1. State the testamentary dispositions made by the Deceased in his will made on 16.7.2011
(“July Will”) and in his will made on 8.11.2011 (“November Will”) to the 1st Defendant,
Madam Deng Yu Jiao (“Deng”). As seen in para 4 of the CA judgment, Deng had co-
habited with the Deceased since 1989 and she gave birth to 2 children of the Deceased.
The July Will, which was executed on July 16 July 2011. The Will was executed before another
solicitor in a restaurant. As the court had observed that there was no medical examination
undertaken on the testator. The July will retain provisions of the November Will together with
other provisions. The will made the following provisions:
1. The sale proceeds from shop A and B, 3 shares where to be given to madam Deng;
2. 2 out of the three shares granted to Madam Deng were to be held in trust for her children;
3. Madam Deng was granted 3/12 of the proceeds that will be raised after the sale of shops
A and B.
The November Will had named Madam Deng as one of the executors and trustees of the will.
The deceased in the will left all the monies in the bank account, cash, shares, and personal
belonging to Madam Deng. The deceased made this disposition to enable her to meet her living
expense and that of her children. Further, the July Will provided that the income from shops A
and B were to be left to Madam Deng for not less than 24 months.
2. State the testamentary dispositions made by the Deceased to the 2nd Defendant, Chi Lam
(“CL”) in the July Will, and in the November Will. As seen in para 2 of the CA judgment, CL
was one of the 7 surviving children from the first family of the Deceased.
In the November Will, the following were the provisions of the said will:
1. Chi Lam was named as a co-executor and a trustee of the will;
2. Chi Lam was granted 3/12 of the proceeds that would be realized after the sale of Shop A
In July Will Chi Lam still received the above properties and privileges.
3. Discuss your views on the agreement of the Court of Appeal stated in para 70 of the CA
judgment with the assessment by the CFI Judge of the rationality of the November Will
The Court of Appeal upheld the decision made by the CFI judge that the testator had
testamentary capacity when making the Will. The court had to assess the evidence that was
tendered by the plaintiffs who were disputing the testamentary capacity of the deceased. The
court in assessing the testamentary capacity it relied on the locus classicus of Banks v.
Goodfellow. In this the court had established the test to be used to establish if the testator had the
mental capacity to create a Will. the CFI judge had observed that the mental capacity required in
drawing a will is higher compared to mental capacity when one is entering a contract. The three
basic test that was highlighted in the case of Bank vs. Goodfellow was;
a. Understand the nature of the will and its effect;
b. The testator must have an idea of the extent of the property of which they are disposing
under the will; and
c. The testator is aware of the person for whom the testator would be expected to provide
for under normal circumstance and the testator would be free from any delusion of the
mind that would cause him a reason not to benefit those people.
The above-stated criteria will be used to assess the judgment of the court.
a. Understand the nature of the will and its effect
This forms the heart of the discussion; this is because what was in the discussion was if the
deceased could understand the nature of the will and the effect that it would create. The judge
addressed the issuance of instruction by the deceased to the attorney. This is because the attorney
received instruction from the client and he did not see anything that would cause him not to act
within the instruction. The court sought to address the issue of instructing because the will was
prepared by a competent attorney, therefore, the chances of it not meeting the threshold of
addressing the interest of the deceased does not hold water.
The learned judge had to examine the issue of dementia; this is because it was the main issue that
was relied on by the plaintiff in addressing the issue of mental capacity. The court relied on the
case of Banks v. Goodfellow, in the case the court held that a testator who suffers from mental
illness but at the time of making a will was aware of what he was doing then it did not amount to
The judge discredited the evidence that was tendered to challenge the will, the issue of dementia
was not entertained. The judge observed that the case of dementia could not have been possible
as the deceased did not a progressive dementia case, this is because there are instances where the
case was retrogressive and the deceased was regaining his cognitive ability. As remarked by
Professor Mark ‘once he suffered from dementia there was no going back to clear thinking and
normal mental function because the effects of dementia are irreversible and the course is
The Banks v. Goodfellow case held that the mental capacity of the testator can only be
challenged if he was not able to comprehend what he was doing. Thereby, the mental capacity
may be lacking but at the time of executing the will, the testator knew what was he was doing.
The CFI made this observation and it was right to enter the decision that was entered by the court
to find that the testator had the mental capacity to instruct a solicitor and execute the will.
b. The testator must have an idea of the extent of the property of which they are
disposing under the will.
In addressing this issue, the judge considered the case of Barry v. Butlin. The judge wanted to
know if the defendant had knowledge and approval of the Will. Knowledge dealt with the extent
or idea in which the testator had on the extent of the property that he was going to dispose of.
Further, approval dealt with giving the go-ahead on the disposition of the property since he had
an idea on the disposition. The ability to have the knowledge and to approve the disposition
forms an essential part of the Will making process. This is because the property knows what is to
be issued and who is set to benefit.
The court had to make this determination to address the issue of dementia which is considered to
have an impairment on the testator in making decisions. The court had to address the issue to rule
out dementia did not affect the judgment of the testator. The court assessed the understanding or
rather the logic that was used by the testator in distributing his property. The court looked at the
note that was issued by the testator explaining why he decided to disinherit the 1 st family aside
from the one beneficiary that he bequeathed him with the property. The court established that the
reason or rather the rationale that was used by the testator to deny his first family could only be
used with someone who has a proper cognitive ability.
c. The testator is aware of the person for whom the testator would be expected to
provide for under normal circumstance and the testator would be free from any delusion of
the mind that would cause him a reason not to benefit those people.
The deceased on 23 rd October 2011, intimated that he wanted to revise the Will he had made in
July. The deceased gave written instructions to his 3 rd wife on what to do. The deceased chose a
new firm that was going to prepare his revised Will, the deceased also rejected a proposal that
was issued to him by the 1 st Plaintiff on the distribution of the income of Shops A and B. The
deceased made sure that he executed the Will before the solicitor and his clerk. In the Will, the
deceased disinherited his first family and left a note on why he disinherited them.
With regard to the conduct of the testator, it is apparent that the testator knew what he was doing.
Having undertaken all those steps in making sure that he updated his will shows that he knew
who he had to provide for and those that he was not to provide for. The members of his family
that he died not want to provide for he made clear and explicit reasons as to what he was not
including them in the Will.
To show that the testator was acting within his scope of thinking and reasoning. He was given a
proposal on how he should dispose of the income of Shop A and B from the 1 st Plaintiff. This in
itself shows someone who has his sense of thinking and he knew how he was disposing of his
property. He knew how he wanted his property to be distributed and who was going to benefit.
Dementia could, therefore, not have impaired the decision-making process of the testator as he
knew how he wanted to distribute his property.
The testator had known about his property and how he wanted to distribute the property. This
means that he had the testamentary capacity to deal with his property. The testator knew about
his property and how he was going to deal with it. This means that the testator had full
knowledge of what he was doing.
In conclusion, the Plaintiffs had not been able to prove their case beyond a reasonable doubt.
This is because, the medical assessment that they relied on was not conducted by the doctors that
testified, therefore, their evidence could not have been used effectively to support their case. The
case of Banks v. Goodfellow had summarized the criteria that are used to establish testamentary
capacity. In this regard, the court was inclined to use the circumstances that were in the case.
This is because it was only through the circumstances that the court could infer a lack of
testamentary capacity. The court used circumstantial evidence presented by the defendants and
also the plaintiff to determine the case in favor of the defendants. The purpose of the court is not
to rewrite or write the will for the testator. The court will always interpret the Will according to
the intentions and interests of the testator. The court has to confirm if the Will meets the
threshold of being considered to be legal. In this case the Court of Appeal after thoroughly
examining the facts and evidence that were provided to it, followed in the suit of the case of
Bank v. Goodfellow. The decision of the court to hold that the Will was valid was in order as it
satisfied all the essentials of a valid Will.