RE CHENG LEWIS KA HANG AND OTHERS

RE CHENG LEWIS KA HANG AND OTHERS

The gifts were absolute and therefore the requirement of 'attaining the age of 26' was ineffectual; all beneficiaries and the sole executor validly agreed to vary the dispositions by the Deed of Family Arrangement and the executor is bound to give effect to that Deed.

Citation
[2020] HKCFI 2499
Parties
1st Applicant: Cheng Lewis Ka Hang; 2nd Applicant: Xu Jiajun; 3rd Applicant: Xu Jialiang; 4th Applicant: Tsui Ka Yan
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
25 September 2020
Case Number
HCMP1082/2020
Procedural Posture
Miscellaneous Proceedings Under Order 85 Rule 2 (probate) / Ex Parte Originating Summons Decided on the Papers; Judgment
Outcome
Application allowed: declaration that the requirement 'attaining the age of 26' in the will is ineffectual; the Deed of Family Arrangement executed by the applicants is given effect; the sole executor must act in accordance with the Deed; order in terms of [1] to [11] of the originating summons; liberty to apply; no...
Legal Topics
Validity of Testamentary Condition, Variation of Will by Deed of Family Arrangement, Age of Majority, Order 85 Rule 2
Source Language
EN
Probate and Administration Wills and Trusts Civil Procedure Validity of Testamentary Condition Variation of Will by Deed of Family Arrangement Age of Majority Order 85 Rule 2

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Parties

Cheng Lewis Ka Hang

1st Applicant

Xu Jiajun

2nd Applicant

Xu Jialiang

3rd Applicant

Tsui Ka Yan

4th Applicant

Procedural Posture

Miscellaneous Proceedings Under Order 85 Rule 2 (probate) / Ex Parte Originating Summons Decided on the Papers; Judgment

Legal Issues

  1. 1 Whether the testamentary provision requiring beneficiaries to attain age 26 is effective
  2. 2 Whether the beneficiaries and the sole executor can vary the dispositions in the will by a Deed of Family Arrangement
  3. 3 Whether an ex parte originating summons was appropriate in the circumstances

Ratio Decidendi

The gifts were absolute and therefore the requirement of 'attaining the age of 26' was ineffectual; all beneficiaries and the sole executor validly agreed to vary the dispositions by the Deed of Family Arrangement and the executor is bound to give effect to that Deed.

Court Disposition

Application allowed: declaration that the requirement 'attaining the age of 26' in the will is ineffectual; the Deed of Family Arrangement executed by the applicants is given effect; the sole executor must act in accordance with the Deed; order in terms of [1] to [11] of the originating summons; liberty to apply; no...

Orders

  • Declaration that the provisions in the will requiring distributions to the children only upon attaining the age of 26 are ineffectual
  • Give effect to the Deed of Family Arrangement dated 29 May 2020 and vary the dispositions in the will accordingly; the sole executor shall act in accordance with the Deed