Read the full judgment text of HCMP 002941/1984 on BabelCite. This High Court CFI judgment was delivered on 27 January 1987 before Rhind J.
Succession – Construction of Will – Per capita gifts to 'children or lawful heirs' – Class closing rules – 'Rule of convenience' presumption – 'lawful heirs' meaning statutory next-of-kin – 'or' read disjunctively – 'the development of Chinese culture' as valid charitable purpose – Power of appointment – Objects of power – Conceptual certainty – 'descendants of the Hui family/clan' as conceptually certain – 'transfer for management' construed as 'transfer for ownership' – Testator writing his own dictionary – Mistake in will – Clause referring to wrong clause declared void for uncertainty – Testator owning majority of shares in company – Testator purporting to dispose of that company's income by his will – Adoption – Bequest of HK$1 million conditional on surrendering son for adoption – Infringement of public policy – On a construction summons relating to the home-made will and codicil of Testator Hui Yeung Shing who died in 1981, the court made extensive determinations – A. Clause IV(6) provided that four named grandchildren 'and in future the children or lawful heir(s) of' D4 and D5 'shall each have 1.5 per cent of the entire income' of certain shares – Court held class of grandchildren remained open until deaths of D4 and D5 (rule of convenience rebutted by words 'in future' and overall pattern of generosity) – 'lawful heirs' means statutory next-of-kin – D4's wife D8 entitled to 1.5% if she survives D4 childless (per Re Gamboa's Trusts; Re Kilvert; Defflis v. Goldschmidt; In re Bellville-Westminster Bank Ltd. v. Walton) – B. Clause IV(16) conferring power on trustees to appoint income for 'the development of Chinese culture' upheld as valid charitable purpose under both educational and public benefit heads of charity (per Weir v. Crum-Brown; Incorporated Council of Law Reporting for England & Wales v. Attorney-General; In re South Place Ethical Society; Associated Artists v. I.R.C.; Inland Revenue Commissioners v. McMullen) – C. Power in Clause IV(17) for 'descendants of the Hui family/clan' upheld as conceptually certain – 'Hui family/clan' means lineal descendants of Testator and his three deceased brothers (per Re Gulbenkian's Settlement Trusts; McPhail v. Doulton; Brown v. Gould) – D. Clauses V and VI directing transfer of assets to Yeung Shing 'for management' construed as 'for ownership' – Testator wrote his own dictionary, using 'operated' and 'managed' as alternatives for 'owned' throughout the will – Assets including $21,287,925.98 debt from Yeung Shing transferred to Yeung Shing for ownership (per In re Edwards; In re Benn; Enohin v. Wylie; Leader v. Duffey) – E. Clause X of the will declared void for uncertainty because the reference to 'Clause V' was erroneous and the court was not convinced whether the Testator meant Clause III or Clause IV (per In re Follett (deceased), Barclays Bank Ltd. v. Dovell) – F. Clause XI void because Testator owned shares in Yeung Shing, not the company's income (per In re Lewis's Will Trusts v. Lewis v. Williams) – G. Clause 4 of the codicil offering HK$1 million to a grandson for surrendering his second or subsequent son for adoption by D4 declared void as offending public policy since it tended to the separation of parent and child (per Re Morgan; Re Sandbrook; Re Boulter; Re Piper; Adoption Ordinance Cap. 290 s.25) – Sub-clauses 18 and 19 of Clause IV and Clauses XII and XIII also declared void – Codicil bequests in Clauses 1, 2, 6, 7 upheld as coming from the $21,287,925.98 debt owed by Yeung Shing to the Testator – Partial intestacy to arise at end of perpetuity period for powers in sub-clauses 12, 16 and 17, with statutory next-of-kin under Intestates' Estates Ordinance Cap. 73 to benefit
Legal issues: Whether the class of grandchildren under Clause IV(6) closed on the Testator's death or on the deaths of his second and third sons · Meaning of 'lawful heirs' in Clause IV(6) · Whether 'the development of Chinese culture' is a valid charitable purpose · Whether 'Hui family/clan' in Clause IV(17) is conceptually certain for a power of appointment · Whether 'for management' in Clauses V and VI means 'for ownership' · Whether Clause X of the will is void for uncertainty · Whether Clause XI of the will is void because the Testator did not own the company's income · Whether Clause 4 of the codicil is void as contrary to public policy
Outcome: The court determined the construction of the will and codicil as follows: (A) Class under Clause IV(6) remains open until deaths of D4 and D5, with each grandchild (including those born after the Testator's death) entitled to 1.5% of shares; 'lawful heirs' means statutory next-of-kin. (B) Clause IV(16) 'development of Chinese culture' upheld as valid charitable purpose. (C) Power in Clause IV(17) for descendants of 'Hui family/clan' (i.e. lineal descendants of Testator and his three brothers) is valid. (D) 'For management' in Clauses V and VI means 'for ownership', injecting additional assets into Yeung Shing. (E) Clause X declared void for uncertainty. (F) Clause XI void as Testator did not own Yeung Shing's income. (G) Sub-clauses 18 and 19 of Clause IV declared void as unintelligible. (H) Clause 4 of codicil void as contrary to public policy. (I) Clause XII void as improper attempt to oust jurisdiction. (J) Clause XIII declared void. (K) Codicil bequests in Clauses 1, 2, 6, 7 upheld as coming from the debt owed by Yeung Shing to the Testator. (L) Clause 3 of codicil directs monthly maintenance to D1.