Cook Yin Ping v. Arthur Mo Wan Cheung and Others

HCMP 2436/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2436 OF 2011

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BETWEEN

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J U D G M E N T

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Introduction

1.The application before this court concerns the true construction of a will made by a former solicitor (“Philip”).

2.Philip was a successful shipping solicitor with Holman Fenwick Willan before his retirement.  He sadly died on 28 November 2005 at a young age of 56.  He is survived by his widow (“Ping”).  There were no children born out of the marriage.

3.In February 2005, Philip made a will (“Will”) in which he left “all real property” to Ping.  He then provided for an annual income respectively for Ping during her lifetime or until her remarriage, whichever earlier, and his sister Irene during her lifetime. The residuary estate would go to his nephews and nieces.  The beneficiaries including Irene are the 3rd to the 8th defendants herein (“Beneficiaries”).  The executors of the Will are Ping, and Philip’s two brothers Arthur and Francis.  Arthur and Francis are respectively the 1st and the 2nd defendants (“Co-Executors”). They adopted a neutral stance in these proceedings[1] and their attendance at the hearing had been excused.

4.The parties were living in a property in Sunrise Court in Tai Hang (“Matrimonial Home”) all throughout their marriage and up to Philip’s death. 

5.It is Ping’s case that on the construction of the Will, she should be entitled to the Matrimonial Home.  The Beneficiaries object to this on the ground that the Matrimonial Property is held in the name of a company Guideson Limited (“Guideson”), and as Philip owned no real property in his personal name at the date of his death, the clause gifting all his real property to Ping covers nothing, and is a mere surplusage.

6.As a result of the objection of some or all of the Beneficiaries, Ping took out the present originating summons for a declaration that on the true construction of the Will, she should be entitled to the transfer of the 100% shareholding Philip had in Guideson, along with a shareholder’s loan owed by Guideson to Philip.

7.Ping has filed 2 affirmations, one in support of her originating summons and one in reply to an affirmation made by Arthur.  The 4th defendant, Andrew, Philip’s nephew, had also made an affirmation on behalf of the Beneficiaries.  None of the deponents was required to attend the trial for cross examination.  Their evidence was thus not challenged and the main issue turns on Clause 4 of the Will, which will be set out in detail later in this judgment.

Background

8.Philip was born in Hong Kong in April 1949.  He studied law in England and joined the Hong Kong office of Holman Fenwick Willan in about 1983.

9.Philip acquired three shelf companies on about 31 July 1991:

(i) Guideson

(ii) Goldworld Maritime Limited (“Goldworld”)

(iii) Shiftgain Limited (‘Shiftgain”) 

10.Upon acquiring Guideson, its then shares were transferred to Goldworld and Shiftgain each holding one of the two issued shares of nominal value of HK$1 each.  On the same day, ie 31 July 1991, declarations of trust were made by Goldworld and Shiftgain declaring their respective share/s in Guideson were held in trust for Philip.

11.The following day, on 1 August 1991, Guideson entered into an agreement for sale and purchase to acquire the Matrimonial Home, and completion was on 20 September 1991.  To help fund the acquisition, Philip obtained a mortgage loan from the then Sin Hua Trust, Savings and Commercial Bank Limited, now part of Bank of China (“BOC”).

12.Philip moved into the Matrimonial Home soon thereafter.

13.Ping and Philip were married on 12 May 1994, and after marriage, they resided there continuously until Philip’s death.

14.On 8 April 2004, Goldworld transferred its share in Guideson to Shiftgain, which then executed a further declaration of trust declaring that share transferred from Goldworld was held in trust for Philip. Thereafter, Shiftgain became the sole registered shareholder of Guideson, and Philip was the sole beneficial owner of Shiftgain.

15.Philip was diagnosed with kidney cancer on 27 January 2005.  Shortly thereafter, he went to see a solicitor Mr Pat Bobby Ying Ho (“Ho”) who drafted the Will.  Philip executed the Will on 4 February 2006, which was witnessed by Ho and another.

16.Thereafter, Ping and Philip gave notice to the Lands Department for Demand Notes for Rates in respect of the Matrimonial Home, previously issued to Guideson, to be issued to Ping and Philip instead.  This arrangement was duly confirmed by the Lands Department.

17.Then on 13 April 2005, Philip arranged for the outstanding mortgage loan from BOC to Guideson to be discharged, the amount paid by Philip is now described a shareholder’s loan to Guideson (“Shareholder’s Loan”).  According to Ping, Philip then entrusted the title deeds of the Matrimonial Home as well as the company kits of Guideson and Shiftgain to Ping, and these have remained with her since.  In September 2005, Philip retired from the partnership of his law firm and sadly passed away about two months later.

18.Ping has been residing in the Matrimonial Home since Philip’s death.

19.The Co-Executors obtained probate of the Will on 29 May 2007, with power reserved to Ping to apply for and obtain double probate.  On 18 June 2007, Shiftgain transferred its shares in Guideson to the Co-Executors jointly.  Ping obtained double probate subsequently on 15 April 2008.

The Legal Principles

20.Generally on the approach on construction of a document, it has been held by our Court of Final Appeal in Jumbo King Ltd v Faithful Properties Ltd (1999) 2 HKCFAR 279 as follows[2]:

“…. The construction of a document is not a game with words. It is an attempt to discover what a reasonable person would have understood the parties to mean. And this involves having regard, not merely to the individual words they have used, but to the agreement as a whole, the factual and legal background against which it was concluded and the practical objects which it was intended to achieve. Quite often this exercise will lead to the conclusion that although there is no reasonable doubt about what the parties meant, they have not expressed themselves very well. Their language may sometimes be careless and they may have said things which, if taken literally, mean something different from what they obviously intended. In ordinary life people often express themselves infelicitously without leaving any doubt about what they meant. […] But the overriding objective in construction is to give effect to what a reasonable person rather than a pedantic lawyer would have understood the parties to mean. Therefore, if in spite of linguistic problems the meaning is clear, it is that meaning which must prevail.”

21.Further recently, our Court of Appeal has held in Fully Profit (Asia) Ltd v The Secretary of Justice, FACV 17/2012, 13 May 2013, as follows[3]:

“We have been referred to the very well-known statement of principle regarding the construction of contracts contained in the speech of Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society, to which can be added the judgment also of Lord Hoffmann NPJ in Jumbo King Ltd v Faithful Properties Ltd. What emerges from these case – and other authorities on contractual interpretation – is the overall importance of context when construing contractual terms. The statements of principle in Investors Compensation Scheme and in Jumbo King refer time and again to the relevant background against which the relevant contract and contractual terms must be viewed. It is in my view not particularly helpful in most cases to refer to the ‘ordinary and natural meaning’ of words because, as very often experience tells us, there can be much debate over exactly what is the ordinary or natural meaning of words. The surer guide to interpretation is context. Here, I would just add that in the area of statutory and constitutional interpretation, it is context that is key; context is the starting point (together with purpose) rather than looking at what may be the natural and ordinary meaning of words.”

22.As for construction of a will, it has been said that the first and great rule to which all others must bend is that that effect must be given to the intention of the testator, but the intention here in question is not the intention in the mind of the testator at the time he made his will, but that declared and apparent in his will[4]. 

23.It has further been said that the court of construction must ascertain the language of the will, read the words used and ascertain the intention of the testator from the will.  The court’s duty is not to ascertain what the actual mental intentions were.  The only question for the court of construction is what is the meaning of the words used, and the expressed intention in all cases is considered to be actual intention; the court cannot give effect to any intention which is not expressed or employed in the will[5].

24.Poon J in his Judgment in the Secretary for Justice v The Joint and Several Administrators of the Estate of Kung Nina & Or, HCMP 853/2012, 22 February 2013 has also set out the general principles of construction of a will as follows-

“28. In construing a will, the first and foremost duty of the court is to ascertain the testamentary intentions of the testator.

29. The starting point of the inquiry is to deduce the testator’s intention by giving the words of the will the meaning that they naturally bear, having regard to the contents of the will as a whole: Sammut v Manzi[6]. It is the natural meaning of the words used by the testator that matters. For the question is not what the testator meant to do when he made his will, but what the written words he uses mean in the particular case, that is, what are the expressed intentions of the testator : Perrin v Morgan[7].

30. In ascertaining the testator’s intention, the court adopts a holistic approach by looking at the entire context of the will: In re Williams[8]. The testator’s intention is to be collected from the whole will and the meaning of the will and every part of it is determined according to that intention[9]. The court must also try to give a sensible meaning and effect to every part of a will under construction.[10]

31. The court does not construe a will in vacuo. Instead, it construes the will of a testator according to its language in view of the surrounding circumstances known to him when he made the will: In re Williams[11]. Evidence of the circumstances surrounding the testator at the date of his will is therefore admissible as an aid in the construction of the will. As figuratively described by James LJ in Boyes v Cook[12]:

‘You may place yourself, so to speak, in [the testator’s] arm-chair, and to consider the circumstances by which he was surrounded when he made his will to assist you in arriving at his intention.’

32. This so-called arm-chair principle derives from the notion that the testator must have his own surrounding circumstances in mind when he made his will and used the words in his will with reference to those circumstances[13].  So in ascertaining the meaning of the words that the testator had used in his will, the court of construction is entitled to put itself in the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to declare what is the intention evidenced by the words used with reference to those facts and circumstances which were or ought to have been in the mind of the testator when he used those words: Allgood v Blake[14].”

25.Poon J’s attention was drawn to cases of Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd[15],Investors Compensation Scheme Ltd v West Bromwich Building Society[16] and  Jumbo King Ltd v Faithful Properties Ltd[17]. It has been submitted before him that the modern approach from such recent authorities may have impacted on the approach to construction of legal documents, including wills, and a greater focus on the admissible evidence of surrounding circumstances[18]. Poon J was of the view that the case before him was not the occasion to discuss whether the modern approach may have impacted on the approach to the construction of wills as he decided whether he were to proceed under the traditional “arm-chair principle” or the modern approach, he would take into account the undisputed evidence on the surrounding circumstances when the testatrix made the will.

26.The above sets out the common law principles.  As for statutory provisions, section 23 B of the Wills Ordinance[19] now sets out the circumstances when the court may have regard to extrinsic evidence:

“(1) This section applied to a will-

(a) in so far as any part of it is meaningless;

(b) in so far as the language used in any part of it is ambiguous on the face of it;

(c) in so far as evidence, other than evidence of the testator’s intention, shows that the language used in any part of its is ambiguous in the light of surrounding circumstances.

(2) In so far as this section applies to a will extrinsic evidence, including evidence of the testator’s intention, may be admitted to assist in its interpretation.”

27.Bearing in mind the above general legal principles, I turn to the facts in present case.

The Will

28.Clauses 4 and 5 of the Will provide as follows:

“4. If my said wife COOK YIN PING (曲延平) shall survive me for the period of 28 days, I give all my real property whatsoever and wheresoever not hereby or by any codicil hereto specifically disposed of (including any property over which I may have a general power of appointment or disposition by will) to my said wife COOK YIN PING (曲延平) for her own use and benefit absolutely.

5.   Should my said wife COOK YIN PING (曲延平) predecease me or die for the period within 28 days upon my death I GIVE AND BEQUEATH all my real property whatsoever and wheresoever not hereby or by any codicil hereto specifically disposed of (including and property over which I may have a general power of appointment or disposition by will) to my Trustee UPON TRUST to hold and to deal the same at their absolute discretion.”

29.As mentioned earlier, the Beneficiaries’ position is that as Philip did not have any “real estate” at the date of his death, Ping should not be entitled to the Matrimonial Home.  If this were to be accepted, the effect of the Will would be:

(i) Not only Clause 4, but also Clause 5 would be “surplusage”;

(ii) Ping would have to vacate the Matrimonial Home immediately upon Philip’s death;

(iii) Ping would only be entitled to an annual income of US$50,000 (payable every 6 months) during her life time or until she remarries, whichever is earlier, which would have to include her accommodation costs;

(iv) Philip’s sister Irene would be entitled to an annual income of US$15,000 (payable every 6 months) out of Philip’s personal property during her life time;

(v) The other of the Beneficiaries would be entitled to the remainder of the Philip’s personal property, after Ping’s death or her remarriage, whichever is earlier, and Irene’s death.

30.According to Ms Man, Counsel for the Beneficiaries, there were various other avenues to address Ping’s concerns if she genuinely felt that she should be legally entitled to the Matrimonial Home, namely:

(i) To apply for rectification of the Will under s 23A of the Wills Ordinance, if Ping thought that the Will had failed to carry out Philip’s intention, but as then pointed out by Ms Man, Ping would be out of time;

(ii) To make a claim under Inheritance (Provision for Family and Dependants) Ordinance Cap 481 for reasonable financial provision and to ask for a transfer of the company to her, but again as Ping was out of time, she would have to obtain leave from the court;

(iii) If Ping thought that Ho had failed to follow Philip’s instructions and reflected it accurately in the Will, to consider instituting legal proceedings against Ho for damages in tort.

31.Ms Man submitted that interpreting the Will in the manner suggested by Ping, would in effect be stripping the Beneficiaries of their entitlement under the Will. 

32.Save for Irene who, like Ping, is entitled to an annual income immediately upon Philip’s death, all the other beneficiaries will only come into the picture after Ping’s death or remarriage, and after Irene’s death.

33.The ‘surrounding circumstances’ at the time Philip made the Will which were not disputed by Ms Man which this court can take into account in the construction of the Will are the following:

(i) According to Ms Man, Philip had no real property at the date of his death, but according to Mr Man, Ping’s Counsel, Philip did have one real property, ie the Matrimonial Home;

(ii) Philip was married to Ping who was his only wife at the time of his death;

(iii) The Will was made subsequent to Philip being diagnosed with cancer.

34.At the date of Philip’s death, the reality was that there was no real property registered in Philip’s personal name, whether in Hong Kong or elsewhere, and the only real property in which Philip held any beneficial interest was through Shiftgain, which was the sole registered shareholder of Guideson, which in turn was the sole registered owner of the Matrimonial Home.  Although Ms Man pointed out that there was no declaration of trust executed by Guideson holding the Matrimonial Home in trust for Philip, in my view, Philip was clearly the sole ultimate beneficial owner of the Matrimonial Home. 

35.Ms Man had referred this court to the following passage from Williams on Wills-

“The ordinary meaning of a word is the meaning given to it by the ordinary society, that is, the testator’s society, of that class and period in which he lived and moved. If, therefore, the testator belonged to a district, trade or business in which a particular word has a certain meaning given to it by an existing custom, then the ordinary meaning of the word under the rule is this customary meaning, and not the meaning given to it by general English usage[20]”

36.It is not an uncommon practice in Hong Kong for a person, whether a lawyer or not, to acquire a shelf company for the purpose of holding a landed property, which may be for tax/stamp duty reasons, or for other personal or commercial reasons.  The company in such a case would thus be only a vehicle or a mechanism through which the landed property is held.  Guideson and/or Shiftgain and/or Goldworld were all shelf companies.

37.Ms Man submitted that Philip being an experienced solicitor for many years should know what “real property” meant, as opposed to shares in Guideson and/or Shiftgain, and that Clause 4 could not be taken to mean that Ping should have the shares in Guideson and also the Shareholder’s Loan, and that Philip was under a misapprehension as he had no real property at the time he made the Will.

38.Ping was Philip’s wife for over 11 years and throughout their marriage the Matrimonial Home was their only matrimonial home and that was where Philip and Ping were residing.  Philip executed the Will about a week after he was diagnosed with cancer, which ultimately claimed his life about 10 months later.  There was no evidence that Philip had made any other wills prior to the Will.  Had Philip died intestate, his estate would be distributed according to the provisions of the Intestates Estate Ordinance Cap 73.

39.Philip clearly did not want that to happen and within a few days, he went to Ho to make a will.  Philip’s clear intention from the provisions of the Will was to primarily provide financially for Ping until her death or remarriage, and secondly for his sister Irene.  The annual income provided for Ping was 3 times that for Irene.  All the rest of the Beneficiaries would only receive his/or share after the death of Ping and the death of Irene.  The diagnosis of a life threatening illness when Philip was then only 56 must have come as a shock to him.  I accept what was submitted by Mr Man, namely it was not unreasonable nor unreal for Philip not to be focusing on legal technicalities when he executed the Will. 

40.The Matrimonial Home would be Philip’s only real property, his home where he and Ping were living and had been living.  On reading the whole Will in trying to ascertain Philip’s intention from the Will, I find it was entirely natural for Philip to want to gift the Matrimonial Home to Ping, as after all that was their only home throughout their marriage.  Otherwise, there was no point in having Clauses 4 and 5 in the Will.

41.Further under s 23B of the Wills Ordinance, if the Will or any part thereof falls within s 23B (1), this court may then admit extrinsic evidence, including evidence of the testator’s intention, to assist in interpretation.

Section 23 B of the Wills Ordinance

42.Mr Man had submitted that if Clause 4 was not intended to pass the Matrimonial Home to Ping, it would be utterly meaningless, and indeed clause 5 would be utterly meaningless too[21].  Ms Man, on the other hand, submitted that Clause 4 was not meaningless, in that reading on its own it clearly meant that Philip intended to leave Ping any real property belonging to him and that Clause 4 was not unintelligible.  

43.Mr Man further submitted that for the purpose of s 23B, the word “ambiguous” should be given a broad construction and is not confined to cases where no interpretation can be given.  Further, in relation to s 23B (1)(b), as stated in Theobald on Wills (2010), if a word or phrase used in a will is ambiguous, that is capable of bearing two interpretations, both direct and circumstantial extrinsic evidence of the testator’s intention is admissible[22].  Ms Man, however, submitted that Clause 4 was not ambiguous as there was no room to interpret the clause in more than one way regarding the subject matter.

44.I consider Clauses 4 and 5 certainly ambiguous in the light of surrounding circumstances.  Further, Clause 5 does not even provide whom the Trustee was to hold the real property for, or how to deal with the ‘real property’, after the death/remarriage of Ping and the remarriage of Irene, although this is not really the issue before this court.

45.So far as the extrinsic evidence is concerned, these are mainly the following:

(i) Ho’s letter dated 10 August 2007 to Ping confirming that Philip’s intention, at the time when Ho drafted clause 4, was for her to have the Matrimonial Home[23].  Further on 14 January 2009, Ho sent a 2nd letter further explaining that as Philip was a partner of an English law firm, he did not like to be questioned in respect of legal matters, but initially Ho did discuss with Philip on whether he would only give a life interest to his wife Ping of the Matrimonial Home.  According to Ho, after some discussion, Philip decided to give the Matrimonial Home to his wife absolutely.  Ho further said he did question Philip on whether he also had other properties in England as he was there for quite a long time, but Philip told Ho that he did not have any and if he did, he was prepared to give them all to his wife also.  It was after the above discussions that according to Ho, Clause 4 of the Will was drafted.

(ii) 10 days after executing the Will, Ping and Philip gave notice to the Lands Department for Demand Notes for Rates in respect of the Matrimonial Home, issued previously to Guideson, to be issued to Ping and Philip instead[24].  The notice of change was signed by Philip.

(iii) About two months after execution of the Will, on 10 April 2005, Philip arranged for the mortgage loan from BOC to be discharged, and he retrieved the title deeds of the Matrimonial Home from BOC.  Philip then specifically informed Ping of the discharge and entrusted all the title deeds of the Matrimonial Home as well as the company kits of Guideson and Shiftgain to Ping.  These have remained in Ping’s possession continuously since.

46.Ms Man had submitted that Ho’s above letters were hearsay and should not be admitted, and that they should not be taken at face value, not least without cross examination.  Ho’s 2007 letter was written some 2 ½ years, and his 2009 letter some 4 years after the execution of the Will.  The 2009 letter was issued by Ho in his personal name and addressed to Ping, copied to the solicitors acting for the Co-Executors.  Ho had said that the discussions between him and Philip were not recorded in writing. 

47.Neither Ping nor the Beneficiaries had called Ho to give oral evidence, nor were any directions sought from this court in relation to serving Ho with any subpoena.  Even if he were called, Ho would naturally be guarded when giving evidence, in light of Ms Man’s submission that one of the courses open to Ping was to sue Ho.  I do not think much should be made out of Ping not calling Ho.

48.As Ho was the solicitor who drafted the Will, I will exercise my discretion to admit those letters notwithstanding he was not called.  Ho is a solicitor and an officer of the court and there is no reason, and indeed no evidence, that what he said in his letters were not true.  It is clear from Ho’s letters that he and Philip did not discuss or go into the legal technicalities as to the registered title of the Matrimonial Home, but nevertheless, Philip’s intention was to give Ping the Matrimonial Home. 

49.In my view, more importantly, the steps taken by Philip after the Will, as set out above clearly indicated his intention that Ping should be entitled to the Matrimonial Home without any outstanding mortgage. Otherwise why would he want the Rates Demand Notes to be sent directly to the Matrimonial Home for payment, and also why would he want to pay off the outstanding loan within about 2 months after executing the Will and to retrieve the title deeds to hand them to Ping, together will the company kits. 

50.Ms Man had, however, referred this court to the case of Re Lewis’s Will Trusts [1984] 3 All ER 930.

51.In the above case, the testator made in his will a specific bequest of his “freehold farm” to his son and of the residue of his estate to his son and daughter in equal shares.  The farm was in fact not owned by the testator but held by a company of which the testator was a 75% shareholder.  On his death, the question arose as to whether his 75% shares in the company passed to his son or formed part of the residuary estate.

52.It was held by Scott J in Re Lewis Will Trusts that if a testator at the time he made his will was under a misapprehension as to what he owned, the court could not alter the language of the will so as to make the gift in the will apply to a different asset altogether, notwithstanding that the court might be satisfied what the testator would have done if he had directed his mind to the actual asset he owned. 

53.In Re Lewis Will Trust, it was accepted by Scott J that it was clear from the Will that the testator had intended to dispose of the farm to his son.  However, Scott J pointed out that “This is not a case, as it seems to me, of misdescription.  The evidence … makes it quite plain to my mind that the testator intended to dispose of, and thought he was disposing of, the farm.  The evidence also makes it quite clear that he did not when he made his will have in mind his shares in [the company] and did not have in mind that the farm in fact was owned by that company.  He intended to describe and did describe the farm.  He did not intend to describe and he did not describe his shares. In such a case, therefore, authority relating to the circumstances in which, as a matter of construction, it is appropriate to correct an inaccurate description of the subject matter of a gift does not seem to me to assist[25].”

54.Scott J then concluded with these words: “In this case I am wholly satisfied that the testator intended his son to have the farm.  But he did not own the farm so as to be able to make that gift.  He owned shares in the company which owned the farm; 750 out of 1,000 such shares.  What gift he would have made had he had in mind that that was the nature of his assets.  I do not know, and ought not, in my judgment, to speculate about.  Even if I had been satisfied that if he had directed his mind to the matter he would have disposed of his 750 shares to the plaintiff, in my judgment, as a matter of principle, I cannot so construe cl 5 of this will.”

55.Re Lewis’s Will Trusts has been applied in Hong Kong in Ng Chi-Fong & Ors v Hui Ho Pui-Fun & Ors [1987] HKLR 462.  In that case, the testator purported to make provision from the surplus income in a company which he did not own, although he owned the vast majority of the shares in the company and was in no position to give away the company’s income.  It was held the relevant clause in the home made Chinese will and codicil was invalid.

56.In response, Mr Man had referred this court to In re Glassington, Glassington v Follett [1906] 2 Ch 305 (ChD) where the testatrix devised all her real estate to trustees upon trust to pay, among other things, a life annuity to her husband and to her sister.  The testatrix was not beneficially entitled to any real estate either at the date of her will or at her death, but at both those dates she was entitled, subject to certain subsisting annuities, to a moiety of the income and capital of the proceeds of sale of certain freehold property devised by her father’s will upon trust for sale and vested in her as trustee of his will.  It was held therein that the devise in the testatrix’s will passed all the beneficial interest to which she was entitled in the real estate held upon trust for sale under her father’s will.

57.It was further said by Joyce J in Re Glassington that although the testatrix had not, and never had, any real estate, except as trustee, in the strict legal technical sense, but in a popular sense she had, and nine out of ten ordinary persons would have said that she was entitled to real estate, and that there could be little doubt as to what she herself would have answered if she had been asked whether or not she was entitled to real estate[26](emphasis added). In coming to his conclusion, Joyce J had considered the extrinsic evidence to explain terms used which, when taken literally, were not sensible with regard to the surrounding circumstances[27] .

58.In Re Lewis’s Wills Trusts, Scott J had referred to the principle in Re Glassington that if one can be satisfied that the testator or testatrix did intent, under the denomination of whatever has been referred to, to dispose of the particular asset which he had, then the judge would be entitled be to give effect to that intention[28].  Although Scott J said he could quite see in Re Glassington how, on the facts of that case, it was a necessary interence that the testatrix, in referring to ‘real estate’ had in mind the interest which she held under the trust of real estate, he distinguished the facts of that case from the facts in Re Lewis’s Will Trusts.  He was of the view that in Re Lewis’s Will Trusts, it was very difficult, and in his judgment it could not be done, to conclude that the testator, in referring to ‘my freehold farm’ had in mind his shares in the company.

59.I accept what was submitted by Mr Man, the facts of Re Lewis’s Will Trust can be distinguished from the present one.  In Re Lewis’s Will Trust , the testator had wanted to give to his son the “freehold farm”, which was held in a company and the testator only held 75% in that company, and further , the company held other assets.

60.Guideson, as I have mentioned earlier, was a shelf company, holding only one asset, namely the Matrimonial Home and Philip was the only beneficial owner of the interest in the Matrimonial Home through Guideson and/or Shiftgain.  Guideson and/or Shiftgain, and also Goldworld were only acquired one day before Philip purchased the property, and they were clearly only vehicles through which Philip wanted to hold his interest in the Matrimonial Home. 

61.There was no evidence that any of these companies having any other landed properties other than the Matrimonial Home. From the accounts of the estate prepared by the solicitors for the Co-Executors , there were deposits and current accounts at HSBC held under name of Shiftgain but were held on trust for Philip.  The safe deposit opened in the name of Shiftgain was empty.  There was no evidence that Guideson held any other assets or bank accounts other than the Matrimonial Home and the so called Shareholder’s Loan.

62.It was not disputed that Philip was the one who paid for the initial deposit, down payment, monthly mortgage payments, other outgoings and the final discharge of the mortgage.  There was no evidence that any of those payments made by Philip towards the Matrimonial Home had been deemd or recorded as “shareholder’s loans” in the books or accounts of Guideson and/or Shiftgain.  The only amount seems to be the Shareholder’s Loan of HK$2.4m odd paid to BOC in April 2005 to discharge the outstanding balance of the mortgage loan.  I understand that this was only deemed a “shareholder’s loan” in the schedule of property in the Probate granted to the Co-Executors.  No audited accounts of Guideson and/or Shiftgain had been produced to this court.

63.Further, I note in the 1992 and 2004 Annual Returns of Guideson, in relation to the item “Mortgages and Charges” no outstanding amount/s had been stated. 

64.Having considered the evidence and the facts of this case, as in Re Glassington, even though Philips did not hold the Matrimonial Home in the strict legal technical sense, but in a popular sense, he owned the Matrimonial Home.  There was no evidence to show that there was anything wrong with the marriage between Philip and Ping or that they were not happily married until Philip’s death.  There was no reason as to why Philip would want Ping to be evicted from the Matrimonial Home immediately upon his death, with no secure roof over her head, and receiving an annual income of only US$50,000 payable every 6 months.

65.Having considered all the surrounding circumstances, and also the extrinsic evidence, I find it was Philip’s intention for Ping to have the Matrimonial Home absolutely, and it was not his intention that Ping should have to pay the Shareholder’s Loan.

Conclusion

66.In view of my conclusions, I grant an order in terms of paragraph 1 of the originating summons.

67.I will reserve the question of costs and direct that the parties to lodge their written submissions within 14 days, and any replies to be lodged within 14 days thereafter.  The matter will be dealt with on paper, unless otherwise directed.

68.Lastly, I would like to express my gratitude to all Counsel for their helpful submissions and assistance to the Court.

Mr Bernard Man and Mr Hugh Lam, instructed by Anthony Chiang & Partners, for plaintiff

Mayer Brown JSM, for 1st and 2nd defendants (excused)

Ms Phoebe Man, instructed by Fairbairn Catley Low & Kong, for 3rd, 4th, 5th, 6th, 7th and 8th defendants