Introduction

In the recent case of Cheung Ting Kau, Vincent v Koo Siu Ying and another [2025] HKCFI 1401, the Court of First Instance determined that the latest will of the late Mr Lim Por Yen (林百欣), founder of the Lai Sun Group (麗新集團), was invalid on grounds of insufficient testamentary capacity, insufficient knowledge and approval, and likely undue influence. The case underlines the importance that with a frail mind, testators need further safeguards to protect their Will from challenges.

Background

Mr Lim Por Yen was a prominent businessman who established the Lai Sun Group, a conglomerate in the field of real estate, garments, and entertainment. His family was divided into four households, each with children from different relationships. By 2004, Mr Lim’s health had significantly deteriorated due to prostate cancer, coronary disease, and dementia.

After Mr Lim passed away, his 2004 Will was challenged. The disputed 2004 Will disinherited the third household (including Madam Koo, and their children, Pearl Ling, and Eric Ling), but benefited the first household (his son with his first wife, Lam Kin Ming) and the second household (his second wife, Madam U, and their children, Peter Lam and Matthew Lam). The 2004 Will was drafted by the solicitors, based on instructions from Peter Lam and Mark Lee (senior management in the Lai Sun Group), and was executed on December 3, 2004.

The defendants challenged the validity of the 2004 Will, alleging:

1.      Lack of testamentary capacity: Mr Lim suffered from moderate to severe dementia, as evidenced by medical records, including a Mini-Mental State Examination (MMSE) score of 8/30 in August 2004.

 

2.      Undue influence: The 2004 Will was obtained by the undue influence of Madam U and Peter Lam.

 

3.   Lack of knowledge and approval: Mr Lim did not know and approve of the contents of the 2004 Will at the time of its execution.

Court’s findings and decision

Burden of proof

The principles governing the burden and standard of proof were established in Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387:

·           The proponent of the will bears the legal burden of proving, on a balance of probabilities, that the will was duly executed, the testator had testamentary capacity, and the testator knew and approved its contents. If a person disputes the will’s validity, that person must adduce sufficient evidence to raise the issue. Once this evidential burden is met, the court evaluates all evidence to determine whether the proponent has sufficiently proven the will’s validity.

 

·           However, if a person disputes the will on the grounds of fraud or undue influence, the burden shifts to the person that disputes the will to prove the fraud or undue influence on a balance of probabilities. The proponent does not have to disprove these claims but may present counter-evidence. Ultimately, the court assesses all evidence to decide whether the will is valid or whether fraud or undue influence has been established.

Testamentary capacity

The Court conducted a detailed examination of whether Mr Lim had testamentary capacity when executing the 2004 Will. The Court applied the Banks v Goodfellow test, which requires that a testator should be able to: (1) understand the act of making a will and its effects, (2) comprehend the extent of his property, (3) appreciate the claims of potential beneficiaries; and (4) not be affected by a disorder of mind that influences dispositions. The Court found that Mr Lim suffered from dementia severe by December 2004. His neurologist conducted an MMSE (Mini-Mental State Examination) on him, and his score (8/30) indicated severe dementia. Although the neurologist attempted to re-administer the MMSE on Mr Lim, it was unsuccessful as Mr Lim was uncooperative and was not in a suitable medical condition.

Also, the events during the execution of the will strongly indicated Mr Lim’s lack of testamentary capacity for the following reasons: (1) the third household was excluded from witnessing the execution; (2) the doctor performed a form of mental examination on Mr Lim, and considered Mr Lim to have failed the examination and refused to certify his capacity; (3) the Plaintiffs’ witnesses gave inconsistent accounts in relation to the occasion on the date of execution; (4) the solicitors failed to obtain independent medical certification or to discuss with Mr Lim in relation to his earlier wills; and (5) the will was explained to Mr Lim for only 15 to 20 minutes, which the Court found inadequate given its complexity in dispositions.

As such, the Court ruled that the Plaintiffs failed to prove Mr Lim’s capacity on a balance of probabilities and the 2004 Will was invalid due to lack of testamentary capacity.

Knowledge and Approval

Mr Lim’s lack of testamentary capacity when executing the 2004 Will alone rendered the 2004 Will invalid. However, the Court also considered the issue of knowledge and approval, and held that the Plaintiffs failed to prove that Mr Lim knew and approved of the contents of the 2004 Will even if capacity had existed.

The Court referred to the rule of Barry v Butlin and Re Estate of Yip Keung, HCAP 15/2004 (unrep, 19/12/2007), which state that the circumstances relevant to the preparation and execution of the will itself may arouse the suspicion of the Court, but once its suspicion is aroused, the Court would look at the entire evidence with the appropriate degree of vigilance and jealousy, in order to determine whether the testator knew and approved of the contents of the actual will.

The Court held that the 2004 Will excited the suspicion of the Court to the highest possible degree for the following reasons: (1) the 2004 Will represented a radical departure from Mr Lim’s prior wills, introducing specific asset dispositions and excluding an entire branch of his family without explanation; (2) the preparation of the 2004 Will was orchestrated entirely by beneficiaries with no evidence that Mr Lim provided instructions or even saw the drafts before execution; (3) the Plaintiffs’ witnesses gave unreliable testimony, with contradictory accounts about Mr Lim’s involvement; (4) the execution process was deeply flawed; and (5) the Plaintiffs’ resistance to call the doctors to give evidence and failure to address Mr Lim’s dementia in witness statements compounded the suspicion.

Ultimately, the Court found the Plaintiffs fell short of adducing affirmative proof of knowledge and approval to dispel the suspicion of the Court.

Undue Influence

Although the 2004 Will was already invalidated due to lack of testamentary capacity and knowledge and approval, the Court briefly addressed the issue of undue influence for completeness.

The summary of the legal principles governing testamentary undue influence were set out in Re Estate of Edwards [2007] WTLR 1387 and Li Chi Loy v Li Lai Lan Candice [2008] 5 HKLRD 74:

·           There is no presumption of undue influence in the context of wills;

 

·           The burden of proof lies on the party who asserts it, who must show that the facts are inconsistent with any hypothesis of undue influence;

 

·           Undue influence in the context of wills means either coercion that overpowers the testator’s free will, or fraud; legitimate influence (such as persuasion or appeals to affection) are not undue influence, but persistent pressure that overwhelms a testator’s free will could amount to undue influence;

 

·           The mental and physical state of the testator is relevant, as a weak or ill person may be more susceptible to influence; and

 

·           The fairness of the testator’s disposition is irrelevant and the sole question is whether the testator acted as a free agent.

 

By applying these principles, the Court found no basis to conclude that Madam U or Peter Lam had exercised undue influence over Mr Lim. There was no evidence they had mistreated him or subjected him to the kind of persistent pressure that could constitute coercion.

Previous wills

The defendants, through their Counterclaim, sought to have the Court formally recognize the validity of the 1973 Will and the 1974 Codicil as Mr Lim’s last valid testamentary documents. The plaintiffs, who were only the executrices of the invalidated 2004 Will, took no position regarding these earlier wills. The Court found that both the 1973 Will and the 1974 Codicil were properly executed in accordance with the formal legal requirements.

Regarding testamentary capacity, the Court noted that where a will is duly executed and appears rational on its face, there is a presumption of capacity. The burden then shifts to any person disputing the wills to raise legitimate doubts about the testator’s capacity, which no party disputed the 1973 Will or the 1974 Codicil. Similarly, the testator’s knowledge and approval of the contents of the wills are presumed when due execution and capacity are established, and nothing had been presented to rebut this presumption for these documents.

Finally, the Court confirmed that the 1973 Will had effectively revoked the earlier 1967 Will by operation of law, as it was Mr Lim’s later expression of testamentary intent and provided for a substantially different distribution of assets. The absence of an explicit revocation clause in the 1973 Will did not alter this conclusion, as revocation can be implied by inconsistency with prior wills. Thus, the 1973 Will and the 1974 Codicil were upheld as Mr Lim’s last valid testamentary instruments.

Takeaways

This case underscores the importance of having elderly or infirm testators being assessed by medical professionals to confirm testamentary capacity. It also highlights the risks of excluding family members without clear justification, particularly in complex families and estates. This case serves as a reminder for families in estate planning of the importance of proper transparency, diligent documentation and ensuring that circumstances leading up to and at the execution of the Will are free from suspicion of improper pressure exerted against the testator’s free will.

 

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

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