RE YAU WONG YAN AND OTHERS

HCMP 3338/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3338 OF 2013

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1. This is an application by ex parte originating summons for a vesting order under section 45 of the Trustee Ordinance Cap 29.

2. The applicants are four brothers who are aged between 57 and 70 years of age. They are the sons of Yau Hing (father) and Lam Kiu (mother).  Yau Hing passed away many years ago.  Lam Kiu passed away on 12 March 2003 at the age of 89 years.

3. As evident from the land search records, the two properties known as all those pieces or parcels of ground registered in the Land Registry as Section A of Lot No 2273 and Section A of Lot No 2321 both in Demarcation District No 111 (“Properties”) were originally owned by the applicant’s grandfather (ie Yau Hing’s father) Yau Tang Fong.

4. By a Succession to Property dated 12 February 1958 registered at the Land Registry, Yau Hing and Yau Chan Yi (the applicants’ late uncle) obtained ownership of the Properties and other properties as tenants in common in equal shares from their late father Yau Tang Fong.  Hence, Yau Hing owned half share of the Properties.

5. By a Succession to Property dated 6 May 1965 registered at the Land Registry, the applicants acquired beneficial interests in half share of the Properties and other properties from their late father Yau Hing with their mother Lam Kiu as their trustee.  Hence, each of the applicants beneficially owned ⅛ share of the Properties.  In the Succession to Property dated 6 May 1965, one of the applicants Yau Cho Yan was described as Yau Fuk Shang.  By a statutory declaration dated 29 July 2013 made by Yau Cho Yan, he declared that he is the one and same person described as Yau Fuk Shang in the Succession to Property dated 6 May 1965 in respect of the Properties.  To date, it is still registered at the Land Registry that Lam Kiu (even though she had passed away) was the trustee holding the legal ownership of the half share of the Properties.

6. In respect of the other half share of the Properties, the applicants’ cousins Yau Tim Yan, Yau Mei Yan, Yau Moon Yan, Yau Hon Sang and Yau Muk Fuk acquired beneficial interests in such half share of the Properties from their late father Yau Chan Yi when he passed away.  By an Approval Letter of Succession dated 16 October 2003 registered at the Land Registry, Yau Tim Yan, Yau Mei Yan, Yau Moon Yan, Yau Hon Sang and Yau Muk Fuk obtained legal ownership of half share of the Properties as tenants in common in equal shares.

7. By their affirmation dated 3 December 2013, the applicants confirmed that Lam Kiu did not have any properties of her own (except for the half share of the Properties which she held as trustee), hence no grant of probate or letters of administration of her estate were issued.  The applicants’ solicitors caused a search to be made at the Probate Registry of the High Court on 18 October 2013, and it was confirmed that no grant of probate or letters of administration of Lam Kiu’s estate had ever been issued.

8. The applicants wish to deal with their half share of the Properties. They are seeking a vesting order to the effect that Lam Kiu be removed as trustee in respect of the Properties and that the legal estate and interest of and in the their half share of the Properties do vest in them absolutely on the basis that they are sui juris and they are entitled to the Properties by virtue of the Succession to Property dated 6 May 1965.

9. I am satisfied in the circumstances that there is no one to be served with the originating summons, and that it would be in order for the application to proceed on ex parte basis. I therefore make an order in terms as sought in the originating summons that:

(a)  Lam Kiu be removed as trustee of the applicants in respect of the Properties;

(b)  the legal estate and interest of Lam Kiu in the Properties (being half share of the legal estate and interest in the Properties) do vest in the applicants as tenants in common in equal shares absolutely.

10. I make no order as to costs.