WAN SIU FONG AND OTHERS v. WAN CHI SUN

WAN SIU FONG AND OTHERS v. WAN CHI SUN

Clause 3 created an absolute vested interest in the three named beneficiaries at the testator's death; the words 'absolutely' and 'respectively' show that each grandchild's share was vested at death and only enjoyment/payment was postponed until each attained 21; clause 6 is residuary and not a gift over of the specific devise; therefore accumulated rental income (less proper deductions) must be accounted for to the plaintiffs.

Citation
WAN SIU FONG AND OTHERS v. WAN CHI SUN
Parties
1st Plaintiff: Wan Siu Fong; 2nd Plaintiff: Kwong Chi Yiu; 3rd Plaintiff: Kwong Chi Wai; Defendant, Sole Executor of the Estate of Lok Ching Lin Deceased: Wan Chi Sun
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
23 January 2009
Case Number
DCCJ4636/2007
Procedural Posture
Civil Probate/trust / Judgment (district Court)
Outcome
Judgment for plaintiffs: plaintiffs entitled to accumulated rental income from the property (subject to deductions); executor ordered to account; costs to follow the event and borne by the estate.
Legal Topics
Vested Versus Contingent Legacy, Construction of Wills, Joint Tenancy and Survivorship, Accumulation of Rents and Profits, Executor's Duty to Account, Costs and Interest
Source Language
EN
Wills and Probate Trusts and Fiduciary Duties Property Law Equity Vested Versus Contingent Legacy Construction of Wills Joint Tenancy and Survivorship Accumulation of Rents and Profits +2 more

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Parties

Wan Siu Fong

1st Plaintiff

Kwong Chi Yiu

2nd Plaintiff

Kwong Chi Wai

3rd Plaintiff

Wan Chi Sun

Defendant, Sole Executor of the Estate of Lok Ching Lin Deceased

Procedural Posture

Civil Probate/trust / Judgment (district Court)

Legal Issues

  1. 1 Whether the gift under clause 3 vested at the testator's death or was contingent on the 2nd and 3rd plaintiffs attaining 21
  2. 2 Whether the will provided a gift over/residuary disposition that would take accumulated rents if the specific gift was contingent
  3. 3 Whether the plaintiffs are entitled to accumulated rental income from the property between 1 Sept 1997 and 20 July 2006

Ratio Decidendi

Clause 3 created an absolute vested interest in the three named beneficiaries at the testator's death; the words 'absolutely' and 'respectively' show that each grandchild's share was vested at death and only enjoyment/payment was postponed until each attained 21; clause 6 is residuary and not a gift over of the specific devise; therefore accumulated rental income (less proper deductions) must be accounted for to the plaintiffs.

Court Disposition

Judgment for plaintiffs: plaintiffs entitled to accumulated rental income from the property (subject to deductions); executor ordered to account; costs to follow the event and borne by the estate.

Orders

  • Defendant, as executor, to account for accumulated rental income from 1 September 1997 to 20 July 2006 in respect of the ground floor of DD227 Lot 758 after deduction of usual expenses (rates, funeral, legal, management fees)
  • Clause 3 held to be an absolute vested gift at the testator's death; clause 6 is residuary only and not a gift over of the specific devise