RE LLC

RE LLC

The court found on the balance of medical and factual evidence that LLC suffered severe transcortical mixed aphasia and vascular dementia by August–September 2006, lacked testamentary capacity and could not have known or approved the 2006 Will; accordingly the 2006 Will did not represent her testamentary wishes and the court ordered a statutory will in terms of the 2001 Will (modified for the death of XYZ) and appointed Niece #2 and Niece #1 as joint executors.

Citation
RE LLC
Parties
Mentally Incapacitated Person: LLC; Applicant: Niece #2; Protector of Charities / Respondent: Secretary for Justice; Interim Receiver and Committee of Estate: Official Solicitor; Named Executor/trustee in 2006 Will: Hang Seng Bank (Trustee) Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
13 April 2010
Case Number
HCMP2656/2006
Procedural Posture
Application for Statutory Will Under Mental Health Ordinance Part II / Reasons for Judgment Following Judgment Ordering Statutory Will
Outcome
Statutory will ordered to be made in favour of family in terms of the 2001 Will (with modifications for deceased sister) and Niece #2 and Niece #1 appointed joint executors; 2006 Will rejected as not representing LLC's testamentary wishes
Legal Topics
Statutory Will, Testamentary Capacity, Knowledge and Approval, Appointment of Executors, Court Discretion
Source Language
EN
Mental Health Law Wills and Probate Capacity Law Charity Law Statutory Will Testamentary Capacity Knowledge and Approval Appointment of Executors +1 more

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Parties

LLC

Mentally Incapacitated Person

Niece #2

Applicant

Secretary for Justice

Protector of Charities / Respondent

Official Solicitor

Interim Receiver and Committee of Estate

Hang Seng Bank (Trustee) Limited

Named Executor/trustee in 2006 Will

Procedural Posture

Application for Statutory Will Under Mental Health Ordinance Part II / Reasons for Judgment Following Judgment Ordering Statutory Will

Legal Issues

  1. 1 Whether LLC had testamentary capacity when the 2006 Will was executed (Capacity Issue)
  2. 2 Whether LLC knew and approved the contents of the 2006 Will (Knowledge and Approval Issue)
  3. 3 If 2006 Will did not represent LLC's wishes, what dispositions would LLC have made if restored (Dispositions Issue)

Ratio Decidendi

The court found on the balance of medical and factual evidence that LLC suffered severe transcortical mixed aphasia and vascular dementia by August–September 2006, lacked testamentary capacity and could not have known or approved the 2006 Will; accordingly the 2006 Will did not represent her testamentary wishes and the court ordered a statutory will in terms of the 2001 Will (modified for the death of XYZ) and appointed Niece #2 and Niece #1 as joint executors.

Court Disposition

Statutory will ordered to be made in favour of family in terms of the 2001 Will (with modifications for deceased sister) and Niece #2 and Niece #1 appointed joint executors; 2006 Will rejected as not representing LLC's testamentary wishes

Orders

  • Order that a statutory will be made on behalf of LLC in terms of the draft will submitted by Niece #2's solicitors dated 21 December 2009
  • Appointment of Niece #2 and Niece #1 as joint executors of LLC's estate