RE LEUNG WAI JING

HCAG199/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

NON-CONTENTIOUS APPLICATION FOR GRANT NO.199 OF 2002

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D E C I S I O N

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1. The Deceased was a widow and she died on 6 October 2001 and domiciled in Hong Kong. The estate in question consists of a savings account and a deposit with her Church totalling about $200,000. The Deceased before she died had executed three documents as follows :

(a) "Document A" dated 19 December 2000;

(b) "Document B" dated 26 June 2001; and

(c) "Document C" dated 21 August 2001.

2. The three documents were drafted by the Minister of Immanuel Baptist Church, the Rev. Ho Ka Lun ("Rev. Ho") according to the expressed wishes of the Deceased. The contents of the three documents were explained to the Deceased before they were executed by the Deceased and each of them were witnessed by two witnesses.

3. Document A was drafted by Rev. Ho with the benefit of some legal advice from a member who was also a solicitor and she made some amendments to the wording. It was then executed by the Deceased before two witnesses. Documents B and C were drafted and executed without any legal advice and they were witnessed by two other persons including Rev. Ho.

4. Document C was intended to be a replacement of Document B because the beneficiary named therein, who is the grandson of the Deceased, was mistakenly named in respect of one Chinese character of his name with the same pronunciation. It is accepted that Document C is a replacement of Document B.

The issues

5. The Probate Registry accepted Document A as the valid will of the Deceased except Clause 3 therein. The Registry further rejected Document C as a codicil.

6. The second issue is whether the Church has the power to apply for the grant of representation in respect of the estate of the Deceased according to its Memorandum and Articles of Association upon incorporation as a limited company.

Clause 3 and Document C

7. By Clause 3 of Document A the testator provided that on the date of execution she deposited a sum of $50,000 with the Church for custody which should be given to her son Yip Kim Ming after her death. The Church had accordingly accepted $50,000 cash from the testator on the date of execution of Document A.

8. On the date of execution of Document B, i.e. 26 June 2001 the testator handed over $120,000 to the Church and the Church was appointed to hold it for the following three purposes :

(a)	after the death of the deceased, the Church should pay an amount of $20,000 to her grandson Yip Ka Wai provided that Yip Ka Wai shall attend her funeral ceremony;
(b)	upon Yip Ka Wai attaining the age of 18, the Church should pay a further sum of $50,000 to Yip Ka Wai; and
(c)	upon Yip Ka Wai attaining the age of 22, the Church should pay a further sum of $50,000 to Yip Ka Wai.

9. In Document B Yip Ka Wai was written with the Chinese word "Wai (偉)" whereas the correct writing of his name should be "Wai (煒)". Consequently Document C was drafted and executed again with his Chinese name corrected.

10. As I have said before, the Probate Registry took the view that Clause 3 is not a valid testamentary clause and should be severed from the rest of Document A when construing the latter as the valid will. I must say that I agree with the view of the Probate Registry for the following reasons.

11. It is well established that a valid will must embody the testamentary intention of the Deceased, meaning that it must be testamentary, ambulatory and revocable and it must not take effect until death. Williams on Wills states :

"A will is a document which is of no effect until the testator's death and until then is a mere declaration of his intention and is at all times until such death subject to revocation or variation. The execution of a will leaves the testator free during his life to dispose of his property as he pleases and operates subject to any such disposition inter vivos." (Vol. 1, para. 1.7)

"A will subjects the assets of the testator, from the moment of its execution, to a series of dispositions which, unless revoked, will operate at his death; these dispositions will remain inchoate until his death ... (Vol. 1, para. 1.7)"

12. Clauses 1, 2, 4 and 5 of Document A meet the established criteria in Williams on Wills. However, Clause 3 causes some difficulty because it provides for the immediate passing of personal property, that is $50,000 in cash, to the Church as a custodian to hold for the Deceased's son until after the Deceased's death, whereupon the money should then be passed on to the Deceased's son. As property passes out of the Deceased's hands immediately and during her lifetime, it is not a true testamentary disposition but resembles de facto a disposition inter vivos to the Church as trustee to hold upon trust for the Deceased's son. When the Deceased handed over the cash, she had effectively created a trust whereby the legal title to the cash passed to the Church already, who was holding it on trust for the Deceased's son as the beneficiary.

13. The fact that the cash received by the Church could be withdrawn or returned to the Deceased at her instruction does not necessarily mean Clause 3 is testamentary in nature. Lord Oliver stated in Baird v. Baird that :

"... it is, of course, axiomatic that an essential characteristic of a will is that, during the lifetime of the testator, it is a mere declaration of his present intention and may be freely revoked or altered. It does not follow that every document intended to operate on death and containing a power of revocation is necessarily testamentary in character."

14. On the contrary, the fact that cash could be withdrawn or returned to the Deceased at her direction is only consistent with the creation of a valid trust with a power of revocation reserved to the settlor¹.

15. Accordingly I accept the view of the learned Probate Master below (Master C.B. Chan) that Clause 3 is in its true nature a valid disposition inter vivos upon trust for the benefit of the Deceased's son. As Williams on Wills stated that :

"The fact that a document is executed as a will does not make it testamentary and whole document will not be so if it has any operation before the death of the testator, but a severable part which has no operation until death may be testamentary while the remainder is not." (Vol. 1, para. 1.8)

16. Thus in construing Document A as a valid will, Clause 3 could be severed from the rest of the valid testamentary provisions in the document.

Documents B and C

17. Solicitors for the Church submitted that Document B (and also Document C as a replacement of Document B) is a codicil to the valid will of the Deceased. They submitted that Document B contains the receipt of the payment of $120,000 from the Deceased to the Church as well as evidences the testamentary intention of the Deceased, namely that the sum should be paid to the Deceased's grandson after her death. They submitted that there is no mandatory formality for a valid codicil and therefore it is not strictly necessary for Document B to make reference to the original will.

18. The Probate Registry (as endorsed by the Probate Master) is of the opinion that Document B is not a codicil nor a later will. The Registry considered that Document B is an independent document and it does not have the characteristic of a will. Deputy Registrar C.B. Chan considered that Document B as a receipt or at most a trust and further, that such sum could not be disposed of whenever the Deceased so pleased as the money had been handed over on trusts as it were. However, in my view, even at the time of handing over the money to the Church, the Deceased had expressly reserved a power of revocation to herself to dispose of the sum as she pleased, it does not mean that it is not a trust created in favour of her grandson with the Church as the trustee. The matter was further considered by a subsequent Probate Master, Deputy Registrar J. Wong and he considered the wording of Document B supported that intention of the Deceased for signing a receipt for money handed over to the Church.

19. In any event I agree that Documents B and C is in turn not a codicil or valid will but in effect it created or evidenced a trust. It is an established principle that a codicil is a document executed in the same form as a will but which makes minor changes or additions to a stated will. In the first place, there is no doubt that Document B is not executed in the manner required for a valid will. Secondly, Document B begins with the word "Received", which prima facie suggested that it is a receipt of payment made by the Deceased to the Church.

20. Furthermore and more importantly, the wording does not evidence any testamentary intention. It is stated that the sum of $120,000 had been delivered to the Church and the Church was appointed to hold that sum for three purposes as stated therein. The words "appointed to hold" and "for the purpose of" are very often used to create express trusts. Furthermore, this formulation has the same problem as in Clause 3 of Document A as stated hereinbefore. As property passed out of the Deceased's hands immediately and during her lifetime, it is not a true testamentary disposition but resembles de facto disposition inter vivos to the Church as trustee to hold upon trust for the Deceased's son.

21. In Anderson v. Patton², the Alberta Supreme Court construed a very similar document as creating a valid trust. In that case, the document also began with the word "Received" and clearly evidenced the receipt of a sum of $5,000 from a Mr Costello and to pay out to two beneficiaries if anything should happen to the said Mr Costello. It was added that the money will be returned to Mr Costello if he should demand it.

22. Frank Ford JA, giving the majority judgment, held that a document intended to have and does have the effect of transferring the property thereof in praesenti is not testamentary, although performance or execution is postponed until after the settlor's death. Furthermore he held that the reservation of a power of revocation is not inconsistent with the creation of a valid trust and does not have the effect of making the document testamentary.

23. Anderson v. Patton has been applied and approved in many subsequent Canadian authorities. By the same analysis, as Document B effected a transfer of property in praesenti, it should be construed as creating a trust and the fact that the sum of $120,000 could be returned to the Deceased if she so wished would not by itself be inconsistent with such an analysis. As Document B creates or evidences a trust, it is neither a will nor a codicil and the question of whether it revokes Document A as the will of the Deceased does not arise at all. Document B and therefore in turn Document C should not be admitted into probate because it is not a document embodying testamentary intention.

The power of the Church to take a grant

24. A second requisition was also raised by the Registry as to whether the Church has the power under its constitution to take a grant as the executor. Master C.B. Chan has taken the following view, namely that :

"para. 4.40 and 5.204 of Tristram and Coote's Probate Practice, 28th ed. says that if the corporation (not being a trust corporation) is entitled as executor, it must be established that it has power under its constitution to take a grant through its nominee. However, you have not pointed out under which Section or Clause of the constitution of the Church (not under Cap. 29 since the Church is not a trust corporation) that it is entitled to take a grant. Please also note that power to execute trust is different to act as executor.

Further, para. 5.205 of Tristram and Coote's Probate Practice, 28th ed. is not applicable in this case since it reads 'Where a corporation ..... is entitled as a beneficiary ....., may nominate a person to apply for a grant .....' The Church is not entitled as a beneficiary."

25. Clause 3(15) of the Memorandum and Articles of Association of the Church empowers the Church to "undertake and execute trust". Solicitors for the Church therefore submitted that by the same power the Church is also empowered to take a grant. However the power to "undertake and execute trust" is different from the power "to take a grant".

Conclusion

26. Accordingly, in my decision, I came to the following three conclusions, as follows :

(a)	The Church is not entitled to take a grant of probate as the executor of the Deceased under the will as embodied in Document A since the Church has not been enabled by its own Memorandum and Articles of Association to take a grant of probate;
(b)	Clause 3 of Document A and Document C (in replacement of Document B) are not part of the will or a codicil to a will as the case may be, and thus the monies mentioned therein are not part of the estate of the Deceased;
(c)	Clause 3 and Document C have in turn created a trust whereby the Church is a trustee for the Deceased's son Yip Kim Ming in respect of the $50,000 mentioned in the aforesaid Clause 3 and for the Deceased's grandson in respect of Document C for the sum of $120,000 as mentioned therein. The Church therefore is under a legal duty as a trustee to administer the trust in respect of these two sums of monies entrusted with her by the Deceased.

Epilogue

27. It is quite analogus that solicitors for the Church have strongly submitted that the Church should be the executor and Clause 3 under Document A and Document C should be part of the Deceased's will. If they were so then they will form part of the estate but the Church, for the aforesaid reason, could not be appointed an executor. She would then have to handover the aforesaid two sums of money to the administrator to be appointed in order to execute the wishes of the Deceased.

28. However even though the Church could not be an executor, yet the Church on the other hand is a trustee of these two sums of money, the Church could immediately execute the wishes of the Deceased in respect of these two sums without having to obtain a grant of probate at all. The wishes of the Deceased in the end could be immediately realized if the Church faithfully, which I believe she certainly would, handover the money to the two respective persons at the respectively stated times according to the wishes of the testator. In the end the drafting of Rev. Ho in Clause 3 and Document C reflected truly and faithfully the whole intention of the Deceased and the beneficiaries would receive the designated sums of money immediately without further ado.

29. The monies left forming part of the estate intestate would be very minimal and they could be dealt with by the Probate Registry pursuant to section 15 of the Probate and Administration Ordinance, Cap.10 by way of Summary Administration by the Official Administrator without a formal grant of Letters of Administration. Accordingly the beneficiary under the residual estate of the Deceased i.e. the Deceased's son Yip Kim Ming should be informed by solicitors for the Church to contact the Probate Registry directly.

1 Tompson v. Browne (1835) 3 My & K 32; Anderson v. Patton (1948) 2 D.L.R. 202, Baird v. Baird [1990] 2 A.C. 548, per Lord Oliver.

2 [1948] 2 D.L.R. 202.