RE HO SIU KAY AND OTHERS

RE HO SIU KAY AND OTHERS

Where a trustee has died and there is no personal representative, the court may, under s45 Trustee Ordinance, grant a vesting order and may exercise its discretion to vest the land directly in the beneficiaries; where there are no other interested parties the application can properly proceed ex parte.

Citation
[2021] HKCFI 2877
Parties
1st Applicant: HO SIU KAY (何少其); 2nd Applicant: HO SIU KAY (何少基); 3rd Applicant: HO SIU WAH (何少華); Deceased Trustee: Yeung Fung Lan
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 September 2021
Case Number
HCMP1065/2021
Procedural Posture
Miscellaneous Proceedings Vesting Order Under S45 Trustee Ordinance / Decision After Ex Parte Hearing at First Instance
Outcome
Vesting order granted in terms of §§2-3 of the Originating Summons; the order sought in §1 to remove the deceased trustee was not made.
Legal Topics
Vesting Order, Trustee Death, Section 45 Trustee Ordinance, Ex Parte Application
Source Language
EN
Trusts Succession Property Law Civil Procedure Vesting Order Trustee Death Section 45 Trustee Ordinance Ex Parte Application

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Parties

HO SIU KAY (何少其)

1st Applicant

HO SIU KAY (何少基)

2nd Applicant

HO SIU WAH (何少華)

3rd Applicant

Yeung Fung Lan

Deceased Trustee

Procedural Posture

Miscellaneous Proceedings Vesting Order Under S45 Trustee Ordinance / Decision After Ex Parte Hearing at First Instance

Legal Issues

  1. 1 Whether a vesting order should be made under s45 Trustee Ordinance where the trustee has died and no personal representative has been appointed
  2. 2 Whether the court may vest the property directly in the beneficiaries rather than appoint a new trustee
  3. 3 Whether the application may proceed ex parte in the absence of other interested parties

Ratio Decidendi

Where a trustee has died and there is no personal representative, the court may, under s45 Trustee Ordinance, grant a vesting order and may exercise its discretion to vest the land directly in the beneficiaries; where there are no other interested parties the application can properly proceed ex parte.

Court Disposition

Vesting order granted in terms of §§2-3 of the Originating Summons; the order sought in §1 to remove the deceased trustee was not made.

Orders

  • Vesting order granted in terms of §§2-3 of the Originating Summons vesting the said Property in the applicants
  • The application for an order removing Yeung Fung Lan as trustee as sought in §1 of the Originating Summons is not made