TAM LAN CHI LORCHE, suing as an Administratrix of the Estate of Tam Kam Fai Francis, deceased v. CHAN SIU MUI

TAM LAN CHI LORCHE, suing as an Administratrix of the Estate of Tam Kam Fai Francis, deceased v. CHAN SIU MUI

The 19 July 2007 Declaration, being in writing and signed by both parties, validly created a beneficial joint tenancy under s5 CPO; the obvious typographical omission did not defeat the clear expressed intention and could be corrected; consequentially on the deceased's death the defendant became sole beneficial owner; mistakes in the LA Schedule do not operate to renounce the beneficial interest and are correctable under s24A; IRD and Land Registry remarks are not binding on the court's determination of substantive title.

Citation
[2022] HKCFI 517
Parties
Plaintiff; Administratrix of the Estate of Tam Kam Fai (deceased): Tam Lan Chi Lorche (譚蘭芝); Defendant; Administratrix of the Estate of Tam Kam Fai (deceased): Chan Siu Mui (陳小梅)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
18 February 2022
Case Number
HCMP2084/2017
Procedural Posture
Application Under Order 85 (declaration of Trust in Estate) / Final Judgment (court of First Instance)
Outcome
Plaintiff's claim dismissed; defendant's counterclaim allowed.
Legal Topics
Declaration of Trust, Joint Tenancy Vs Tenancy in Common, Construction and Rectification of Instruments, Effect of Registry and Tax Authority Decisions on Substantive Title, Corrective Affidavit Under Probate and Administration Ordinance S24 a
Source Language
EN
Property Law Trusts and Equitable Interests Probate and Administration Stamp Duty/revenue Law Land Registration Declaration of Trust Joint Tenancy Vs Tenancy in Common Construction and Rectification of Instruments +2 more

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Parties

Tam Lan Chi Lorche (譚蘭芝)

Plaintiff; Administratrix of the Estate of Tam Kam Fai (deceased)

Chan Siu Mui (陳小梅)

Defendant; Administratrix of the Estate of Tam Kam Fai (deceased)

Procedural Posture

Application Under Order 85 (declaration of Trust in Estate) / Final Judgment (court of First Instance)

Legal Issues

  1. 1 Whether the 19 July 2007 Declaration validly created a beneficial joint tenancy
  2. 2 Whether the Declaration could convert an existing tenancy in common into a joint tenancy without a deed of assignment
  3. 3 Whether the defendant's affirmation verifying the Schedule (LA Declaration) amounted to a renunciation of her beneficial interest under the Declaration

Ratio Decidendi

The 19 July 2007 Declaration, being in writing and signed by both parties, validly created a beneficial joint tenancy under s5 CPO; the obvious typographical omission did not defeat the clear expressed intention and could be corrected; consequentially on the deceased's death the defendant became sole beneficial owner; mistakes in the LA Schedule do not operate to renounce the beneficial interest and are correctable under s24A; IRD and Land Registry remarks are not binding on the court's determination of substantive title.

Court Disposition

Plaintiff's claim dismissed; defendant's counterclaim allowed.

Orders

  • The plaintiff's claim in these proceedings is dismissed.
  • Declaration that the Declaration dated 19 July 2007 created a beneficial joint tenancy over the Property between the deceased and the defendant.