LCK v. DLKY Committee of the Estate of WSY, appointed by the Order of Deputy High Court Judge L. Chan dated 13 August 2012 under HCMH Nos. 78 and 80 of 2011 AND OTHERS

LCK v. DLKY Committee of the Estate of WSY, appointed by the Order of Deputy High Court Judge L. Chan dated 13 August 2012 under HCMH Nos. 78 and 80 of 2011 AND OTHERS

The court was satisfied WSY lacked testamentary capacity and that making a statutory will and settling a New CK Trust best advanced WSY's paramount interests; the statutory will adopted distributions and trust terms that, on the evidence and by inference from WSY's character and family circumstances, reflect what she would have reasonably done if notionally restored to capacity; accordingly the Impugned Transactions were set aside by concession, the New CK Trust and statutory will were ordered in specified terms, and costs were apportioned and taxed as described.

Citation
[2022] HKCFI 496
Parties
Plaintiff (hcmh 7/2016): LCK; 1st Defendant (committee of the Estate of Wsy); Plaintiff (hca 398/2017): DLKY; 2nd Defendant (guardian Ad Litem of Ck): MJW; 3rd Defendant: LCC; 4th Defendant (deceased): LKF; 5th Defendant: LKC (5th); 6th Defendant: LKC (6th); 7th Defendant: LCT; 8th Defendant: LCT2; 9th Defendant: CZY; 10th Defendant: CYC (10th); 11th Defendant: CHZ; 12th Defendant: CYC (12th)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 February 2022
Case Number
HCMH7/2016
Procedural Posture
Application for Statutory Will Under Mental Health Ordinance and Related High Court Action to Set Aside Transactions / Judgment and Reasons With Decision on Costs (order Dated 9 February 2021; Reasons 17 February 2022)
Outcome
Order made for statutory will to be executed for WSY; New CK Trust approved and to be established; Impugned Transactions set aside by concession; costs orders made as to payment out of estate with limited exceptions and a nisi costs order in the HC Action.
Legal Topics
Statutory Will, Testamentary Capacity, Lifetime Settlement, Trust V Outright Gift, Setting Aside Transactions for Incapacity, Costs Orders
Source Language
EN
Mental Health Law Wills and Probate Trusts and Estates Civil Procedure Costs Statutory Will Testamentary Capacity Lifetime Settlement +3 more

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Parties

LCK

Plaintiff (hcmh 7/2016)

DLKY

1st Defendant (committee of the Estate of Wsy); Plaintiff (hca 398/2017)

MJW

2nd Defendant (guardian Ad Litem of Ck)

LCC

3rd Defendant

LKF

4th Defendant (deceased)

LKC (5th)

5th Defendant

LKC (6th)

6th Defendant

LCT

7th Defendant

LCT2

8th Defendant

CZY

9th Defendant

CYC (10th)

10th Defendant

CHZ

11th Defendant

CYC (12th)

12th Defendant

Procedural Posture

Application for Statutory Will Under Mental Health Ordinance and Related High Court Action to Set Aside Transactions / Judgment and Reasons With Decision on Costs (order Dated 9 February 2021; Reasons 17 February 2022)

Legal Issues

  1. 1 Whether the court should exercise its power under s10B MHO to make a statutory will for WSY
  2. 2 Whether WSY lacked testamentary capacity at relevant times
  3. 3 Whether to set aside the Impugned Transactions and prior wills

Ratio Decidendi

The court was satisfied WSY lacked testamentary capacity and that making a statutory will and settling a New CK Trust best advanced WSY's paramount interests; the statutory will adopted distributions and trust terms that, on the evidence and by inference from WSY's character and family circumstances, reflect what she would have reasonably done if notionally restored to capacity; accordingly the Impugned Transactions were set aside by concession, the New CK Trust and statutory will were ordered in specified terms, and costs were apportioned and taxed as described.

Court Disposition

Order made for statutory will to be executed for WSY; New CK Trust approved and to be established; Impugned Transactions set aside by concession; costs orders made as to payment out of estate with limited exceptions and a nisi costs order in the HC Action.

Orders

  • Statutory will for WSY made by order dated 9 February 2021 and executed on 10 February 2021
  • Impugned Transactions (2003 POAs, 2004 POAs, KH/CH/ET/FC transfers, 2003 and 2004 Wills and associated assignments) set aside pursuant to concessions