mr Bruce Fu had read and explained N N the contents thereof to Father, and Father approved the same. O (see paragraph 171 below) O P P (16) On the occasion of 31 January 2008, it was envisaged that Q Father would also execute the two sets of wills prepared by Q Mr Bruce Fu that separately dealt with assets within R R Singapore and assets outside of Singapore. However, upon S receiving the advice of Mr Fu (who reiterated the viewpoint S articulated by Mr Brewer) that it would be open to Mother to T T revoke her will after Father passes away (in which case the U U V V A - 83 - A B assets may not be used for charitable purposes), Father B decided (i) not to execute the two draft wills prepared by Mr C C Bruce Fu, and (ii) to seek advice from a counsel with D expertise in probate. (see paragraphs 170(20)-(25) and 182(4) D below) E E F (17) In the circumstances, during the period between 1 and 6 F February 2008, Hastings sought advice from Mr Nelson Miu, G G who had considered the possibility of executing mutual wills H or a joint mutual will. Bearing in mind that mutual wills or a H joint mutual will might have the effect of severing the joint I I tenancies in respect of the Bowen Property and the Sydney J Property, Mr Miu devised the following design: J K K (1) Father and Mother should execute a joint will that L would not be expressly identified as a mutual will. L M M (2) Under such a joint will (which eventually transpired to N N be the 2008 Joint Will):- O O (a) the surviving spouse (who turned out to be P P Mother) could only inherit the income deriving Q from the assets of the deceased spouse (who Q turned out to be Father); R R S (b) when both spouses pass away, the executrix or S trustee should apply the capital of the assets of T T the deceased spouse (which would not be U U V V A - 84 - A B inherited by the surviving spouse) for charitable B purposes. C C D (see paragraphs 170(11)-(15), 178, and 182(4) below) D E E (18) This design was a bona fide attempt to ensure Father’s F charitable intent could be implemented and fulfilled, while F the joint tenancies in respect of the Bowen Property and the G G Sydney Property might not be severed. With the aforesaid H concerns in mind, Mr Nelson Miu prepared the first draft of H the 2008 Joint Will, which was circulated on 4 February 2008. I I (see paragraphs 170(11)(b), 178, and 182(4) below) J J (19) After conducting a conference in the morning on K K 6 February 2008, Mr Nelson Miu revised the Chinese draft of L L the 2008 Joint Will by removing a clause (ie clause 10) that M might be utilized by the executrix/trustee (ie TCS) to render M herself a beneficiary. This was another bona fide attempt to N N ensure Father’s charitable intent would not be defeated. (see O paragraphs 170(11)(g)-(h) and 179 below) O P P (20) The aim of the mechanism under the 2008 Joint Will is to Q give effect to Father’s charitable intent, and the 2008 Joint Q Will is capable of implementing and fulfilling Father’s R R charitable intent. (see paragraphs 178, 179, 180, 181, 182, S 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, S and 195 below) T T U U V V A - 85 - A B (21) In the afternoon on 6 February 2008, Father and Mother B attended Hastings’ office for the purpose of executing the C C 2008 Joint Will. Whilst TCS was not present on this occasion, D those who were present included Ms Hwang, Mr Bruce Fu, D Dr Chan, and Mr Brewer. After Dr Chan confirmed that E E Father and Mother were mentally fit to make a will, Father F and Mother were invited to read the contents of the 2008 F Joint Will. Thereafter, Mr Bruce Fu read and explained the G G contents and effect of the 2008 Joint Will to Father and H Mother. In the circumstances, Father and Mother duly H executed the same, and the process was witnessed by Dr I I Chan and Mr Bruce Fu. (see paragraphs 169(2), (3), (4) & (6) J and 206 below) J K K (22) The 2008 Joint Will reflects and evinces Father’s L testamentary intent, and the contents and effect thereof were L known to and duly approved by Father. Father was not M M coerced or pressurized to execute the 2008 Joint Will, and he N N was not subject to any undue influence. (see paragraphs 168, O 169, 170(11)-(25), 171, 172, 173, 174, 181, 182, 183, 184, O 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, P P 197(2), 202, 203, 204, 205, 207, 208, 209, 210, and 211 Q below) Q R R (23) Since it was envisaged that (i) the shareholding in S AAIE/EnGro and AAS (which was erroneously assumed to S be owned by Father) would be disposed of pursuant to an T T intended deed of family arrangement to be executed during U U V V A - 86 - A B Father’s lifetime and that (ii) if the 5 Siblings did not accept B the terms of the deed of family arrangement, the shareholding C C would be donated to charity, it is explicable as to why the D 2008 Joint Will does not contain a provision that expressly D deals with the shareholding. This is consistent with Father’s E E intent. (see paragraphs 171(8), 184, 185, 188, and 189 below) F F (24) The contents and effect of the 2008 Joint Will (as well as the G G two sets of 2007 Wills) make sense. They are not irrational. H (see paragraph 174 below) H I I (25) On 8 May 2008, Father and Mother duly executed the 2008 J Joint Codicil at the office of Hastings in the presence of Dr J Chan and Mr Bruce Fu, and the purpose of this document K K was to provide that TCS would inherit the Bowen Property L after both of them pass away. (see paragraphs 175, 176, and L 177 below) M M N N (26) Bearing in mind that (i) TCS had been unmarried and O childless and (ii) TCS had shouldered up the responsibility of O acting as Father and Mother’s primary caregiver for years, it P P was understandable why Father and Mother would want TCS Q to inherit the Bowen Property. (see paragraphs 175, 176, and Q 177 below) R R S (27) The 2008 Joint Codicil reflects and evinces Father’s S testamentary intent, and the contents thereof were known to T T and duly approved by Father. Father was not coerced or U U V V A - 87 - A B pressurized to execute the 2008 Joint Codicil, and he was not B subject to any undue influence. (see paragraphs 175, 176, and C C 177 below) D D (28) Throughout the process of preparing Father and Mother’s E E 2007 Wills, the 2008 Joint Will and the 2008 Joint Codicil, F TCS did not exert undue influence over Father, who was F mentally sharp and alert. Indeed, Hastings’s Ms Hwang and G G Mr Bruce Fu had taken adequate steps to ensure that the H instructions came from Father and that Father understood the H contents and effect of the documents that he executed. The I I conduct of Hastings’s Ms Hwang and Mr Bruce Fu was J proper. Whilst they did act in Father’s interests, they did not J rush through the “will-making” process unreasonably or K K illegitimately on TCS’s instigation; nor did they seek to L advance TCS’s personal interests insidiously at Father’s L expense. (see paragraphs 170, 178, 179, 196, 197, 202, 203, M M 204, 205, 207, 208, 209, 210, and 211 below) N N Knowledge and Approval O O P 167. Insofar as Father’s knowledge and approval are concerned, P my reasons for making the aforesaid factual findings are as follows. Q Q R 168. First of all, TCS and Mother’s case regarding Father’s R testamentary intent is supported by the evidence of (i) Dr Wong; (ii) Dr S S Chen; (iii) Ms Hwang; and (iv) Mr Bruce Fu. In my view, they were T credible witnesses. They informed the court that they were expressly and T U U V V A - 88 - A B directly told by Father that (i) he was displeased with some of his children B (not TCS); (ii) he took the view that he had provided enough for his C C children; (iii) the 2006 Will did not reflect his wish; and (iv) his wish was D to donate his assets to charity:- D E E (1) Insofar as the evidence of Dr Wong is concerned:- F F (a) In her witness statement83, Dr Wong stated that back in G G 2006 or 2007, (i) Father indicated his displeasure with H the children in Singapore (ie TCG, TYK, TCP and H TCH), and (ii) Father told her that his daughter in I I Singapore (ie TCP) deceived him into singing the 2006 J Will, which did not reflect his testamentary wish 84. J K K (b) Regarding the occasion on 30 March 2007 (where the L Father’s 2007 Will was executed), Dr Wong, in her L witness statement, stated she was satisfied that Father M M had the mental capacity to make a will, and Father N N could “tell [her] in his own words about the way to O dispose of the assets which was compatible with the O 85 contents of the will that he was about to sign” . P P Q Q R R 83 Paragraph 11. S S 84 In her witness statement and oral evidence, Dr Wong said that as Father was in his late 80s, she did not want him to be agitated. As such, she said to Father that he could execute a new will, such that the T 2006 Will would be superseded. Dr Wong’s evidence makes sense and I accept the same. T 85 Para 12.5 U U V V A - 89 - A B (c) In her medical report dated 30 April 2007 86, Dr Wong B also stated, inter alios, that Father “completely C C understood the nature of his act in making his Will on D 30 Mar 2007 and its effect” and “was able to D comprehend and appreciate the claims by potential E E beneficiaries of his will to which he ought to give F effect”. F G G (d) When Dr Wong was being prodded in the course of H giving oral evidence87, she further mentioned that:- H I I (i) On the occasion of 30 March 2007, she was J provided with a copy of the draft 2007 Will. J K K (ii) Father told her he appreciated that he would L make a will. L M M (iii) Father said to her the effect of the arrangement N N under the 2007 Will was such that: (A) if he O passes away before Mother passes away, his O assets will be inherited by Mother; (B) if Mother P P passes away before he passes away, Mother’s Q assets will be inherited by himself; and (C) when Q both Mother and himself pass away, their assets R R will be donated for charitable purposes. S S 86 T Bundle B8, Tab 382, page 3244 T 87 Day 5, before morning break U U V V A - 90 - A B (iv) What Father said was consistent with the B contents of the 2007 Will. As such, she was C C satisfied that Father understood the effect and D contents of the will in question (ie the 2007 D Will). E E F (e) Mr Dawes pointed out that Dr Wong did not record the F aforesaid verbal conversations in her witness statement G G and medical report. This was true. However, for the H following reasons, I am not of the view that Dr Wong H concocted evidence by putting words in Father’s I I mouth: J J (i) First of all, it is not in dispute that (i) Father K K and Dr Wong had a long-term professional L relationship; and (ii) the occasion of 30 March L 2007 was the only time where Dr Wong (who M M specializes in otorhinolaryngology) was asked to N N act as a witness to a will and to confirm O whether a patient had mental capacity. In the O circumstances, it was explicable why Dr Wong P P had a vivid recollection as to what Father said to Q her. In this connection, as pointed out by Q Dr Wong when she gave oral evidence, the R R contents of the 2007 Will and Father’s intent S were easy to understand. I agree. I am satisfied S that Dr Wong was capable of remembering the T T salient matters that took place on 30 March 2007. U U V V A - 91 - A B B (ii) Second, in her medical report dated 30 April C C 2007 88 and witness statement 89 , Dr Wong did D unequivocally state that Father “completely D understood the nature of his act in making [his E E 2007 Will] and its effect” and “could tell [her] in F his own words about the way to dispose of his F assets which was compatible with [the 2007 G G Will]”. I accept that these were the “conclusion”, H and the “process” whereby Dr Wong came up H with such a conclusion was not elaborated. In I I my view, it is important not to lose sight of the J fact that Dr Wong was not an experienced J psychiatrist, who appreciated that it would be K K prudent to prepare perfect documentation in L view of potential litigation in the future. This L explained why Dr Wong took the view that it M M was sufficient to set out the conclusion in a N N succinct manner. In my view, Dr Wong did not O conjure up matters regarding the process out of O the blue. I am not of the view that there was any P P improper conduct, negligence, sharp practice or Q dishonesty on the part of Dr Wong. Q R R (f) In the premises, I accept Dr Wong’s evidence (both S written and oral). All in all, having observed the way S 88 T Bundle B8, Tab 382, page 3244 T 89 See Paragraph 12.5 U U V V A - 92 - A B in which Dr Wong responded to the questions asked of B her, I am of the view that she was a responsible, C C reliable, and conscientious witness who sought to D ensure that her answers were accurate. D E E (2) As regards the evidence of Dr Chen:- F F (a) On 30 March 2007 (ie the occasion where the two sets G G of 2007 Will were executed), Dr Chen was engaged to H verify whether Father had the mental capacity to make H a will. For the reasons elaborated in his witness I I statement and medical report dated 10 September J 200790, Dr Chen opined that Father (who was “sharp J and alert”91) had “good mental capacity”92. K K L (b) It is not in dispute that Dr Chen had extensive L conversations with Father. Insofar as Father’s wish and M M intent are concerned, Dr Chen mentioned that N N (i) Father and Mother “both expressed their wish to O donate a major part of the value of their assets to O charity” ; and (ii) Father “was serious and carefully 93 P P reading through his [2007 Will] when it was presented Q to him by his solicitor”94. Q R 90 R Bundle B8, Tab 384 91 Witness Statement, para 8 S S 92 Medical Report dated 10 September 2007, para 29 [Bundle B8, Tab 384, page 3269] 93 T Witness Statement, para 10 T 94 Witness Statement, para 17 U U V V A - 93 - A B B (c) In regard to (ii) above, when Dr Chen gave oral C C evidence95, he gave further elaboration. He mentioned D that after he interviewed Father, the solicitors came in D and presented the will (ie the 2007 Will) to Father. E E Father took the 2007 Will and carefully read the F contents thereof. Dr Chen could recall that Mr Bruce F Fu was the one who explained the contents of the 2007 G G Will to Father. Whilst Dr Chen could not recall H whether Father asked any questions, he remembered H that Father was very serious throughout the process I I and that Father agreed to the contents of the 2007 Will. J J (d) Dr Chen was further engaged to assess Father’s mental K K capacity on 31 January 2008 at Hastings’s office L (where Father signed the 1st Statutory Declaration, L but not the two sets of draft wills prepared by M M Mr Bruce Fu). Again, Dr Chen was satisfied that N N Father had good mental capacity, and his analysis was O elaborated in his witness statement and medical report O 96 dated 6 August 2008 . P P Q (e) It is not in dispute that as part of the examination, Q Father had extensive conversations with Dr Chen. R R Insofar as Father’s wish and intent are concerned, S S 95 T Day 6, before morning break T 96 Bundle B8, Tab386, 3276 to 3289 U U V V A - 94 - A B Dr Chen informed the court he was told by Father B that97:- C C D (i) Father came from a humble background. D However, he became affluent. He wished to E E have a meaningful life and make the best use of F his money. F G G (ii) Father’s children had been well-educated and H were more capable than himself. There was no H need to give any money to them, and he I I preferred to help the needy. J J (iii) Father wished to make donations to the K K Singapore Buddhist Lodge, the National L University of Singapore as well as those who L were poor, sick and/or old. M M N N (iv) TCS who was unmarried took care of Father and O Mother for years. Father wanted TCS to manage O his assets and carry out what he intended to do. P P Q (f) In light of what Father said to Dr Chen (whose Q evidence was truthful in my view), Father’s charitable R R intent could not be clearer. S S T 97 T See Witness Statement, para 27 and 2nd medical report dated 6 August 2008, para 7 [Bundle B8, Tab386, 3278] U U V V A - 95 - A B (g) I also accept (i) Dr Chen’s opinion that Father was B sharp, alert and mentally fit at the material times; (ii) C C Dr Chen’s factual evidence that Father had carefully D read the 2007 Will; and (iii) Dr Chen’s factual D evidence that Mr Bruce Fu had explained the contents E E of the 2007 Will to Father, and Father approved the F contents of the 2007 Will. F G G (h) In light of the contents of the 2007 Will (which Father H had (i) carefully read and (ii) approved), it is H abundantly clear that Father’s intention was to donate I I his wealth and assets to charity, and he did not want J his children to inherit his personal assets. J K K (i) I have no doubt that Dr Chen is an honourable and L honest professional who sought to relay what Father L told him to the best of his abilities. In this connection, M M it is worth mentioning that as evidenced by Hastings’s N N letter dated 12 October 200798, Dr Chen was invited to O amend part of the contents in his medical report on the O basis that some of the facts mentioned by Father might P P not be accurate. As evidenced by the letter dated 8 Q January 200899, Dr Chen, having reviewed his clinical Q notes, was adamant that some of the alleged R R inaccuracies originated from Father. Bearing in mind S that Father was the one who was being assessed, Dr S 98 T Bundle B5, Tab 176 T 99 Bundle B8, Tab 383, 3245 U U V V A - 96 - A B Chen refused to rectify these alleged inaccuracies. In B my view, this episode shows that Dr Chen was C C genuinely neutral and did not take sides. D D (j) However, Mr Dawes submitted that Dr Chen’s E E evidence contradicts the case of TCS and Mother. He F pointed out that according to Dr Chen’s witness F statement, the wish of Father and Mother was “to G G donate a major part of the value of their assets to H charity”100. This is not the effect of Father’s 2007 Will. H I I (k) Whilst I see where Mr Dawes was coming from, I do J not see much force in his submissions. It is important J not to lose sight that the role of Dr Chen was to assess K K the mental capacity of Father. In the circumstances, L Dr Chen had no reason to pay attention to the L mechanism for giving effect to Father’s wish. As M M explained by Dr Chen when he gave oral evidence, this N N was the job of the solicitors. Thus, Dr Chen, in his O witness statement, simply “casually” 101 stated that O Father and Mother “both expressed their wish to P P donate a major part of the value of their assets to Q charity” 102 . In my view, this was merely a general Q impression that Dr Chen gathered. This might not be R R S S 100 Witness Statement, para 10 101 T This was the phrase used by Dr Chen when he gave oral evidence. T 102 Witness Statement, para 10 U U V V A - 97 - A B something that Father and/or Mother specifically said B to Dr Chen on 30 March 2007. C C D (l) However, even if Father and Mother did say to D Dr Chen that only the major part of their assets would E E be donated to charity, this was not surprising. As will F be elaborated in paragraphs 184 to 185 and 188 to 189 F below, Father (who erroneously assumed that he still G G retained beneficial ownership) intended that the H shareholding in AAIE and AAS be distributed to H members of the family pursuant to a deed of family I I arrangement to be executed during his lifetime, and if J the 5 Siblings did not accept the terms of the deed of J family arrangement, the shareholding will be donated K K to charity. As will be elaborated, this intended L arrangement was consistent with the terms of the two L sets of 2007 Wills and the 2008 Joint Will. M M N N (3) As regards the evidence of Mr Bruce Fu:- O O (a) He took direct instructions from Father at Canossa P P Hospital on 29 March 2007 (which was one day Q before the two sets of 2007 Wills were executed on Q 30 March 2007). R R S (b) When Mr Dawes challenged Mr Bruce Fu in regard to S the technical discrepancies between (i) paragraph 5 of T T U U V V A - 98 - A B his witness statement 103 and (ii) paragraph 7 of his B witness statement 104 , Mr Bruce Fu made it loud and C C clear that Father did make it clear to him that he and D Mother would wish to donate all their assets to D charities, but of course they would take care of each E E other first. In other words, the intention was that Father F and Mother’s assets be given to each other first (if one F of them passes away) and thereafter (when both of G G them pass away) the assets should be donated to H charities. H I I (c) Having observed the way in which Mr Bruce Fu gave J evidence, I am of the view that his answers were J succinct yet adamant and convincing. Despite K K Mr Dawes’s criticisms, I am of the view that L Mr Bruce Fu was a truthful and honest witness. I L accept his evidence. M M N N (4) As regards Ms Hwang’s evidence:- O O (a) In her witness statement, she mentioned that:- P P Q Q 103 Here, Mr Bruce Fu stated: “5. [Father]’s instructions were simple and clear: he wished to revoke the Will he made in 2006 and leave the entirety of his estate to his wife, and afterward to charity…” R 104 Here, Mr Bruce Fu stated: “7. Following those instructions and upon returning to my office, I drafted R a will in Chinese, the intent and purpose of which was that [Father] would revoke an earlier will he made on 21 April 2016 and would give the entirety of his estate, after payment of testamentary debts, S to his wife, but if she predeceased him to three charities in broad terms, namely: (7.1) One third to S such organizations in Hong Kong for charitable purposes in aid of medical care, education, care of the elderly, young and poor, and (7.2) Two Thirds to such organizations in Shanting Village, T T Maxiang Town, Xiangan District, Fujian Province, and Xiamen City devoting to charitable purposes in aid of medical care, education, care of the elderly, you and poor.” U U V V A - 99 - A B i. At the dinner gathering back in early 2007 B (which was attended by Father, Mother, TCS C C and herself), Father indicated that he was D displeased with some of his children 105. D E E ii. On a Saturday afternoon in February or March F 2007, upon learning from TCS that Father F wished to meet her urgently, she attended the G G Bowen Property. Father, sitting on a cane chair, H was visibly upset. He told Ms Hwang that the H 2006 Will did not express his wish. Ms Hwang I I comforted Father by saying that he could make a J new will, thereby revoking the 2006 Will. Father J seriously said to Ms Hwang that he wanted to K K give all his estate to charity, though no specific L details were provided106. L M M (b) Mr Dawes criticized Ms Hwang for not taking N N contemporaneous notes that recorded the discussion in O February or March 2007. However, as pointed out by O 107 Ms Hwang in her witness statement and oral P P evidence108, she had not yet been instructed to act for Q Father as of the time when the aforesaid discussion Q took place. I accept Ms Hwang’s explanation. This was R R 105 Paragraphs 3 to 4 S S 106 Paragraphs 6 to 11. 107 T Paragraph 11 T 108 Day 9, after morning break U U V V A - 100 - A B an informal occasion. I understand why instead of B locating a piece of paper to jot down what Father said, C C Ms Hwang’s foremost concern was to comfort and D calm down Father (who was an elder in his late 80s). D This was sensible. E E F (c) Having observed the way in which Ms Hwang gave F oral evidence in regard to the occasion in February or G G March 2007, I have no doubt that Ms Hwang had vivid H recollection as to his exchange with Father, who was H distressed and emotional at the time. I accept her I I evidence. I do not believe that she concocted the J incident for the purpose of corroborating TCS’s case. J K K (d) Ms Hwang was present on the occasion of 29 March L 2007 where instructions were taken from Father L directly at Canossa Hospital. In paragraph 18 of her M M witness statement, Ms Hwang said Father’s wish N N regarding the new will was simple and clear: “all he O wanted was to give the entirety of his estate to Mother, O and if she predeceases him, his estate would go to P P charity and not to his children”. Father also said that Q (i) his children were very well provided for and hence Q financially comfortable; and (ii) the 2006 Will must be R R revoked. S S (e) Mr Dawes pointed out that the suggestion in paragraph T T 18 of Ms Hwang’s witness statement is different from U U V V A - 101 - A B what Father told Ms Hwang back in February or March B 2007. Whilst Father said he wanted to give all his C C estate to charity on the occasion in February or early D March 2007 109 , on the occasion of 29 March 2007, D Father said that his estate should only be given to E E charity if Mother predeceases him. F F (f) The criticism is a forensic one. G G H (g) It is important not to lose sight that the occasion back H in February or early March 2007 merely involved I I a general discussion when Father was visibly upset J and distressed. It was understandable why on this J occasion, Father merely expressed his wish in general. K K This was not the occasion where proper and detailed L instructions were taken. In my view, there was nothing L unusual or suspicious about the fact that when Father M M was asked to give detailed instructions on the occasion N N of 29 March 2007, he made it clear that Mother should O be adequately provided for during her lifetime before O his assets are utilized for charitable purposes upon the P P demise of both himself and Mother. Q Q 110 (h) As Ms Hwang explained in her oral evidence , the R R testamentary wish of both Father and Mother was that S their assets be donated to charity. What Ms Hwang S T 109 Paragraph 10 of Ms Hwang’s Witness Statement. T 110 Day 9, after morning break U U V V A - 102 - A B told the Court is consistent with the effect of the two B sets of 2007 Wills made by Father and Mother. Unless C C the surviving spouse revokes his/her 2007 Will D subsequently 111 (which was a loophole that was D plugged subsequently under the 2008 Joint Will), the E E assets of the deceased spouse (which the surviving F spouse would inherit) would be utilized for charitable F purposes when both spouses pass away. In the G G premises, it can be said that the contents and effect H of the two sets of 2007 Will are compatible and H consistent with Father’s earlier suggestion back in I I February or early March 2007 (ie he wanted to give the J entirety of his estate to charity). I am not of the view J that Father’s charitable intent had changed at all. K K L (5) For the reasons elaborated above, I accept Dr Wong, Dr Chen, L Mr Bruce Fu, and Ms Hwang’s evidence. Having observed M M the way in which they responded to the questions asked of N N them, I am of the view that Dr Wong, Dr Chen, Mr Bruce Fu, O and Ms Hwang were credible and cooperative witnesses who O were candid with the court. P P Q (6) Indeed, Dr Wong, Dr Chen, Mr Bruce Fu and Ms Hwang Q have no interests in the outcome of these proceedings. I am R R unable to discern any reason why they would wish to lie on S oath. As Mr Tang submitted, it is unlikely that these S T T 111 As mentioned above, it was Mr Fu’s evidence that the instruction received by Hastings was that Father and Mother trusted each other immensely and I accept his evidence. U U V V A - 103 - A B professionals would conspire together to give false evidence B for the purpose of supporting TCS’s case. I do not accept that C C this was what happened. D D 169. Second, I accept the evidence of (i) Mr Bruce Fu; E E (ii) Dr Chen; and (iii) Dr Chan that the contents and effect of Father’s F 2007 Will as well as the 2008 Joint Will were read over and explained to F Father. This is the “most satisfactory evidence” to establish knowledge G G and approval: see Li Wai Chu (supra) at para 129, and there is a “very H strong presumption” that Father’s 2007 Will and the 2008 Joint Will H represent Father’s intention at the material times: see Gill v Woodfall I I (supra) at para 14:- J J (1) Insofar as the evidence of Dr Chen is concerned:- K K L (a) As mentioned in paragraph 168(2)(c) above, L Dr Chen personally witnessed the following facts on M M 30 March 2007:- N N O i. After his interview with Father was completed, O the solicitors came in and presented the will (ie P P the 2007 Will) to Father. Q Q ii. Father took the 2007 Will and read the contents R R carefully. S S iii. Mr Bruce Fu explained the contents of the 2007 T T Will to Father. U U V V A - 104 - A B B iv. Father was very serious throughout the process. C C D v. Father agreed to the contents of the 2007 Will. D E E (b) For the reasons elaborated in paragraphs 168(2), (5) F and (6) above, I have no doubt that Dr Chen was an F honest and disinterested witness who had no reason to G G lie. H H (c) It is true that the factual matters set out in sub- I I paragraph (1)(a) above were not specifically set out in J Dr Chen’s medical report dated 10 September 2007112. J However, as a clinical psychiatrist, Dr Chen would, K K understandably, focus on the matters that shed light on L Father’s mental capacity (such as behavior, speech, L mood, thoughts, memory, etc). It does not follow that M M the factual matters relating to the execution of the 2007 N N Will would necessarily escape Dr Chen’s attention. I O accept Dr Chen’s evidence that he simply took the O view that it was unnecessary to address the factual P P matters relating to the execution of Father’s 2007 Will Q in his medical report. This is entirely understandable. Q R R (d) Having observed the way in which Dr Chen gave S evidence in court, I am of the view that he had a good S T T 112 Bundle B8, Tab 384, pages 3259 to 3270 U U V V A - 105 - A B recollection of the relevant events. I am not of the B view that he concocted or distorted any factual matters. C C D (2) As regards the evidence of Dr Chan:- D E E (a) Whilst Dr Chan made a brief witness statement, he F reluctantly testified in court 113 pursuant to a writ of F subpoena that was served on him114. G G H (b) It is not in dispute that Dr Chan (who specializes in H gastroenterology and hepatology) examined Father on I I 6 February 2008 at Hastings’s office (where Father and J Mother executed the 2008 Joint Will). Having satisfied J that Father was fully oriented 115 and had full K K comprehensive ability, Dr Chan was of the view that L Father was able to give consent, and thus he was L capable of making a will116. M M N N (c) Mr Dawes criticized Dr Chan for failing to understand O the requisite requirements for establishing testamentary O capacity. However, Father’s testamentary capacity is P P Q 113 Day 6, after morning break Q 114 Dr Chan said that when he agreed to assess Father’s mental capacity pursuant to TCS’s request, he R made it clear that he would not come to court to testify. Although he subsequently made a witness R statement, he did not appreciate the implication was that he would be giving evidence in court as no one advised him in respect thereof. S S 115 When Dr Chan gave oral evidence, he said this meant that the patient was able to comprehend (i) time; (ii) place; and (iii) persons. T T 116 See paras 4 to 7 of Dr Chan’s Witness Statement and paras 16 to 20 of his medical report dated 19 February 2008 [Bundle B8, Tab 385, page 3286] U U V V A - 106 - A B not a disputed issue in the Probate Action. Thus, the B criticism is beside the point. C C D (d) The importance of Dr Chan’s evidence is that he was D able to testify as to the process of executing the 2008 E E Joint Will. When Dr Chan gave oral evidence, he F informed the court that at the time when 2008 Joint F Will was executed:- G G H i. Father sat in front of a large table, and a lawyer H sat next to him. I I J ii. The lawyer pointed at the contents of the will (ie J the 2008 Joint Will) and explained the same to K K Father. L L iii. When the lawyer explained the contents of the M M 2008 Joint Will, Father would nod his head and N N indicated that he understood. O O (e) When Mr Dawes challenged Dr Chan’s recollection, P P Dr Chan was able to inform the court that he Q remembered two specific details. First, he remembered Q that 2008 Joint Will involves huge sums in the region R R of HK$100 million, and the solicitor did speak the S word “億”. Second, he remembered that Father’s assets S would be donated. Dr Chan further said that he T T had recollection about the aforesaid details because U U V V A - 107 - A B (i) huge amounts of monies were involved; and B (ii) huge amounts of monies would be donated. C C D (f) Mr Dawes also criticized Dr Chan for not recording his D assertions in his medical report 117 . However, like E E Dr Chen, the task of Dr Chan was to assess Father’s F mental capacity. As such, it is understandable why F Dr Chan’s medical report focuses on matters relating G G to Father’s physical conditions, rather than matters H relating to the discussion and the execution of the 2008 H Joint Will. I am not of the view that Dr Chan conjured I I up the aforesaid factual matters out of the blue. J J (g) All in all, I am of the view that Dr Chan’s evidence K K makes sense and is credible. Having observed the way L in which Dr Chan gave evidence, it appears to me that L he was a reluctant witness who was forced to testify in M M court. Although Dr Chan did not wish to be involved in N N this litigation, he did discharge his duties and informed O the court of the matters that he knew. I accept his O evidence. P P Q (3) As regards Mr Bruce Fu’s evidence:- Q R R (a) Mr Bruce Fu informed the court 118 that his practice S was that whenever a client executed a will in his S 117 T Bundle B8, Tab 385, pages 3271 to 3275 T 118 Day 7, after lunch U U V V A - 108 - A B presence, he would explain the entirety of the will to B the client from the beginning till the end. C C D (b) In his witness statement 119 , Mr Bruce Fu confirmed D that:- E E F i. On the occasion of 30 March 2007, he explained F the contents of the 2007 Will to Father, and G G Father confirmed that he knew and approved the H contents. H I I ii. On the occasion of 6 February 2008, Father and J Mother were asked to read the 2008 Joint Will. J Afterwards, he, with intervals, slowly explained K K the contents and effect of the 2008 Joint Will to L Father and Mother (paragraph by paragraph), L and Father and Mother confirmed that (i) they M M did not have any question and (ii) they knew and N N approved the contents. O O (c) Mr Dawes vigorously challenged Mr Bruce Fu’s P P evidence. He pointed out that Mr Bruce Fu did not take Q any contemporaneous notes in regard to process where Q the two sets of 2007 Wills and the 2008 Joint Will R R were read and/or explained to Father. In this S connection, Mr Dawes contended that in light of his S busy practice, Mr Bruce Fu could not have T T 119 See paras 10 and 31 to 33 U U V V A - 109 - A B remembered the events that took place years ago. B Mr Dawes also expressed concerns as to whether C C Father knew and appreciated that Mother would be in a D position to dispose of the income arising from the D capital of his assets for non-charitable purposes. E E F (d) Despite the force of Mr Dawes’s submissions, I accept F Mr Bruce Fu’s evidence that (i) the contents and effect G G of the 2008 Joint Will as well as the two sets of 2007 H Wills were explained to both Father and Mother; and H (ii) Father and Mother knew the effect thereof I I and approved the mechanisms thereunder. For the J following reasons, I believe that he told the truth to the J court. K K L L (e) First of all, Mr Bruce Fu’s evidence was corroborated M by the evidence of (i) Dr Chen and (ii) Dr Chan. They M were, in my view, honest and disinterested witnesses N N who had no reason to lie. O O (f) Second, having said that it was Mr Bruce Fu’s practice P P to explain the entirety of his clients’ wills, I understand Q why Mr Bruce Fu might not see the need to record a Q routine that was regularly performed. I do not suggest R R that this was good practice. However, in the S circumstances of the present case, I am unable to infer S that Mr Bruce Fu lied on oath simply because he was T T not vigilant enough to create contemporaneous records U U V V A - 110 - A B in respect of a process that appeared to be routine to B him. On the evidence, I am simply unable to discern a C C good reason why Mr Bruce Fu would wish to depart D from his usual practice. D E E (g) Third, as to Mr Bruce Fu’s recollection, there is no F question that Hastings acted for Father and Mother for F a prolonged period of time, and Hastings was involved G G 120 in the subsequent litigations . Mr Bruce Fu, in his H oral evidence 121 , empathetically stressed that he had H vivid recollection as to the events relating to Father I I and Mother. He pointed out that despite their wealth J and status, Father and Mother were kind, courteous, J and humble, and they were very respectful towards the K K solicitors. In the circumstances, he had considerable L sympathy for Father and Mother in regard to the L situation that they faced. I accept Mr Bruce Fu’s M M evidence, and I believe that he was capable of having N N recollection of the material events that involved Father O and Mother. O P P (h) Fourth, as will be elaborated below, although there was Q latitude on the part of Mr Bruce Fu in preparing Q contemporaneous records, I am of the view that he is, R R by and large, a responsible solicitor who is mindful of S S 120 These included the Singaporean proceedings (where Mr Bruce Fu was asked to testify) as well as the T discovery application under HCMP 1192/2018. T 121 Day 7, after lunch U U V V A - 111 - A B his duties owed to clients. I do not see any reason why B Mr Fu, who has no interests in the outcome of the C C matter, would wish to trick and/or mislead Father and D Mother. I believe that in discharge of his duties as a D solicitor, Mr Fu had read the entirety of the contents of E E the two sets of 2007 Wills and the 2008 Joint Will to F Father and Mother and adequately explained the F mechanisms thereunder to both of them. As mentioned, G G I do not see a good reason why Mr Bruce Fu would H wish to depart from his usual practice. H I I (4) In the premises, I am satisfied that the contents and effect of J the 2008 Joint Will as well as the two sets of 2007 Wills were J read out and adequately explained to Father and Mother. K K I am also satisfied that Father and Mother had read the L contents of the 2008 Joint Will. In my view, the contents of L the 2008 Joint Will and the two sets of 2007 Wills are fairly M M straightforward and easy to understand. Bearing in mind N N Father was, in Dr Chen’s words, “sharp and alert”122 and had O “good mental capacity”123, I am not of the view that Father O would fail to understand and appreciate the effect of the 2008 P P Joint Will and the two sets of 2007 Wills. Q Q (5) I also take into account the evidence of Dr Wong, who R R confirmed that Father was capable of spelling out the S contents of the two sets of 2007 Wills in his own words. As S T 122 Dr Chen’s witness statement, para 8 T 123 Medical Report dated 10 September 2007, para 29 [Bundle B8, Tab 384, page 3269] U U V V A - 112 - A B discussed in paragraph 168(1), (4), and (5) above, I am of the B view that Dr Wong was a credible, reliable and conscientious C C witness, and I accept her evidence. D D (6) For completeness, it should also be pointed out that as TCG E E fairly admitted when he gave oral evidence124, Father spoke F and understood Cantonese (which was the language used by F Mr Bruce Fu to explain the contents of the 2008 Joint Will G G and Father’s 2007 Will). Bearing in mind that Father had H lived in Hong Kong since 1974, TCG’s admission was hardly H surprising. In the premises, there is simply no room for TCG, I I TYK, and TCP to contend that Father had difficulty in J J communicating with his legal representatives. Indeed, this contention was not seriously pursued throughout the trial. K K L L 170. Third, Mr Dawes criticized Mr Bruce Fu as well as M Ms Hwang for not taking adequate contemporaneous notes to record the M process, through which Father’s 2007 Will and the 2008 Joint Will were N N prepared. Mr Dawes submitted that this casts doubt on whether the O Father’s 2007 Will and the 2008 Joint Will truly reflected Father’s O instructions and testamentary intent. Despite Mr Dawes’s forceful P P submissions, I am not in a position to agree with him:- Q Q (1) It is not in dispute that Ms Hwang and Mr Bruce Fu met R R Father and took instructions from him at Canossa Hospital in S the afternoon on 29 March 2007. Mr Bruce Fu was the S solicitor who took up the task of drafting Father’s 2007 Will. T T 124 Day 3, before morning break U U V V A - 113 - A B In the evening on 29 March 2007, Mr Bruce Fu managed to B circulate the draft 2007 Will of Father. On the next day (ie 30 C C March 2007), after Dr Chen examined Father and Mother, D they executed their 2007 Wills in the presence of (i) Dr D Wong; (ii) Dr Chen; (iii) Ms Hwang; and (iv) Mr Bruce Fu. E E F (2) The process was evidenced by, inter alios, the following F contemporaneous records:- G G H (a) The handwritten notes jotted by Mr Bruce Fu on the H occasion of 29 March 2007125; I I J (b) Mr Bruce Fu’s email dated 29 March 2007 at 9:27pm J (i) circulating the draft 2007 Will of Father and K K (ii) inviting TCS to explain the contents of the draft L 2007 Will to Father126; L M M (c) Mr Bruce Fu’s handwritten note dated 30 March 2007 N N at 12:23pm recording that (i) he spoke to Father and O TCS over the phone; and (ii) they were contented with O 127 the contents of the draft 2007 Will ; and P P Q Q R R S S 125 Bundle B7, Tab 307, pages 2981 126 T Bundle B5, Tab 183, pages 2186 T 127 Bundle B7, Tab 309, pages 2983 U U V V A - 114 - A B (d) The handwritten notes jotted by Ms Hwang on the B occasion of 30 March 2007 (which recorded Dr Chen’s C C examination on Father and Mother)128; D D (3) Having heard Ms Hwang’s evidence129, it appears obvious to E E me that Ms Hwang (who was the more senior member in F Hastings) relied on Mr Bruce Fu to draft and prepare the two F sets of 2007 Wills. Although Ms Hwang was involved in the G G process of taking instructions from Father, she did not take H contemporaneous notes on the occasion of 29 March 2007. H I I (4) Mr Dawes criticized Mr Bruce Fu in regard to his failure to J record that (i) Father’s intention was to leave his assets to J Mother and afterwards in charity; and (ii) the 2006 Will K K should be revoked. I saw where Mr Dawes came from. L However, I cannot agree with his criticisms of Mr Bruce Fu. L M M (5) Whilst Mr Bruce Fu might have envisaged that the 2007 Will N N would be challenged in the future, his task at the material O times was to draft up the contents of the 2007 Will on an O urgent basis in light of Father’s instructions that a new will P P should be executed as soon as possible. I have no doubt that Q Mr Bruce Fu’s foremost concern at the time was not to Q prepare perfect records for litigation purposes in the future. In R R the circumstances, it was understandable why the S S 128 T Bundle B7, Tab 310, pages 2984 to 2988 T 129 Day 9, after morning break U U V V A - 115 - A B contemporaneous notes jotted by Mr Bruce Fu on the B occasion of 29 March 2007130 were brief. C C D (6) In this connection, I accept Mr Bruce Fu’s explanation that D Father’s instruction was simple and easy to understand. It is E E plain that Father’s wish was that Mother be adequately F provided for during her lifetime, and after both of them F passed away, the assets should be donated to charities. I have G G no doubt that Mr Bruce Fu, who was an experienced H practitioner, would have no difficulty in retaining this H information in his mind. This explained why he did not see I I the need to jot down the same expressly in the J J contemporaneous notes. As regards the revocation of the 2006 Will, this could be achieved automatically once a new K K will is executed. As such, Mr Bruce Fu was entitled to take L L the view that it would not be necessary to jot down this point M expressly. In fact, Mr Bruce Fu was able to come up with the M first draft of the 2007 Will just a few hours after he took N N instructions from Father. In my view, Mr Bruce Fu’s memory O must be fresh at the material times. There is no room to O suggest that Mr Bruce Fu and/or any member of Hastings put P P words into Father’s mouth and/or fabricated his testamentary Q intent. I do not believe that this was the case. Q R R (7) I accept Mr Bruce Fu’s explanation that what he sought to do S at the material times when he jotted the contemporaneous S notes was to record the information that needed to be T T 130 Bundle B7, Tab 307, pages 2981 U U V V A - 116 - A B confirmed by Father. Such information, such as names, B Hong Kong Identification Card numbers, address, and C C destinations of the intended donations, could not be D remembered easily. This explained why Mr Bruce Fu’s D contemporaneous notes set out (i) the full names of Father, E E Mother and TCS; (ii) their Hong Kong Identification Card F numbers; (iii) the address of the Bowen Property; and (iv) the F instruction that 1/3 of the donations should go to the charities G G in Hong Kong and 2/3 of the donations should go to the H charities in Shanting Village, Maxiang Town, Xiangan H District, Fujian Province and Xiamen. I I J J (8) Insofar as (iv) is concerned, it is not in dispute that the K Chinese words “翔安山亭村 (Shanting Village, Xiangan)” K that appear in Mr Bruce Fu’s contemporaneous notes were L L written down by Father. This amply reflected Father’s M charitable intent. If Father had no intention to bequeath his M assets for charitable purposes in his hometown, he would not N N have written down the said Chinese words in Mr Bruce Fu’s O contemporaneous notes. In my view, the truth was that Father O was eager to assist Mr Bruce Fu to complete the task of P P drafting up his 2007 Will as well as Mother’s 2007 Will. Q Q (9) It is also important to mention that Father’s instruction was R R that his new will (ie his 2007 Will) should be executed as S soon as possible. Bearing in mind Father’s advanced age and S the fact that he was hospitalized at the time, this was entirely T T understandable. In the circumstances, Mr Bruce Fu acted U U V V A - 117 - A B under considerable time pressure. He simply did not have the B time to prepare perfect documentation for the purpose of C C records. Whilst one can always suggest that a professional D could have done a better job, there is no point in criticizing D him or her with the benefit of hindsight. E E F (10) For all the above reasons, I am not of the view that Mr Bruce F Fu failed to discharge his duties owed to Father. I am of the G G view that he prepared Father and Mother’s 2007 Wills based H on Father’s instructions in a bona fide and serious manner. H I I (11) Insofar as the preparation of the 2008 Will is concerned, I am J J of the view that Hastings genuinely sought advice from an K experienced counsel (namely Mr Nelson Miu) in order to K (i) plug the loophole that Mother may defeat Father’s L L charitable intent by revoking her 2007 Will and (ii) ensure M that Father’s charitable intent could be implemented and M fulfilled. The preparation process and the input from N N Mr Nelson Miu were well-documented and evidenced by, O inter alios, the following contemporaneous emails and O records:- P P Q (a) The email from Mr Bruce Fu to Mr Brewer and TCS Q on 1 February 2008 summarizing the initial advice R R from Nelson Miu131; S S T T 131 Bundle B6, Tab 224, page 2586 U U V V A - 118 - A B (b) The email from Nelson Miu dated 4 February 2008 at B 19:44132 enclosing (i) his advice in writing133; and (ii) C C the first draft of the 2008 Joint Will (which was in D English)134; D E E (c) Mr Bruce Fu’s email dated 4 February 2008 at 19:54135, F circulating the advice and draft will prepared by Mr F Nelson Miu; G G H (d) Mr Bruce Fu’s email dated 5 February 2008 at 13:08136 H where it was recorded, inter alios, that (i) he explained I I Mr Nelson Miu’s advice to Father, including the pros J and cons of Mr Miu’s proposal; and (ii) Father J accepted that he and Mother would make one will to K K deal with their assets worldwide. L L (e) TCS’s email dated 5 February 2008 137 at 14:25, M M requesting Mr Bruce Fu to explain the contents of the N N draft 2008 Joint Will to Father; O O (f) Mr Bruce Fu’s email dated 5 February 2008 at 20:00, P P circulating the Chinese version of the draft 2008 Joint Q Will (which he translated)138; Q 132 Bundle B6, Tab 231, page 2605 R 133 R Bundle B6, Tab 231, pages 2614 to 2633 134 Bundle B6, Tab 231, pages 2607 to 2610 S S 135 Bundle B6, Tab 232, page 2635 136 T Bundle B6, Tab 236, page 2674 T 137 Bundle B6, Tab 238, page 2684 U U V V A - 119 - A B B (g) The note in respect of the conference that took place C C at Mr Nelson Miu’s chambers in the morning on D 6 February 2008139, and it can be seen Mr Miu advised D that (i) a mutual will would have the effect of serving E E joint tenancies; and (ii) for the purposes of probate, the F phrase “charitable or benevolent” is not exclusively F charitable; G G H (h) Mr Nelson Miu’s email dated 6 February 2008 at H 11:33am enclosing a revised version of the draft 2008 I I 140 Joint Will , and it can be seen that in light of the J aforesaid advice that was rendered during the J conference, Mr Miu deleted clause 10 (which contains K K the phrase “charitable or benevolent” and which allows L the executrix/trustee to apply the residue of the estate L to defray her own medical expenses) in its entirety141; M M N N (i) Mr Bruce Fu’s email dated 6 February 2008 at 13:34142, O (i) enclosing a revised draft that contains a minor O addition that Father and Mother’s wish was such that P P the donations be made in the name of a trust under Q Q R 138 R Bundle B6, Tab 241, page 2702 to 2708 139 Bundle B7, Tab 371, page 3227 S S 140 Bundle B6, Tab 242, pages 2710 to 2718 141 T See Bundle B6, Tab 242, page 2716 T 142 Bundle B6, Tab 245, pages 2733 to 2738 U U V V A - 120 - A B their names, and (ii) asking Mr Nelson Miu whether he B had further comments on the draft 2008 Joint Will; C C D (j) Mr Nelson Miu’s email dated 6 February 2008 at D 16:32143, where he indicated that he could not respond E E in time due to an extended lunch and that he still had F some “little lingering doubt” as to whether clause 9(4) F of the draft will was exclusively charitable in nature; G G and H H (k) Mr Bruce Fu’s email dated 6 February 2008 at 17:01144, I I where he (i) informed Mr Miu that the 2008 Joint Will J had been executed already and (ii) indicated that, if J necessary, a codicil could be executed subsequently. K K L (12) The contemporaneous emails show that:- L M M (a) Hastings extensively relied on Mr Nelson Miu’s N N expertise for the purposes of (i) preparing the 2008 O Joint Will and (ii) giving effect to the testamentary O wish of Father. P P Q (b) Mr Nelson Miu was the person who prepared the first Q draft of the 2008 Joint Will. As evidenced by his R R advice in writing dated 4 February 2008, Mr Nelson S S 143 T Bundle B6, Tab 246, page 2739 T 144 Bundle B6, Tab 247, page 2740 U U V V A - 121 - A B Miu had considered the circumstances of Father and B Mother as well as their charitable intent. C C D (c) TCS sought to make sure that Mr Bruce Fu would D explain the contents and effect of the draft 2008 Joint E E Will to Father. F F (d) Having reviewed the draft 2008 Joint Will before the G G same was executed, Mr Nelson Miu’s advised that H clause 10 in the draft might not be exclusively H charitable and as such it was open to TCS to rely on it I I to render herself a beneficiary. In the circumstances, J Mr Miu deleted this clause in its entirety. J K K (e) After the 2008 Joint Will was executed, Mr Bruce Fu L became aware that Mr Nelson Miu still had some L “little lingering doubt” as to whether clause 9(4) is M M exclusively charitable. However, having said that this N N was merely a “little lingering doubt”, Mr Nelson Miu O did not insist that the 2008 Joint Will be revised and O executed afresh; nor did he insist that a codicil be P P prepared to address the issue. Q Q (13) As will be further elaborated hereinbelow in paragraph 179, R R I am of the view that clause 9(4) is indeed exclusively S charitable, and there is no realistic possibility that TCS could S rely on this clause to render herself a beneficiary. In my view, T T Mr Nelson Miu simply, out of an abundance of caution, U U V V A - 122 - A B pinpointed a plausible imperfection. Had Mr Miu taken the B view it is likely that TCS would be in a position to rely on C C clause 9(4) to defeat the testamentary wish of Father, he D would have advised that the 2008 Joint Will be revised and D replaced by a fresh will or that a codicil be executed. This did E E not happen. F F (14) For all the above reasons, I reject the suggestion that clause G G 9(4) of the 2008 Joint Will was maliciously or calculatedly H designed for the purpose of enabling TCS to enrich herself. H This was not the intention at all. I I J (15) I am of the view that as evidenced by the contemporaneous J emails and records, the 2008 Will was prepared in a manner K K that was bona fide and responsible. I am not of the view that L Hastings and/or Mr Nelson Miu acted in bad faith, and I L reject the suggestion that they acted in such a way as to M M advance TCS’s personal interest. N N O (16) For completeness, it should be mentioned that the discussion O during the initial meeting between TCS, Ms Hwang and P P Mr Bruce Fu on 26 March 2007 was also evidenced by (i) the Q typed-up attendance notes prepared by a trainee solicitor145; Q 146 and (ii) the hand-written notes jotted by Mr Bruce Fu . R R S (17) In this connection, Mr Dawes made a number of criticisms. S 145 T Bundle B7, Tab 304, pages 2965 to 2967 T 146 Bundle B7, Tab 303, pages 2964 U U V V A - 123 - A B B (18) First of all, Mr Dawes criticized Mr Bruce Fu for not C C recording Father’s intention to revoke his 2006 Will and that D Father was deceived into signing his 2006 Will. D E E (19) In my view, the criticism has been overblown. The trainee F solicitor’s attendance notes 147 did record TCS’s suggestion F that Father had no memory of executing the 2006 Will. I have G G no doubt that the assertion was not an ex post facto H concoction. More importantly, when Mr Bruce Fu testified148, H he stressed that I I J (a) the role of Hastings was to resolve the problem faced J by Father; K K L (b) the problem faced by Father could be resolved by L executing a new will, and when this was done, the M M 2006 Will would be revoked or superseded by N N operation of law; O O (c) in the circumstances, the foremost objective was to P P take instructions from Father and prepare his new will Q (which turned out to be Father’s 2007 Will); and Q R R (d) bearing in mind that Father (who was a decent and nice S person) had no intention to hold TCP and/or Mr Hoon S 147 T Bundle B7, Tab 303, pages 2965 T 148 Day 7, before morning break U U V V A - 124 - A B responsible, he did not wish to dwell on the question of B whether Father was fraudulently deceived. C C D Mr Bruce Fu’s explanations make sense to me. In my view, D Mr Fu is a solicitor who tends to resort to pragmatic solutions E E for resolving the problems that his clients face. In the present F case, it is obvious that he did not wish to stir up further F disputes amongst members of the Tan family. This was bona G G fide. I accept Mr Fu’s explanations. H H (20) Further, Mr Dawes pointed out that the two sets of 2007 I I Wills were merely “mirror” wills, and he criticized Mr Bruce J Fu for not recording that Father was advised as to the effect J and implication of a mutual will. K K L (21) In this connection, I am of the view that the two sets of 2007 L Wills, though imperfect, were not contradictory to Father’s M M wishes and instructions. As mentioned above (see paragraphs N N 52) and as will be elaborated below (see paragraphs 170(11)- O (15) and 182(4)), it is not in dispute that the two sets of 2007 O Wills had a loophole (in that if Father predeceases Mother P P and Mother subsequently revokes her 2007 Will, Father’s Q assets would not be donated to charities). This was the reason Q why counsel (ie Mr Nelson Miu) was subsequently engaged R R to provide advice and to draft the 2008 Joint Will. S S T T U U V V A - 125 - A B (22) In any event, it was Mr Bruce Fu’s evidence149 that on the B occasion of 30 March 2007, he did provide advice to Father C C regarding the loophole, but the instruction that he received D was that Father and Mother trusted each other immensely. In D the premises, Father and Mother were contented with the E E arrangement under the two sets of 2007 Wills. Bearing in F mind that Father and Mother were a loving couple who had F spent more than 6 decades together, Mr Fu’s evidence in this G G regard makes sense to me, and I accept the same. H H (23) However, according to Mr Fu, Mr Brewer (who was only I I engaged after the two sets of 2007 Wills were executed) was J J deeply concerned about the loophole. In the circumstances, on the occasion of 31 January 2008, upon hearing further K K from Mr Bruce Fu (who had the advice of Mr Brewer at the L L time), Father (who respected the opinion of his lawyers) M took the view that it would be desirable to seek further M advice from a counsel with expertise in probate matters N N (ie Mr Nelson Miu). O O (24) I do understand why Mr Brewer took a strong view on the P P loophole. The question was not merely whether Father and Q Mother trusted each other. As pointed out in paragraph 10 of Q Mr Nelson Miu’s advice dated 4 February 2008150, there was R R a real possibility that after Father’s demise, Mother would S S 149 T Day 7, morning T 150 Bundle B6, pages 2614 to 2633 U U V V A - 126 - A B continue to live on for a number of years, thereby growing B weak and becoming susceptible to manipulation by others. C C D (25) I am of the view that Mr Bruce Fu’s evidence makes sense D and is consistent with the objective circumstances. In my E E view, there was every reason why Father would have a F second thought upon further consideration of the advice from F his lawyers. I accept Mr Bruce Fu’s evidence. For G G completeness, I do not lose sight of the fact that some of the H details regarding the material events were not mentioned in H Mr Bruce Fu’s witness statement. However, the reality was I I that these details were only explored with Mr Fu when he J J was cross-examined. I am not of the view that Mr Bruce Fu fabricated evidence in the witness box. K K L L 171. Fourth, I am of the view that Father’s 1st Statutory M Declaration recorded and reflected Father’s charitable intent. This was a M document that was prepared seriously based on Father’s instructions:- N N O (1) In his 1st Statutory Declaration, Father stated that:- O P P (a) In 2004, his relationship with the sons (ie TYK, TCG, Q and TCH) became strained. They did not respect Q family values. They seldom called or visited him and R R Mother. They did not ensure that he and Mother were S taken care of in their twilight years151. S T T 151 See paragraph 80 at Bundle B2, Tab 147, page 994 U U V V A - 127 - A B (b) The 2006 Will executed on 21 April 2006 “no longer” B reflected his wish and thoughts. Thus, on 30 March C C 2007, he revoked the 2006 Will by executing his 2007 D Will in the presence of (i) Ms Hwang; (ii) Mr Bruce Fu; D (iii) Dr Chen; and (iv) Dr Wong152. E E F (c) Under his 2007 Will:- F G G i. He bequeathed all his assets to Mother, and if H Mother predeceases him, 1/3 of his assets would H be bequeathed to charities in Hong Kong, and I I the remaining 2/3 of his assets would be J J bequeathed to the charities in Shanting Village, Maxiang Town, Xiangan District, Fujian K K 153 Province and Xiamen . L L M ii. He made it clear that during his lifetime, he M provided adequately for his children and their N N descendants. As such, it was not necessary to O bequeath any assets to them154. O P P iii. No distinction was drawn between the shares in Q AAIE/EnGro and other assets. He intended that Q AAIE’s 70% of its 38.38% interest in EnGro be R R preserved for members of the Tan family and S S 152 See paragraphs 82 to 83 at Bundle B2, Tab 147, page 994 153 T See paragraph 84 at Bundle B2, Tab 147, page 995 T 154 See paragraph 85 at Bundle B2, Tab 147, page 995 U U V V A - 128 - A B not applied for charitable purposes155. However, B his remaining assets should be applied towards C C the two charitable purposes already identified, D together with the third charitable purpose in D Singapore. In the circumstances, he intended to E E execute the 2 draft wills that disposed of his F assets in Singapore and his assets outside of F Singapore156. G G H (2) The contents of Father’s 1st Statutory Declaration show and H reflect:- I I J (a) Father’s strained relationship with TYK, TCG, and J TCH; K K L (b) Father’s intention to revoke his 2006 Will; L M M (c) Father’s view that the children of the family and their N N descendants had been adequately provided for already; O and O P P (d) Father’s wish of donating his assets for charitable Q purposes in (i) Hong Kong; (ii) Shanting Village, Q Maxiang Town, Xiangan District, Fujian Province and R R Xiamen; and (iii) Singapore. S S 155 See paragraph 86 at Bundle B2, Tab 147, page 995. Obviously, Father assumed that he beneficially T owned the shareholding and/or interest. T 156 These were the draft wills prepared by Mr Bruce Fu that were not executed eventually. U U V V A - 129 - A B B (3) Insofar as the preparation of Father’s 1st Statutory C C Declaration is concerned, the contemporaneous attendance D notes 157 and the summary of meetings 158 prepared by D Hastings’s solicitors show that before the 1st Statutory E E Declaration was executed at the office of Hastings, Father F attended at least four meetings on 9 May 2007, 1 June 2007, F 5 October 2007 and 28 January 2008 at the Bowen Property. G G This is consistent with Mr Bruce Fu’s evidence 159 that he had H explained the contents of the draft 1st Statutory Declaration to H Father word by word and that the draft 1st Statutory I I Declaration was amended several times in order to ensure J that the contents accurately reflected Father’s instructions. I J accept Mr Bruce Fu’s evidence in this regard. K K L (4) Like other professionals who were involved in these L proceedings, Mr Bruce Fu did not have an interest in the M M outcome of this litigation. I do not believe that Mr Bruce Fu N N had reason to fabricate and/or distort Father’s instructions. O O (5) I do not lose sight of the fact that as evidenced by her email P P dated 2 October 2007160 to Mr Brewer and Ms Hwang, TCS Q candidly indicated that she had edited the draft of Father’s Q st 1 Statutory Declaration. In my view, had TCS sought to put R R 157 See eg Bundle B7, Tabs 318, 322 and 342 S S 158 See Bundle B7, Tab 381, page 3242 159 T Paragraph 15 of his witness statement T 160 Bundle B5, Tab 203 U U V V A - 130 - A B words into Father’s mouth, she could have said to the lawyers B that the editing was done pursuant to Father’s instructions. C C This was not what she did. In my view, TCS did not seek to D hijack the process in a dishonest or illegitimate manner. She D simply sought to speed up the process. E E F (6) Despite the involvement of TCS, I accept Mr Bruce Fu’s F evidence161 that he had read and explained the contents of the G G st draft 1 Statutory Declaration to Father. Had Father H disagreed with the contents, he would have voiced out, and H Mr Bruce Fu would have been duty-bound to rectify the same. I I J J (7) In this connection, I disagree with the suggestion that Ms K Hwang’s email dated 27 December 2007 162 shows that she K st sought to discourage Father from amending the draft 1 L L Statutory Demand. Ms Hwang did not say that Father should M refrain from providing comments on the draft 1st Statutory M Demand. It appears to me that what Ms Hwang meant in the N N said email was that it would be efficient and economical if O Father could read and consider the document in its entirety O first. In any event, I accept the evidence163 of Mr Fu (who is P P a bona fide and responsible solicitor) that he duly took Q instructions from Father with regard to the contents of 1 st Q 161 R Paragraph 15 of his witness statement R 162 The relevant contents thereof are cited in paragraph 152 of Mr Dawes’s Closing Submissions. In the email, Ms Hwang stated “[w]hilst it is good that [Father] is looking at [the draft 1st Statutory S S Declaration] himself, we have to be careful that this does not run into weeks. Perhaps he could just read through the entire document first without pausing to make amendments as that would [give] him a good T idea how long it would take him if he were to rewrite everything written.” T 163 Paragraph 15 of his witness statement U U V V A - 131 - A B Statutory Demand. I do not believe that Father’s legal B representatives had put words into his mouth. C C D (8) For the above reasons, I find that the 1st Statutory Declaration D was prepared in a bona fide and proper manner and that E E Mr Bruce Fu, in discharge of his duties as a solicitor, had F taken adequate steps to satisfy himself that the contents of the F 1st Statutory Declaration accurately recorded and reflected G G Father’s instructions. I am also satisfied that the contents of H the 1st Statutory Declaration did accurately record and reflect H Father’s instructions. I I J J (9) I do not lose sight of the fact that the 1st Statutory Declaration K records and reflects Father’s intention that the shareholding K in AAIE/EnGro and AAS be distributed amongst members of L L the Tan family164. As will be further elaborated in paragraphs M 184, 185, 188, and 189 hereinebelow, whilst Father M erroneously assumed that he still retained beneficial N N ownership of the shareholding in AAIE/EnGro and AAS, his O intention was that such shareholding be distributed amongst O members of the Tan family during his lifetime pursuant to an P P intended deed of family arrangement, but if the 5 Siblings Q refused to accept the terms of the intended deed of family Q arrangement, the shareholding (which will become part of the R R capital of the estate) should be donated to charities when both S himself and Mother pass away. As will be explained in S paragraphs 185 and 189 below, the 2008 Joint Will and T T 164 See paras 86 to 88 [Bundle B2, Tab 147, pages 996 to 997] U U V V A - 132 - A B Father’s 2007 Will are capable of giving effect to Father’s B intention. C C D (10) For completeness, it should also be mentioned that the D Singaporean Court of Appeal held that Father’s 1st Statutory E E Declaration was not admissible for the purpose of the F Singaporean 570 Action: see paragraph 118 of the F judgment 165. For the following reasons, this has no bearing G G for present purposes. In the Singaporean 570 Action, the H issues in dispute concerned the beneficial ownership of the H shareholding in AAIE/EnGro and AAS. Understandably, I I applying the rule in Cartwright v Sheppard 166 , the J J Singaporean Court of Appeal held that any subsequent declaration by Father with regard to his beneficial ownership K K over the shares carried no weight at all. However, in L L the present litigation, the purposes of adducing Father’s M 1st Statutory Declaration were to show (i) the charitable intent M of Father; (ii) Father’s desire to revoke the 2006 Will; and (iii) N N Father’s strained relationship with his sons. These obviously O have nothing to do with subsequent declaration for advancing O self-interests. P P Q 172. Fifth, Father’s charitable testamentary intent was borne out Q 167 by (i) the contemporaneous letter dated 16 August 2008 from Father R R S S 165 Bundle B1, Tab 130, pages 851 to 852 166 T [1955] AC 431, 445 (per Viscount Simonds) T 167 Bundle B3, Tab 170, pages 1550 to 1555 U U V V A - 133 - A B and Mother to the 5 Siblings; and (ii) the letter in reply dated B 12 October 2008 from TYK, TCG, and TCH168:- C C D (1) On the first page of the letter dated 16 August 2008 from D Father and Mother, it was expressly stated that in E E September 2004, after the litigation with members of the F Bajumi family in relation to the affairs of AAS was settled, a F family meeting took place, and the 5 Siblings knew that G G Father and Mother intended to donate their assets for H charitable purposes. None of the 5 Siblings expressed any H contrary view. I I J (2) In their letter in reply dated 12 October 2008, TYK, TCG, J and TCH expressed views as to how the shares in the family K K companies should be disposed of. However, they did not L express any view as to Father and Mother’s intention to L donate their personal assets. M M N N (3) In the premises, putting aside the question of whether TCS O was involved in preparing Father and Mother’s letter dated O 16 August 2008 (which was typed-up and written P P carefully169), it appears to me that back in 2008, TYK, TCG, Q TCP and TCH accepted and did not dispute the fact that Q Father and Mother intended to donate their assets for R R charitable purposes. In my view, had Father and Mother’s S charitable intention come as a surprise, TYK, TCG, and TCH S 168 T Bundle B3, Tab 171, pages 1589 to 1593 (typed up English translation at pages 1594 to 1596 T 169 It was TCP’s evidence that the letter was typed up by Hastings (Day 13, before lunch) U U V V A - 134 - A B would have voiced out. They did not do so. This was B consistent with the admissions made by TYK, TCG, and TCP C C in court proceedings (which are addressed in paragraph 173 D below). D E E 173. Sixth, Father’s charitable testamentary intent was borne by F the candid admissions on the part of TYK, TCG, and TCP: F G G 170 (1) When TCG gave oral evidence , he honourably and H candidly informed the court that:- H I I (a) What was stated in Father and Mother’s letters dated J 16 August 2008 171 was true. After the litigation with J members of the Bajumi family was settled, a family K K meeting took place in September 2004. There, Father L did expressly mention that he wanted to donate his L personal assets to charities. The children of the family M M had no reason to disagree with Father’s wish. Father N N had already transferred the interests in the family O companies (ie AAS and AAIE) to his children, and O told them to strive to generate wealth for themselves P P and the future generations with their own efforts. Q Q (b) All along, he was aware of Father and Mother’s wish R R to donate the bulk of their wealth and assets to S charities. He and other children believed that Father S 170 T Day 3, after morning break T 171 Bundle B3, Tab 170, pages 1550 to 1555 U U V V A - 135 - A B was entitled to decide how to dispose of his personal B assets. C C D (c) In his conversations with Father throughout the years, D Father kept stressing that he would not bequeath his E E personal assets to his children, and they had to make F their own living and build their own future. F G G (d) In the circumstances, the 2006 Will came as a surprise H to him. He found it surprising that Father would H bequeath his personal assets to him. I I J TCG’s evidence is consistent with (i) the contents of the J 2008 Joint Will as well as Father and Mother’s 2007 Wills; K K (ii) the instructions received by Hastings; and (iii) the L contents of Father’s 1st Statutory Declaration. I have no L doubt that the children of the Tan family were aware of M M Father’s intent to donate his wealth to charity, and they were N N not in a position to disagree with Father’s laudable intent. O O 172 (2) Like TCG, when TYK was cross-examined by Mr Tang , P P he also honourably and candidly admitted the following Q matters: Q R R (a) Father made it clear that all he provided to his children S was good education and some good family assets (ie S the shares in AAS and AAIE). Father kept saying that T T 172 Day 2, after lunch U U V V A - 136 - A B whatever personal assets he had, he would donate them B to charity. The children of the family knew and C C accepted Father’s charitable intent. D D (b) Whilst TYK stressed that Father could not have E E applied the assets that had already been given to the 5 F Siblings (ie the shares in AAS and AAIE) for F charitable purposes, he was not in a position to G G disagree with the suggestion that the intended H donations under the 2008 Joint Will were consistent H with Father’s wish, though he expressed doubt as to I I whether Father truly understood the contents of the J document. J K K Based on what TYK said in the witness box, it appears to me L his concern was that in light of her alleged greed and mala L fides, TCS might not apply Father’s assets for charitable M M purposes. Due to the mistrust amongst the parties, TYK’s N N concern was understandable. However, this is not a reason O to invalidate the 2008 Joint Will. For the reasons explained O in paragraphs 168 to 170 above and paragraphs 180 to 197 P P below, I am not of the view that Father failed to understand Q the contents and effect of the 2008 Joint Will and the two Q sets of 2007 Wills; nor am I satisfied that these Wills were R R some malicious designs that aimed at benefiting TCS S through some loopholes that were not readily apparent. S T T (3) As regards TCP:- U U V V A - 137 - A B B (a) When she testified in the trial of the Singaporean 570 C C Action, TCP admitted that the intended donations D under the 2008 Joint Will173 reflected the true wishes D of Father and Mother 174 . Like TYK and TCG, TCP E E also made it clear that Father’s commitment to F charities was based on his own assets and had nothing F to do with the shares in AAS (which had been given to G G 175 the children as early as 1985) . H H (b) When TCP testified in the present trial, she also I I acknowledged that Father always had an intention to J donate his assets to charities176. J K K (c) However, she emphasized that after she and her L lawyers reviewed the 26 boxes of documents produced L by Hastings, she had reasons to disagree with the M M suggestion that the 2008 Joint Will reflected Father’s N N testamentary wish. O O In my view, TCP merely made a bare assertion in the present P P trial. TCP was not privy to the process through which the two Q sets of 2007 Wills and the 2008 Joint Will were prepared. Q More fundamentally, there is no evidence that TCP had any R R 173 This referred to the intended donations of HK$200 million in favour of the charities in Hong Kong as well as Shanting Village, Maxiang Town, Xiangan District, Fujian Province and Xiamen S S 174 See the transcript produced under Bundle C, Tab 4, pages 25 and 26 175 T See the transcript produced under Bundle C, Tab 3, pages 7 and 8 T 176 Day 4, before morning break U U V V A - 138 - A B discussion with Father about his testamentary intent after B March 2007. Indeed, it was not even suggested that Father C C expressly discussed his testamentary intent with TCP before D the 2006 Will was made. D E E 174. Seventh, I am of the view that Father’s testamentary wish F and intention made ample sense. They are neither irrational nor F inexplicable. Father was a self-made entrepreneur who accumulated a G G substantial amount of wealth through years of hard work. It was H understandable why Father would take the view that if his children work H hard, they could also generate fortunes for themselves. There was every I I reason why Father took the view that he had already adequately provided J for his children, and they were financially secured and comfortable. J Against this background, it is understandable why Father wished to make K K contributions to society by donating his personal assets to help those who L are disadvantaged or less fortunate. Father had every reason to take the L view that this would be the most meaningful way to utilize his personal M M assets. N N O 175. Eighth, I am also of the view that the arrangement under the O 177 2008 Joint Codicil makes sense and is not irrational:- P P Q (1) Back in 1993, TCS gave up a respectable job in order to take Q care of Father and Mother. Throughout the years, TCS took R R up the responsibilities of taking care of them and had S remained unmarried and childless. In the circumstances, it S was understandable why Father and Mother would have T T 177 Core Bundle, Tab 12, pages 29 to 31 U U V V A - 139 - A B concerns about TCS’s future, and wanted her to inherit the B Bowen Property. After all, TCS spent a lot of time in the C C Bowen Property taking care of her parents. I understand why D Father and Mother would wish to, so to speak, “reward” TCS. D E E (2) In this connection, Mr Bruce Fu informed the court that F Father and Mother were deeply concerned about TCS’s F future 178 . Mr Bruce Fu had considerable interaction with G G Father and Mother throughout a prolonged period of time. H I accept Mr Bruce Fu’s evidence, which makes sense. H I I (3) Indeed, the fact that Father and Mother were concerned about J TCS’s future and well-being is also borne out by the J undisputed fact that she was added as a joint owner in respect K K of the Sydney Property. Unlike TCG, TYK, TCP, and TCH L (who were married and had children), TCS had remained L unmarried and childless. In the circumstances, I understand M M why Father and Mother wanted her to inherit some real N N properties that were of considerable value. O O (4) It is also important not to lose sight of the fact that as of 2008, P P Father and Mother’s relationship with TCG, TYK, TCP, and Q TCH had been strained. As such, there was plainly no reason Q why Father and Mother would want them or any of them to R R inherit the Bowen Property. S S T T 178 Day 8, before morning break U U V V A - 140 - A B 176. For completeness, I do not lose sight of the fact that TCS B might have exaggerated her case by alleging that she only found out about C C her parents’ decision after the 2018 Joint Codicil was executed 179 . As D demonstrated by Mr Dawes during cross-examination 180 , the D contemporaneous emails on 1 February 2008181, 14 February 2008182, and E E 25 March 2008 183 show that TCS discussed the matter with Father’s F legal representatives before the 2008 Joint Codicil was executed on 8 May F 2008. In my view, the inaccuracy was ascribed to either (i) (as Mr Tang G G suggested) TCS’s inability to recall the correct sequences of events ; or 184 H (ii) (as Mr Dawes suggested) TCS’s deliberate attempt to distance herself H from the matter. Be that as it may, even if TCS’s assertion is to be I I disregarded completely, it still does not follow that Father and Mother did J not want TCS to inherit the Bowen Property. In this connection:- J K K (1) In Ms Hwang’s email to TCS on 14 February 2008 at 18:35 L (which was circulated to Mr Bruce Fu and a trainee solicitor L of Hastings) 185, it was stated that there should be a discussion M M as to how the Bowen Property should be given to TCS, and N N one of the possibility was to deal with it by executing a O codicil to the 2008 Joint Will. O 179 See her witness statement, paragraphs 60 to 61 P P 180 Day 13, before morning break 181 Q Bundle B6, Tab 222, page 2556 Q 182 Bundle B6, Tab 251, page 2745 R 183 Bundle B6, Tab 254, page 2751 R 184 In her oral evidence, TCS stressed that Father once mentioned that if she was willing to move into S the Bowen Property in order to take care of Mother (TCS lived in an apartment below the Bowen S Property at the material times) until her demise, the Bowen Property would be given to her. Thus, she was surprised to find out that under 2008 Joint Codicil, Father would give the Bowen Property to T her unconditionally. T 185 Bundle B6, Tab 251, page 2745 U U V V A - 141 - A B B (2) As evidenced by TCS’s email to Ms Hwang, Mr Bruce Fu, C C and Mr Brewer on 25 March 2008 at 15:44186, it was stated D that Father and Mother wanted to give the Bowen Property to D herself when they pass away, and this was a matter to be E E discussed at the meeting on 26 March 2008. F F (3) As evidenced by the contemporaneous notes in respect of the G G meeting on 26 March 2008 (which was attended by Ms H Hwang, Mr Brewer, Mr Bruce Fu, and a trainee solicitor of H Hastings)187, it was recorded that there should be a letter from I I Father explaining why the two properties would be conveyed J J to TCS. K K (4) As evidenced by Mr Bruce Fu’s email to a trainee solicitor on L L 26 March 2008 at 18:58188, Father and Mother’s wish was M that “the [Bowen Property] will be succeeded by [TCS] for M her use and benefit absolutely”, and they “wanted to mention N N in the Codicil that it is their intention for [TCS] to succeed O both the two real properties in Hong Kong and Sydney O respectively”. P P Q (5) As evidenced by the emails exchanged between Mr Bruce Fu Q and TCS on 5 May 2008 at 16:17 and 17:23189, it was TCS’s R R 186 Bundle B6, Tab 254, page 2753 S S 187 Bundle B7, Tab 374, page 3231 188 T Bundle B6, Tab 259, page 2774 T 189 Bundle B6, Tab 261, page 2791 U U V V A - 142 - A B understanding that her parents would like to leave the Bowen B Property to her after they passed away. C C D In my view, had Hastings and Mr Brewer colluded together with TCS for D the purposes of enabling TCS to inherit the Bowen Property against the E E testamentary wish of Father and Mother (which involved serious F misconduct and wrongdoings), they would not have openly discussed the F matter by emails and recorded the discussions in the contemporaneous G G notes. It is apparent to me that Hastings, Mr Brewer, and TCS genuinely H engaged in a bona fide discussion as to (i) Father and Mother’s H testamentary wish that the Bowen Property be inherited by TCS; and (ii) I I how to implement such a testamentary wish. I am not of the view that J Father and Mother’s testamentary wish regarding the Bowen Property J was concocted. K K L L 177. More importantly, the 2008 Joint Codicil was, on its face, M duly executed. In this connection, it is incontrovertible that the contents of M the 2018 Joint Codicil are straightforward, and the reasons why Father and N N Mother wanted TCS to inherit the Bowen Property were adequately set O out. There is no room for suggesting that Father was incapable of O understanding the contents of the 2018 Joint Codicil. On the evidence, I P P am not of the view that Father was tricked or misled to sign the document; Q nor does it appear to me that there were any inexplicable circumstances. Q R R 178. Ninth, I am unable to accept TCG, TYK, and TCP’s S submissions that the 2008 Joint Will could not achieve Father’s objectives. S I am of the view that although the 2008 Joint Will is not expressly T T U U V V A - 143 - A B identified as a mutual will, it is still capable of achieving Father’s B charitable objectives:- C C D (1) As reflected by the contents of Father and Mother’s 2007 D Wills (as well as the evidence of the witnesses including E E Dr Wong, Ms Hwang and Mr Bruce Fu), Father’s wish was F that: (i) if he predeceases Mother, Mother be adequately F provided for during her lifetime; and (ii) when both of them G G pass away, his assets be utilized for charitable purposes. I am H of the view that the 2008 Joint Will is capable of giving H effect to Father’s intent, and it is not open to TCS and/or I I Mother to utilize the capital of the assets left behind by J Father for non-charitable purposes. J K K (2) Clause 5 of the 2008 Joint Will provides that the surviving L spouse (ie Mother) can only inherit the income derived from L the assets of the deceased spouse (ie Father). Thus, the capital M M in respect of the assets left behind by the deceased spouse N N (ie Father) will never form part of the assets of the surviving O spouse (ie Mother). In the premises, the surviving spouse O (ie Mother) will not be in a position to dispose of the capital P P in respect of the assets belonging to the deceased spouse Q (ie Father), and the executrix (ie TCS) is bound to apply the Q same for those charitable purposes set out in clauses 5, 6, 7, 8 R R and 9 when both spouses pass away. In this sense, Father’s S charitable purpose can be achieved (at least insofar as the S capital of his assets is concerned). Even though Mother, T T being the surviving spouse, subsequently revoked the 2008 U U V V A - 144 - A B Joint Will, she could, at most, only dispose of the income B derived from Father’s assets, but not the capital (which TCS, C C as executrix and trustee, is duty-bound to apply for those D charitable purposes set out in the 2008 Joint Will). D E E (3) The aforesaid design was thought through carefully. In F this connection, it would be pertinent to refer to the F following passages in Mr Nelson Miu’s advice dated G G 190 4 February 2008 :- H H “9. Mutual wills are often executed by husband and wife in I pursuance of an agreement as to their revocation or non- I revocation. As the learned editors of Williams on Wills noted, J although the reported cases deal mostly with cases where there J is a mutual agreement against revocation, in modern times many such wills have expressly negative such agreement. K K 10. In the present case, I do not think [Father or Mother] would be concerned about the possibility of the surviving spouse re- L L marrying some other persons and making a new will giving his/her assets to some strangers. On the other hand, there does M exist the possibility of the surviving spouse living on for a M number of years, growing weak and become susceptible to undue influence or even manipulation by one of the children N N who may be unhappy with the provisions of [Father and Mother’s] mutual wills. O O 11. Although it is possible to expressly incorporate an agreement against revocation in the mutual wills, another P way of incorporating/implying such an agreement would be P by making a mutual will giving only the income of their respective (share of) assets to the survivor, with the whole Q Q estate going to charities thereafter. R 12. The distinction between making a gift of only the income R (gift of a life interest) vs an absolute gift of capital to the surviving spouse was discussed by Astbury J in Re Oldahm, S S Hawdwen v Myles [1925] Ch 75, distinguishing the principle T T 190 Bundle B6, pages 2614 to 2633 U U V V A - 145 - A B (against revocation) laid down by Lord Camden in Dufour v B Pereira (1976) 1 Dick 419. Astbury J said at 88:- C Finally, I think a very great difference between Dufour C v Pereira and the present case is that in Dufour v Pereira the capital of the trust property was secured in D D fact by the life interest only being given to the survivor, whereas in the present case the survivor is given the E whole estate absolutely, and could, if so minded, E dispose of the property inter vivos. F F 13. In the present case, there is no need for the surviving spouse to require the capital of the other spouse’s (share of ) G assets for his/her maintenance. So a gift of income would G create a stronger implication that there was an agreement not to revoke the mutual will, This would impress the assets of H the pre-deceased spouse with a trust. But the surviving spouse H may still dispose of his/her own assets differently by making (or I being persuaded to make) a new will. I (emphasis added) J J K (4) I have no doubt that Mr Miu sought to devise a design for the K purpose of giving effect to Father’s charitable intent in a L L bona fide and responsible manner in light of the M circumstances of the case. I am of the view that his advice M made sense. N N O (5) As evidenced by a note prepared by a member of Hastings191 O in respect of the conference that took place at Mr Miu’s P P chambers in the morning on 6 February 2008 192 , Mr Miu Q opined that mutual wills or a joint mutual will would have the Q effect of serving joint tenancies. In this connection, it is not R R in dispute that the Bowen Property as well as the Sydney S Property were held under joint tenancies. S 191 T Bundle B7, Tab 371, at page 3227 T 192 From 9:30am to 11:30am U U V V A - 146 - A B B C (6) In the circumstances, there was a reason why Mr Miu would C wish to devise a design to ensure that whilst the bulk of D D Father’s assets (ie the capital) could undoubtedly be utilized E for charitable purposes when both Father and Mother pass E away, the will to be executed (ie the 2008 Joint Will) would F F not be expressly identified as a mutual will due to the G presence of an express clause against revocation. G H H (7) For completeness, I do not lose sight of Mr Dawes’s I I contention that there could be other workable methods to J address the concern regarding the joint tenancies in respect of J the Bowen Property and the Sydney Property 193. However, K K the purpose of the present trial is not to assess whether Mr L Nelson Miu provided the most ideal advice with the benefit L of hindsight. For present purposes, it suffices to say I am M M satisfied that Mr Nelson Miu’s advice and proposal made N sense and were bona fide. N O O 179. Tenth, I do not agree with TCG, TYK, and TCP’s P submissions that the clauses under the 2008 Joint Will are not exclusively P charitable in nature, such that TCS can rely on the same to render herself a Q Q beneficiary, thereby defeating Father’s charitable intent:- R R (1) Clause 10 in the draft 2008 Joint Will (which has been S S removed) reads as follows: T 193 T For instance, Mr Dawes suggested that it would be possible to carve out the two Properties from the 2008 Joint Will. U U V V A - 147 - A B B “除了上述第七項、第八項和第十項的慈善捐款以外，我們 C 的受托人可以行使她的絕對酌情權，把我們其他剩餘財產 C 運用在她認為值得和需要的慈善或人道工作上包括支付我 D 們的受托人一旦入院時的醫藥費。” (emphasis added) D E E (2) The problematic parts of clause 10 concern (i) the phrase F “charitable or benevolent purposes (慈善或人道工作)”; and F (ii) the trustee’s power to use the residuary estate to defray G G her own medical expenses in hospitals (支付我們的受托人 H H 一旦入院時的醫藥費). I I (3) Clause 10 of the draft has been removed in its entirety. The J J problematic contents do not feature anywhere in the finalized K version of the 2008 Joint Will. K L L (4) Meanwhile, cause 9(4) of the 2008 Joint Will, which has M been included from the outset and which has never been M removed, reads as follows: N N O “我們的受托人須要把我們的剩餘財產作以下用 O 途：……4. 捐款給有需要的機構、團體或單位，用作照顧 新加坡共和國境內的老人、醫療及其他社會慈惠服務，而 P P 受惠的具體機構、團體或單位和捐款數目、方式，則由我 們的受托人行使 她的絕對酌情權決定。” Q Q R (5) I cannot see how TCS, who is an individual, may invoke R clause 9(4) to benefit herself. She is not an organization, a S S group, and/or a unit (機構、團體或單位). T T U U V V A - 148 - A B (6) More fundamentally, clause 9(4) stipulates that the assets B have to be utilized for the following purposes in Singapore: C C (i) taking care of elders (照顧…老人); (ii) medical services D (醫療); and (iii) other charitable social services (其他社會慈 D E 惠服務). E F F (7) On my part, I do not see any loophole, which could be G utilized by TCS to defeat Father’s charitable intent. I cannot G see how TCS’s act of enriching herself and/or pocketing the H H capital of the assets left behind by Father may fall within the I meanings of (i) taking care of elders ( 照顧 … 老 人); (ii) I medical services (醫療); and/or (iii) other charitable social J J services (其他社會慈惠服務)194. K K L (8) As mentioned in paragraph 170(13) above, I am of the view L that in his email dated 6 February 2008 at 16:32 195 , M M Mr Nelson Miu merely, out of an abundance of caution, N indicated that clause 9(4) might not be perfect. This was why N he used the phrase “little lingering doubt” in the email. It O O does not appear to me that Mr Miu seriously took the view P that clause 9(4) is unworkable or that Father’s charitable P intent could not be achieved. Had this been the case, Mr Miu Q Q would have (i) deleted clause 9(4) before he circulated the R revised draft of the 2008 Joint Will under his email dated 6 R 194 In this connection, Mr Tang and Ms Wong referred to Williams on Wills (11th Ed) at para 102.33. As S S pointed out by the learned authors, “[g]ifts where the conjunction is ‘and” and not “or”, such as charitable and benevolent purposes and similar gifts, have been held good on the ground that any T object to be benefited must possess both characteristics…” T 195 Bundle B6, Tab 246, page 2739 U U V V A - 149 - A B February 2008 at 11:33am and (ii) advised that the 2008 Joint B Will be revised and re-executed or that a codicil be executed. C C D 180. Eleventh, for the reasons set out in the paragraph D immediately hereinabove, I am not of the view that the 2008 Joint Will E E fails to give effect to Father’s charitable testamentary wish as a result of F some technical loophole(s). Even if the analysis set out above were F incorrect, it does not mean that Father did not approve the contents and G G effect of the 2008 Joint Will, which were duly read and explained to him: H see paragraph 169 above. In this scenario, there are merely some technical H loophole(s) that are capable of being abused to create unintended I I consequence(s). This is a matter of legal niceties. In this scenario, it would J J be appropriate for the Secretary for Justice, being the guardian of public interests, to consider (i) asking the court to construe the 2008 Joint Will in K K such a way as to give effect to Father’s charitable intent; or (ii) seeking L L rectification (if possible). It would be most unjust and unfortunate if the M alleged technical loophole(s) could constitute a reason for nullifying the M 2008 Joint Will in its entirety, in which case Father’s charitable intent N N would be defeated completely. O O 181. Twelfth, in my view, there is no room for TCG, TYK, and P P TCH to take the words of Mr Bruce Fu that “[Father wished to] leave the Q entirety of his estate to [Mother], and afterward to charity”196 literally. I Q disagree with the suggestion that the 2008 Joint Will did not give effect to R R Father’s wish. Having heard the evidence of Dr Wong, Mr Bruce Fu, and S Ms Hwang and having considered the objective evidence as well as the S contemporaneous records, I am of the view it was not the case that T T 196 See para 5 of Mr Bruce Fu’s Witness Statement U U V V A - 150 - A B (i) Father wanted Mother to inherit the bulk of his assets and a minor or B residuary part thereof be used for charitable purposes; and/or (ii) Father C C wanted the estate of the Mother to inherit his assets in the event that D Mother predeceases him. These were not Father’s intention and/or D instructions. I have no doubt Father’s intention was such that if he E E predeceases Mother, Mother should be adequately provided for financially F before her demise, and when both he and Mother pass away, the capital of F the assets left that he left behind should be utilized for charitable purposes. G G For the reasons elaborated above in paragraph 178, I am of the view that H the 2008 Joint Will is capable of giving effect to Father’s charitable intent. H In fact, Father and Mother’s 2007 Wills and the two sets of draft wills I I prepared by Mr Bruce Fu also intended to give effect to such a charitable J intent. However, there was a loophole in that it would be open to Mother J to revoke her 2007 Will in which case Father’s charitable intent may be K K defeated. This was precisely the reason why the advice of Mr Nelson Miu L was sought. There is no doubt that the exercise of preparing the 2008 Joint L Will aimed at plugging this loophole. M M N N 182. Thirteenth, in light of the aforesaid, I am of the view that the O charitable intent under the two sets of 2007 Wills is consistent with the O charitable intent under the 2008 Joint Will. It is true that the mechanisms P P and the details under the 2007 Wills and the 2008 Joint Will are not Q identical. However, it does not mean that Father’s testamentary intent was Q ambulatory, uncertain, and/or ever-changing:- R R S (1) The material differences between the two sets of 2007 Wills S and the 2008 Joint Will are twofold. T T U U V V A - 151 - A B (2) First:- B C C (a) Under the two sets of 2007 Wills, the surviving spouse D will inherit the assets of the deceased spouse, and D when both spouses pass away, their assets will be E E donated to charities. F F (b) Under the 2008 Joint Will, the surviving spouse will G G only inherit the income arising from the assets of the H deceased spouse, and when both spouses pass away, H the executrix/trustee will be bound to donate the I I capital of assets of the deceased spouse to charities J (regardless of whether the surviving spouse J subsequently revokes his/her will). K K L (3) Second:- L M M (a) The two sets of 2007 Wills simply provide that (i) 1/3 N N of the assets be donated to charities in Hong Kong; and O (ii) the remaining 2/3 of the assets be donated to O charities in Shanting Village, Maxiang Town, Xiangan P P District, Fujian Province and Xiamen. Q Q (b) The 2008 Joint Will provides that:- R R S (i) HK$100 million would be donated to the S charities in Hong Kong; T T U U V V A - 152 - A B (ii) HK$100 million would be donated to the B charities in Shanting Village, Maxiang Town, C C Xiangan District, Fujian Province and Xiamen; D D (iii) the residuary estate would be donated to (A) the E E Singapore Buddhist Lodge; (B) National F University of Singapore; (C) top-ranked F universities (for setting up scholarships for G G students of Chinese descent); (D) other entities H in Singapore for the care of the aged and entities H in Singapore that provide medical and/or social I I services. J J (4) Insofar as the first material difference is concerned, as K K explained above in paragraphs 170(11) to (15) and 181, it is L abundantly clear that the design under the 2008 Joint Will L aimed at plugging the loophole that Mother (who transpired M M to be the surviving spouse) can defeat Father’s charitable N N intent by revoking her 2007 Will. For the reasons elaborated O in paragraphs 170(21) to (25) above, I accept Mr Bruce Fu’s O evidence that at the time when the two sets of 2007 Wills P P were executed, Father was advised that such a loophole Q existed, but in light of the mutual trust between Father and Q Mother, Father was contented with the arrangement. R R However, in view of Mr Brewer’s strong view on the S loophole, Mr Bruce Fu discussed the matter with Father again S on the occasion of 31 January 2018, and upon hearing T T Mr Bruce Fu, Father decided to seek advice from a counsel U U V V A - 153 - A B with expertise in probate. It was in these circumstances that B Mr Nelson Miu was engaged. As explained in paragraph 178 C C above, Mr Nelson Miu endeavoured to come up with a design D that aimed at ensuring that at least the capital of the assets left D behind by Father (who transpired to be the deceased spouse) E E could be donated to charities. The whole purpose of the F exercise was to ensure that Father’s wealth could be donated F to charities. There is no question that Father’s charitable G G intent had not changed. H H (5) The second material difference only concerns the destinations I I of the donations. There is nothing unusual or suspicious J about the fact that Father, after further consideration, took the J view that upon donating HK$200 million to the charities in K K Hong Kong and Shanting Village, Maxiang Town, Xiangan L District, Fujian Province and Xiamen, the residue of his L estate should be donated for charitable purposes in Singapore. M M It is clear that all along, Father wished to apply his wealth for N N charitable purposes. O O 183. Fourteenth, insofar as the suggestion that Father’s P P testamentary intent was ambulatory, ever-changing and uncertain is Q concerned, I disagree with the following contentions that were advanced Q on behalf of TCG, TYK, and TCP. I am not of the view that there were R R suspicious and/or inexplicable circumstances surrounding the 2008 Joint S Will and/or the two sets of 2007 Will; nor am I of the view that the 2008 S Joint Will and/or the two sets of 2007 Will fail to evince and/or reflect T T Father’s wish and intent. U U V V A - 154 - A B B 184. Mr Dawes pointed out that as recorded by the typed-up C C attendance notes dated 26 March 2007 prepared by a trainee solicitor of D Hastings197, the 5 Siblings would be requested to take up 20% of Father’s D personal assets (ie the shares in EnGro being held by AAIE198) pursuant E E to a deed of family arrangement, and if the 5 Siblings did not agree with F the arrangement, the relevant assets should be given to charity. Based on F the attendance note in respect of the conference attended by Father on 1 G G 199 June 2007 , Mr Dawes further suggested that after the two sets of 2007 H Wills were executed, it was still Father’s intention to distribute the EnGro H shares held by AAIE (which comprised of 20% of his assets) to the 5 I I Siblings. However, such an intention was not reflected by the contents of J the two sets of 2007 Wills, and when TCS testified, she accepted that the J two sets of 2007 Wills does not deal with the shareholding in the K K 200 Singaporean companies . L L M 185. For the following reasons, I am not of the view that the two M sets of 2007 Wills fail to reflect Father’s testamentary intent as alleged:- N N O (1) It appears that Father acted on the assumption that he was O still the beneficial owner of the shareholding in AAIE and/or P P EnGro. As found by the Singaporean courts in the Q Singaporean 570 Action, this assumption was incorrect. The Q R 197 Bundle B7, Tab 304, pages 2965 to 2967 R 198 This is clear from the contemporaneous notes jotted subsequently at a conference on 1 June 2007: see S Bundle B7, Tab 322, 3038. It appears Father believed that the EnGro shares held by AAIE S represented 20% of his entire assets. 199 T Bundle B7, Tab 322, page 3037 T 200 Day 12, morning U U V V A - 155 - A B beneficial ownership of the shareholding was no longer B vested with Father at the material times when the two sets of C C 2007 Wills and the 2008 Joint Will were executed. D D (2) Be that as it may, nothing substantial arises out of the E E intended arrangement under the proposed deed of family F arrangement (which was never executed). F G G 201 (3) The attendance notes dated 26 March 2007 and 1 June H 2007202 do not show that it was Father’s intention to bequeath H 20% of his assets (ie the shares in EnGro being held by I I AAIE) to 5 Siblings upon his demise. Assuming that he was J still the beneficial owner of the shares, Father would, of J course, be in a position to dispose of the same before his K K demise, and the shareholding would not fall within Father’s L estate. Thus, technically speaking, the intended arrangement L under the deed of family arrangement 203 is not contradictory M M to Father’s charitable testamentary intent. N N O (4) More importantly, as a matter of substance, as pointed out by O 204 Mr Bruce Fu in his oral evidence , Father intended that the P P 20% assets (ie the shares in EnGro being held by AAIE) be Q given to the children on the condition that they agreed or Q undertook not to dispute his will. Likewise, in her oral R R 201 Bundle B7, Tab 304, pages 2965 to 2967 S S 202 Bundle B7, Tab 322, page 3037 203 T It transpired that no deed of family arrangement had ever been executed. T 204 Day 7 after lunch U U V V A - 156 - A B evidence205, Ms Hwang also said it was contemplated that the B shareholding in AAIE/EnGro be offered to the 5 Siblings C C pursuant to a deed of family arrangement. If the 5 Siblings D accepted the arrangement, the shares would be given to them. D If they did not accept the arrangement, the shares would be E E donated to charity. F F (5) It is not in dispute that with a view to avoiding future G G litigation and settling the dispute with TCG, TYK, TCP, and H TCH, Hastings extensively discussed this matter with Father H (as well as TCS) both before and after the two sets of 2007 I I Wills were executed. What Mr Bruce Fu and Ms Hwang told J the court was consistent with the contemporaneous records J and documents:- K K L (a) As mentioned, the typed-up attendance notes in respect L of the conference on 26 March 2007 206 recorded M M Father’s intention that if the 5 Siblings refused to take N N up the 20% assets (ie shareholding in AAIE/EnGro) O pursuant to the terms of the intended deed of family O arrangement, the same should be given to charity upon P P the demise of Father and Mother. Q Q 207 (b) In the instructions provided to Mr Brewer on R R 1 June 2007208, it was recorded that Father wished to S S 205 Day 9, after lunch 206 T Bundle B7, Tab 304, pages 2965 to 2967 T 207 See paragraphs 8 to 10 [Bundle B5, Tab 196, pages 2249 to 2250] U U V V A - 157 - A B negotiate with his children, and this was “best dealt B with by transferring all the shares in AAIE to the C C children.”. Mr Brewer was “asked to advise and settle D such documentation necessary to effect settlement”. D E E (c) As evidenced by Ms Hwang’s contemporaneous notes F that recorded Father’s conversations with Dr Chen on F the occasion of 31 January 2008209, Father said that he G G would make a gift to the children as a token, and this H was the last resort. If they did not accept it, all would H be given to charity. I I J (d) As evidenced by Ms Hwang’s attendance notes J in respect of a conference that took place on K K 210 8 April 2008 , Father no longer wished to negotiate L with his children, and he wished to maintain a “take-it- L or-leave-it” position M M N N (6) I accept Mr Bruce Fu and Ms Hwang’s evidence that Father O had considered offering the shares in EnGro/AAIE to the O 5 Siblings pursuant to a deed of family arrangement on a P P “take-it-or-leave-it” basis as a means to resolve the dispute Q within the family211. In my view, the purpose was either (i) to Q R 208 This was under an email dated 1 June 2007 from Ms Hwang [Bundle B5, Tab 196, page 2235]. It R was said that the instructions were a draft, but the engrossed version “will not be much different”. 209 S S Bundle B7, Tab 366, pages 3217 210 See paragraph 3 [Bundle B7, Tab 376, page 3234] T 211 T Unfortunately, it transpired that no consensus could be reached, and the intended family deed of arrangement was never executed. U U V V A - 158 - A B procure a promise from the 5 Siblings not to challenge the B will made by himself; or (ii) to pacify the 5 Siblings, such C C that hopefully they would not challenge the will made by D Father. Obviously, the aim was to ensure that the will made D by Father could be implemented, such that his charitable E E intent could be fulfilled. F F (7) Having said that Father contemplated that a deed of family G G arrangement would be executed and that the shareholding in H AAIE/EnGro would be disposed of pursuant thereto, it is H understandable why the two sets of 2007 Wills do not I I specifically cover these assets. After all, it was intended that J if the 5 Siblings did not accept the arrangement under the J intended deed of family arrangement, the shareholding would K K be donated to charity by virtue of the provisions in the two L sets of 2007 Wills. However, if the 5 Siblings accepted the L arrangement, the shareholding would be given to them. As M M such, it would be unnecessary to dispose of the shareholding N N upon the demise of Father and Mother. O O (8) In this connection, I also accept Mr Bruce Fu’s evidence P P that on the occasion of 29 March 2007, Father simply did Q not give any specific instruction that the assets intended Q to be covered by the deed of family arrangement (ie the R R shareholding in AAIE/EnGro) should be dealt with under the S two sets of 2007 Wills. This is consistent with the objective S circumstances and the contemporaneous records. T T U U V V A - 159 - A B 186. Mr Dawes also pointed out that in her email to Mr Bruce Fu B dated 1 October 2007212, Ms Hwang mentioned that Father was “anxious C C to let [Hastings] know that…he wishes [TCS] to have everything”. D Mr Dawes queried whether, at one stage, Father’s testamentary wish was D to bequeath all his assets to TCS. E E F 187. However:- F G G (1) The next sentence in the said email dated 1 October 2007 H reads as follows: “To this end the previous affirmation that H [Mr Brewer] has done has now been amended to reflect this”. I I J (2) The revised draft affirmation is attached to the email. In J paragraphs 55 and 57 of the revised draft affirmation213, it is K K stated that:- (a) “It is my intention that [TCS] succeed the L entirety of the Tan family interest in AAIE’s holding in L [Ssangyong Cement Singapore] 214 .”; and (b) “It is my M M intention that [TCS] succeed to the entirety of the Tan family N N interest in AAS. Some 45.53% of AAS is already registered in O [TCS]’s name and for the avoidance of doubt I intend to O execute immediately upon making this my Affirmation a Deed P P of Gift in respect of such shares…”. Q Q (3) In the premises, it appears that what Ms Hwang understood R R from Father back in October 2007 was that he merely wanted 212 S S Bundle B5, Tab 201, page 2313 213 Bundle B5, Tab 201, pages 2334 and 2335 T 214 T Defined in the heading above para 31 [Bundle B5, Tab 201, page 2325] Ssangyong Cement Singapore was the former name of EnGro. U U V V A - 160 - A B TCS to have (i) AAIE’s interest in EnGro 215 ; and (ii) the B interest in AAS. C C D (4) It is obvious that Father did not intend to renege on his D charitable intent by bequeathing all his personal assets to E E TCS. This was not the case. F F (5) In any event, it is important not to lose sight of the fact that G G the matters set out in sub-paragraph (2) above are merely part H of the revised “draft” affirmation. The contents in question H never found their ways to the finalized version of the 1 st I I Statutory Declaration. I am not of the view that anything J material arises out of the contents of a “draft” affirmation, J which Father did not eventually approve. K K L L 188. Mr Dawes also contended that the 2008 Joint Will does not M reflect Father’s wish that the shareholding in AAIE/EnGro and AAS be M carved out from his estate and distributed amongst members of the Tan N N family. In this connection:- O O (1) As evidenced by the contents of the finalized version of the P P 1st Statutory Declaration (which was dated 31 January Q 2008) 216 , Father’s intention was that the shareholding in Q AAIE/EnGro and AAS be distributed amongst members of R R the family. S S 215 T Ssangyong Cement Singapore was the former name of EnGro T 216 See paras 86 to 91 [Bundle B2, Tab 147, pages 995 to 998] U U V V A - 161 - A B (2) Mr Dawes pointed out that it was initially envisaged B that Father’s 1st Statutory Declaration be executed on C C 31 January 2008 alongside the two draft wills prepared by D Mr Bruce Fu that separately deals with the assets in D Singapore and the assets outside of Singapore:- E E F (a) Insofar as the draft will that deals with the assets F within Singapore217 is concerned, it provides that:- G G H i. TCS be appointed as the executrix; H I ii. Father’s shareholding in AAS be bequeathed to I TCS; J J iii. Father had a hope that the building owned by K K AAS (ie Afro-Asia Building) be sold; thereupon L S$40 million be transferred to Hong Kong and L dealt with as per the will that governs the assets M M in Hong Kong; N N iv. Subject to the aforesaid, Father’s assets be O O bequeathed to Mother; and P P v. If Mother predeceases Father or dies within Q 30 days after Father dies, the assets should be Q donated to (i) the Singapore Buddhist Lodge; R R and (ii) the National University of Singapore. S S T T 217 Bundle B2, Tab 147(2), pages 1005 to 1009 U U V V A - 162 - A B (b) Insofar as the draft will that deals with the assets B outside of Singapore218 is concerned, it provides that:- C C i. TCS be appointed as the executrix; D D ii. Father’s assets be bequeathed to Mother; E E F iii. If Mother predeceases Father or dies within F 30 days after Father dies, the assets should G G be donated for the charitable purposes of H medication, education and taking care of the old, H the young and the poor; to this end, the executrix I I has absolute discretion to donate ½ of the assets J to the charities in Hong Kong and ½ of the J assets to the charities in Shanting Village, K K Maxiang Town, Xiangan District, Fujian L Province as well as Xiamen. L M (3) Mr Dawes then went on to contend that contrary to Father’s M 1st Statutory Declaration and the contents of the two N N unexecuted draft wills, the 2008 Joint Will (which was O subsequently executed on 6 February 2008) did not provide O that the interests in the Singaporean companies be P P bequeathed to TCS and/or other members of the Tan family. Q Mr Dawes queried whether the 2008 Joint Will truly reflected Q the testamentary wishes of Father. R R S S T T 218 Bundle B2, Tab 147(1), pages 1000 to 1004 U U V V A - 163 - A B 189. For the following reasons, I am unable to accept Mr Dawes’s B submissions that the 2008 Joint Will did not reflect Father’s testamentary C C intent:- D D (1) I accept that as reflected by the two sets of draft wills and E E Father’s 1st Statutory Declaration, it appears that, at one stage, F Father’s intention was such that (i) he assumed he still F beneficially owned the shareholding in AAIE/EnGro and G G AAS; and (ii) he wanted to distribute such shareholding H amongst members of the Tan family. Obviously, this was not H reflected by the contents of the 2008 Joint Will. I I J (2) However, even if the contents of the 2008 Joint Will did not J reflect Father’s intention as to how the shareholding in K K AAIE/EnGro and AAS was to be disposed of, the same still L accurately reflected Father’s testamentary intention that his L assets other than the shareholding in AAIE/EnGro and AAS M M should be donated for charitable purposes. As discussed in N paragraph 178 above, under the mechanism of the 2008 Joint N Will, the entirety of the capital of Father’s assets would be O O donated for charitable purposes after the demise of both P Father and Mother. I accept that this was the intention of P Father and Mother. Q Q (3) By reason of the findings made by the Singaporean High R R Court and the Singaporean Court of Appeal, it is now clear S that Father did not beneficially own the shareholding in S AAIE/EnGro and AAS at all. In other words, the 2008 Joint T T U U V V A - 164 - A B Will is merely silent on some assets (ie the shareholding in B AAIE/EnGro and AAS), which Father did not own. C C (4) In my view, it cannot be said that Father did not have the D D testamentary intent to utilize his personal assets other than E the shareholding in AAIE/EnGro and AAS for charitable E purposes. F F G (5) In this connection, the recent correspondence exchanged G amongst the solicitors for TCG, TYK, and TCP, the solicitors H H for TCS, and the Secretary for Justice shows that Father’s I estate comprised of, among other things, some cash in bank I accounts as well as antiques, paintings, and artworks that J J were worth HK$28 million to HK$30 million 219 . For the K reasons discussed in this section, I have no doubt that it was K Father’s intention to donate these assets to charity. L L (6) More importantly, for the reasons elaborated below, I am of M M the view that it is explicable as to why the 2008 Joint Will is N N silent on the shareholding in AAIE/EnGro and AAS. O O (7) As stated in paragraph 87 of his 1st Statutory Declaration220, P Father intended to dispose of the shareholding in P AAIE/EnGro pursuant to a deed of family arrangement (the Q Q draft of which is produced as an exhibit). This echoes R Mr Bruce Fu’s evidence that Father wished to resolve his R dispute with his children by offering them the shareholding in S S 219 T Bundle D, Tabs 3 to 6, pages 3 to 14 T 220 Bundle B2, Tab 147, page 996 U U V V A - 165 - A B the Singaporean companies. However, Father’s 1st Statutory B Declaration does not suggest that as a condition of accepting C C the shareholding in AAIE/EnGro, the 5 Siblings should D undertake or agree not to challenge the wills made by Father D and Mother. In this connection, it was Mr Bruce Fu’s E E evidence 221 that he did advise Father that in order to F minimize the chance of litigation, Father should consider F gifting some assets to his children, such that they would not G G feel neglected. Having considered the totality of the evidence, H it appears to me that what Father intended to do was to pacify H TCG, TYK, TCP, and TCH, and it was envisaged that the I I shareholding in AAIE/EnGro would be given to them (as J well as Mother and TCS) pursuant to the terms of a deed of J family arrangement. Based on the contents in paragraph 87 of K K Father’s 1 Statutory Declaration, it appears Father envisaged st L that the transfer would be effectuated pursuant to the L intended deed of family arrangement to be executed during M M his lifetime. N N (8) This could explain why the 2008 Joint Will is silent on the O O shareholding in AAIE/EnGro. Obviously, if the 5 Siblings P accept the arrangement under the intended deed of family P arrangement, the shareholding would be disposed of during Q Q the Father’s lifetime. As such, it would not be necessary to R insert a clause into the 2008 Joint Will providing that the R shareholding be bequeathed to the 5 Siblings. S S 221 I accept Mr Fu’s evidence in this regard. See also para 13 of Mr Bruce Fu’s Witness Statement where T T he did mention that he had advised Father that if the 5 Siblings received nothing, they might challenge the 2007 Wills and thus Father should leave something to the 5 Siblings. U U V V A - 166 - A B B (9) It transpired that the intended deed of family arrangement C was not executed as TCG, TYK, TCP, and TCH refused C to (i) accept that Father beneficially owned shareholding in D D AAIE/EnGro and AAS and (ii) waive their claims and E entitlement in respect thereof 222 . Eventually, Father’s E ownership of the shareholding in AAIE/EnGro and AAS was F F even challenged. G G (10) Be that as it may, assuming that Father beneficially owned H H shareholding in AAIE/EnGro and AAS, as the 5 Siblings I refused to accept the terms of the intended deed of family I arrangement, the shareholding would be donated to charity J J after both Father and Mother pass away pursuant to the K mechanism under the 2008 Joint Will. K L (11) This is wholly consistent with the Father’s intention as L recorded in (i) the typed-up attendance notes prepared by M M Hastings’s trainee solicitor in respect of the conference N N on 26 March 2007 223 ; (ii) Ms Hwang’s contemporaneous O notes that recorded Father’s conversations with Dr Chen on O 31 January 2008 ; and (iii) Ms Hwang’s attendance notes in 224 P P respect of the conference on 8 April 2008 225. Q Q R 222 See the terms of the draft deed of family arrangement (eg clause 2) [Bundle B3, Tab 170(1), pages R 1521 to 1522]. The 5 Siblings were required to forego further claims relating to the shareholdings in AAIE and AAS. S S 223 Bundle B7, Tab 304, pages 2965 to 2967 224 T Bundle B7, Tab 366, page 3217, T 225 Bundle B7, Tab 376, page 3234 U U V V A - 167 - A B (12) Insofar as (ii) above is concerned, as of late January 2008, B Father made it clear that if his children did not accept the C C shareholding in AAIE/EnGro (which was a last resort to D resolve the dispute), the assets would be given to charity. D Insofar as (iii) is concerned, it was recorded that as of E E April 2008, Father no longer wished to negotiate with F children, and he wished to maintain a “take-it-or-leave-it” F position. G G H (13) It is clear that whilst Father assumed that he beneficially H owned the shares in AAIE/EnGro and AAS, his intention was I I that if the 5 Siblings refused to accept the terms of the J intended deed of family arrangement, the shares would be J donated to charity. K K L (14) The mechanism under the 2008 Joint Will is plainly capable L of giving effect to Father’s intent. In light of Father’s intent M M and the circumstances that he faced, there is no reason why N N the 2008 Joint Will must contain a specific clause O bequeathing the shares in AAIE/EnGro to the 5 Siblings. I O am not of the view that the 2008 Joint Will fails to reflect P P Father’s intent; nor am I of the view that there is any material Q defect in respect of the mechanism under the 2008 Joint Will. Q R R 190. Mr Dawes further submitted that as evidenced by S paragraph 86 of his 1st Statutory Declaration226, Father intended to execute S the two separate wills prepared by Mr Bruce Fu because he wished to deal T T 226 Bundle B2, Tab 147, page 995 U U V V A - 168 - A B with his Singaporean assets and non-Singaporean assets separately. B Mr Dawes pointed out that whilst the two sets of draft wills prepared C C by Mr Bruce Fu specifically stipulate how the Singaporean assets and D non-Singaporean assets should be donated and/or disposed of, the D 2008 Joint Will deals with all assets globally without seeking to draw any E E distinction. In the premises, Mr Dawes queried whether the 2008 Joint F Will addresses Father’s concern and reflects his wish. F G G 191. Despite Mr Dawes’s submissions, I am of the view that the H 2008 Joint Will is capable of addressing Father’s concern and reflecting H his wish. I I J (1) In light of the overwhelming evidence, irrespective of J whether one will or two separate wills was/were to be K K executed, there could be no doubt that Father intended that L his wealth be donated to charity. L M M (2) It appears that Mr Nelson Miu was the one who proposed that N N there be a global will covering all of Father’s assets O worldwide. As stated in paragraph 5 of his advice dated O 4 February 2008 227 , Mr Nelson Miu took the view that “it P P would be desirable to have one Will dealing with all the Q assets owned by [Father and Mother] globally, whenever and Q wheresoever situate”. As stated in paragraph 6 of the same R R advice, Mr Miu took into account the fact that whilst estate S S T T 227 Bundle B6, Tab 231, page 2616 U U V V A - 169 - A B duty was abolished in Hong Kong, estate duty was still B applicable in Singapore228. C C D (3) In my view, a will is a technical means by which to give D effect to Father’s charitable intent. There is nothing unusual E E about the fact that Father’s legal representatives would seek F to ameliorate the same. It is futile for TCG, TYK, and TCP to F make a song and dance about the process. G G H (4) In any event, I accept that the “global” arrangement under the H 2008 Joint Will was known to and approved by Father:- I I J (a) As evidenced by the contemporaneous email dated J 5 February 2008 at 1:08pm 229 , Mr Bruce Fu had K K explained the matter to Father, and Father agreed that L he and Mother “would make one joint mutual will to L deal with all their assets worldwide”. M M N N (b) For completeness, as pointed out in paragraph 169 O above, I am also satisfied that the contents and effect O of the 2008 Joint Will were adequately read out and P P explained to Father and Mother on the occasion of Q 6 February 2008 before the document was executed. Q R R (5) All in all, there was nothing unusual about the facts that S (i) Father’s lawyers sought to put forward a proposal that was S 228 T Bundle B6, Tab 231, page 2616 T 229 Bundle B6, Tab 236, page 2674 U U V V A - 170 - A B advantageous in terms of tax; and (ii) Father accepted the B advice and proposal of his lawyers. There was nothing C C suspicious or inexplicable. D D 192. Mr Dawes pointed out that as reflected by the draft will E E prepared by Mr Bruce Fu that deals with the assets within Singapore 230, F Father envisaged that a building owned by AAS (the “AAS Building”) F would be sold, such that he could have the funds to fulfill his intended G G 231 charitable purposes outside of Singapore . However, the reality was that H Father did not own the shares in AAS, and he was not in a position to H procure the sale of the AAS Building. I I J 193. I am not of the view that anything material arises out of this J observation:- K K L (1) As stated in clause 6(1) of the draft will that deals with the L assets in Singapore232, Father merely had a “hope” that the M M AAS Building be sold, such that there would be a sum of N N S$40 million available for achieving the charitable purposes O spelled out in the draft will that deals with non-Singaporean O assets. In my view, Father knew and appreciated that he P P might not be in a position to procure the sale of the AAS Q Building. Q R R S S 230 Bundle B2, Tab 147(2), pages 1006 to 1009 231 T See clause 6(1) of the draft will [Bundle B2, Tab 147(2), page 1007] T 232 Bundle B2, Tab 147(2), page 1007 U U V V A - 171 - A B (2) In any event, there is no evidence showing that Father would B not have intended to donate his personal assets had he C C appreciated that he no longer retained the beneficial D ownership over shareholding in AAS. In this connection, the D evidence in respect of Father’s charitable intent was E E overwhelming. As pointed out in paragraphs 173(1) and (2) F above, even TCG and TYK admitted that Father, during his F lifetime, repeatedly indicated that whatever personal assets he G G had, he would donate the same to charity, and he would not H bequeath his assets to his children. H I I (3) In the premises, even if Father erroneously assumed that he J still beneficially owned the shareholding in AAS and thus J would be able to procure the sale of the AAS Building, K K it simply does not follow that Father’s charitable intent L did not exist or that Father did not wish to donate his L personal assets to charity when he and Mother pass away. M M In light of the overwhelming evidence, I am of the view that N N it must be Father’s intent that his personal assets, including O the cash in his bank accounts as well as his antiques, O paintings, and artworks (which were worth HK$28 million to P P HK$30 million)233, be donated to charity. Q Q 194. Lastly, Mr Dawes also queried whether Father truly accepted R R and understood that the effect of the 2008 Joint Will was such that Mother S would be in a position to enjoy and/or dispose of the income deriving S T T 233 For the assets, see the correspondence exchanged amongst TCG, TYK, and TCP’s solicitors, TCP’s solicitors and the Secretary for Justice [Bundle D, Tabs 3 to 6, pages 3 to 14] U U V V A - 172 - A B from the capital of his assets, such that the same would not be utilized for B charitable purposes. C C D 195. In this connection:- D E E (1) Bearing in mind the totality of the evidence (including the F evidence of Dr Wong, Ms Hwang, and Mr Bruce Fu), I have F no doubt that Father’s intention was that Mother be G G adequately provided for during her life time, and his assets H should only be donated to charity after both himself and H Mother pass away. For the reasons explained in paragraphs I I 178 and 179 above, I am satisfied that the arrangement under J the 2008 Joint Will is capable of giving effect to Father’s J intent. K K L (2) Since the income deriving from the capital of Father’s assets L are intended to be utilized for the purpose of maintaining M M Mother before her demise, I cannot see how TCS, TYK, and N N TCP can seriously suggest that Father would have envisaged O that the same would be donated to charity after Mother’s O demise. This suggestion is highly artificial and unreal. P P Q (3) In any event, as pointed out by Mr Bruce Fu, at the time Q when the 2008 Joint Will was explained to Father, he did not R R insist that the personal assets of Mother be utilized for S charitable purposes. I accept Mr Bruce Fu’s evidence. S T T U U V V A - 173 - A B (4) Indeed, Mr Bruce Fu’s evidence is consistent with the B contemporaneous documents as well as the objective C C circumstances. D D (5) Insofar as the contemporaneous documents are concerned:- E E F (a) As evidenced by his email dated 1 February 2008 at F 1:31pm234, when Mr Bruce Fu discussed the concept G G of “life interest”, he stated that “[w]e must take H specific instruction from [Father and Mother] on the H issue and respect their feeling on the subject. Some I I Chinese may have a guilty feeling if he/she does not J give the estate to his/her spouse”. J K K (b) In light of this express indication, there is no question L that Mr Bruce Fu was aware of the sensitivity of the L issue. This was why he emphasized the need to take M M specific instruction from Father and Mother. I am of N N the view that Mr Bruce Fu (who is a responsible and O bona fide solicitor) must have (i) taken specific O instructions from Father and Mother and (ii) explained P P the matter to them 235 . I am unable to discern any Q Q 234 Bundle B6, Tab 223, page 2579 235 R In this connection, Mr Dawes submitted that Mr Bruce Fu admitted that he did not take specific R instructions from Father regarding the adoption of the concept of life interests: see his closing submissions, para 171.4. In light of the aforesaid contemporaneous email dated 1 February 2008 at S 1;31pm [Bundle B, Tab 238, page 2684], I find it difficult to believe that Mr Fu, who was aware of the S sensitivity of the issue and who explicitly flagged up the matter, would not take instructions from Father and Mother at all. This would be inexplicable. In any event, I have carefully considered the relevant part T of the transcripts that recorded the exchange between Mr Dawes and Mr Bruce Fu during cross- T examination: see [Day 8, page 80, lines 8 to 11]. What happened was that Mr Dawes put forward 2 propositions to Mr Fu in the same question, namely (1) “there is no specific instruction sought on the U U V V A - 174 - A B reason why Mr Bruce (who was aware of the B sensitivity of the issue) would not do so. C C D (c) This is borne by Mr Bruce Fu’s email dated D 5 February 2008 at 1:08pm and TCS’s email dated E E 5 February 2008 at 2:25pm236. As evidenced by these F emails, Mr Bruce Fu did explain the pros and cons F of Mr Nelson Miu’s approach as well as the contents G G of the 2008 Joint Will to Father over a telephone H conversation. Further, TCS also explained Mr Nelson H Miu’s suggestions to Father. I I J (6) Insofar as the objective circumstances are concerned:- J K K (a) As pointed out by Mr Nelson Miu at the conference in L the morning on 6 February 2008237, a joint mutual will L would have the effect of serving joint tenancies. In the M M premises, if the 2008 Joint Will were drafted as a N N “mutual will” in order to prevent Mother from O O concept of a life interest of the income of Father’s assets which is provided, as the 2008 joint will provides”; and (2) “[t]here is no record of this whatsoever, right?”. Whilst Mr Bruce Fu answered P P “correct”, it appears to me that this was a response to Mr Dawes’s 2nd proposition (ie there is no contemporaneous record in respect of the instructions regarding life interest”. It does not appear to me Q that Mr Bruce Fu admitted that he took no instructions at all. In fact, when Mr Dawes, with reference to Q the aforesaid email dated 1 February 2008 at 1:31pm, asked Mr Bruce Fu whether he noted that “such specific instruction must be taken from [Father and Mother] on the issue and respect their feeling on R the subject”, Mr Fu answered “correct”: see transcripts [Day 8, page 80, lines 1 to 4. Having considered R the totality of Mr Bruce Fu’s evidence, I am unable to come to the view that Mr Bruce Fu unequivocally admitted that he took no instruction from Father and Mother regarding the concept of life interest. This S suggestion does not sit comfortably with the contemporaneous email as well as Mr Bruce Fu’s oral S evidence. 236 T Bundle B6, Tab 238, page 2684 T 237 See the notes prepared by a member of Hastings [Bundle B7, Tab 371, at page 3227] U U V V A - 175 - A B disposing of the income arising from the capital of B Father’s assets by making a new will, the implication C C is that the joint tenancies in respect of the Bowen D Property and the Sydney Property would be severed. D There is no question that this was not an intended E E consequence. F F (b) In the premises, it is explicable as to why Father would G G accept the design of Mr Nelson Miu. H H (c) In any event, the arrangement proposed by Mr Nelson I I Miu ensures that (i) Father’s own assets would be ring J J fenced for charity and (ii) meanwhile Mother would be adequately provided for before her demise. I am not of K K the view that there were any inexplicable and/or L L suspicious circumstances. M M 196. Fifteenth, whilst I accept that TCS (who was the caregiver of N N Father and Mother) was involved in the process of liaising with Hastings, O I do not accept the suggestion that the instructions came from TCS, rather O than Father. In my view, Hastings’ Ms Hwang and Mr Bruce Fu, in P P discharge of their duties owed to Father, were aware of the need to take Q proper instructions from Father, and they did take proper instructions from Q him. R R S (1) When Mr Bruce Fu was questioned by Mr Dawes, he made it S absolutely clear that upon hearing what TCS said to himself T T and Ms Hwang at the initial meeting on 26 March 2007, he U U V V A - 176 - A B appreciated that Father and Mother, being the testators, were B Hastings’ clients, and TCS merely assisted in conveying C C Father’s messages 238. As such, it was necessary for Hastings D to (i) take proper instructions from Father and Mother D directly, and (ii) ensure that Father and Mother understood E E the works to be carried out as well as the contents and effect F of the wills to be executed. F G G (2) I accept Mr Bruce Fu’s evidence, which is borne out by the H contemporaneous documents. For instance:- H I I (a) As evidenced by Ms Hwang’s email to TCS dated J 15 March 2007 at 2:43pm, she emphasized that “it is J important that [Father and Mother] be in a position to K K 239 give instructions” . L L (b) As evidenced by the attendance note dated M M 26 March 2007 prepared by a trainee solicitor of N N Hastings 240 , Ms Hwang indicated to TCS 241 that she O sought to have a conference with Father and Mother O for the purpose of taking instructions and confirming P P their wishes in the will to be made. Q Q R R 238 Day 7, before morning break. Day 8, after lunch S S 239 Bundle B5, Tab179, page 2173 240 T Bundle B7, Tab 304, page 2967 T 241 There was an initial meeting at Hastings’s office on the same day U U V V A - 177 - A B (c) As evidenced by Ms Hwang’s email dated B 23 March 2007 to TCS at 5:21pm 242, she proposed to C C meet Father and Mother on 27 March 2007. It was D obvious that this was for the purpose of ensuring that D Hastings could (i) take instructions from Father and E E Mother directly and (ii) understand and confirm their F testamentary wish. The intended meeting did not take F place only because Father was suddenly hospitalized G G 243 due to his intestinal issues . H H (d) As mentioned, on the occasion of 29 March 2007, I I Father wrote the Chinese words “ 翔 安 山 亭 村 J J (Shanting Village, Xiangan)” on Mr Bruce Fu’s K contemporaneous notes244. This showed that Mr Bruce K Fu did take direct instructions from Father, and Father L L was eager to assist Mr Bruce Fu to complete the task of M drafting up the two sets of 2007 Wills. M N N (e) As evidenced by the hand-written note dated O 30 March 2007 at 12:23pm, (i) Mr Bruce Fu spoke to O Father and TCS over the phone, and (ii) they were P P contented with the contents of the draft 2007 Will245. Q Q R R 242 Bundle B5, Tab 181, page 2179 S S 243 See TCS’s email dated 26 March 2007 at 0:04 [Bundle B5, Tab 181, page 2178] 244 T Bundle B7, Tab 307, page 2981 T 245 Bundle B7, Tab 305, pages 2983 U U V V A - 178 - A B (f) As evidenced by Hastings’s contemporaneous B attendance notes 246 and summary of meetings 247 , C C Father attended at least four meetings on 9 May 2007, D 1 June 2007, 5 October 2007, and 28 January 2008 at D the Bowen Property for the purpose of giving and E E confirming instructions in regard to the 1st Statutory F Declaration. F G G (g) As evidenced by the email dated 5 February 2008 at H 13:08 248 , Mr Bruce Fu explained Mr Nelson Miu’s H advice to Father including the pros and cons of I I Mr Miu’s proposal, and Father agreed that he and J Mother would make one will to deal with their assets J worldwide. K K L (h) In his email dated 1 February 2008 at 1:31pm 249 , L Mr Bruce Fu stated that “[w]e must take specific M M instruction from [Father and Mother] on the issue N N [regarding life interest] and respect their feeling on O the subject. Some Chinese may have a guilty feeling if O he/she does not give the estate to his/her spouse”. As P P mentioned in paragraph 195(3) above, I am of the view Q that Mr Bruce Fu must have taken specific instructions Q R R 246 See eg Bundle B7, Tabs 318, 322 and 342 S S 247 See Bundle B7, Tab 381, page 3242 248 T Bundle B6, Tab 236, page 2674 T 249 Bundle B6, Tab 223, page 2579 U U V V A - 179 - A B from Father and Mother and discussed the matter with B them. C C D (3) The contemporaneous emails also show that TCS was aware D that Ms Hwang and Mr Bruce Fu should (i) take instructions E E from Father and Mother directly, and (ii) ensure that Father F and Mother fully understood the contents of the wills to be F executed. For instance:- G G H (a) As evidenced by an email dated 6 March 2007250, TCS H invited Ms Hwang to meet Father at his home (ie the I I Bowen Property) as it was inconvenient for him to J travel around. J K K (b) In her email to Ms Hwang on 15 March 2007 at L 12:26pm251, TCS mentioned that it was important for L Father to review and approve all the materials, and she M M stated that “the best way to proceed is to get [Father]’s N N full involvement hereon to avoid any misunderstanding O about [Father and Mother]’s wishes and how to O achieve them.” P P Q (c) In her email to Ms Hwang, Mr Bruce Fu and Q 252 Mr Brewer on 5 February 2008 at 11:29am , TCS R R stated that “I think the Joint Will approach is a good S S 250 Bundle B5, Tab 178, page 2172 251 T See Bundle B5, Tab 179, page 2174 T 252 Bundle B6, Tab 235, page 2670 U U V V A - 180 - A B one and my parents will likely 253 agree with it. B However, I am seeing my father after I finish this email C C and will confirm my parents’ wishes no later than D 1:00pm today” (emphasis added) D E E (d) As evidenced by the email dated 5 February 2008 at F 2:25pm 254 , TCS invited Mr Bruce Fu to explain the F contents of the 2008 Joint Will to Father directly. G G H (4) The said contemporaneous emails showed that:- H I I (a) TCS sought to ensure that Ms Hwang would meet J Father directly, such that she could fully understand J Father’s wishes and instructions. K K L (b) TCS sought to ensure that Father was fully involved in L the “will-making” process. M M N N (c) TCS, acting as a conduit or messenger, sought to O convey the views and approach suggested by the O lawyers to Father and Mother, and there was no P P guarantee that they would necessarily agree. Q Q R R S S 253 This shows that TCS did not know whether his parents would necessarily agree with the “Joint Will T approach” suggested by the lawyers, though she believed that such an approach was good. T 254 Bundle B6, Tab 238, page 2684 U U V V A - 181 - A B (d) TCS did not seek to keep Father in the dark. On the B contrary, she hoped that Father could understand the C C effect of the 2008 Joint Will from Mr Bruce Fu. D D (5) I do not lose sight of the fact that when TCS was cross- E E examined by Mr Dawes 255, she admitted that at the meeting F on 26 March 2007, she confirmed with Hastings that the F approach for preparing Father’s new will was that some G G simple wills (which transpired to be the two sets of 2007 H Wills) be prepared first and wills with comprehensive H contents be prepared later. In this connection:- I I J (a) I am not of the view that there was anything sinister on J the part of TCS and/or Hastings. In light of Father’s K K sudden hospitalization, this approach (which was L suggested by Mr Bruce Fu) made sense as there was L insufficient time to prepare wills with comprehensive M M contents. N N (b) I also accept TCS’s evidence 256 (which was O corroborated by the evidence of Dr Wong and O Ms Hwang) that Father was bothered by this matter P P and felt restless. In the circumstances, there were good Q reasons why TCS indicated her agreement to the Q approach suggested by Mr Bruce Fu. This did not R R mean that TCS hijacked the “will-making’ process. In S my view, it was abundantly clear that Father was S 255 T Day 12, before morning break T 256 Day 12, before morning break U U V V A - 182 - A B desperate to make a new will that evinced his B charitable intent and to wriggle out of the 2006 Will. C C There was every reason why TCS would want Father D to have peace of mind as soon as possible. D E (c) More importantly, as mentioned in paragraphs 169(1), E (3), (4), (5) & (6) and 170(1) to (10) above, Ms Hwang F F and Mr Bruce Fu did take direct instructions from G G Father and Mother, and the contents and effect of the H two sets of 2007 Wills were adequately explained to H them. I I (d) Having considered the totality of the circumstances, I J J am not of the view that Father had been abused. K K (6) For the above reasons, I am not of the view that TCS had L hijacked and/or unreasonably or wrongfully meddled with the L process of preparing the two sets of 2007 Wills as well as the M M 2008 Joint Will. N N (7) I am also satisfied that Hastings’ Ms Hwang and Mr Bruce O O Fu had taken adequate steps to ensure that (i) the instructions P came from Father and Mother, and (ii) they knew and P understood the contents and effect of the 2008 Joint Will and Q Q the two sets of 2007 Wills. R R 197. Sixteenth, whilst I accept that the two sets of 2007 Wills and S S the 2008 Joint Will were drafted and prepared under time pressure, I do T not accept the suggestion that Father was abused or that the process T involved any impropriety: U U V V A - 183 - A B B (1) Insofar as the two sets of 2007 Wills are concerned, it is not in C dispute that Father was suddenly hospitalized due to twisted C intestine (Volvulus). At the material times, Father was in his D D late 80s, and anything could happen to an elder at such an E advanced age. I fully understand why Father was eager to E make a new will that reflected his charitable testamentary F F intent and superseded the 2006 Will. Having heard the G G evidence of Mr Bruce Fu and Ms Hwang, I am also of the H view that they acted bona fide in preparing the two sets of H 2007 Wills on an urgent basis, such that Father could have I I peace of mind as soon as possible. I am not of the view that J they maliciously “rushed through” the process upon TCS’s J instigation. K K (2) As regards the 2008 Joint Will, it was executed on L L 6 February 2008 (which was the eve of the Chinese New M Year). It was Mr Bruce Fu’s evidence 257 that Father’s M instruction and wish were that the new will with N N comprehensive contents be executed as soon as possible O before the Chinese New Year. In this connection, Mr Dawes O submitted that there was no apparent urgency in the P P circumstances. However, it is important not to lose sight of Q the fact that the process of preparing the “more Q comprehensive’ will(s)” had dragged on for months, and I R R understand why Father (who was, according to Mr Bruce Fu S as well as TCS, an impatient person) would become impatient. S T T 257 I accept Mr Bruce Fu’s evidence in this regard. U U V V A - 184 - A B Moreover, Father was an elder from a traditional Chinese B background. I understand why Father wished to “wrap up” a C C matter that bothered him before the new year began. It is also D understandable why an elder might not wish to deal with D matters relating to a will (which touches upon death) at the E E beginning of a new year. Obviously, this would not be F auspicious. In the circumstances, I am not of the view that F there was any bad faith and/or impropriety on the part of G G Father’s legal team (ie Mr Bruce Fu, Ms Hwang, Mr Brewer, H and Mr Nelson Miu). They simply carried out Father’s H instructions to the best of their abilities. I I J 198. Seventeenth, although I am of the view that Mr Hoon was a J candid witness who cooperated with the court, his evidence is incapable of K K swaying me to accept the case of TCG, TYK, and TCP (which is L contradicted by overwhelming evidence):- L M M (1) Mr Hoon was not in a position to give evidence as to Father’s N N testamentary intent after the 2006 Will was executed on O 21 April 2006. O P (2) Indeed, when Mr Hoon gave oral evidence, he candidly P admitted that when he met Father before the 2006 Will was Q Q executed, Father had already indicated that he had the R intention of donating his assets to charity. Whilst this is R consistent with TCS’s case as well as the honest admissions S S made by TYK and TCG (see paragraphs 173(1) and (2) T above), it is uncertain as to why the 2006 Will does not T reflect any charitable intent at all. U U V V A - 185 - A B B (3) It is important not to lose sight of the fact that whilst C Mr Hoon prepared Father’s 2006 Will back in April 2006, he C was also involved in the preparation of various documents D D that concerned the shares in AAS and/or AAIE. In particular, E he prepared a statement signed by Father and Mother which E effectively provided that (i) Father disavowed interests over F F the shares that had been given to his children; and (ii) Mother G G alleged that the shares under her name were held on trust for H TCS. Meanwhile, Mr Hoon also prepared a trust deed and H some letters of undertakings relating to the shares. I I (4) Against this background, I cannot rule out the possibility that J J Father had an impression that his dealing with Mr Hoon was K concerned with matters relating to the shareholding in the K Singaporean companies. This could be a consequence of not L L paying attention to the contents of the 2006 Will and not M paying attention to the explanations made by Mr Hoon. I am M also unable to rule out the possibility that Mr Hoon might N N have misunderstood the wish and intent of Father. In this O connection, it is noteworthy that Mr Hoon did not jot any O contemporaneous notes to record Father’s instructions. P P Q (5) In any event, I have no hesitation in finding that from Q March 2007 onwards, Father had repeatedly made it clear R R that he wished to disown and revoke the 2006 Will S as soon as possible. He expressed his concerns and S worries to Ms Hwang, Dr Wong, Dr Chen, and Mr Bruce Fu T T (who were respectable professionals and credible witnesses): U U V V A - 186 - A B see paragraph 168 above. Further, Father’s intent of donating B his assets to charities was evidenced by the Chinese words C C that he wrote on the contemporaneous notes jotted by Mr D Bruce Fu on 29 March 2007: see paragraphs 170(7) to (8) D above. I do not lose sight of the fact that the purported E E testamentary wish under the 2006 Will is also flatly F contradicted by Father’s 1st Statutory Declaration. More F importantly, as confirmed by Mr Bruce Fu (whose evidence G G was credible in my view and corroborated by the evidence of H Dr Chen and Dr Chan, who were also credible witnesses), he H duly and carefully read out and explained the contents of the I I 2007 Will and the 2008 Joint Will to Father, and Father J approved the same: see paragraph 169 above. The aforesaid J matters are consistent with TCG’s honest admission that he K K was surprised by the contents of the 2006 Will, which did not L reflect the testamentary wish expressed by Father during his L lifetime: see paragraph 173(1) above. M M N (6) In the premises, I find and conclude that the contents of the N 2006 Will did not reflect Father’s testamentary wish from O O March 2007 onwards. This explains why from March 2007 P onwards, Father had endeavoured to revoke the 2006 Will; he P had been eager to make new wills (which turned out to be his Q Q 2007 Will and the 2008 Joint Wills) as soon as possible. R R 199. Eighteenth, Mr Dawes pointed out that (i) neither Father nor S TCS confronted Dr Lane (who was a witness of the 2006 Will) when he S was present in Hong Kong back in March 2007; and (ii) Father and/or his T T solicitors (ie Hastings) did not make enquiries with Mr Hoon and/or TCP U U V V A - 187 - A B regarding the 2006 Will. I am not of the view that anything material arises B out of these observations. As pointed out by Mr Bruce Fu 258, Father (who C C was a kind person) did not intend to embark on a “witch-hunt” at all, and D the objective at the time was to prepare a new will (which would D automatically revoke the 2006 Will) as soon as possible. In light of the E E totality of the evidence and Father’s character, the fact that Father, TCS, F and/or Hastings did not confront Dr Lane, Mr Hoon, and/or TCP does not F show that Father accepted the 2006 Will. G G H 200. Nineteenth, I disagree with the suggestion that the court H should draw an adverse inference from the fact that TCS did not adduce I I evidence from Mr Nelson Miu and Mr Brewer. In this connection, I accept J TCS’s explanation259 that she genuinely took the view that Mr Bruce Fu J and Ms Hwang, who are experienced solicitors, were capable of K K addressing the court in regard to the will-making process. In my view, L whilst the input from Mr Nelson Miu and Mr Brewer was well- L documented, TCS could not have fully envisaged the lines of attack M M pursued by the legal representatives of TCG, TYK, and TCP at the present N trial (which were highly forensic). On the totality of the evidence, I am not N of the view that TCS sought to hide something sinister or some O O unfavourable facts. P P No Undue Influence Q Q 201. Insofar as the absence of undue influence on Father is R R concerned, my reasons for making the factual findings set out in S paragraph 166 above are as follows. S 258 T Day 7, before morning break T 259 Day 13 U U V V A - 188 - A B B 202. First of all, I fully accept Dr Chen’s opinion that Father was C “sharp and alert”260 and had “good mental capacity”261. In this connection, C Dr Wong also pointed out that Father had no difficulty in explaining his D D wish and the contents of the two sets of 2007 Wills in his own words. On E the evidence, I am of the view that despite his medical issues and E advanced age, Father was mentally fit at the material times and he was not F F particularly vulnerable to undue pressure, domination and/or abuse. G G 203. Second, in light of the evidence of (i) Dr Wong (see H H paragraph 168(1)); (ii) Dr Chen (see paragraph 168(2)); and I (iii) Ms Hwang (see paragraph 168(4)) (which I accept), I am of the view I that Father was genuinely (i) upset about the 2006 Will and J J (ii) determined to make new wills to evince his charitable intent and to K revoke the 2006 Will. In this connection, as admitted by TCG and TYK, K throughout his lifetime, Father repeatedly reiterated his charitable intent as L L well as his intent not to leave his assets to his children (see paragraphs M 173(1) and (2)). These notions did not come from TCS at all. M N N 204. Third, for the reasons set out in paragraphs 170(11)-(15), 178, O 179, and 182 above, I am of the view that Father’s legal representatives O had endeavored to ensure that (at least) the capital of Father’s assets could P P be utilized for charitable purposes. Under the mechanism of the 2008 Joint Q Will, there is no realistic possibility that TCS could defeat Father’s Q charitable intent by rendering herself a beneficiary. I reject the suggestion R R that the “will-making” exercise was conducted for the purpose of S advancing TCS’s personal interests. S 260 T witness statement, para 8 T 261 medical report dated 10 September 2007, para 29 [Bundle B8, Tab 384, page 3269] U U V V A - 189 - A B B 205. Fourth, for the reasons set out in paragraphs 170 and 196 C above, I reject the suggestion that Hastings and TCS colluded together C with ulterior motives. As evidenced by the contemporaneous emails, D D whilst Ms Hwang and Mr Bruce Fu were aware of the need to take E instructions from Father directly, TCS was also aware that it was E necessary for Ms Hwang and Mr Bruce Fu to (i) understand Father’s F F instructions correctly, and (ii) ensure that Father understood the contents G G and effect of the 2008 Joint Will. I am satisfied that Hastings had (i) taken H independent instructions from Father, and (ii) taken adequate steps to H ensure that Father and Mother understood the 2008 Joint Will as well as I I the two sets of 2007 Wills. I am of the view that Hastings acted bona fide J and had duly discharged their duties owed to Father as well as Mother. J K 206. Fifth, it is not in dispute that on the occasion of K 6 February 2008 when the 2008 Joint Will was executed, TCS was absent. L L In my view, had 2008 Joint Will been part of TCS’s personal agenda M and/or vendetta against TCG, TYK, TCH, and TCP, she would have M attended the office of Hastings in order to make sure that her parents N N would duly execute the 2008 Joint Will. This was not the case. Further, O had Father and Mother disagreed with the contents of the 2008 Joint Will O (which they had read and which Mr Bruce Fu had duly read out and P P explained: see paragraph 169 above), they would have, in TCS’s absence, Q voiced out their concern and/or refused to sign the document. This was not Q what happened. R R S 207. Sixth, for the reasons set out in paragraph 197 above, there S were explicable reasons why the two sets of 2007 Wills and the 2008 Joint T T Will were prepared and executed under time pressure. I reject the U U V V A - 190 - A B suggestion that Hastings unjustifiably and/or unreasonably “rushed B through” the process on TCS’s instigation. C C D 208. Seventh, I do not lose sight of the fact that TCS was involved D in liaising with Father’s legal representatives. However, Father was in his E E late 80s at the material times. Whilst he was incapable of using emails to F communicate with his lawyers, it was not convenient for him to travel F around (such that various conferences had to take place at his home, ie the G G Bowen Property). In the circumstances, it is understandable why Father H would want TCS to assist in liaising with his legal representatives. It does H not follow that TCS hijacked the process. As mentioned (see paragraph I I 196 above), I am satisfied that Hastings had adequately discharged their J duties owed to Father by (i) taking direct instructions from him, and (ii) J taking adequate steps to ensure that he understood the 2008 Joint Will, the K K st two sets of 2007 Wills, and the 1 Statutory Declaration. L L 209. Eighth, I reject the suggestion that TCS “isolated” Father and M M Mother and/or prohibited them from having contact with TCG, TYK, N N TCH, and TCP. In this connection, in her witness statement, TCP referred O to various incidents262. In my view, these incidents merely demonstrated O 263 her mistrust towards TCS. On the evidence , TCP and TCH managed to P P visit Father and Mother on various occasions in December 2007 and Q March 2008. As admitted by TCP, in some of these occasions, TCS was Q not present at all. Had TCS “isolated” her parents from her Siblings, TCP R R and TCH would not have managed to visit their parents in TCS’s absence. S S 262 Paragraphs 49 to 100 T T 263 TCP’s oral evidence; Day 4, before morning break. See also paragraphs 91 and 93 of TCP’s witness statement U U V V A - 191 - A B B 210. Ninth, I bear in mind that (i) in the Singaporean 570 Action, C C the Singaporean courts rejected TCS’s case regarding the beneficial D ownership of the shareholding in AAIE/EnGro and AAS, and criticized D her conduct; and (ii) I also reject TCS’s factual case regarding the E E beneficial ownership of the Credit Suisse Account in the Elison Action. F These matters undoubtedly affect my assessment of TCS’s credibility. F However, a “trial judge’s role is to try issues, not personality”: see G G Tradepower (Holdings) Ltd (in Liquidation) v Tradepower (Hong Kong) H Ltd & Ors (2009) 12 HKCFAR 417 at para 140 (per Litton PJ). On the H totality of the evidence before the court, I am simply unable to find that (i) I I TCS exerted undue influence over Father; or (ii) the charitable intent J under the 2008 Joint Will and the two sets of 2007 Wills were implanted J by TCS. K K L 211. Tenth, in light of the overwhelming evidence, I am not in a L position to accept Mr Dawes’s suggestion that the 2008 Joint Will and M M Father and Mother’s 2007 Wills were strategic moves orchestrated or N N instigated by TCS for the purpose of pressurizing TCG, TYK, TCP, and O TCH to accept the terms of the intended deed of family arrangement O and/or weakening the bargaining position of TCG, TYK, TCP, and TCH. P P For the reasons canvassed in this section, I have no doubt in finding that Q Father’s intent was to donate his wealth to charity. Insofar as the Q shareholding in the Singaporean companies is concerned, as canvassed in R R paragraphs 184 to 185 and 188 to 189 above, Father’s intent was that if S the 5 Siblings did not accept the terms of the intended deed of family S arrangement, the same would be donated to charity. T T U U V V A - 192 - A B E4. Conclusive Remarks B C C 212. Having considered the evidence carefully, I have no doubt D that Father’s testamentary intent was to ensure that Mother be adequately D provided for before her death, and when both of them pass away, the E E capital of his personal assets (which has been ring fenced) would be F donated to charities. This is consistent with and borne out by the contents F and effect of the 2008 Joint Will and Father and Mother’s 2007 Wills. G G H 213. During his lifetime, Father made known his charitable intent H to his children, including TCG and TYK who candidly admitted that I I Father always wanted to donate his personal assets to charity and that J Father did not intend to bequeath his personal assets to them: see J paragraphs 173(1) and (2) above. Father also made known his charitable K K intent to the professionals, including Dr Wong, Dr Chen, Ms Hwang, and L Mr Bruce Fu: see paragraph 168 above. L M M 214. I understand why TYK, TCG, and TCP would have concern N N as to whether TCS would be in a position to rely on the provisions in the O 2008 Joint Will to benefit herself, thereby defeating Father’s charitable O intent. For the reasons elaborated in paragraphs 178 and 179 above, I am P P firmly of the view that the alleged loophole does not exist. In fact, Q Father’s legal representatives, including Mr Nelson Miu and Mr Bruce Fu, Q genuinely sought to overcome the plausible obstacles so as to ensure that R R Father’s charitable intent could be implemented. S S 215. In light of TCS’s conduct and attitude as well as the mistrust T T between TCS and her siblings, TYK, TCG, and TCP have reasons to U U V V A - 193 - A B suspect that TCS may abuse her position as executrix/trustee and may not B implement Father’s charitable intent. Whilst such a concern is C C understandable, it does not constitute a reason for invalidating the 2008 D Joint Will, the contents and effect of which were duly read and explained D to Father and approved by him: see paragraph 169. E E F 216. If TYK, TCG and TCP take the view that TCS is not a fit and F proper person who is capable of acting as the executrix/trustee of Father’s G G estate, the appropriate course to take is to inform the Secretary for Justice H about their concern. It is for the Secretary for Justice to consider the H appropriate action to be taken. If there is evidence showing TCS has I I misappropriated or misapplied the assets to be applied for charitable J J purposes, the Secretary for Justice, being the guardian of public interests, will carry out an investigation and take appropriate action. K K L L 217. For completeness, it should be pointed out that in the course M of giving oral evidence264, TCS, on her own volition, informed the court M that she intended to donate the assets that she inherited from her parents, N N including the Bowen Property and the shares in the Singaporean O companies, to charity. It was uncertain why this was not done earlier. O More importantly, as Mr Dawes rightly pointed out, what TCS said to this P P court has no bearing on the analysis of the substantive issues. Q Q 218. However, what TCS said in court shows that the substance of R R her dispute with her siblings is much narrower than what the pleadings, S witness statements, and submissions appear to show. It appears that TCS, S TCG, TYK and TCP all agreed that Father intended to donate his wealth T T 264 Day 13, before morning break and before lunch U U V V A - 194 - A B for charitable purposes. I do not believe that TCG, TYK and TCP’s B intention is to obstruct any bona fide donation based on the personal assets C C that their parents left behind. D D 219. In the circumstances, despite the findings set out in this E E judgment, I do not see any reason why TCS, TCG, TYK, and TCP might F not seek to work out a consensus in regard to the intended donation. F Hopefully, this will put an end to the dispute amongst the 5 Siblings, G G which have dragged on for years. I have no doubt that Father would have H been glad about such an outcome had he still been alive. H I I F. Order and Disposition J J F1. The Elison Action K K L L 220. For the reasons set out in Section D above, I hold that TCG, M TYK, and TCP have made out their claims against TCS and Mother in M respect of the Credit Suisse Account. N N O 221. Accordingly, I order that:- O P (1) TCS and Mother do pay equitable compensation of P US$2,399,310 (ie 60%265 x US$3,998,850266) to TCG, TYK, Q Q and TCP; R R 265 Whilst there are 5 beneficiaries (ie the 5 Siblings), TCG, TYK and TCP are the plaintiffs in the proceedings under the Elison Action. S S 266 I found that there was at least US$4 million deposited with Credit Suisse under the Credit Suisse Account, The sum of US$3,998,850 is the amount that has been unaccounted for. As mentioned, T T TCS was only able to show that an aggregate sum of US$1,150 was utilized for the legitimate purpose of defraying Elison’s expenses. U U V V A - 195 - A B B (2) There be interest at 1% above the prime rate on the said sum C of US$2,399,310 from the date of the writ in this action to the C date of this judgment, and thereafter interest at judgment rate D D until payment in full; E E (3) There be an enquiry and/or account in respect of (i) all the F F funds that were transferred to and away from the Credit G Suisse Account; (ii) the traceable proceeds or substitutes in G respect of the funds transferred away from the Credit Suisse H H Account; and (iii) the traceable proceeds or substitutes that I had been received and/or retained by TCS and Mother; and I J (4) There be an order that TCS and Mother are liable to pay TCG, J TYK, and TCP all sums found due to them upon the said K K enquiry and/or account. L L F2. The Probate Action M M 222. For the reasons set out in Section E above, I hold that:- N N (1) Father knew, understood, and approved the contents and the O O effect of the 2008 Joint Will. P P (2) The TCS has proved, on the balance of probabilities, that Q Q (i) the 2008 Joint Will was duly executed; (ii) Father had R R adequate testamentary capacity at the time when the 2008 S Joint Will was made; and (iii) Father knew, understood, and S approved the contents and the effect of the 2008 Joint Will. T T U U V V A - 196 - A B (3) Father was not subject to any undue influence. B C C (4) The 2008 Joint Will is the true last will of Father. D D (5) The 2006 Will was superseded and/or revoked by (i) the 2008 E E Joint Will; as well as (ii) Father’s 2007 Will. F F (6) Insofar as Father’s 2007 Will is concerned:- G G H (a) Father knew, understood, and approved the contents H and the effect thereof; I I J (b) TCS has proved, on the balance of probabilities, that (i) J the same was duly executed; (ii) Father had adequate K K testamentary capacity at the time; and (iii) Father knew, L understood, and approved the contents and the effect L thereof; and M M N N (c) Father was not subject to any undue influence. O O (d) However, the same was revoked and/or superseded by P P the 2008 Joint Will. Q Q 223. In the premises, I will:- R R S (1) make a declaration that the 2008 Joint Will is the true last S will of Father; and T T U U V V A - 197 - A B (2) make a decree pronouncing against the validity of the 2006 B Will. C C D F2. Costs D E E 224. There is no reason why costs should not follow the event. F F 225. I make a costs order nisi that:- G G H (1) TCS and Mother do pay the costs of TCG, TYK, and TCP in H the Elison Action (including all costs reserved) to be taxed if I I not agreed on a party-to-party basis (with certificate for J 2 counsel); and J K K (2) TCG, TYK, and TCP do pay TCS’s costs in the Probate L Action (including all costs reserved) to be taxed if not agreed L on a party-to-party basis (with certificate for 2 counsel). M M N N F3. Other Matters O O 226. Mr Victor Dawes SC, Ms Bonnie Cheng, Mr Brian Lee, Mr P P Edward Tang, and Ms Clara Wong provided immense assistance to me. Q They conducted the trial in a competent, professional, courteous, and Q helpful manner. I express my gratitude to each of them. R R S S T T U U V V A - 198 - A B ( Alan Kwong) B Deputy High Court Judge C C D D Mr Victor Dawes SC, Ms Bonnie Y.K. Cheng and Mr Brian Lee, instructed by M/s Fairbairn Catley Low & Kong, for the 1st to 3rd E Plaintiffs in HCA 439/2020 and HCAP 3/2021 E F Mr Edward Tang and Ms Clara Wong, instructed by M/s NEO F Solicitors LLP for the 1st and 2nd Defendants in HCA 439/2020 and G HCAP 3/2021 G H The 3rd Defendant in HCA 439/2020, Tan Chin Hoon, absent H I I J J K K L L M M N N O O P P Q Q R R S S T T U U V V