TSE MOON SAK v. TSE HUNG AND OTHERS

TSE MOON SAK v. TSE HUNG AND OTHERS

The Full Court held that testamentary capacity of a Chinese domiciled in Hong Kong is to be determined by English law (as introduced into Hong Kong) unless its application would cause injustice or oppression; on the facts and in the contemporary circumstances (1960) applying English law to testator's capacity would not cause injustice or oppression, therefore English law governs essential validity of the will.

Citation
TSE MOON SAK v. TSE HUNG AND OTHERS
Parties
Plaintiff (executor of the Will of Tse Lai Chiu, Deceased): Tse Moon Sak also known as Stephen Tse; 1st Defendant: Tse Hung also known as Tse Hung Sak; 2nd Defendant: Tse Siu Cheung; 3rd Defendant: Tse Nga Yin; 4th Defendant: Yip Wan Ching; 5th Defendant: Tse Lai Fong
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
27 March 1969
Case Number
HCMP88/1968
Procedural Posture
Probate/estate Litigation (will Validity) / Full Court Determination on Preliminary Question (applicability of English or Chinese Law)
Outcome
Preliminary question answered: testamentary capacity is governed by English law; the testator had testamentary capacity under English law.
Legal Topics
Testamentary Capacity, Applicability of English Law in Colony, Chinese Law and Custom, Intestacy V. Testacy, Wills Validation
Source Language
EN
Probate Private International Law Conflict of Laws Statutory Interpretation Colonial Law Testamentary Capacity Applicability of English Law in Colony Chinese Law and Custom +2 more

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Parties

Tse Moon Sak also known as Stephen Tse

Plaintiff (executor of the Will of Tse Lai Chiu, Deceased)

Tse Hung also known as Tse Hung Sak

1st Defendant

Tse Siu Cheung

2nd Defendant

Tse Nga Yin

3rd Defendant

Yip Wan Ching

4th Defendant

Tse Lai Fong

5th Defendant

Procedural Posture

Probate/estate Litigation (will Validity) / Full Court Determination on Preliminary Question (applicability of English or Chinese Law)

Legal Issues

  1. 1 Whether testamentary capacity of a Chinese domiciled in Hong Kong is governed by English law or by Chinese law/custom
  2. 2 Whether Chinese law as at cession (Ch'ing law) or later forms governs succession or testamentary capacity
  3. 3 Whether English law is excluded where its application would cause injustice or oppression and the temporal reference for 'local circumstances' (1843 v. later)

Ratio Decidendi

The Full Court held that testamentary capacity of a Chinese domiciled in Hong Kong is to be determined by English law (as introduced into Hong Kong) unless its application would cause injustice or oppression; on the facts and in the contemporary circumstances (1960) applying English law to testator's capacity would not cause injustice or oppression, therefore English law governs essential validity of the will.

Court Disposition

Preliminary question answered: testamentary capacity is governed by English law; the testator had testamentary capacity under English law.

Orders

  • Will's essential validity to be determined under English law; parties granted liberty to apply regarding whether any particular disposition should be governed by Chinese law or custom
  • No other substantive order made on construction; judgment handed down 27 March 1969