CHAN MAN YIU AND OTHERS v. AN MAN YIU the executor of the estate of Tang Yuk Chun, deceased AND OTHERS

CHAN MAN YIU AND OTHERS v. AN MAN YIU the executor of the estate of Tang Yuk Chun, deceased AND OTHERS

The descriptions in the 2006 Will were ambiguous in light of surrounding circumstances (assignments and Deeds of Mutual Covenant showing the car parking space and cocklofts were incident to the respective titles). Extrinsic evidence (the solicitor's evidence and comparison with the 1998 Will) established the Deceased's true intention that the car parking space be devised with the Apartment to the Applicants and that the two cocklofts be devised with Shop 1 and Shop 2 to the 1st Applicant; accordingly a declaration to that effect was granted and rectification was unnecessary.

Citation
[2018] HKCFI 922
Parties
1st Applicant: Chan Man Yiu; 2nd Applicant: Chan Sophie Shuk Yee; 3rd Applicant: Chan Polly Pui Yee; 4th Applicant: Chan Arnold Wing Hang; 5th Applicant: Chan Albert Wing Tsuen; 1st Respondent (executor): Chan Man Yiu; 2nd Respondent: Chan Wong Helen Lai Wa; 3rd Respondent: Chan Fung Hing; 4th Respondent: Hiromi Uchibori
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
3 May 2018
Case Number
HCMP3470/2015
Procedural Posture
Will Construction and Alternative Rectification Application / Hearing of Originating Summons and Judgment on Declaration (reasons for Decision)
Outcome
Declaration granted as sought; counterclaim dismissed; costs to be borne by the Estate
Legal Topics
Will Interpretation, Rectification of Will, Admission of Extrinsic Evidence, Construction of Ambiguous Bequests, Proprietary Rights in Land, Costs
Source Language
EN
Wills and Probate Property Law Civil Procedure Equity and Trusts Will Interpretation Rectification of Will Admission of Extrinsic Evidence Construction of Ambiguous Bequests +2 more

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Parties

Chan Man Yiu

1st Applicant

Chan Sophie Shuk Yee

2nd Applicant

Chan Polly Pui Yee

3rd Applicant

Chan Arnold Wing Hang

4th Applicant

Chan Albert Wing Tsuen

5th Applicant

Chan Man Yiu

1st Respondent (executor)

Chan Wong Helen Lai Wa

2nd Respondent

Chan Fung Hing

3rd Respondent

Hiromi Uchibori

4th Respondent

Procedural Posture

Will Construction and Alternative Rectification Application / Hearing of Originating Summons and Judgment on Declaration (reasons for Decision)

Legal Issues

  1. 1 Whether descriptions in the 2006 will were ambiguous in light of surrounding circumstances
  2. 2 Whether extrinsic evidence establishes the Deceased's true intention to include the omitted car parking space and cocklofts
  3. 3 Whether rectification of the will under s23A was required or whether a declaration under s23B sufficed

Ratio Decidendi

The descriptions in the 2006 Will were ambiguous in light of surrounding circumstances (assignments and Deeds of Mutual Covenant showing the car parking space and cocklofts were incident to the respective titles). Extrinsic evidence (the solicitor's evidence and comparison with the 1998 Will) established the Deceased's true intention that the car parking space be devised with the Apartment to the Applicants and that the two cocklofts be devised with Shop 1 and Shop 2 to the 1st Applicant; accordingly a declaration to that effect was granted and rectification was unnecessary.

Court Disposition

Declaration granted as sought; counterclaim dismissed; costs to be borne by the Estate

Orders

  • Declaration that under the 2006 Will the omitted car parking space is devised with the Apartment to the Applicants
  • Declaration that under the 2006 Will the omitted Cockloft 1 is devised with Shop 1 and Cockloft 2 is devised with Shop 2 to the 1st Applicant