Leung Siu Yin v. Tung Yuk Ying, The Executrix of the Estate of Cheung Man Yuk, The Deceased

HCMP 1891/2021

[2022] HKCFI 2624

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1891 OF 2021

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Before: Deputy High Court Judge H. Au-Yeung in Court

Date of Hearing: 22 August 2022

Date of Judgment: 22 August 2022

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JUDGMENT

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THE APPLICATION

1.This is an action commenced by way of an Originating Summons filed on 25 November 2021 (“the Originating Summons”) pursuant to which the plaintiff seeks the Court’s determination in relation to the interpretation of Clause 3 of the last will of the Deceased (“the Will”). Alternatively, the plaintiff asks for an order for rectification of the Will so as to carry out the Deceased’s true intent.

2.Clause 3 of the Will reads:

“本人將本人名下位於 [G/F - 2/F INCLUDING BALCONY & ROOF OF HOUSE 180 OF SECTION F OF YUEN KONG AT LOT 1589 IN DD106 YUEN LONG NT]之物業饋贈本人之 大嫂 [(梁小燕)，(香港身分証號碼: xxxxxxx(x)] 承受及享用。惟梁小燕必須與其丈夫張文輝(香港身分証號碼:xxxxxx(x))維持現在的婚姻狀況，以及如日後其婚姻狀況有任何的改變，梁小燕則喪失以上物業的擁有及享用權，而該物業的擁有及享用權則會轉贈其法定成年兒子 張澔銘。而在張澔銘于法定成年前梁小燕與張文輝之婚姻狀況有任何的改變，張澔銘所繼承的以上物業之擁有及享用權將由張文輝托管直至張澔銘達至法定成年年齡。”

3.The defendant has indicated by her Acknowledgement of Service that she would not contest these proceedings. 

THE AMBIGUITY

4.The alleged ambiguity stemmed from the following words in Clause 3 of the Will:

“惟梁小燕必須與其丈夫張文輝(香港身分証號碼:xxxxxx(x))維持現在的婚姻狀況，以及如日後其婚姻狀況有任何的改變，梁小燕則喪失以上物業的擁有及享用權”

5.This Court has been told that the defendant has refused to transfer the Property to the plaintiff because the meaning of “change of marital status” (“婚姻狀況有任何的改變”) was unclear to her. 

LEGAL PRINCIPLES

7.The principles applicable to the construction of a will are trite.  In Tan Cheng Gay & Others v Tan Choo Suan & Another(2015) 18 HKCFAR 430, Ribeiro PJ had the following to say:

“33. We have the benefit of the authoritative exposition of the principles applicable to the construction of wills provided by Lord Walker of Gestingthorpe NPJ in the recent decision of this Court in Chinachem Charitable Foundation Ltd v The Secretary for Justice,[1] a decision drawing substantially upon the judgment of Lord Neuberger of Abbotsbury in Marley v Rawlings.[2]

34. As Lord Walker NPJ points out, wills have as two important features (i) the fact that they are unilaterally created documents and (ii) that they have an ambulatory character, that is, that they are intended to take effect from the time of the testator’s or testatrix’s death, which may be some time after the will was executed.[3] These features must be borne in mind when construing a will.

35. Against that background, it is now established that, subject to statutory regulation, one adopts the same approach to interpreting wills as one does to interpreting contracts and other legal documents: ‘... the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context’.[4]

36. In other words, subject to statute:

‘...the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party's intentions.’[5]

37. This approach is consistent with the well-known ‘arm-chair’ principle, save that it must be kept in mind that that principle looks to context as at the time the will is made whereas the will speaks from the time of death regarding any general description of property.[6]

38. Lord Walker NPJ’s summary of the ‘two all-important principles of construction’ are of particular present relevance, namely ‘that the words must be read and understood in their context, and that the will must be read as a whole’.[7]  This requires the Court to adopt an ‘iterative’ process, checking each of the rival meanings against the other provisions of the document and investigating its practical consequences,[8] and:

‘It may require the court to go forwards and backwards painstakingly between the various words and phrases, occurring in different parts of the document, which give rise to the problem.’ ”[9]

DISCUSSION

8.The plaintiff’s counsel submitted that “惟梁小燕必須與其丈夫張文輝維持現在的婚姻狀況” is a condition subsequent, and that this provision is void for uncertainty, because the term “marital status” (“婚姻狀況”) might bear different meanings in different circumstances.  For example:

(1)  In section 2 of the Sex Discrimination Ordinance (Cap.480, Laws of Hong Kong) (“SDO”), “marital status” was defined to mean the state or condition of being:

(a)  single;

(b)  married;

(c)  married but living separately and apart from one’s spouse;

(d)  divorced; or

(e)  widowed.

(2)  In the application form for Old Age Living Allowance, six options had been given therein as possible “marital status”. They are:

(a)  never married;

(b)  married;

(c)  divorced;

(d)  separated;

(e)  widowed; or

(f)  cohabited.

9.It was therefore submitted that the meaning of “marital status” used in the context of the Will is unclear.  This has caused much concern to the parties especially the plaintiff.  This is because Mr Cheung has been diagnosed to be suffering from liver cancer in 2019.   Although he had been in remission for a while having received some treatments, cancerous cells have been discovered in his body recently and he is now undergoing treatment again.  However, the prognosis is not good, and it is worried that Mr Cheung may pass away before the plaintiff.  In such event, the plaintiff may be considered to have a change in her marital status, from “married” to “widowed”, and this may affect her entitlement to the Property pursuant to the term of the Will.

10.When interpreting the Will, it must be borne in mind that the wordings thereof should be considered as a whole, and we should not single out a few words without paying attention to the whole sentence or even other parts of the Will. 

11.The relevant part of Clause 3 reads:

“與其丈夫張文輝維持現在的婚姻狀況”

12.In my view, we should read the whole sentence together.  The words “與其丈夫張文輝” clearly show that the Deceased was concerned with whether the plaintiff and Mr Cheung would still remain husband and wife.  Therefore, the plaintiff would only be considered to have changed her marital status if she divorced Mr Cheung.  In the unfortunate event that Mr Cheung passes away, I do not think, for that fact alone and for the purpose of the Will, the plaintiff should be regarded as having a change in her marital status.

13.My view above is reinforced by reference to the extrinsic evidence adduced by the plaintiff pursuant to section 23B of the Wills Ordinance (Cap.30, Laws of Hong Kong).

14.Both the plaintiff and Mr Cheung have filed affirmations for the purpose of the Originating Summons.  Their evidence are set out as follows:

(1)  The Deceased was the plaintiff’s sister-in-law and Mr Cheung’s younger sister. The defendant was the Deceased’s cousin.

(2)  The Property was originally purchased by Mr Cheung on 11 May 1992. The plaintiff together with Mr Cheung and their son have all along been living in the Property.

(3)  The plaintiff and Mr Cheung got married on 12 August 2003.

(4)  Sometime before October 2004, Mr Cheung participated in a business project with the Deceased’s former husband who had run away with Mr Cheung’s money.  Mr Cheung had since then in great financial difficulty.  In order to get more cash for repayment to his creditors, Mr Cheung sold the Property to the Deceased. 

(5)  Despite the sale, Mr Cheung was allowed to live in the Property with his family.

(6)  Unfortunately, at the end of the day, Mr Cheung could not solve his financial problem, and he eventually had been declared bankrupt on 15 July 2008.

(7)  Mr Cheung’s Bankruptcy Order was discharged on 15 July 2013.

(8)  Although the plaintiff and Mr Cheung had offered to purchase the Property back from the Deceased on numerous occasions, such a suggestion had been turned down by the Deceased, who was always thinking to return the Property to the plaintiff and Mr Cheung because the Deceased felt guilty for what her former husband did to Mr Cheung.

(9)  However, the Deceased worried that if she transferred the Property back to Mr Cheung, his previous creditors might cause trouble with him.  The Deceased therefore told the plaintiff that she would like to bequeath the Property to her instead so as to play safe.

15.In my view, it is clear that the Deceased’s intention was that the plaintiff should only be entitled to the Property so long as she was married to Mr Cheung, that is because the Property, in the eye of the Deceased, should belong to Mr Cheung.  I do not think that it was the Deceased’s intention the plaintiff’s entitlement to the Property should in any way be affected upon the demise of Mr Cheung, so long as she has never divorced him.

CONCLUSION

16.I therefore make a declaration that it was the intent and wish of the Deceased that the phrase “change of marital status” (“其婚姻狀況有任何的改變” and “梁小燕與張文輝之婚姻狀況有任何的改變”) in the Will shall only mean “the plaintiff and Mr Cheung got divorced”.

17.For the above reason, there is no need for the Court to consider rectification of the Will.

COSTS

18.The plaintiff’s costs be paid out of the Deceased’s estate, and such costs be summarily assessed pursuant to Order 62 rule 9A(1)(a) of the Rules of the High Court at $110,000.

Mr. Ronald Pang and Mr John Fong, instructed by Huen & Cheung, for the plaintiff

The defendant was not represented and did not appear