Fok Tse Moon v. Fok Yan Nung

HCMP000582/1978

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Coram: Zimmern, J.

Date of Judgment: 12 December 1979

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JUDGMENT

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1. The sole executor of the will of Fok Cho Min deceased by his originating summons asks the Court to determine upon the true construction of the will his power of appointment in respect of the residuary estate of the deceased and if he has no such power in what manner the residuary estate is to be dealt with. The defendant named in the summons has been appointed to represent the class of persons therein mentioned.

2. The testator's will in the Chinese language said to be in his own handwriting is dated 15th June 1975. He died on the 19th August the same year and probate was granted to the applicant the deceased's brother on 1st August 1978 the other executor named being another brother having renounced.

3. It is the certified English translation of the will which I have to construe.

4. In his will he firstly sets out his name, address then his family tree and all I need do here is to state hereunder those named and who survived him.

He then under paragraph 1 says

"All my wives and all my children alike shall have no right (whatsoever) to make inquiries into the total extent of my personal assets (or of) my estate (at my death)."

5. Under paragraph 2 he gives his executors full powers to attend to the administration of all his estate and "any other persons shall have no right to make inquiries about the same nor shall my wives and children alike have any right to do so."

6. Under paragraph 3 the testator directs his executors

Then he goes on "If there shall be a residue" (after making provisions for (a) and (b) above) "the executors shall have full power to divide (such) residue among such persons as they may deem fit, and no other persons shall have any right to interfere with and make inquiries into, the matter as I thoroughly know and verily believe that my executors are upright and reasonable men". It is after this passage that he directs the gift to Helen's children.

7. He then under the same paragraph refers to a document in writing signed on 25th March 1975 and to certain landed properties bought with his moneys some in the name of his wife and some in the name of his eldest son, who then (or so he says) without his consent transferred the properties to the mother. The testator refers to the transfer as a secret deal and goes on "To this (fraudulent) practice (on the part of FOK Shiu Ying and CHAN Sau Miu) I disagree and absolutely raise objection. For this reason I request my executors to do away with personal favour and without grudge to resort to legal action to recover the ownership of (all the said properties in the interest of my estate)."

8. It appears that after provisions for the bequests set out in (a), (b) and (c) the residuary estate remains substantial and it is clear from the affidavit of the executor what he wants to know is whether he can

This depends on the true construction of the will and the determination of the objects of the power given to the executors.

9. As to the residuary estate, the testator empowers the executors to divide it among such persons as they deem fit and no other persons shall have any right to interfere with and make inquiries into the matter. The objects of the power are obviously "such persons" but who are they? Both counsel told the Court that they cannot fault the translation but that the word "such" before the word "persons" ought to be in bracket as it is not in the Chinese will and that it is used to make the translation intelligible. It is further suggested the word in the Chinese language translated into English as [such] persons may in fact bear a wide meaning. The initial hearing was adjourned so that the applicant could call expert evidence. Professor MA Meng, a noted Chinese scholar and Professor of the Department of Chinese at the University made an affirmation which was produced in evidence and he also attended to give evidence viva voce. My conclusions from the totality of his evidence are

10. In modern usage the character has now a wider meaning and includes anything constituted by humans such as societies, firms and corporations.

11. I am grateful to Professor Ma for his enlightenment of the modern usage of the character translated as persons and the Court can now sit in the testator's arm-chair and determine objects of his bounty.

12. He writes out his own will and dies a couple of months later. Perhaps he knew or felt the end was approaching. He sets out his family tree and makes provisions for his wives and a son who is mentally handicapped and his family. He appoints two of his younger brothers to be his executors and expresses his utmost regard for them and for their integrity. He gives them full powers to divide his residuary estate. He impeaches the conduct of one of his wives and his eldest son in respect of certain property matters and requests his executors to resort to litigation against them if needs be.

13. He says "all my wives and children alike shall have no right to make inquiries into the total extent of my estate." Taking all the above into consideration I have formed the opinion the testator's mind was troubled that night and after making the provisions which he felt he had to make he could not make up his own mind as to the division of the remainder.

14. I am convinced when he wrote "the executors shall have full power to divide (such) residue among such persons as they may deem fit and no other persons shall have any right to interfere with and make inquiries into the matter" he had in his mind those living and mentioned in his family tree. There can be no half way house in this one, the objects are either the class mentioned or all persons at large and if the latter I do not think the testator would have used the expression he did. For a power to appoint a portion of the bounty say to those who have landed on the moon would not require a prop in the words "'no other persons' shall have any right to interfere" because they the 'no other persons' meaning those less travelled could not have any right of interference or enquiry. If, however, the power to appoint is limited to a class who might have a right of interference or enquiry then the testator's stipulation is logical and prudent. I find support for my conviction in the testator's codicil appended to his will wherein he says "I respectfully offer to my executors my many thanks as I consider that to administer estate is a laborious job which will involve all sorts of troubles. However (it is) hoped that for the sake of me as their elder blood brother, will please administer my estate for me sparing no labour and braving grudges from other persons. I offer many thanks again."

15. I am mindful of the plaintiff's meritorious desire to donate a portion to charity in memory of his late brother but as I have said there is no halfway house in this matter and if he is so empowered mankind at large goes with it. I regret I cannot so construe the will.

16. Accordingly I determine that the plaintiff has the power in terms of paragraph 1(b) of the summons and costs of both parties as between solicitor and clients to be paid out of the estate.

17. Certificate for counsel.

Representation:

Philip Lee (C.Y. Kwan & Co.) for Plaintiff

Patrick Chan (Johnson Stokes & Master) for Defendant