The Court of Appeal of Hong Kong has recently upheld a decision appointing a son to be the Committee to take care of his incapacitated mother's affairs[1]. This was despite protest from the son's sibling, who claimed the son was an inappropriate person to be the Committee. The sibling also contested that their mother did not lack capacity and thus a subsequent Will in the sibling's favour was valid.


The intervener and the applicant were siblings. Their mother, MCP, was 96. In November 2010, MCP executed a Will under which the applicant was executor. Subsequently, the intervener disclosed that MCP had made two other Wills in March 2013 and October 2013 respectively under which the applicant was no longer a beneficiary. A power of attorney was also executed by MCP in October 2013 appointing the intervener as her attorney to deal with her properties.

At the initial hearing, the applicant argued that MCP lacked mental capacity to make the two later Wills. He referred the Court to medical reports from two separate doctors which found MCP to be mentally incapable. Conversely, the intervener's case was that MCP was mentally capable and relied upon medical certificates by two separate doctors citing mental fitness. MCP spoke little Cantonese and English and the intervener had acted as a translator for the purposes of the medical certificates he was relying on.

In finding in favour of the applicant, the Judge commented that in light of the second and third Wills it was inappropriate for the intervener to act as a translator for the medical certificates because he was in a position of conflict. This affected the reliability of the certificates. The Judge accepted the applicant's medical evidence and adjudged MCP as lacking capacity to administer her property and affairs. Given the extent of assets owned by MCP, the Judge deemed it necessary to appoint a Committee to take care of MCP's estate and considered the applicant an appropriate person to do this. This was so because the applicant had been taking care of MCP and was aware of her needs and financial affairs. In addition, the intervener had not provided any concrete evidence to substantiate his allegation that the applicant had misappropriated MCP's assets.

The intervener appealed on the basis that, amongst other things: (1) MCP had by written declaration gifted all her properties to the intervener to the exclusion of the applicant, which conflicted with the appointment of the applicant as the Committee; (2) contrary to the Mental Health Ordinance, the applicant's application was not accompanied by two medical certificates; and (3) the intervener had only interpreted the doctor's questions and the doctors had not taken issue on the intervener's suitability to act as interpreter, hence the medical certificates certifying MCP's capacity should remain valid.


In dismissing the appeal the Court held that the written declaration could not be admitted as new evidence because it did not satisfy the criteria for adducing new evidence. The intervener had had the written declaration in his possession all along and given MCP's lack of capacity the validity and reliability of the declaration was in doubt.

Further, the Court held that whilst the requirement under the Mental Health Ordinance to accompany the application by two medical certificates had not been observed, the Court has discretion to waive the non-compliance. In the present case it was appropriate to do so because the applicant had been prevented by the intervener from visiting or contacting MCP. Thus the applicant had not been able to arrange a medical examination.

In relation to the medical certificates, the Court held that it would not interfere with the judgment at first instance unless the intervener demonstrated the trial Judge had been plainly wrong in his judgment. The Court held this had not been shown and the Judge was entitled to accept the medical evidence of the applicant.


The case, whilst not discussing any new legal principles, provides an example of how the Court will consider competing arguments of an individual's capacity. Mental capacity cases continue to be highly fact specific and individuals should be aware of the potential for conflict if they are involved both in the administration of an incapacitated person's estate and are a beneficiary of it under the incapacitated person's Will.