RE YAU, SUNG KEUNG late of Unit A, Ground Floor, 34A Tseng Lam Shue Village, Sai Kung, New Territories, Married Man, deceased (“the Deceased”)

RE YAU, SUNG KEUNG late of Unit A, Ground Floor, 34A Tseng Lam Shue Village, Sai Kung, New Territories, Married Man, deceased (“the Deceased”)

The court found the Deceased intended specific physical parts (Block A to the Mother and Block B to the Daughter). The Rectification Order that converted those intended physical blocks into equal half-shares effectively rewrote the will rather than correcting clerical errors and therefore could not stand; the Rectification Order was set aside though procedural irregularity in failing to exhibit beneficiary comments was waived.

Citation
[2022] HKCFI 749
Parties
Deceased/testator: Yau, Sung Keung; Executrix and Trustee: Yau Mui Yin; Beneficiary (mother): Shan Nang; Beneficiary and Applicant to Set Aside Rectification Order (minor): Yau Yik Chun
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
14 March 2022
Case Number
HCAG13744/2019
Procedural Posture
Application to Set Aside Rectification of Will Under Section 23 a Wills Ordinance / Summons Heard in Chambers After Ex Parte Rectification Order; Final Decision on Application to Set Aside Rectification Order
Outcome
Application allowed; Rectification Order set aside
Legal Topics
Rectification of Wills, Clerical Error, Testator's Intentions, Ex Parte Procedure, Practice Directions, Inheritance Claims by Family Dependants
Source Language
EN
Wills and Probate Inheritance Civil Procedure Trusts Rectification of Wills Clerical Error Testator's Intentions Ex Parte Procedure +2 more

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Parties

Yau, Sung Keung

Deceased/testator

Yau Mui Yin

Executrix and Trustee

Shan Nang

Beneficiary (mother)

Yau Yik Chun

Beneficiary and Applicant to Set Aside Rectification Order (minor)

Procedural Posture

Application to Set Aside Rectification of Will Under Section 23 a Wills Ordinance / Summons Heard in Chambers After Ex Parte Rectification Order; Final Decision on Application to Set Aside Rectification Order

Legal Issues

  1. 1 Whether section 23A Wills Ordinance applied to permit rectification
  2. 2 What were the testator's testamentary intentions regarding physical division (Block A and Block B) of the building
  3. 3 Whether the Rectification Order altered the will beyond clerical correction (i.e. rewrote the will into half-shares)

Ratio Decidendi

The court found the Deceased intended specific physical parts (Block A to the Mother and Block B to the Daughter). The Rectification Order that converted those intended physical blocks into equal half-shares effectively rewrote the will rather than correcting clerical errors and therefore could not stand; the Rectification Order was set aside though procedural irregularity in failing to exhibit beneficiary comments was waived.

Court Disposition

Application allowed; Rectification Order set aside

Orders

  • The Rectification Order dated 21 November 2019 is set aside
  • Costs nisi: costs of all parties (including any reserved costs) to be paid out of the estate, to be taxed if not agreed