Tang v Collins
[2014] NZHC 1011
•15 May 2014
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CIV-2013-441-345 [2014] NZHC 1011
BETWEEN HONG KHAM TANG
Plaintiff
AND
PAUL NORMAN COLLINS First Defendant
HONG KEO TANG AND AMALIA ASAYAS TANG
Second Defendants
Hearing: 31 March - 1 April 2014 Counsel:
M J Wenley for Plaintiff
H M McKee for First Defendant
D O'Connor for Second DefendantsJudgment:
15 May 2014
JUDGMENT OF BROWN J
This judgment was delivered by me on 15 May 2014 at 2 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Willis Toomey Robinson Scannell Hardy, Napier 4142
Glaister Ennor, Auckland 1140
Lunn & Associates Ltd, Napier
Counsel: David O’Connor, Napier
TANG v COLLINS [2014] NZHC 1011 [15 May 2014]
Introduction
[1] The late Mr Hai Ching Tang (“Mr Tang Senior”) came to New Zealand from Thailand with several members of his family in April 1980. Mr Tang Senior could not read or write English and did not speak any English other than very rudimentary greetings. Mr Tang Senior was fluent in the Laos and Chinese Chaozhou languages.
[2] On 24 November 1999 Mr Tang Senior executed a will in which he bequeathed to his younger son Hong Keo Tang, known in the family as Little Hong (“Little Hong”), and Little Hong’s wife Amalia Tang (“Amalia”) Mr Tang Senior’s half share in the property at 5 Aintree Place, Taradale. Little Hong translated the contents of the will from English into Laotian for Mr Tang Senior prior to the execution of the will.
[3] Mr Tang Senior died on 22 October 2008 and a grant of probate in common form was made to Mr Paul Collins (“Mr Collins”) who was Mr Tang Senior’s lawyer. In this proceeding Hong Kham Tang, known in the family as Big Hong (“Big Hong”), the elder son of Mr Tang Senior, applies for an order recalling the grant of probate made on 1 April 2009. The application is made on the grounds that there is doubt whether or not Mr Tang Senior understood the will or had full knowledge of its contents because Mr Tang Senior was unable to read English and Big Hong asserts that Little Hong was not fluent in either Laos or Chinese Chaozhou.
The application
[4] The application is made in reliance on r 27.18 which states in material part:
27.18 Doubt as to will-maker’s understanding
…
(2) This rule also applies if—
(a) the will-maker—
(i) was blind; or
(ii) was illiterate; or
(iii) signed the will by mark; and
(b) the will does not state that the will was read over to, and thoroughly understood by, the will-maker before the will- maker signed it.
(3) This rule also applies if the court is doubtful for any other reason whether or not the will-maker, at the time the will was signed,—
(a) thoroughly understood the will; or
(b) had full knowledge of its contents.
(4) Evidence must be given under rule 27.16 satisfying the court that the will-maker, at the time the will was signed,—
(a) thoroughly understood the will; or
(b) had full knowledge of its contents
[5] An application for recall of the grant of probate is made pursuant to r 27.34(3) which provides that a person wishing to apply for an order for the recall of a grant must bring proceedings. Rule 27.9 relating to pleadings applies to an application for recall of a grant of probate.
[6] The application was brought by an originating application filed on 5 July
2013. The grounds upon which the order for recall is sought are:
(a) The Will Maker was illiterate and the Will does not state that the will was read over to and thoroughly understood by the Will Maker before the Will Maker signed it.
(b) There is doubt whether or not the Will Maker understood the Will or had full knowledge of its contents.
(c) The Will Maker could not speak or read English and the Will was allegedly explained to the Will Maker by his son Hong Keo Tang who, together with his wife Amalia Asayas Tang, was the principal beneficiary under the will.
(d) Hong Keo Tang was not fluent in either Chinese Chaozhou or Lao being the two languages in which the Will Maker was fluent.
(e) The witnesses that attested the will did not understand either Chinese
Chaozhou or Lao.
The factual background
[7] Mr Tang Senior and his wife, Mrs Boukeo Tang, had two sons and five daughters listed below in descending order of age:
(a) Boun Sou Wong
(b) Nudang Promsombut
(c) Christine Ratsmay
(d) Kham Say Vanpraseuth
(e) Big Hong
(f) Thong Say Yang
(g) Little Hong
[8] After living in a refugee camp in Thailand for some four years, in 1980
Mr Tang Senior came to New Zealand with Mrs Tang, Kham Say, Big Hong, Thong Say and Little Hong as assisted refugees. Boun Sou preceded them to New Zealand and assisted in sponsoring their move to this country.
[9] The family first settled in Napier and lived in rental accommodation for some three years before purchasing a house at Wycliffe Street, Napier in 1984. Because of Mr Tang Senior’s age and the difficulty in his obtaining a mortgage the family decided to have Big Hong’s name on the title and the mortgage. All the family members contributed to the costs of running the house to the extent that they were able.
[10] In April 1986 Big Hong married and the following year moved with his wife, Monthien, to Auckland. After a period it was decided that the whole family would relocate to Auckland and a property was purchased at 18 Kenley Place. For the same reason as applied in the case of the Wycliffe Street property, the title to Kenley Place was in the name of Big Hong and his wife.
[11] In 1991 Mr Tang Senior indicated that he wished to sell the Wycliffe Street property and to purchase a separate house for himself and Mrs Tang. In 1992 the house was sold and the equity of approximately $60,000 was deposited into the bank account of Little Hong for reasons relating to the security of those funds.
[12] The marriage of Big Hong and Monthien failed and a matrimonial property dispute ensued. In 1996 Mr Tang Senior commenced proceedings in the High Court at Auckland against Big Hong and his wife apparently as part of a strategy to
preserve the family’s interest in the Kenley Place property. It was as a consequence of that litigation that Mr Collins was introduced to the Tang family and he acted for Mr Tang Senior in the litigation.
[13] Although Big Hong was a defendant in the litigation, it appears that he and Mr Tang Senior were effectively on the same side and there was a high degree of co- operation between Big Hong’s counsel and Mr Collins. According to Mr Collins their common objective so far as the Kenley Place property was concerned was to have Monthien removed from the title and to have Mr Tang Senior placed on the title.
[14] It was Mr Collins’ understanding that the intention was that Big Hong would then convey the title wholly to his father. At a reasonably early stage in the litigation Big Hong signed a document on 4 April 1997 witnessed by Mr Collins in the following terms:
I, Hong Kham Tang, international marketing consultant, of Auckland, confirm that it is my intention to transfer all of my interest in 18 Kenley Place, to my father Hai Ching Tang, once I have settled my matrimonial property differences with my ex-wife Monthien Tang.
[15] The hearing commenced in March 1999 before Cartwright J but the proceedings settled prior to completion of the hearing on terms which included that the interest of Monthien in 18 Kenley Place would be vested in the name of Mr Tang Senior.
[16] Mr Tang Senior and his wife wished to sell Kenley Place and move back to Napier once the legal difficulties had been resolved. It appears that the intention was that they would move to Napier with Little Hong and his wife Amalia. With that course in mind Big Hong executed an enduring power of attorney in relation to property appointing Mr Collins as Big Hong’s attorney for the purpose of executing a transfer in respect of Big Hong’s half interest in Kenley Place.
[17] On 31 May 1999 Mr Collins sent a letter to Mr Tang Senior headed “Tang
Litigation” in which he said:
As I have mentioned to Thong Say on the telephone you are now free to sell the Kenley Place property and you may consider yourself the legal owner of a half share of that property. In light of the imminent sale of the property I do not propose taking any further steps to have the mortgage changed into your name (along with Hong Kham) since the mortgage will be discharged once you sell the property in any event.
[18] After the litigation was resolved Mr Collins continued to be involved with
Mr Tang Senior and his family in connection with events in 1999. On 16 June 1999
Mr Collins met with Mr Tang Senior at Kenley Place together with other family members, including Mrs Tang, Little Hong, Amalia and Thong Say. The purpose of that meeting was to discuss the legal arrangements for the sale of Kenley Place and the purchase of a property at 5 Aintree Place, Taradale.
[19] That same day Mr Collins sent a letter to Mr Tang Senior and the Tang family setting out in detail the financing required in connection with the Taradale acquisition. That letter included the following paragraph:
All of this assumes the continuing co-operation of Hong Kham who has given me a power of attorney to enable me to effect the sale of his interest in the property. So far as I am aware he has not changed his mind about his earlier expressed intention that all of the proceeds of sale form (sic) Kenley Place are to be available to Hai Ching Tang to go toward the purchase of another home. Hong Kham Tang will have to be consulted when you decide on the ownership arrangement for the Napier property, assuming that you go ahead with that.
[20] The sale and purchase transactions were due to settle on 26 November 1999. On 20 October 1999 Mr Collins visited Kenley Place to meet with Mr Tang Senior and Little Hong to explain the relevant legal concepts for the ownership of
5 Aintree Place and to take their instructions. Also present at the meeting were
Mrs Tang, Amalia and Thong Say.
[21] Mr Collins made a file note with reference to that meeting which noted that an important item for discussion concerned the manner of ownership of the Napier home. The key points as summarised by Mr Collins in a signed statement which he prepared for other litigation (brought by Big Hong against Little Hong and Amalia in
the District Court at Napier)1 were as follows:
1 H K Tang v H K Tang and A A Tang CIV-2012-041-274.
(a) I tried to explain the nature of a family trust but was not satisfied that Mr Tang senior or his wife understood this at all;
(b) Personal ownership was very important to Mr Tang senior;
(c) I suggested that the property be settled by way of tenancy in common between Little Hong and his wife on the one hand and Mr and Mrs Tang senior on the other;
(d) We discussed what would happen when Mr and Mrs Tang senior died and I refer to my record of that discussions:
“I then went on to discuss what was to happen when Mr and Mrs Tang senior died (they are both quite elderly) and they wish to ensure that the whole of their interests in the property goes to Hong Keo and Amalia Tang. This is really intended as consideration for looking after the parents in their old age”.
(e) I also explained about the need for Mr and Mrs Tang senior to make wills but there was some difficulty with that concept:
“…the concept of having a will is something quite foreign to Mr Tang senior and only wealthy people have wills in his Laotian Chinese culture. He has never had a will he said, nor has his wife
…”.
[22] The instruction which Mr Collins received was to settle the purchase of
5 Aintree Place on the basis recorded in the file note with Mr and Mrs Tang Senior (being joint owners as to a one half share) as tenants in common with Little Hong and Amalia (who were similarly to be joint owners as to the other half share).
[23] On 24 November 1999, shortly before the settlement of Aintree Place was due to occur, Mr Collins again attended at Kenley Place for the purpose of having Mr Tang Senior’s will signed. He took two people from Glaister Ennor with him to be witnesses. He prepared a detailed file note of the meeting.
[24] It appears that Mr Collins was the impetus for the will. As he stated in his affidavit of 20 December 2013 (references to Mr Collins’ statement are to the statement referred to at [21] above):
2.1The Will was drafted at my suggestion, to reflect the wishes of Mr Tang senior in the context of the Aintree Place purchase. It was not the case that he initiated discussion about making a Will. I suggested it to him as a sensible, minimal estate planning measure. He was an unsophisticated person as was reflected in the fact that he thought Wills were “for rich people” as I explained in my statement. The content of the Will is not based on a one-off instruction but was
the result of a number of discussions I had in the family context, in the manner I have described in my statement.
2.2There was no reason for me to doubt the integrity of the process, bearing in mind all that I knew of the individual family members and my experience with them during the stressful period of the litigation. By “family members” I mean; Mr Tang senior, Big Hong, Little Hong, and Thong Say. I did not have any communications of substance with anyone else in the family, although I did meet Mrs Tang senior and Little Hong’s wife Amalia.
2.3The Will was executed at the family home in Avondale. Mr Tang senior was relatively immobile and it was more convenient for me to go to their home. I recall that I visited the home three times during the period 1996-1999. On each such visit the family gathered together, in the lounge, as if it was something of an occasion.
2.4The Will was executed on 24 November 1999 and the circumstances are explained in my file note which is exhibit “J” to my statement. Those present were; Mr Tang senior, Little Hong, his wife Amalia Tang, and Thong Say. Mr Tang senior communicated with me through Little Hong, as he had done on numerous earlier occasions, and reiterated his intention that he and Mrs Tang senior would live at Aintree Place for the remainder of their lives and that their interest in the property should be transferred to Little Hong and his wife upon their death. Little Hong was to be the principal household income earner, as he was at Avondale, contributing to the costs of the home in addition to taking care of Mr and Mrs Tang senior.
2.5I also spoke with Thong Say during the course of this meeting and she confirmed to me that this was what her parents wanted. I spoke regularly with Thong Say during this period, about family matters, in addition to my discussions with Little Hong.
2.6I explained to Mr Tang senior the contents of his Will by referring to each clause. Little Hong translated. Thong Say was present throughout this discussion which occurred in the main lounge area. Mr Tang senior nodded as we went through the contents of the Will and later signed it in the presence of the two witnesses.
[25] The clauses in the will which were the focus of the evidence were:
5.I give, devise and bequeath my interest in the dwelling house and land situated at 5 Aintree Place, Taradale, Napier to my son Hong Keo Tang and his wife Amalia Asayas Tang jointly.
6.I give and devise the balance of all my real and personal property to my trustee upon trust:
6.1 To sell, call in, collect and convert the same into money.
6.2To pay out of my estate my debts, funeral and monumental expenses, my Trustee’s administration expenses and all
duties and taxes if any payable in respect of my estate
(including my notional estate).
6.3To pay or transfer the balance to such of my children who survive me in accordance with an agreement to be reached among my said children and my Trustee or if they are unable to agree to my said children in equal shares.
[26] Mr Collins was appointed the sole executor and trustee of the will. The will, which was in English, was signed by Mr Tang Senior but did not contain a statement that the will was read over to and thoroughly understood by Mr Tang Senior before he signed it.
[27] Mr Tang Senior and his wife moved to Napier and resided at the Aintree Place property with Little Hong and Amalia. Mrs Tang Senior suffered a stroke and required full-time care. She died on 28 May 2001. Mr Tang Senior died on
22 October 2008.
[28] On 27 March 2009 an application for probate was made by interlocutory application without notice supported by an affidavit of Mr Collins dated
25 March 2009. The application did not refer to the fact that although the will was in
English Mr Tang Senior could not read English. Probate was granted on
1 April 2009.
[29] Big Hong lodged a caveat against the title to the Aintree Place property on
7 May 2010. He then commenced proceedings in the District Court at Napier against Little Hong and Amalia on or about 16 August 2012 in which he alleged that he had contributed $56,544.26 (20.942 per cent of the $270,000 purchase price) towards the purchase by his parents of the half share in Aintree Place. He sought a judgment that Little Hong and Amalia pay to him $96,333.20 representing
20.942 per cent of the then value of the Aintree Place property.
Relevant legal principles
[30] As noted above, r 27.18(4) states that evidence must be given under r 27.16 satisfying the court that the will-maker, at the time the will was signed,
(a) thoroughly understood the will; or
(b) had full knowledge of its contents.
[31] Rule 27.16 states in material part:
27.16 Evidence as to execution
(1) A person who knows the relevant facts personally may provide the evidence required by rules 27.17 to 27.28.
(2) If the evidence relates to the fact, date, manner, or circumstance of the execution of a will, the person providing the evidence must be –
(a) an attesting witness; or
(b) a person present when the will was executed.
However the rule does not preclude proof of execution by other evidence including circumstantial evidence: Re Hannah (deceased): Hannah v Hannah.2
[32] Given that an application had been made to recall the grant of probate, the defendants accepted that the Court must consider whether the will was valid and could be admitted to probate in solemn form. They also accepted that the onus fell on them to produce evidence that Mr Tang Senior knew and approved of the contents of the will.3 The standard of proof is the civil standard of the balance of
probabilities.4 There was general agreement among the parties as to the legal
principles which follow.
[33] It is essential to the validity of a will that the testator knew and approved its contents at the time of execution.5 Where a will appears to have been properly executed, there is ordinarily a presumption that the testator did know and approve its contents.6 The exception to that presumption is known as the rule in Barry v Butlin.7
Where the circumstances under which the will is prepared raise grounds for
suspicion that the will does not express the testator’s mind, there is a burden on the
2 Re Hannah (deceased): Hannah v Hannah [1954] NZLR 836 (SC).
3 Chatterton v Howie [1926] NZLR 595 (CA) at 604; Tanner v Public Trustee [1973] 1 NZLR 68 (CA) at 72.
4 Re Burke [1991] 2 NZLR 312 (HC) at 316.
5 Hastilow v Stobie (1865) LR P & D 64.
6 Guardhouse v Blackburn (1866) 1 LR P & D 109 at 116; McGarvey v Temo [2008] NZCA 375 at
[22].
7 Barry v Butlin (1838) 2 Moo PCC 480 (PC) at 481.
propounder of the will to prove affirmatively that the testator knew and approved the contents of the will.8
[34] In Wintle v Nye Viscount Simmons said:9
The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed.
[35] Some of the older authorities that deal specifically with situations where a beneficiary has been instrumental in the framing of the will suggest that there is an onus upon that person of “showing the righteousness of the transaction”.10 However, that was not the rule laid down in Barry v Butlin which only required that:11
If a party writes or prepares a will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and cause upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.
[36] I note that in Tanner v Public Trustee12 Macarthur J observed that in Fulton v Andrew Lord Hatherley was not differing in any way from the rule in Barry v Butlin but was taking the opportunity of restating the rule.
[37] More recently in Fuller v Strum Longmore LJ summarised the current approach:13
Some of the older cases say that the onus on a person who takes a benefit under a will which he has been instrumental in preparing or obtaining is ‘the onus of showing the righteousness of the transaction’, see eg Fulton v Andrew LR 7 HL 448, 471-472 per Lord Hatherley. This is not, to my mind, a separate onus from that of dispelling the suspicion the testator may not have known or may not have approved the contents of the will; it is merely a more grandiloquent way of expressing exactly the same concept. The vigilance and jealousy of the court is directed to being satisfied that the testator did know and approve the contents of his will; no less but also no more. The question in the present case is, therefore, whether Mr Fuller, as
8 Rameka v Wikatene (2008) 27 FRNZ 149 (HC) at [43].
9 Wintle v Nye [1959] 1 WLR 284 (HL) at 291; Tanner, above n 3.
10 Fulton v Andrew (1875) LR 7 HL 448 (HL) at 471-472 per Lord Hatherley.
11 Barry, above n 7, at 481.
12 Tanner, above n 3, at 73.
13 Fuller v Strum [2002] 1 WLR 1097 (CA) at [78].
the propounder of the will, has removed the suspicion that the testator did not know or did not approve its contents.
This approach was applied by Wylie J in Puru v Puru.14
Two primary issues
[38] Although a number of issues were explored in some detail in the evidence there was agreement that the two primary questions for determination were:
(a) What was the state of fluency of Little Hong in the Laos language?
(b)Were the contents of the Will accurately conveyed to Mr Tang Senior by Little Hong in his translation of the clauses read aloud by Mr Collins?
The degree of fluency of Little Hong in the Laos language
[39] The application for recall asserted that Little Hong was not fluent in either Chinese Chaozhou or Laos, being the two languages in which Mr Tang Senior was fluent. While Little Hong did not profess fluency in the former, he stated that he was fluent in the Laos language and that he had lived with his father for 38 years and communicated with him on a daily basis in that language. Under cross-examination by Mr Wenley, Little Hong was relatively modest about his knowledge of the Laos language as reflected in the following sequence:
Q: Can you read and write in Laos? A: No I cannot sorry.
Q: And Big Hong says that your ability in Laos is conversational at best.
A: I am pretty good, yes, in Laos, but I wouldn’t say number one, but I
am as good as, good ability.
[40] He also made the point, as Mr Collins had deposed in his affidavit, that he had routinely acted as the intermediary and interpreter for Mr Tang Senior
throughout the duration of the litigation brought by Mr Tang Senior against Big
14 Puru v Puru HC Auckland CIV-2007-404-3881, 5 November 2008 at [79]-[80].
Hong and Monthien, including at client meetings and in the precincts of the court. The point was made that Big Hong could have been expected to object at that time if he had reservations about Little Hong’s capability to communicate in Laos. Yet he had made no objection.
[41] In a supplementary brief of evidence Big Hong acknowledged that Little
Hong had some capacity to communicate in the Laos language. He said:
My brother Hong Keo Tang has a very limited understanding of the Laos language and I would describe his ability as conversational at best. I have a better understanding of the Laos language than my younger brother and even I would struggle to explain legal words and their meanings to my father.
[42] Big Hong was cross-examined by both Mr O’Connor and Ms McKee on this issue. As with a number of the other witnesses for whom English was not their first language, there were some contradictory answers and the witness’s position changed from time to time during the cross-examination. My perception of Big Hong’s ultimate evidence on this issue was:
(a) Little Hong could speak Laos well but could not read and write it;
(b)Little Hong, and indeed Big Hong, would have difficulty in translating technical meanings from English into Laos.
[43] On the issue of Little Hong’s assistance to his father in the context of the litigation concerning Kenley Place, Big Hong initially asserted that it was Big Hong who undertook the translation. However when tackled about Mr Collins’ evidence, Big Hong said he could not recall if Little Hong had translated for Mr Tang Senior. The conclusion of the cross-examination on the issue involved Mr O’Connor reading the extract of Mr Collins’ evidence about Little Hong’s role as translator referred to above followed by the following exchange:
Q: So you didn’t have a problem with him then but you have a problem
with him now? Is that right?
A: Yeah.
[44] Four other witnesses deposed to Little Hong’s capacity to speak in the Laos
language, two being family members and two being friends of Mr Tang Senior.
[45] The issue was raised with Kham Say in cross-examination by Mr O’Connor
as follows:
Q: In terms of speaking Laos, do you speak Laos? A: I can but not that good.
Q: Did you speak to your father in Laos?
A: I speak Chinese, Laos, English all mixing up, quite funny talking, yeah.
Q: Right, Little Hong lived with his father for 38 years? A: Yes.
Q: He says he talked to his father in Laos every day. A: Normally he talks a little bit.
Q: Little bit?
A: Yes, just simple thing, just simple, yeah.
[46] Thong Say, who could speak Laos, was not questioned by any counsel about Little Hong’s fluency in Laos. Consequently I raised the issue with her and the following exchange occurred:
Q: First of all in the house at Kenley Place and at Aintree Place, what was the language that you spoke to your parents in?
A: I spoke Laos and they too. Q: They did too?
A: They do yes.
Q: And what language Little Hong speak to them? A: Laos, yes.
Q: And I know you’re a modest person, so I don’t expect you to be
exaggerating but I take it you speak Laos fairly well?
A: Yes.
Q: And you speak English fairly well?
A: No. Q: No? A: No.
Q: How well did Little Hong speak Laos? A: Just simple one.
Q: Just?
A: Just the simple word. Q: Simple way?
A: Yeah simple way.
[47] Marisa Phengsa, a close friend of Mr Tang Senior, spoke Laos and communicated with Mr Tang Senior in Laos although she could not read Laos. She stated in her affidavit that she also spoke with Little Hong and other family members in Laos and that, in her view, Little Hong was fluent in Laos. She was not cross- examined on that opinion.
[48] Mr Wa Kanthavong, who was Laotian, had known Mr Tang Senior for more than 30 years and described him as his best friend. He conversed with Mr Tang Senior and Little Hong in Laos and expressed the opinion that Little Hong was fluent in Laos. Likewise he was not cross-examined on that opinion.
[49] Boun Sou did not comment on Little Hong’s capacity to speak Laos despite observing in her affirmation that Mr Tang Senior was unable to read and write English and that he would have had relied entirely on Little Hong to honestly translate his wishes correctly.
[50] In combination the evidence of Little Hong and the other five witnesses on the issue causes me to be satisfied that Little Hong was fluent in conversation in the Laos language but could not read or write in the language. It appears plain that he communicated with Mr Tang Senior in the Laos language over a period of 38 years.
[51] While Little Hong would have had difficulty in translating technical terms from English into Laos, there would have been no such difficulty in relaying in Laos
the terms of the will which were comparatively straightforward. Indeed in that connection I note that Mr Tang Senior was already well versed on the matter of real property being held in the name of a son and daughter-in-law from his experience with the litigation he commenced over the Kenley Place property where Little Hong had acted as his interpreter.
Were the contents of the will accurately conveyed to Mr Tang Senior?
[52] Neither the applicant, Big Hong, nor those who gave affidavits in support of his application were present when the will was signed by Mr Tang Senior. Their position simply was that Mr Tang Senior was illiterate, that the will does not state that it was read over to and thoroughly understood by Mr Tang Senior before he signed it and that there is doubt whether or not Mr Tang Senior understood the will or had full knowledge of its contents given the degree of fluency of Little Hong in the Laos language.
[53] With reference to the circumstances surrounding the execution of the will, affidavits for the defendants were filed in advance of the hearing by Little Hong, Amalia and Mr Collins. Those affidavits highlighted the significance of the issues concerning the presence and role of Thong Say. However Thong Say and her husband had declined to provide affidavits in the matter. Little Hong had therefore sought and obtained an order that Thong Say and her husband appear at the hearing to give evidence.
[54] Consequently prior to the hearing itself it was not apparent what Thong Say’s position would be on the matters in dispute. So far as the sequence of the presentation of evidence is concerned, by agreement among the parties Mr Collins was the first witness (because he had other pressing commitments). Then, notwithstanding the burden of proof in the matter, the plaintiff ’s evidence was called (Big Hong, Boun Sou and Kham Say) followed by the evidence for the second defendants (Thong Say, her husband Simon Yang, Nudang, Little Hong, Amalia, Ms Phengsa and Mr Kanthavong).
[55] I have already recorded at [24] above Mr Collins’ account of the execution of the will. Mr Collins explained in his affidavit why he was satisfied that the will was a document of integrity reflecting Mr Tang Senior’s wishes. These were his reasons:
(a) I was quite closely involved with this family in the period 1996-
1999, in the circumstances of the litigation as described in my statement. I believe that I had something of a privileged status with them and they were uniformly trusting and open with me. That included, to the extent that I dealt with him, Big Hong. The discussion about the Will was consistent with the manner and tone of numerous other discussions which had occurred with the family group during the litigation.
(b) It was evident to me that there was a close relationship of trust and affection between all the Auckland-based family members and a significant degree of dependency by the parents on their adult children. In all that I saw of Little Hong and Thongsay, they conducted themselves in the presence of their parents, and in matters pertaining to their parents, with integrity and respect. So too did Big Hong, but I saw less of him. Quite apart from the Will, that observation is based on my dealings with the wider family in connection with the litigation and the purchase of Aintree Place;
(c) The arrangements reflected in Mr Tang senior’s Will, and his wishes as they were communicated to me, were consistent with the family structure as I had observed it from the time I first became involved, in 1996. This included the close relationship between Little Hong and his wife Amalia, and his parents. Little Hong was the person with primary responsibility for the care and welfare of the parents and for the representation of their interests to the outside world. Thongsay was also closely involved, but she lived with her husband and small child (or children, I am uncertain) in South Auckland;
(d) Little Hong gave me no reason to doubt his integrity, in his role as an intermediary and interpreter for his father or otherwise. I had formed a view of him as a person of good character. If there had been any doubt about the integrity of the Will, I would have expected Thongsay to have warned me because she was present during the meetings including the discussions about the Will. She was an intelligent and independent if rather shy person, competent in English, and obviously loving and loyal toward to her parents; and
(e) Little Hong routinely acted as the intermediary and interpreter for Mr Tang senior during the period of the litigation, at client meetings in the precincts of the Court. Big Hong knew of this and made no objection. He could have been expected to object if he questioned Little Hong’s motives but the issue simply did not arise.
[56] The following passage from his cross-examination by Mr Wenley elaborates upon aspects of the will and his perception of Thong Say:
Q: We agreed that you were solely dependent on Little Hong to be the translator.
A: Yes, in terms of the exchange about the clause of the will but I was also very much influenced by the role of Thong Say, the sister, who was present on many of the occasions and who spoke to me independently about family matters.
Q: As I understand it, it may be her evidence that she knew nothing of the will.
A: Okay, well I remember specifically speaking with her about the will and in addition to the arrangements with the real estate, the property, the one thing that concerned me about this will – yeah the one thing that concerned me about it, being unaware of latent claims by Big Hong was the arrangement for the distribution of chattels which was left entirely as a discretionary matter for the trustee and executor based on family wishes and I was quite worried about that as putting me into a conflict about a valuable chattel or piece of – well a valuable chattel and I asked Thong Say about that specifically because I wanted to know from her point of view whether there was likely to be claims about valuable items of furniture or memorabilia of family matters or whatever and I do recall that specific discussion with her about the will and covering other – well the whole of the will but that issue in particular which worried me that I’d be embroiled with a family dispute about a kitchen table or something.
Q: Well you may talk about all these issues of distribution and stuff like that but it doesn’t necessarily follow that the person you’re talking to understands you’re talking about a will does it?
A: Yes, well the discussion was in context of the will and Thong Say, who I think you will get to meet in this hearing, is a shy person, as is characteristic of this family in their dealings with what I term “the outside world” but not an unintelligent person and not an independent, independent minded, so she was an independent minded and intelligent person.
[57] In his affidavit Little Hong stated that Mr Collins had various meetings with Mr Tang Senior about his will and that Mr Collins talked to Little Hong and Thong Say about the will before it was drafted. He said that after these meetings Mr Collins asked Little Hong to translate the will to Mr Tang Senior and that he translated the will to his father in Laos. He stated that Thong Say was present at family meetings with both his father and Mr Collins when they discussed the contents of the will.
[58] Thong Say’s evidence was led by Mr O’Connor. It was apparent that she was
very reluctant to be involved in this family dispute. When she was first asked
whether she knew about the “family arrangement” and about the will her response
was in the negative to both.
[59] She agreed that she had been present at meetings with Mr Collins but initially she said she could not remember what happened at those meetings because “it’s so many years”. She recalled Mr Collins coming to the house at Avondale but initially said she could not remember why because she was not paying attention. After being read an extract from Mr Collins’ file note of 24 November 199915 Thong Say agreed that Mr Collins had been to the Avondale house to discuss Mr Tang Senior’s will.
[60] With reference to the meeting on 24 November 1999 when Mr Tang Senior signed his will Thong Say first said under questioning from Ms McKee that she was not present but then acknowledged she was present but that she was not paying attention. Initially she said she could not remember Little Hong translating the will to Mr Tang Senior. However, after Mr O’Connor read to Thong Say a passage from the cross-examination of Mr Collins by Ms McKee, there was the following exchange:
Q: Because you were there the day that the will was signed? A: Yes.
Q: Do you remember Little Hong translating the will to your father? A: No I can’t remember that.
Q: I’m just going to take you to one more – I’ll read to you one more paragraph that Paul Collins said yesterday when he was giving evidence. He said, when he was talking about the process that he followed to get the will signed and Little Hong translating, he said, “The integrity, as I’ve put it, of the arrangement was reinforced by the fact that the sister Thong Say was present at family meetings with me and discussed with me independently on the telephone the arrangements to be reflected in the Will and that she was not benefitting except in discretionary distribution of chattels. I came to respect and like her as another voice for and on behalf of the parents and she would ring me up and I would explain litigation concepts to her, conveyancing concepts and she was entirely committed to the arrangement reflected in the Will.” Do you agree with that?
A: Yes.
Q: Is he telling the truth?
15 At [23] above.
A: Yes.
[61] Mr Wenley also questioned Thong Say about the will. I set out a sequence of questions comprising the conclusion of his cross-examination and the re-examination by Mr O’Connor:
CROSS-EXAMINATION: MR WENLEY
...
Q: - was the Will or what happened to Napier when your parents died a big issue or a little issue?
A: Big issue.
Q: When Mr Collins was talking about chattels and tables and chairs and valuable items, why do you think he was talking to you about that?
A: I don’t know.
Q: Go to page 18 of the bundle please? Do you recognise what that document is?
A: That’s, yes.
Q: Did you see that document on the day that it was signed by your father?
A: No.
Q: When did you first see this document? A: Now.
…
Q: Now. Did you understand that Mr Collins had come to the house so that your father could sign the Will?
A: Yes
Q: And were you there when Little Hong translated the will to your father?
A: Yes I was there.
Q: And were hearing – did you hear what Little Hong said? A: No I wasn’t pay attention.
RE-EXAMINATION: MR O’CONNOR
Q: I’m going to ask you the question I asked you before because you gave a different answer when I asked you that question. My friend’s just asked you a question whether you heard the translation of the will and you said you weren’t paying attention, yes?
A: Yes.
Q: Now I’m going to take you to the same page we were on before.
A: Which page?
Q: I’ll just find it sorry. But I was on it – I had taken you to the same one before. It’s the affidavit by Mr Collins, it’s page 144 and it’s the next page is 145.
…
Q: It is the statement Sir, sorry I’ve confused it. It’s the statement of Mr Collins which is annexed to his affidavit at page 144. I read that to you before and I took you to the last line again and it said, I’m going to read it to you again, “In discussion with Thong Say earlier, she told me that this is what her parents intended and it was supported by all the family.” Now you said before that you weren’t paying attention but you’re telling Mr Collins that it’s supported by all the family. So you were paying attention weren’t you?
A: Yes.
[62] I proceeded to ask Thong Say a number of questions as follows:
Q: Now you – Mr Collins said that he spoke to you from time to time on the telephone.
A: Yes.
Q: And I take it the reason for that was for him to tell you things and you to tell him things?
When he told you things –
A: Yes.
Q: - did you tell anybody else about them? A: No, tell my dad.
Q: Tell your dad? A: Yes.
Q: In Laos? A: Yes.
Q: Looking at the, when Mr Collins came to the house at Kenley Place
–
A: Yes.
Q: - you were there at least on some occasions? A: Yes that’s right.
Q: And Mr Collins could not speak directly to your father? A: Yes right.
Q: So how, how did the discussions take place that involved Mr Collins and your father, what was the process?
A: Ah, what’s that?
Q: Well when Mr Collins comes to the house –
A: Yes.
Q: - he can only speak English –
A: Yes.
Q: - and your father, and Mr Collins can only speak English and not
Laos and your father can speak Laos but not English?
A: Yes.
Q: So how was the communication between them made? A: We have, um, translator.
Q: Yes. A: Yeah.
Q: And who was that?
A: Sometimes me, sometimes Little Hong.
[63] Amalia was also present on the day that the will was signed. She deposed that Thong Say was present when there was discussion about Mr Tang Senior’s will and the family arrangement. The family arrangement to which she referred was to the effect that Mr Tang Senior and his wife would live in Napier with Little Hong and Amalia, who would look after them in their old age, and that Mr Tang Senior would give his half share interest in the Napier house to Little Hong and Amalia. She stated that prior to Mr Tang Senior making his will he had asked her if she would agree to look after him and take care of him.
[64] Under cross-examination by Mr Wenley she said:
Q: When the will was being explained to Mr Tang in Kenley Place, were you present?
A: Yes I am.
Q: And is it the position that you would not be able to understand what
Little Hong was saying to his father?
A: Um, I should say, you know, like honesty of my husband, yes I give honesty to my husband and that translation is around with Thong Say, the younger sister who gave testimony right now. She was there that time. My mother-in-law, my father-in-law all go in that time where we’re in the, in the big, in the lounge and that’s been translated and then Paul Collins give the – and then Paul Collins give it to – I mean in English and then Thong Say, she was there and hear everything and then my husband or either her translate it through my father-in-law.
Q: Well it wasn’t Thong Say, it was your husband wasn’t it?
A: Yes, most of the time my husband but it’s Thong Say if she was there
and she aware of what is going on.
[65] I then asked Amalia some questions in the course of which she stated that Thong Say was not present on the day that the will was signed but was at a meeting when the will was discussed. Mr O’Connor then asked further questions which involved his refreshing Amalia’s memory about the cross-examination of Thong Say by Ms McKee. The exchange concluded in the following way:
Q: … my question to you, because His Honour asked you before whether you were there and you said, no whether Thong Say was there and you said she wasn’t, but Thong Say says she was, Mr Collins says she was.
A: Yeah she was there.
Q: So she was there when the will was signed? A: Yes.
[66] I have included these lengthy passages from the evidence both to capture the way in which the evidence was given but also to recognise that there were a number of contradictory answers. I attribute some of those instances of contradictory answers first to the witnesses’ difficulty in recalling matters which took place over
14 years ago and secondly to some difficulty in comprehension on the part of
witnesses for whom English is not their first language. Interpreters were used for only two witnesses: Simon Yang and Nudang Promsombut. However a number of the other witnesses acknowledged that they could not read English and there were several occasions when, despite the best endeavours of counsel, witnesses appeared to misunderstand the question or gave a confused answer.
[67] On the second primary issue the key witnesses were Mr Collins, Little Hong and Thong Say. Given the obvious interest of Little Hong I have placed greater emphasis on the evidence of Mr Collins and Thong Say.
[68] Mr Collins’ evidence was careful and measured and supported by the detailed contemporaneous file notes which he had made. He was able to speak to the process which had been followed, the manner of his taking instructions and his observation of the reactions of Mr Tang Senior. Of course so far as the spoken word is concerned, he could only give evidence as to what had transpired in English.
[69] The view which I formed of Thong Say was essentially the same as Mr Collins’ perception: that she is an intelligent but shy person and very reluctant to be involved in this litigation between her brothers, they being the three younger siblings. I consider that Mr Collins had a sound basis for forming that perception because of the nature and extent of their communications. In that regard I note that in his evidence he stated that Thong Say became quite confident with him and telephoned him spontaneously to ask him about family issues. He commented that he had a good easy relationship with Thong Say who was perfectly communicative.
[70] In my view the evidence discloses the following:
(a) Those present when the will was signed included Mr Collins, Little
Hong, Amalia and Thong Say.
(b)The contents of the will were explained clause by clause to Mr Tang Senior by a process of Mr Collins reading out each clause in English. The clause was then translated by Little Hong who relayed its content to Mr Tang Senior in Laos.
(c) Although translation was undertaken by Little Hong, Thong Say was present and heard the translation of English into Laos. I consider that she would have intervened if the translation was inaccurate or if she perceived any misapprehension on the part of her father.
(d)Mr Tang Senior nodded from time to time as the contents of the will were relayed to him by that process.
(e) Mr Tang Senior then signed the will in the presence of the witnesses.
[71] On the basis of that evidence which is sourced from two witnesses who did not appear to have any element of self-interest in the proceeding it is my conclusion that the contents of the will were accurately conveyed to Mr Tang Senior. Consequently I find that the burden of proving affirmatively that Mr Tang Senior knew and approved the contents of his will is discharged.
Other issues
[72] A number of subsidiary issues were referred to in the affidavits and were the subject of cross-examination. These included:
(a) An event shortly prior to Mr Tang Senior’s death when his ring was given to Little Hong: there were issues as to who was present and as to the identity of the person who handed over the ring;
(b)The point in time at which Big Hong, Boun Sou and Kham Say became aware of the fact that Mr Tang Senior had made a will: those three gave evidence that they were not aware of the existence of Mr Tang Senior’s will until some years after his death;
(c) A question whether there had been an advance by Big Hong to Mr Tang Senior which remained unpaid notwithstanding evidence that Big Hong had utilised certain funds without Mr Tang Senior’s approval and notwithstanding the document referred to at [14].
[73] It is unnecessary for me to make a determination on those issues as they have no effect on the conclusions which I have reached in relation to the two primary issues. However, so far as concerns the issue of the dissemination of the existence of Mr Tang Senior’s will, it is clear that Mr Tang Senior disclosed its existence to persons who were not present when it was executed. Nudang Promsombut (whose evidence was translated by a Thai interpreter) stated that her father had told her that he had made a will. Similarly both Marisa Phengsa and Wa Kanthavong who were
friends of Mr Tang Senior16 gave evidence that Mr Tang Senior had mentioned the
fact of his will to them.
[74] It is of course possible that Mr Tang Senior did not inform Boun Sou, Kham Say and Big Hong of the fact of his will. However it remains something of an enigma. The impression one gains is of a respected father who, though elderly, was of a somewhat gregarious disposition. Indeed Kham Say described her father as “a really party person” with heaps of friends.
[75] It is not apparent to me why Mr Tang Senior would have kept the existence of the will from Boun Sou and Kham Say although in the case of Big Hong it is possible that relations were somewhat strained following the saga of the litigation with Monthien.
[76] I think it appropriate to record that in assessing the evidence and in particular the consistent position on the part of those who gave evidence in support of the application, it was apparent that Big Hong had been instrumental in the provision of written statements by Boun Sou and Kham Say. Furthermore Nudang Promsombut deposed that Kham Say had asked her to provide a statement to dispute the will.
[77] Thong Say also confirmed that she had received an email from Big Hong asking her to sign a statement apparently about Mr Tang Senior’s will. She declined to sign it because she did not want to be involved and had taken the position “you two work it out”. She said that her husband, Simon Yang, had telephoned Big Hong
to reiterate her wish not to be involved. Simon Yang, whose evidence was relayed
16 See above at [47] and [48].
through a Cantonese interpreter, confirmed that he had telephoned Big Hong on that subject.
Disposition
[78] I find that the defendants have discharged the burden of proving affirmatively that Mr Tang Senior knew and approved the contents of his will.
[79] Consequently Big Hong’s application for an order recalling the grant of probate dated 1 April 2009 is dismissed.
[80] The defendants are entitled to costs. I invite the defendants to file a memorandum on costs by 30 May 2014 and the plaintiffs to file a memorandum by
13 June 2014. My preliminary view is that only one set of costs should be allowed:
refer r 14.15.
Brown J
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