The Hong Kong Court of Appeal has ruled in Chiu Man Fu & othrs v Chiu Chung Kwan Ying [2013] HKEC 937  that the Will made by the taxi mogul, Chiu Yau Chuen, disinheriting his children and leaving his considerable wealth to one of his mistresses was valid.  When considering whether the deceased had acted irrationally in a way that called his testamentary capacity in question, the Court of Appeal considered that the court below was right in taking into account the deceased’s “very peculiar personal traits” and his tendency to act in a disproportionate, vengeful and unfair manner.  Although the Will was held to be valid, the Court of Appeal agreed with the court below that the mental state examination and certificate provided by the deceased’s doctor at the time of the signing of the Will was “far from satisfactory” and should be disregarded.

The facts

The deceased had a total of 16 children and a number of mistresses.  In an older 1997 Will the deceased had left his estate to his children born at the time.  However, in 2003, a few months before his death, the deceased revoked the 1997 Will and expressly disinherited 9 of his children, made no provision for his other 7 children and left his entire estate to one of his mistresses.  The plaintiffs (6 of the 9 disinherited children) argued that as a result of his failing health their father lacked testamentary capacity at the time of making the 2003 Will and that the Will was not executed by him with the requisite knowledge and approval.  The defendant mistress argued that the deceased had changed his Will due to two incidents that had made him upset with some of his children.  She also relied on a mental state examination and certificate provided by the deceased’s doctor at the time of the signing of the Will.

The Court of Appeal’s decision

The Court of Appeal agreed with the court below that the facts showed that any “irrationality” in making the Will was not due to an unsoundness of mind, but was a result of the deceased’s personal tendency to act in a disproportionate and often unfair manner when he felt that he had been treated disrespectfully by his family members.  The court reiterated that a testator may act in a capricious manner and make a Will that may appear unfair and unjust to an objective observer, as long as he has the requisite testamentary capacity.  However, the Court of Appeal agreed with the court below that the mental state examination and certificate provided by the deceased’s doctor at the time of the signing of the Will should be disregarded  for the following two reasons:

  1. the doctor did not make an attendance note of the details of the examination at the time, which meant that it was not possible to carry out a meaningful and objective evaluation of the adequacy of the examination, and
  2. the doctor was not told of the existence of the earlier Will and the deceased’s decision to disinherit his 9 children which meant that he did not know that there was a material change of the deceased’s testamentary wishes which would have enabled him to ask appropriate questions.

Take away points

  • It may not be enough to show that a Will is objectively irrational or unfair to raise the lack of testamentary capacity as an issue where the testator has shown an inclination to act “irrationally”.  Relatives wishing to challenge a Will need to provide evidence that the irrationality is due to an unsoundness of mind or the testator’s poor health rather than the testator’s inclination to act in an “irrational” or unfair manner.
  • When obtaining a mental state examination and certificate, it is important that the examining doctor has the proper qualifications and is properly briefed (preferably in writing).  The doctor needs to be told about any material change of the testator’s wishes prior to the examination to enable him to ask appropriate questions and he should be asked to prepare a detailed and contemporaneous note of the examination in addition to signing the certificate.