Sir Oswald Cheung's Memorial Fund CPD Series No. 15 All news  
Sir Oswald Cheung’s Memorial Fund is pleased to present its CPD Series of Talks given by members of Sir Oswald Cheung’s Chambers or guest speakers.  The Talks are open to the public subject to availability and prior registration*.  Details of the next talk are as follows:
 Speakers: Edward Chan SC, Ken To and Chantel Lin
Topic: The antidote for Re Estate of Au Kong Tim (Wills: Validity) [2018] 2 HKLRD 864
Date: Friday, 16 August 2019
Time:  5:30 – 7:30 p.m.
Venue:  10/F New Henry House, 10 Ice House Street, Central


*Please send your name, chambers/firm contact details via email to: talkseries@siroswald.com.
Registration will be confirmed by email.
An application for 2 CPD Points has been made to the Law Society of Hong Kong. 
 
Highlights of the Talk
 
On 20 April 2018, the Court of Appeal delivered judgment on Re Estate of Au Kong Tim (Wills: Validity) [2018] 2 HKLRD 864 reversing the decision of the trial judge that the deceased had the necessary mental capacity to make his will.  The Court of Appeal agreed with the Judge that the test for testamentary capacity was correctly laid down in the celebrated case of Banks v Goodfellow (1869) LR 5 QB 549 but held that the Judge’s finding of fact that the test had been satisfied should be reversed because the Judge had not directed his mind to 2 of the 3 essential criteria laid down in Banks v Goodfellow case namely that it must be shown by the person propounding the will that (a) the deceased had the understanding of the extent of the property of which he was disposing and (b) the deceased had the capacity to comprehend and appreciate the claims to which he ought to give effect.  These requirements were not satisfied by the mere fact that the attesting solicitors had carefully explained the contents of the will to the deceased who confirmed his understanding of the contents.  The Court of Appeal held that notwithstanding that they would agree with the Judge’s finding that the deceased was not suffering from dementia and that the evidence of the attesting solicitor that he had carefully explained the contents of the will to the deceased, there was no or no sufficient evidence from the attesting solicitors or elsewhere to show that the 2 aforesaid requirements in the Bank v Goodfeloow test were satisfied.  The Court of Appeal further set out a list of 10 items of things that the attesting solicitors should inquire in the case of an old and infirmed testator and strongly recommended that the attesting solicitors should follow the “golden rule” referred to by Templeman J in Kenward v Adams (1975) The Times 29 November 1975, namely when a solicitor draws up a will for an aged or seriously ill testator, it should be witnessed or approved by a medical practitioner who ought to record his examination of the testator and his findings. and that an earlier will should be examined and any proposed alterations should be discussed with the testator.  The Court of Appeal further urged the local law schools and the Law Society to pay particular attention in their practice and procedure courses on the solicitor's role in the preparation and execution of a will.
The strictness of the requirements on the solicitors is mitigated by 2 more recent decisions of the Court of Appeal.  The Court of Appeal in two recent cases Re Estate of Wong Yin Sheung [2019] HKCA 452 and Re Estate of Lau Heung [2019] HKCA 769 made it clear that much depends on the facts in each case and Re Estate of Au Kong Tim (Wills: Validity) did not rigidly prescribe that a party propounding a will would not be able to establish testamentary capacity of a testator if a solicitor failed to make enquiry and follow the golden rule as decided in Kenward v Adam as a matter of good practice.
This lecture will explore the impact of the recent Court of Appeal decisions in the three aforesaid cases and how the judicial approach in Re Estate of Au Kong Tim (Wills: Vaildity) might change the probate practice in Hong Kong.
On top of the discussion on testamentary capacity the lecture will also explore the requirements of showing “knowledge and approval” of the contents of the will and the inter-relationship between this requirement and the requirement of showing testamentary capacity.
 
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