Re Cheng Lewis Ka Hang and Others

HCMP 1082/2020

[2020] HKCFI 2499

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1082 OF 2020

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BETWEEN

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J U D G M E N T

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1.By an ex parte Originating Summons dated 28 July 2020 (“the OS”), the applicants seek various declarations and orders under Order 85 rule 2 in relation to the estate of Xu Xiaobo, deceased (“the Deceased”). The OS is supported by an affirmation made by the 2^nd applicant on 27 July 2020.

2.In his last will dated 9 November 2017 (“the Will”), the Deceased appointed his wife (“the Wife”) and the 1^st applicant to be the executors of his estate.  The Deceased passed away on 6 December 2017.  The Wife renounced her rights to grant of probate, and the probate of the estate was granted to the 1^st applicant as the sole executor of the estate.

3.The 2^nd to the 4^th applicants are the children of the Deceased (“the Children”).  The Deceased did not have any children other than the 2^nd to the 4^th applicants. In the Will, the 2^nd to the 4^th applicants are the only named beneficiaries.  The estate includes some real properties in Hong Kong and in Mainland China.

4.By the OS, the applicants seek the court’s determination on the following:

(1)  declaring that the provisions in the Will requiring the distributions of certain properties to the Children can only be done when the children “attaining the age of 26” be ineffectual;

(2)  giving effect to the Deed of Family Arrangement executed by all the applicants on 29 May 2020 (“the Deed”), the purpose of which is to vary the dispositions as set out in the Will.

5.Pursuant to the directions given by the master on 10 August 2020, the applicants’ solicitors have provided written submissions to the court in support of the OS on 7 September 2020.  Having considered the papers, including the written submissions provided by the applicants’ solicitors, I am of the view that the OS can be determined on the papers without an oral hearing.

6.Depending upon the circumstances, an application under Order 85 rule 2 may be made by an ex parte Originating Summons[1]. In this case, the sole executor and all the beneficiaries under the Will are ad idem, and they take out this application together.  No one having an interest in the estate has not been notified.  In these circumstances, I am of the view that the applicants may make this application by an ex parte Originating Summons.

7.At present, the respective ages of the 2^nd, the 3^rd and the 4^th applicants are 26, 22, and 19.  All of them have attained the age of majority, ie 18.  I have examined the provisions in the Will requiring that the distributions of certain properties to the Children can only be done when the children “attaining the age of 26”.  In my view, it is clear that the gifts to the Children are absolute gifts not subject to any condition.  That being the case, as a matter of law, the Children are entitled to have the said gifts when they attained the age of majority and have no need to wait until their 26^th birthdays[2].  All the 3 Children have already attained the age of majority, and hence they are entitled to have the gifts now.  I would allow the applicants’ application and declare the requirement of “attaining the age of 26” in the Will as ineffectual.

8.The Children, being all the beneficiaries under the Will, are entitled to enter into the Deed to vary the dispositions as set out in the Will[3]. The 1^st applicant, being the sole executor of the estate, is also a party to the Deed and hence is bound by the Deed.  In these circumstances, the dispositions in the Will shall be varied by the agreement among all the beneficiaries as set out in the Deed, and the sole executor shall act in accordance with the Deed.

9.For the reasons above, I make an order in terms of [1] to [11] of the OS.  There be liberty to apply.  Since this is an ex parte application, there be no order as to costs.

10.I thank the applicant’s legal representatives for the assistance rendered to the court.

Written submissions by Kelvin Cheung & Co, for the 1^st to 4^th applicants