COOK YIN PING v. ARTHUR MO WAN CHEUNG AND OTHERS

COOK YIN PING v. ARTHUR MO WAN CHEUNG AND OTHERS

On the undisputed surrounding circumstances and admissible extrinsic evidence the testator intended the Matrimonial Home to be given to his wife absolutely; clause 4 is ambiguous in context and s23B permits extrinsic evidence; Guideson/Shiftgain were mere vehicles and Philip was sole ultimate beneficial owner, so clause 4 must be construed to pass the Matrimonial Home (by transfer of the relevant company shareholding and the shareholder's loan) to the plaintiff. Re Lewis is distinguishable on the facts.

Citation
COOK YIN PING v. ARTHUR MO WAN CHEUNG AND OTHERS
Parties
Plaintiff: Cook Yin Ping; 1st Defendant; Personally and as an Executor of the Will: Arthur Mo Wan Cheung; 2nd Defendant; Personally and as an Executor of the Will: Francis Alfred Mo Wan Chi; 3rd Defendant; Beneficiary (sister): Irene Mo; 4th Defendant; Beneficiary (nephew): Andrew Mo; 5th Defendant; Beneficiary (niece): Robyn Davies née Mo; 6th Defendant; Beneficiary (nephew): Jonathan Mo; 7th Defendant; Beneficiary (formerly a Minor, Now of Full Age): Alice Mo; 8th Defendant; Beneficiary (a Minor, by Guardian and Litem Teng Min Hsien Judy): Elizabeth Mo
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
21 January 2014
Case Number
HCMP2436/2011
Procedural Posture
Miscellaneous Proceedings Construction of Will (order 85, Rule 3) / Judgment (court of First Instance, Chambers)
Outcome
Order granted in terms of paragraph 1 of the originating summons: declaration that on true construction of the Will the plaintiff is entitled to the Matrimonial Home by transfer of the 100% shareholding in Guideson and the shareholder's loan
Legal Topics
Will Construction, Extrinsic Evidence Under S23 B Wills Ordinance, Testamentary Intention, Beneficial Ownership of Company‑held Property, Misdescription/misapprehension of Assets, Matrimonial Home
Source Language
EN
Wills Probate Trusts Property Succession Evidence Will Construction Extrinsic Evidence Under S23 B Wills Ordinance +4 more

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Parties

Cook Yin Ping

Plaintiff

Arthur Mo Wan Cheung

1st Defendant; Personally and as an Executor of the Will

Francis Alfred Mo Wan Chi

2nd Defendant; Personally and as an Executor of the Will

Irene Mo

3rd Defendant; Beneficiary (sister)

Andrew Mo

4th Defendant; Beneficiary (nephew)

Robyn Davies née Mo

5th Defendant; Beneficiary (niece)

Jonathan Mo

6th Defendant; Beneficiary (nephew)

Alice Mo

7th Defendant; Beneficiary (formerly a Minor, Now of Full Age)

Elizabeth Mo

8th Defendant; Beneficiary (a Minor, by Guardian and Litem Teng Min Hsien Judy)

Procedural Posture

Miscellaneous Proceedings Construction of Will (order 85, Rule 3) / Judgment (court of First Instance, Chambers)

Legal Issues

  1. 1 Whether the phrase "all my real property whatsoever and wheresoever" in clause 4 of the Will includes the beneficial interest in the Matrimonial Home held through shelf companies and therefore passes the Matrimonial Home to the widow
  2. 2 Whether the gift should be construed to include the 100% shareholding in Guideson and the shareholder's loan
  3. 3 Whether extrinsic evidence (solicitor's letters and post‑will conduct) is admissible under s23B of the Wills Ordinance to resolve ambiguity

Ratio Decidendi

On the undisputed surrounding circumstances and admissible extrinsic evidence the testator intended the Matrimonial Home to be given to his wife absolutely; clause 4 is ambiguous in context and s23B permits extrinsic evidence; Guideson/Shiftgain were mere vehicles and Philip was sole ultimate beneficial owner, so clause 4 must be construed to pass the Matrimonial Home (by transfer of the relevant company shareholding and the shareholder's loan) to the plaintiff. Re Lewis is distinguishable on the facts.

Court Disposition

Order granted in terms of paragraph 1 of the originating summons: declaration that on true construction of the Will the plaintiff is entitled to the Matrimonial Home by transfer of the 100% shareholding in Guideson and the shareholder's loan

Orders

  • Declaration that the plaintiff is entitled to transfer of the 100% shareholding in Guideson Limited and the shareholder's loan owed by Guideson to the deceased (in terms of paragraph 1 of the originating summons)
  • Costs reserved; parties to file written submissions on costs within 14 days and any replies within a further 14 days; matter to be dealt with on paper unless otherwise directed