Choy Po Chun And Another v Au Wing Lun

Judgment Date01 August 2018
Neutral Citation[2018] HKCA 403
Judgement NumberCACV177/2017
CourtCourt of Appeal (Hong Kong)
Subject MatterCivil Appeal

CACV 177/2017

[2018] HKCA 403







IN THE ESTATE of AU, KONG TIM (區幹恬), late of Flat A, 23rd Floor, Block 12, Provident Centre, No. 43 Wharf Road, North Point, Hong Kong, married man, Deceased


CHOY PO CHUN (蔡寶珍) 1st Plaintiff
AU CHADWICK (區卓威) 2nd Plaintiff
AU WING LUN (區穎麟) also known as Defendant


Before: Hon Cheung JA, Yuen JA and Kwan JA
Dates of Written Submissions: 1, 15 and 22 June 2018
Date of Judgment: 1 August 2018




The Court:

1. On 20 April 2018, this court handed down its judgment in a contested probate action. We allowed the plaintiffs’ appeal, set aside the judgment of Chow J that the 2008 Will be pronounced in solemn form and the costs order below, ordered the defendant’s counterclaim (in which he sought to propound the 2008 Will) be dismissed, and pronounced in solemn form the 2002 Will.

2. We held that the judge has failed to consider and omitted to find whether two of the criteria for testamentary capacity in Banks v Goodfellow (1870) LR 5 QB 549 at 565 were satisfied (if the deceased was capable of understanding the extent of the property of which he was disposing; and if the deceased was able to comprehend and appreciate the claims to which he ought to give effect)[1]. Because of this, his finding that the defendant has discharged the burden the deceased had testamentary capacity cannot stand. On the existing evidence, even if the judge had specifically considered the issue whether those two criteria are satisfied, we found there is no evidence to infer that those criteria are met. We declined to remit the case for a re‑trial as the parties must be taken to have adduced all the evidence they might wish to rely on in support of their respective cases[2].

The notice of motion

3. The defendant issued a notice of motion on 18 May 2018 seeking leave to appeal to the Court of Final Appeal. The questions for which leave to appeal is sought are set out in §24 of the notice of motion:

“(1) What is the proper legal approach to establish testamentary capacity: (i) when an experienced lawyer has been instructed to prepare a will which appears rational on its face, and has formed the opinion from a meeting or meetings that a testator understands what he is doing, in the absence of the clearest evidence of lack of mental capacity, applying Hawes v Burgess [2013] WTLR 453 (CA) at [60], [68] and Key v Key [2010] 1 WLR 2020 at [97]; or (ii) from evidential presumption arising from factual or expert evidence, and from any findings of fact and appropriate inferences? (“Question 1”)

(2) Whether and to what extent, it is necessary in law, for a Court determining whether a testator has testamentary capacity to make express findings on each of the 3 criteria for testamentary capacity in Banks v Goodfellow (1870) LR 5 QB 549 (at 565) separately and specifically? (“Question 2”)

(3) When there is evidence or a finding of fact, that a testator is capable of understanding the nature of the act of making a will and its effects, whether and in what circumstances can: (i) capability of understanding the extent of the property being disposed, and (ii) ability to comprehend and appreciate the claims to which a testator ought to give effect, be established and/or inferred, with particular emphasis on the inquisitorial character of probate proceedings? (“Question 3”)

(4) When an experienced lawyer prepares a will for a testator, whether and in what circumstances, a testator is considered capable of understanding the nature of the transaction when its general purport is explained and/or read over as appropriate; or will a capacity assessment and the asking of specific questions to a testator relating to testamentary capacity be required in law? (“Question 4”)”

4. The defendant also seeks leave to appeal on the basis that his intended appeal ought otherwise to be submitted to the Court of Final Appeal for decision.

5. This notice of motion is not in compliance with Practice Direction 2.1 §2, which reads as follows:

“The Notice of Motion seeking leave to appeal should set out the grounds of appeal concisely and succinctly. It should not include arguments or factual allegations. It should clearly identify and properly formulate questions that meet the criteria of section 22 of the Hong Kong Court of Final Appeal Ordinance, in respect of which leave is sought to have the same to be determined by the Court of Final Appeal. Non-compliance with this direction may result in the court directing a proper Notice of Motion to be prepared and the costs of the non-compliant Notice being disallowed.”

6. The notice of motion filed by the defendant runs up to 15 pages on single spacing. It contains not just the questions said to be of great general or public importance but also an account of the background facts as well as arguments made on each of the questions. It is wholly unnecessary to set out in the notice of motion the background facts taken from our judgment. As for the arguments made on the questions, the proper place for them is in the skeleton submissions. In this instance, the arguments set out in the notice of motion are not wholly the same as those in the skeleton submissions and some parts that are different are not specifically referred to in the skeleton submissions. It is necessary to read both documents to comprehend the submissions of the defendant. The court should not have to speculate whether the earlier arguments in the notice of motion have been superseded by those in the skeleton submissions served subsequently.

7. As the parties have served skeleton submissions pursuant to automatic directions under Practice Direction 2.1 §3(a) to (c) and substantial costs have been incurred, the non‑compliant notice of motion will not be returned to the defendant in this instance. In future, notices of motion for leave to appeal to the Court of Final Appeal will be screened more rigorously to ensure compliance with the Practice Direction. Any non‑compliant notice of motion will be returned to the applicant and will not be considered by the court.

8. The defendant’s counsel cited a total of 38 cases in this application. As stated in Practice Direction 2.1 §3(e), the skeleton submissions “should direct at helping the Court to determine whether grounds have been made out for the appeal to be heard by the Court of Final Appeal”. It is unhelpful to load the submissions with copious authorities making more or less the same point in a number of instances.

Question 1

9. This question is not properly formulated. It was stated in §29(1) of the notice of motion that “the answer to Question 1 should be in the positive”. We fail to see how a “positive” answer could be given to such a question asking “what is the proper legal approach to establish testamentary capacity” with two alternative propositions.

10. From the arguments raised concerning this question, it would appear that the contentions of the defendant are on the following lines, shorn of the many cases cited in support of the arguments.

11. It was submitted that no proper consideration was given to the significance of certain factual findings (the judge found as a fact the deceased did not suffer from dementia; the deceased was capable of understanding the nature of the act of making the 2008 Will and its effects; and the 2008 Will was rational) before going into the application of the Banks v Goodfellow criteria...

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