CHENG CHUNG PONG AND ANOTHER v. WONG CHING AND OTHERS

CHENG CHUNG PONG AND ANOTHER v. WONG CHING AND OTHERS

Clause 11(n) must be construed, in the context of the will and the testator's evident intention to dispose of his estate under English law, as creating a special power of appointment in favour of a restricted class (male child surnamed Cheng of the Hakka clan under age five) exercisable by the widow and, failing...

Source-derived case information.

Citation
CHENG CHUNG PONG AND ANOTHER v. WONG CHING AND OTHERS
Parties
Plaintiff; Trustee; Also 6th Defendant Beneficiary: Cheng Chung Pong; Plaintiff; Trustee: The Chartered Bank Hong Kong Trustee Limited; 1st Defendant: Wong Ching; 2nd Defendant: Tam Pui Yook; 3rd Defendant; Widow of Deceased Son: Cheng Yuen Yuk Lan; 4th Defendant: Cheng Pick Fai; 5th Defendant: Cheng Chung Kwan; 6th Defendant; Beneficiary: Cheng Chung Pong
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
12 December 1970
Case Number
HCMP53/1970
Procedural Posture
Original Jurisdiction; Will/probate Trust Interpretation (miscellaneous Proceedings) / Judgment (decision on Summons)
Outcome
Summons allowed in part: clause 11(n) is validly construed as conferring a power of special appointment on widow and trustees; trustees may and must exercise the power.
Legal Topics
Construction of Will, Power of Appointment, Adoption (posthumous Adoption), Trustees' Duties and Powers, Accumulation and Intestacy, Costs
Source Language
en
Wills and Probate Trusts and Trustees Succession/intestacy Conflict of Laws (chinese Custom V English Law) Construction of Will Power of Appointment Adoption (posthumous Adoption) Trustees' Duties and Powers +2 more

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Parties

Cheng Chung Pong

Plaintiff; Trustee; Also 6th Defendant Beneficiary

The Chartered Bank Hong Kong Trustee Limited

Plaintiff; Trustee

Wong Ching

1st Defendant

Tam Pui Yook

2nd Defendant

Cheng Yuen Yuk Lan

3rd Defendant; Widow of Deceased Son

Cheng Pick Fai

4th Defendant

Cheng Chung Kwan

5th Defendant

Cheng Chung Pong

6th Defendant; Beneficiary

Procedural Posture

Original Jurisdiction; Will/probate Trust Interpretation (miscellaneous Proceedings) / Judgment (decision on Summons)

Legal Issues

  1. 1 Whether clause 11(n) of the will validly confers an adoption power exercisable by trustees
  2. 2 Whether the word 'adopt' must be read as Chinese posthumous adoption under Chinese law and custom
  3. 3 Whether the trustees are under a duty to exercise the power (mandatory) and cannot release it

Ratio Decidendi

Clause 11(n) must be construed, in the context of the will and the testator's evident intention to dispose of his estate under English law, as creating a special power of appointment in favour of a restricted class (male child surnamed Cheng of the Hakka clan under age five) exercisable by the widow and, failing her, by the trustees; the trustees are under a duty to exercise that power and cannot release it; consequently the clause is valid and may be exercised; surplus income accrued since the 21st anniversary is treated as intestate until such adoption is effected.

Court Disposition

Summons allowed in part: clause 11(n) is validly construed as conferring a power of special appointment on widow and trustees; trustees may and must exercise the power.

Orders

  • Trustees are at liberty and under a duty to appoint a male child of the surname Cheng of the Hakka clan under five years under clause 11(n)
  • Certificate for two counsel for proceedings in chambers on 3 December 1970