LAM MAN CHEUNG v. LAM MAN YIN AND ANOTHER

LAM MAN CHEUNG v. LAM MAN YIN AND ANOTHER

Clause 3 of the Will, objectively construed, did not create a gift in specie of the Flat; it divided the testator's interest into 100 shares and devised percentages which can be satisfied by proceeds of sale. Absent maladministration, a beneficiary cannot compel an executor to assent. Executors acted within their s54 PAO powers in seeking possession and sale for administration. Therefore the claim for an assent was dismissed and the application for sale and related orders was granted.

Citation
[2022] HKCFI 866
Parties
Plaintiff (hcmp 375/2021); 1st Defendant (hcmp 739/2021): Lam Man Cheung; Defendant (hcmp 375/2021); 1st Plaintiff (hcmp 739/2021): Lam Man Yin; Defendant (hcmp 375/2021); 2nd Plaintiff (hcmp 739/2021): Lam Man Pang; 2nd Defendant (hcmp 739/2021): Jiao Fangfang
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 March 2022
Case Number
HCMP375/2021
Procedural Posture
Originating Summonses (probate/estate) / Paper Disposal; Judgment on Originating Summonses
Outcome
OS/375 dismissed; OS/739 allowed in part (order for possession and sale granted)
Legal Topics
Assent/vesting of Devises, Order for Sale of Estate Property, Executor Misadministration, Construction of Wills, Section 54 Probate and Administration Ordinance, Possession and Vacant Possession, Costs
Source Language
EN
Probate and Administration Wills and Testamentary Disposition Trusts and Executors' Powers Property Law Civil Procedure (originating Summons) Assent/vesting of Devises Order for Sale of Estate Property Executor Misadministration +4 more

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Parties

Lam Man Cheung

Plaintiff (hcmp 375/2021); 1st Defendant (hcmp 739/2021)

Lam Man Yin

Defendant (hcmp 375/2021); 1st Plaintiff (hcmp 739/2021)

Lam Man Pang

Defendant (hcmp 375/2021); 2nd Plaintiff (hcmp 739/2021)

Jiao Fangfang

2nd Defendant (hcmp 739/2021)

Procedural Posture

Originating Summonses (probate/estate) / Paper Disposal; Judgment on Originating Summonses

Legal Issues

  1. 1 Whether Clause 3 of the Will effected a specific gift in specie of the Flat (40% to MC Lam)
  2. 2 Whether executors can refuse to execute an assent and instead sell the Flat under their powers during administration (s54 PAO)
  3. 3 Whether the executors' refusal to assent amounted to misadministration

Ratio Decidendi

Clause 3 of the Will, objectively construed, did not create a gift in specie of the Flat; it divided the testator's interest into 100 shares and devised percentages which can be satisfied by proceeds of sale. Absent maladministration, a beneficiary cannot compel an executor to assent. Executors acted within their s54 PAO powers in seeking possession and sale for administration. Therefore the claim for an assent was dismissed and the application for sale and related orders was granted.

Court Disposition

OS/375 dismissed; OS/739 allowed in part (order for possession and sale granted)

Orders

  • Vacant possession to executors within 6 months from date of judgment
  • Delivery of all title deeds within 28 days