FU FUNG YAN CAFORNIA AND ANOTHER v. CHAN MAN PAN the executor of the estate of CHAN LAP PAN, deceased AND ANOTHER

FU FUNG YAN CAFORNIA AND ANOTHER v. CHAN MAN PAN the executor of the estate of CHAN LAP PAN, deceased AND ANOTHER

The pleaded facts supported an inference of a common intention constructive trust and detrimental reliance by Madam Fu; defendants did not oppose the declaration and the court found it appropriate to grant the declaration and to approve the settlement of the minors' claims under RHC Order 80, rule 10, ordering the consent order in Tomlin format subject to agreed minor amendments.

Citation
[2021] HKCFI 769
Parties
1st Plaintiff: Madam Fu; 2nd to 4th Plaintiffs (minors): Children of Madam Fu; 1st Defendant and Sole Executor of Estate: Chan Man-pan; 2nd Defendant: Chan Man-pan
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
22 January 2021
Case Number
HCA882/2016
Procedural Posture
Civil Matrimonial Property and Estate Administration / Consent Summons Filed; First Day of Trial; Approval of Settlement and Consideration of Declaratory Relief
Outcome
Draft consent (Tomlin) order approved with minor agreed amendments; declaration granted that the matrimonial home was held by the deceased as trustee for himself and the 1st plaintiff (common intention constructive trust) and is held by the 1st defendant as trustee for the 1st plaintiff; settlement of minors' claims...
Legal Topics
Common Intention Constructive Trust, Declaratory Relief by Consent, Settlement of Minors' Claims (order 80 Rule 10), Tomlin Order Format, Matrimonial Home, Executor Duties
Source Language
EN
Trusts Property Family Law Estate Administration Civil Procedure Common Intention Constructive Trust Declaratory Relief by Consent Settlement of Minors' Claims (order 80 Rule 10) +3 more

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Parties

Madam Fu

1st Plaintiff

Children of Madam Fu

2nd to 4th Plaintiffs (minors)

Chan Man-pan

1st Defendant and Sole Executor of Estate

Chan Man-pan

2nd Defendant

Procedural Posture

Civil Matrimonial Property and Estate Administration / Consent Summons Filed; First Day of Trial; Approval of Settlement and Consideration of Declaratory Relief

Legal Issues

  1. 1 Whether declaratory relief by consent should be granted regarding beneficial ownership of the matrimonial home
  2. 2 Whether plaintiffs have established a common intention constructive trust over the property
  3. 3 Whether the settlement of minors' claims should be approved under RHC Order 80, rule 10

Ratio Decidendi

The pleaded facts supported an inference of a common intention constructive trust and detrimental reliance by Madam Fu; defendants did not oppose the declaration and the court found it appropriate to grant the declaration and to approve the settlement of the minors' claims under RHC Order 80, rule 10, ordering the consent order in Tomlin format subject to agreed minor amendments.

Court Disposition

Draft consent (Tomlin) order approved with minor agreed amendments; declaration granted that the matrimonial home was held by the deceased as trustee for himself and the 1st plaintiff (common intention constructive trust) and is held by the 1st defendant as trustee for the 1st plaintiff; settlement of minors' claims...

Orders

  • Approve settlement of minors' claims under RHC Order 80, rule 10 as set out in plaintiffs' draft order dated 21 January 2021
  • Grant declaration that Flat E, 36th Floor, Tower 1, Harbour Green was held by the deceased as trustee for himself and the 1st plaintiff as joint tenants and is now held by the 1st defendant as trustee for the 1st plaintiff (as specified in paragraph 1 of the draft order)