Hong Kong Case Law: Decisions & Judgments | LexChat

Topic

Severance of void provisions

Legal area

Court

11 Sept 2023

NORMAN GUY DONALD AND ANOTHER v. LEE MICHAEL CHAK CHUEN in his capacity as executor of the estate of LI PAK IU AND OTHERS

Citation

[2023] HKCA 1032
Court

Court of Appeal
Case number

CACV203/2022

Clause 5(2)(f) must be read as a whole: the primary gift for Ching Sheung was void ab initio for perpetuity reasons and the proviso depended on that gift so there was no property for the proviso to operate on; therefore the proviso cannot stand independently and the appeal is dismissed; costs orders against the 5th defendant are upheld.
21 Apr 2022

NORMAN GUY DONALD AND ANOTHER v. LEE MICHAEL CHAK CHUEN in his capacity as executor of the estate of LI PAK IU AND OTHERS

Citation

[2022] HKCFI 1106
Court

Court of First Instance
Case number

HCMP610/2021

The proviso in clause 5(2)(f) is inter-related with the primary (ancestor worship) gift and cannot be severed; in any event the proviso, if severable, conferred only a mere power which has lapsed by unreasonable delay; accordingly the whole clause 5(2)(f) is void for infringing the rule against perpetuities and the one-sixth share falls to be distributed among the residuary beneficiaries under clauses 5(2)(a)-(e).