LAM MAN YIN AND ANOTHER v. LAM MAN CHEUNG AND ANOTHER

LAM MAN YIN AND ANOTHER v. LAM MAN CHEUNG AND ANOTHER

Clause 3 of the Will, objectively construed, does not create a specific devise of the flat in specie; the devising of 100 shares and allocation of 60/40 is not a requirement that the flat be retained in specie. The executors' refusal to assent and decision to obtain possession and sell the flat for administration are within their powers under s54 PAO and do not amount to misadministration. Accordingly the claimant cannot compel an assent; the court grants the executors' application for possession and sale with directions and costs as specified.

Citation
[2022] HKCFI 866
Parties
Plaintiff in HCMP 375/2021; 1st Defendant in HCMP 739/2021: Lam Man Cheung; Defendant in HCMP 375/2021; 1st Plaintiff in HCMP 739/2021: Lam Man Yin; Defendant in HCMP 375/2021; 2nd Plaintiff in HCMP 739/2021: Lam Man Pang; 2nd Defendant in HCMP 739/2021: Jiao Fangfang
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 March 2022
Case Number
HCMP739/2021
Procedural Posture
Originating Summons (probate and Administration) / Judgment (paper Disposal)
Outcome
Originating Summons HCMP 375/2021 dismissed; Originating Summons HCMP 739/2021 allowed in part with orders for possession, sale and costs as directed.
Legal Topics
Assent to Devise, Order for Sale of Estate Property, Misadministration of Estate, Construction of Wills, Powers of Personal Representatives (s54 Pao), Home Ownership Scheme Premium
Source Language
EN
Probate and Administration Wills and Succession Property Law Trusts and Executors Assent to Devise Order for Sale of Estate Property Misadministration of Estate Construction of Wills +2 more

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Parties

Lam Man Cheung

Plaintiff in HCMP 375/2021; 1st Defendant in HCMP 739/2021

Lam Man Yin

Defendant in HCMP 375/2021; 1st Plaintiff in HCMP 739/2021

Lam Man Pang

Defendant in HCMP 375/2021; 2nd Plaintiff in HCMP 739/2021

Jiao Fangfang

2nd Defendant in HCMP 739/2021

Procedural Posture

Originating Summons (probate and Administration) / Judgment (paper Disposal)

Legal Issues

  1. 1 Whether Clause 3 of the Will creates a specific gift of the flat so as to entitle the beneficiary to an assent in specie
  2. 2 Whether the executors' refusal to execute an assent and insistence on sale constitutes misadministration
  3. 3 Whether the court should order sale of the flat and make ancillary directions

Ratio Decidendi

Clause 3 of the Will, objectively construed, does not create a specific devise of the flat in specie; the devising of 100 shares and allocation of 60/40 is not a requirement that the flat be retained in specie. The executors' refusal to assent and decision to obtain possession and sell the flat for administration are within their powers under s54 PAO and do not amount to misadministration. Accordingly the claimant cannot compel an assent; the court grants the executors' application for possession and sale with directions and costs as specified.

Court Disposition

Originating Summons HCMP 375/2021 dismissed; Originating Summons HCMP 739/2021 allowed in part with orders for possession, sale and costs as directed.

Orders

  • HCMP 375/2021 dismissed
  • HCMP 739/2021 allowed; executors granted possession and directed to sell the Flat