RE SHAM CHI SANG

RE SHAM CHI SANG

The Declaration of Trust, as registered, established the applicant's beneficial entitlement to one‑half of the Properties; the legal title held by the deceased trustee should be divested under s.45 of the Trustee Ordinance because there was no one to be served and no opposition, therefore the court removed the trustee and vested one‑half of the legal estate in the applicant absolutely.

Citation
[2019] HKCFI 278
Parties
Applicant / Beneficiary: Sham Chi Sang; Former Legal Title Holder / Trustee (deceased): Shum Yu Ching; Beneficiary (deceased): Sum Shu Yan; Co‑beneficiary / Co‑tenant in Common: Sam Fuk Kui
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
1 February 2019
Case Number
HCMP2149/2018
Procedural Posture
Miscellaneous Proceedings (trust Vesting Application) / Originating Summons Heard Ex Parte for Vesting Order Under Section 45 Trustee Ordinance
Outcome
Originating summons granted (ex parte); vesting order made.
Legal Topics
Vesting Order, Declaration of Trust, Severance of Joint Tenancy, Removal of Trustee, Beneficial Ownership
Source Language
EN
Trusts Property Land Registration Probate Vesting Order Declaration of Trust Severance of Joint Tenancy Removal of Trustee +1 more

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Parties

Sham Chi Sang

Applicant / Beneficiary

Shum Yu Ching

Former Legal Title Holder / Trustee (deceased)

Sum Shu Yan

Beneficiary (deceased)

Sam Fuk Kui

Co‑beneficiary / Co‑tenant in Common

Procedural Posture

Miscellaneous Proceedings (trust Vesting Application) / Originating Summons Heard Ex Parte for Vesting Order Under Section 45 Trustee Ordinance

Legal Issues

  1. 1 Whether a vesting order under section 45 of the Trustee Ordinance should remove the trustee and vest the legal estate in the applicant
  2. 2 Whether the Declaration of Trust established the applicant's entitlement to one‑half of the legal estate despite the legal title being in the name of the deceased trustee
  3. 3 Whether the application could proceed ex parte because there was no one to be served

Ratio Decidendi

The Declaration of Trust, as registered, established the applicant's beneficial entitlement to one‑half of the Properties; the legal title held by the deceased trustee should be divested under s.45 of the Trustee Ordinance because there was no one to be served and no opposition, therefore the court removed the trustee and vested one‑half of the legal estate in the applicant absolutely.

Court Disposition

Originating summons granted (ex parte); vesting order made.

Orders

  • Shum Yu Ching be removed as trustee of the applicant in respect of the Properties
  • One‑half share of the legal estate and interest of Shum Yu Ching of and in the Properties do vest in the applicant absolutely