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Lee Charles v Lee Yan Chun And Others

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date30 September 2008
Year2008
Judgement NumberHCMP1709/2007
Subject MatterMiscellaneous Proceedings
CourtHigh Court (Hong Kong)
HCMP001709/2007 LEE CHARLES v. LEE YAN CHUN AND OTHERS

HCMP 1709/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1709 OF 2007

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IN THE MATTER OF SECTIONS 56 OF PROBATE AND ADMINISTRATION ORDINANCE, CAP. 10
and
IN THE MATTER OF ORDER 85 OF THE RULES OF HIGH COURT, CAP. 4
and
IN THE MATTER OF THE ESTATE (“the Estate”) OF LEE DA KOR (李大可), DECEASED (“the Deceased”)

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BETWEEN
LEE CHARLES (李揚波) Plaintiff
and
LEE YAN CHUN (李揚真),
LI YEUNG TAK LUGEE (李揚德) and
LEE ANNIE YEUNG NING (李揚寧),
the Executors and Trustees of the Estate
of LEE DA KOR, Deceased		 Defendant

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Before: Hon Sakhrani J in Chambers

Date of Hearing: 23 September 2008

Date of Judgment: 30 September 2008

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JUDGMENT

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1. This is the plaintiff’s application by the amended summons dated 23 July 2008 for an order that the plaintiff do have leave to amend the originating summons (“the OS”) in the terms of the draft annexed to the amended summons and for consequential directions.

2. The amendments sought are to add additional defendants and to seek relief against the additional defendants as well as the existing defendants.

3. The background facts are that these proceedings concern the estate of Lee Ka Dor (“the deceased”) who died on 18 May 2004 leaving a will dated 18 December 2001 (“the Will”). The defendants were appointed executors and trustees under the Will. Probate of the Will was granted in Hong Kong on 4 January 2007.

4. It will be convenient to refer to the defendants and the proposed defendants as follows:

Lee Yan Chun (‘D1”);

Li Yeung Tak Lugee (“D2”);

Lee Annie Yeung Ning (“D3”);

Wong Yu Ching (“D4”);

Lee Yeung Chuen (“D5”);

Lee Yeung Kong (“D6”);

Lee Yau Fun Cindy (“D7”);

Li Yeung Hing (“D8”);

Lee Dianna Yeung Chu (“D9”).

5. D1, D2, D5, D6, D7 and D8 are the natural children of the deceased and Ng Ming Fun who has also passed away.

6. D3 is the natural child of the deceased and D4.

7. The plaintiff and D9 are the natural children of the deceased and Madam Fan.

8. Under the Will the deceased made distributions of shares in a private company to the beneficiaries as provided in the Will. The plaintiff was to be given 15,000 shares in the company. The deceased’s residuary estate was to be divided into 9 equal shares and distributed to the plaintiff, Ng Ming Fun, D1, D4, D5, D6, D7, D8 and D9.

9. About one month prior to the deceased’s death the deceased transferred the shares which were to be given to the plaintiff under the Will to D4 as a gift. The plaintiff’s case is that as a result of this the plaintiff and the other 8 beneficiaries of the residuary estate entered into a Deed dated 8 June 2004 (“the Deed”) thereby varying the dispositions made under the Will.

10. Two other deeds were also entered into but they are not relevant to the matters before me.

11. The Deed was made between the plaintiff, Ng Ming Fun, D1, D4, D5, D6, D7, D8 and D9, all the 9 beneficiaries of the residuary estate of the deceased. As set out in the Deed at the date of his death the deceased had accounts in Canadian currency in the Royal Bank of Canada in Vancouver, British Columbia, Canada (“the Canadian accounts”) which formed part of the residuary estate. By the Deed the parties agreed, inter alia, as follows:

“ 1. Each of the Beneficiaries hereby conveys and assigns unto the [plaintiff] all of his or her respective share, benefit, estate and interest in that portion of the residuary estate of the Deceased which consists of the Deceased’s Accounts in Canada and hereby covenants to hold all the monies in the Deceased’s Accounts in Canada unto the [plaintiff] absolutely;”

…………………………………………

5. Each of the Beneficiaries hereby covenants each other and with the [plaintiff] that he or she would procure the Executors of the Will of the Deceased to:

(a) Confirm this Deed as soon as practicable upon obtaining a grant of the Will of the Deceased in Hong Kong;

(b) release all monies in the Deceased’s Account in Canada to the [plaintiff] as soon as practicable after obtaining a grant of the Will of the Deceased in the Province of British Columbia and upon retaining sufficient monies from the Deceased’s Accounts in Canada for payment of taxes, fees, assessments and duties as aforesaid but in any event, not later than 6 months after obtaining a grant of the Will in Canada.”

12. D1, D2 and D3 as the executors and trustees of the Will are in the course of the administration of the estate.

13. It is trite that a residuary legatee has no interest in a defined part of the estate until the residue is ascertained. His right, which is transmissible, is to have the estate properly administered and applied for his benefit when the administration is complete. Such a right is a chose in action. (para 78-04 Williams, Mortimer & Sunnucks on Executors, Administrators and Probate 19th Edn.).

14. The plaintiff’s case is that the Deed constitutes an agreement by the plaintiff and the other 8 beneficiaries of the residuary estate to alter the dispositions under the Will which, once communicated to the executors, is binding on them (Crowden and another v Aldridge and others [1993] 1 WLR 433).

15. In Crowden the memorandum signed by each of the residuary legatees showed on its face an intention to create a document having immediate legal effect directing the executors to vary their obligations in the administration and distribution of the estate. Deputy Judge Sumption QC said at 438-439:

“ At the time when the memoranda were signed, none of the signatories had any beneficial interest in the estate. But they did have a right, enforceable in a Court of Equity, to compel the executors to do their duty.

It is not in doubt that a will, or more properly the obligations of executors in administering an estate assigned to it, may be varied by a direction given by all the relevant legatees. It is conceded that the deed would have had this effect if all the residuary legatees had executed it in this case. The exact juridical analysis of the transaction is obscure, but in my judgment it operates in the same way as a unanimous direction to trustees by all the relevant beneficiaries under a trust. Such a direction can in law create an interest in a third party enforceable directly by him against the trustees: In re Chrimes; Locovich v. Chrimes [1917] 1 Ch. 30, 36-37, and In re Wale decd.; Wale v. Harris [1956] 1 W.L.R. 1346, 1350-1351.

This is sometimes described as an assignment of the interest of the directing beneficiaries to the third party, but it is in fact simply an alteration of the trusts on which the property is held.”

16. The plaintiff’s position as submitted by Ms Tong, for the plaintiff, is that the residuary beneficiaries’ rights to the monies in the Canadian accounts should be transferred to the plaintiff upon completion of the administration pursuant to the Deed.

17. It seems to me that on the authority of Crowden the plaintiff’s contentions are plainly arguable.

18. The evidence shows that the solicitors for D1, D2 and D3 have written to the beneficiaries asking them, inter alia, to inform them whether they executed the Deed, whether they agreed to be bound by the terms of the Deed and whether they would procure D1, D2 and D3 to do the acts as set out in Clause 5 of the Deed. Only D4 and D9, who is the natural sister of the plaintiff, have confirmed that they had executed the Deed and agreed to be bound by it. No confirmation from the other beneficiaries has been received. Not even from D1 who was a party to the Deed in her personal capacity as a beneficiary of the residuary estate.

19. By paragraph 14 of the affirmation of...

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