CHAN MAN YIU AND OTHERS v. AN MAN YIU the executor of the estate of Tang Yuk Chun, deceased AND OTHERS

HCMP 3470/2015

[2018] HKCFI 922

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3470 OF 2015

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REASONS FOR DECISION

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Introduction

1.  The applicants in these proceedings sought a declaration of the true intent and wish of Madam Tang Yuk Chun (“Deceased”) under a will made in 2006 (“2006 Will”), or alternatively, a rectification of the 2006 Will, in relation to the description of the Deceased’s properties set out therein.

2.  The description of one of the immovable properties in the 2006 Will did not include the car parking space, and the descriptions of two other of the immovable properties did not include their respective cockloft. 

3.  At the hearing on 2 March 2018, this Court granted a declaration sought by the 5 applicants (collectively referred to as “Applicants”) that it was the true intent and wish of the Deceased under the 2006 Will that the omitted car parking space be devised to the Applicants and the omitted two cocklofts be devised to the 1^st applicant Mr Chan Man Yiu (“A1”). This Court further ordered that costs of the application be borne by the estate of the Deceased (“Estate”).

4.  This Court’s reasons are set out hereinafter.

Background 

5.  The Deceased died in Hong Kong on 23 March 2010.  She was a widow with two children, namely her son A1 and her daughter, the 3^rd respondent herein (“R3”).

6.  The Deceased had made an earlier will in 1998 (“the 1998 Will”).  On 15 May 2002, the Deceased had also made a statutory declaration at the District Office stating that if she had any serious illness that there was no need to use all types of medical treatment/medications to save her[1] (“Statutory Declaration”). 

7.  She later made the 2006 Will on 18 January 2006.  The 2006 Will was her last will, and there was no challenge to the validity of the 2006 Will.

8.  A1 was named the sole executor of the 2006 Will.  A1 was granted probate of the 2006 Will on 19 October 2010. 

9.  The 2^nd respondent/R2 is the wife of A1, and the 2^nd to 5^th applicants are their children.  R2 did not contest this application.

10.  R3 and her daughter R4 were the only parties contesting the present application.

11.  At the time of her death, the Deceased was the registered owner of the following immovable properties:

(i) an apartment at Block A, Greenville Gardens, No 14, Shui Fai Terrace (“Apartment”) and a carparking space at Block A, Greenville Gardens (“Car Parking Space”);

(ii) A shop (“Shop 1”) on ground floor at No 39, Tang Lung Street including a cockloft (“Cockloft 1”);

(iii) A shop on ground floor at Nos 6-16, Tai Wong Street East (“Shop 2”), including a cockloft (“Cockloft 2”);

(iv) A shop on ground floor at No 160 Johnston Road (“Shop 3”);

(v) A shop on 2^nd floor at No 144 Johnston Road (“Shop 4”).

12.  By the 2006 Will, the Deceased devised the immovable properties to the Applicant as follows:

(i) The Apartment to the Applicants;

(ii) Shop 1 to A1;

(iii) Shop 2 to A1;

(iv) Shop 3 to A1-A5;

(v) Shop 4 to A1.

13.  The Deceased further made specific and/or pecuniary legacies in the 2006 Will as follows:

(i) each item of her jewellery be given to the person with his/her name marked theron;

(ii) A sum of HK$500,000 to her sister, and if her sister should pre-decease her, the sum would form part of the residuary estate;

(iii) A sum of HK$1m to her granddaughter R4, and if R4 should pre-decease her, the sum would form part of the residuary estate;

(iv) A sum of HK$500,000 to her niece, and if her niece should pre-decease her, the sum would part of the residuary estate;

(v) A sum of HK$500,000 to the Tung Wah Group for charitable use;

(vi) A sum of HK$500,000 to Po Leung Kuk for charitable use.

14.  The Deceased bequeathed her residuary estate, after deduction of all her debts, funeral expenses and administration expenses of her estate, to 8 persons in equal shares, namely:

(i) The Applicants;

(ii) R2;

(iii) R3 and R4

15.  The 2006 Will was prepared by a firm of solicitors David Hui & Co in Chinese.  The Deceased executed the 2006 Will in the presence of the sole proprietor of the firm Mr David Hui and a trainee solicitor Ms Lee.

16.  As seen in the 2006 Will, the description of the Apartment was without the Car Parking Space, the description of Shop 1 was without Cockloft 1 and the description of Shop 2 was without Cockloft 2.

17.  As there was no agreement from R3 and R4 (“collectively Rs”), the Applicants issued the originating summons herein on 31 December 2015.  The Estate was named as the 1^st respondent in order that any orders made by this Court may bind the estate, and therefore A1 has two capacities, one as a beneficiary, and one as the executor of the Estate. 

18.  The Applicants were legally represented throughout and Counsel Ms Ebony Ling appeared for them at the hearing. 

19.  The Estate was legally unrepresented and had not filed any acknowledgement of service, or defence.  However, A1, in his capacity as executor, was present at the hearing on behalf of the Estate.

20.  Rs filed a “Statement of Defence and Counterclaim” dated 27 October 2016 (“D&C”) and had made 5 affirmations, including 2 affirmations of service.  Rs were legally unrepresented throughout the proceedings.  They reside in Australia, and notwithstanding notice of the hearing had been served on them, they were both absent at the hearing.

Legal Principles

On interpretation of wills

21.  Section 23B of the Wills Ordinance (Cap 30) provides that:

“(1) This section applies 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 it 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.”

22.  Sub-paragraph (1)(c) covers latent (ie hidden or not apparent on the face of the will) ambiguities or equivocations.  Once the surrounding circumstances have established the ambiguity, evidence of intention is admissible to resolve it: Hong Kong Probate, Administration and Trustee Handbook (4^th ed)[2].

23.  Ms Ling referred the Court to  Marley v Rawlings & anor [2015] AC 129,  where the Supreme Court held that in construing a will, the Court should apply the same intention-based approach it uses in relation to contracts[3].  The aim is to identify the intention of the party by interpretation of the words of the will in light of their context and the purpose of the document.  In short, the Court should “place itself in [the testator’s] arm-chair”.  In construing a will, extrinsic evidence of the testator’s intention is admissible, eg what he told the drafter of the will, or another person, or by what was in any notes he made or earlier drafts of the will which he may have approved or caused to be prepared.  Ms Ling also referred to Brooke & ors v Purton & ors ([2014] EWHC 547 (Ch), 26 March 2014)[4].

24.  Further, Ms Ling pointed out that as explained in Williams on Wills (10^th ed), words should be given their ordinary meaning, which is the meaning given to it by the ordinary society[5].

On rectification of wills

25.  Section 23A of the Wills Ordinance (Cap 30) provides that:

“(1) If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence-

(a) of a clerical error; or

(b) of a failure to understand his instructions,

it may order that the will shall be rectified so as to carry out his intentions.

(2) An application for an order under this section shall not, except with the permission of the court, be made after the end of the period of 6 months from the date on which representation with respect to the estate of the deceased is first taken out.”

26.  Rectification is essentially the correction of mistakes, where the will as written fails to express what the testator wanted to effect.  The mistake could occur because some words are inadvertently omitted, mistakenly included or incorrectly expressed, and the original wording of the will may be so corrected by words being added, omitted or substituted: Hong Kong Probate, Administration and Trustee Handbook (4^th ed)[6].

27.  In rectifying a will, “clerical error” has traditionally been interpreted in a narrow way as an inadvertent error in recording the testator’s intended words.  Lord Neuberger held that the term should be interpreted as widely as possible to include “mistakes arising out of office work of a relatively routine nature such as preparing, filing, sending, organizing the execution of, a document” unless the activity involves some special expertise: Marley v Rawlings[7].  

28.  Ms Ling also referred to Re Segelman [1996] Ch 171, at 186, Chadwick J held that “the jurisdiction conferred by [the English equivalent of s 23A] extends to cases where the relevant provision in the will, by reason of which the will is so expressed that it fails to carry out the testator’s intentions”.

29.  It was further held in Walker v Geo H Medlicott & Son [1999] 1 All ER 685 that where a mistake in drafting a will is alleged, the correct initial course is to seek rectification of the will thereby mitigating any damage cause by the mistake.

30.  In Brooke v Purton, whilst it was held that the will should be interpreted to give effect to the testator’s intention, the learned judge also found that the same outcome was possible by recourse to rectification of the will and that the solicitor’s drafting could (following Marley v Rawlings) be classified as a clerical error[8].  Given the finding in relation to construction, rectification was unnecessary.

31.  In deciding considering an extension of time application under section 23A(2), the Court will consider, inter alia, the reason for delay and whether the estate has been distributed[9]. 

Property ownership rights

32.  An exclusive right of the use of land can exist only as an incident to the ownership of a share in the land.  This was confirmed by Yuen J (as she then was) in Modern Sino Ltd v Art Fair Co Ltd [1999] 3 HKLRD 847:

“It is clear from Lai Wing Ho & Another v Chan Siu Fong [1993] 1 HKLR 319 (as affirmed in the Court of Appeal in Jumbo King Ltd v Faithful Properties Ltd & Others [1999] 3 HKLRD 231) that a right to exclusive use of land (as an incident in land) can be created only as an incident to the ownership of an undivided share in the land[10].”

and further:

“The Court of Appeal judgment in Jumbo King Ltd v Faithful Properties Ltd & Others [1999] 3 HKLRD 231 did not challenge the decision in Lai Wing Ho & Another v Chan Siu Fong [1993] 1 HKLR 319. In Jumbo King Ltd v Faithful Properties Ltd & Others, no shares were allocated to certain parts (eg the flat roofs), but the developer had reserved exclusive possession to himself at a time when he still had shares in the land together with exclusive possession of certain units. When the developer assigned his shares, he gave exclusive possession to the purchaser of, not only those units, but also the flat roofs. That was valid under the law as the exclusive possession of the flat roofs was being passed as an incident to the ownership of shares in the land.”

The issues

33.  The issues as set out by Rs in their D&C were as follows:

(i) Was the drafting lawyer of the 2006 Will negligent?

(ii) Should the 2006 Will be rectified?

(iii) Relationship between the Deceased and the Rs

34.  The 2006 Will was drafted by Mr David Hui, solicitor and sole proprietor of the firm David Hui & Co. It would appear from the D & C and also Rs’ affirmations that they were of the view Mr Hui “had shown great precision and accuracy in engrossing the Will, it is not likely that he would make an inadvertent omission of three valuable properties such as the cocklofts and carpark from the gift of properties made to the five applicants” and that the omissions were “likely to be advertent and intentional”[11].

35.  Whether Mr Hui was negligent was not an issue this Court would need to make a finding on in these proceedings since there has been a separate action issued by the Applicants against the firm David Hui & Co and/or Mr David Hui under HCA 1572/2016, alleging negligence on their part in drafting the 2006 Will.  That action has been stayed pending the outcome of these proceedings.

36.  Rs were of the view that the 2006 Will did not need to be rectified as it truly expressed the intentions of the Deceased.

37.  Further, as there was a proximate personal and economic relationship between the Deceased and Rs, it was most likely that the Deceased did intend to bequeath the Cocklofts 1 & 2 and Car Parking Space to those entitled to her residuary estate.

Mr David Hui’s evidence

38.  Mr Hui attended the hearing after being served with a subpoena.   He had produced his file which consisted of  only two receipts, a bill dated 3 February 2006, 6 search records from the Land Registry conducted in November 2005, a copy of the Deceased’s HKID card, a list of the names of the Applicants, R2-R4, and copies of the 1998 Will, 2006 Will, the Statutory Declaration and the HKID card of the Deceased’s friend Madam Chan Tsoi Sun Helen who was a witness in the 1998 Will[12].  There were no attendance notes in the file.  Mr Hui confirmed that he prepared both the earlier 1998 Will and also the 2006 Will for the Deceased.

39.  Mr Hui recalled that he met the Deceased in 1996. At the time, his office was in Shinyam Commercial Building 勝任大厦on Johnston Road and that the Deceased was running her hardware shop opposite at 160, Johnston Road, namely Shop 3.  Mr Hui met the Deceased when he went to her shop to buy various items.  Mr Hui said that in 1998, the Deceased had voluntarily gone to his office one day with her friend, Madam Chan Tsoi Sun Helen, and instructed Mr Hui to make a will for her, and he then prepared the 1998 Will for the Deceased.

40.  Thereafter, Mr Hui would often come across the Deceased on the street or at Shop 3 as they were neighbours.  Further, according to Mr Hui, in 2005, the Deceased told him that she wanted to change her will.  Mr Hui advised her to make a new will if there were to be too many changes.

41.  According to Mr Hui, the Deceased went to his office in November 2005 and gave him the instructions.  She had a piece of paper on which she had written down her properties, the Deceased told him at the time that she had 6 properties, namely apart from the Apartment and the 4 Shops, there was a unit at Shinyam Commercial Building, but upon a land search, Mr Hui found that the unit was held in the name of a company called Treasure Dragon Enterprise Limited and not in the Deceased’s personal name.  He had suggested the Deceased to carry out a search of the company at the Companies Registry, but the Deceased said there was no need. 

42.  Mr Hui said he had also carried a search of the Apartment at the Land Registry and found that the letters “PT” (meaning part) was stated next to the consideration of HK$218,000 when the Deceased and her husband purchased the Apartment in 1975.  According to Mr Hui, he had asked the Deceased whether the purchase at that time had involved other units at Greenville Gardens, namely whether the Deceased and her husband had bought another unit in Block A or Block B together with the Apartment.  The Deceased said there was no other unit purchased by her and her husband at the time.

43.  According to Mr Hui, he had advised the Deceased to apply for a photocopy of the assignment of the Apartment from the Land Registry to find out what “PT” referred to, but the Deceased said there was no need as this would cost an additional HK$300.  Also, if Mr Hui were to obtain photocopies of each of the other properties, then the total cost would be increased by HK$1,800.

44.  Mr Hui said he had agreed with the Deceased the cost of preparation of the Will to be HK$2,000.  He said the Deceased was cost conscious and was concerned over the additional costs. 

45.  Anyway, based on the instructions and the addresses the Deceased gave him, Mr Hui said he prepared a first draft of the 2006 Will which the Deceased took away to consider.

46.  Mr Hui said he recalled in the draft, he had initially set out the descriptions as appeared on the land search records for Shop 1 and Shop 2 which would have included the Cocklofts, but the Deceased told him that there was no need for such detailed descriptions and had deleted the references to the Cocklofts, saying that since the entirety of Shop 1 and Shop 2 were to be given to A1, these would include the Cocklofts. 

47.  Mr Hui said he noted from the land search records there was no separate shares allocated to the Cocklofts.  Further, he had also asked the Deceased whether there was any separate independent and/or exterior entrance or access to the Cockloft of each of the two Shops, apart from internal access through the Shop, but the Deceased had said no, that the Cockloft was used as storage and there was no separate or exterior access other than through the interior of the Shop and this was the same for Shop 1 and Cockloft 1 or Shop 2 and Cockloft 2.  

48.  According to Mr Hui, in light of the above, he accepted the Deceased’s suggestion to make the descriptions of the descriptions of Shop 1 & Shop 2 in the 2006 Will simpler by referring to only the Shops without any need to mention the Cocklofts.

49.  Mr Hui’s evidence was however that it was clearly the Deceased’s intention to bequeath the entire Shop 1 together with Cockloft 1 and the entire Shop 2 together with Cockloft 2 to her son, namely A1.

50.  Mr Hui admitted that he did not mention the Car Parking Space in the 2006 Will.  He explained that since he had known the Deceased since 1996/1997, he had never heard her having a car or that she had a driving licence, and that during their conversations, she had told him that she would walk to work for exercise.  The Deceased never mentioned to Mr Hui that she had a car parking space and Mr Hui never raised this.  Mr Hui said he never met the Deceased’s husband Mr Chan and did not know whether he could drive or not. 

51.  At the hearing, I have allowed A1 to cross examine Mr Hui on behalf of the Estate.  A1 had asked Mr Hui why he did not carry out further searches at the Land Registry.  Mr Hui responded by saying, without obtaining a photocopy of the assignment, and without the number or detailed description of the Car Parking Space, he would not have been able to conduct a separate search of the Car Parking Space.  However, he was told by the Deceased there was no need to waste money on further searches and further the Deceased did not provide him with the detailed description of the Car Parking Space.

52.  Mr Hui had further said according to his understanding, had he raised the Car Parking Space with the Deceased, the Deceased would have included it in the gift to A1 together with the Apartment, since there was no reason why she would want to separate the Car Parking Space from the Apartment, and to bequeath the Car Parking Space to a third person.  

53.  Further, Mr Hui had said that by contrasting the 2006 Will with the 1998 Will, it could be seen that the Deceased’s intention was to make specific bequests of all her immovable properties to the Applicants. 

A1’s evidence

54.  A1 had attended the hearing to confirm his evidence in his supporting affirmation.  As Rs did not attend the hearing, he was not cross examined on his evidence.

55.  A1 had said after his father passed away, his mother, namely the Deceased had continued to reside in the Apartment all by herself, together with a domestic helper.

56.  A1 said the Deceased did inform him after she had made the 2006 Will that she had made a will and that the properties would be given to him and his children.

57.  It was also A1’s evidence that the relationship between the Deceased and Rs was not that close.  He admitted that R3 was a 孝順女, but there were arguments between her and the Deceased and that when the Deceased was ill for a month before she passed away in 2010, R3 did not even return to Hong Kong to see her, and that the last time R3 returned to Hong Kong was in 1995 when their father passed away.  A1 had also said that the Deceased had gone to Australia about 3 or 4 times, between 1995 and 2010 but R3 was reluctant to see the Deceased. A1 said he had often accompanied the Deceased on those visits.  He said he recalled one occasion when they went to R3’s house and pressed the doorbell, it was only R4 who saw them, and that R3 was not willing to see the Deceased.

58.  A1 said he was not aware that the Deceased had made the 1998 Will and that, as mentioned earlier, he was only told by the Deceased about the 2006 Will after she had made it, and that the Deceased did not tell him that she was going to make a will before going to the solicitors.

The Apartment and the Car Parking Space

59.  The Apartment, together with the Car Parking Space was acquired by the Deceased and her late husband as joint tenants back in 1975, and since then, they had been living there as their matrimonial home and using the Car Parking Space.  After her husband’s death in 1995, the Deceased had continued living in the Apartment and used or derived rental income from the Car Parking Space during her lifetime.

60.  The Assignment of the Apartment had included the Car Parking Space and what was assigned to the Deceased and her late husband by the vendor was all that the estate right title benefit and interest of and in all those 11/3515^th parts or shares of the Inland Lot No 8380, with the sole and exclusive right and privilege to hold use occupy and enjoy the Apartment and the Car Parking Space[13].

61.  Then the Deed of Mutual Covenant (“DMC”) of Greenville Gardens provides that the sole and exclusive right and privilege to hold use occupy and enjoy any apartment and the car parking space held permanently therewith shall not be sold assigned mortgaged charged leased or otherwise dealt with separately from the undivided shares with which the same are held.  It is thus not permissible for the owner of the Apartment and the Car Parking Space to deal with or dispose of them separately.  The DMC also specifically provides that the Apartment and the Car Parking Space should be owned and occupied by a single residence[14].

62.  Having considered the above Assignment and the DMC, and the provisions of the 2006 Will, in my view, the specific bequest of the Apartment, without mentioning the Car Parking Space, was ambiguous in light of the above surrounding circumstances.  

Shop 1 and Cockloft 1

63.  The Deceased acquired Shop 1 together with Cockloft back in 1972 and since then, the Deceased had been leasing Shop 1 and Cockloft 1 as one single unit for rental income.

64.  Under the Assignment, what was assigned to the Deceased was 2/14^th parts or shares of the lot concerned, together with the exclusive right and privilege to hold use occupy and enjoy Shop 1 and Cockloft 1[15]. The DMC of the building provided that the owner of the Shop 1 has the sole and exclusive ownership and the full right and privilege to the use occupation and enjoyment of the whole of that shop which is on the ground floor including the Cockloft 1[16].

65.  Having considered the Assignment and the DMC, I am satisfied that Shop 1 and Cockloft 1 are inseparable and the owner of the 2 undivided shares shall have exclusive right of them as one single unit.  In light of this, I am of the view that the bequest of Shop 1 without mentioning Cockloft 1 was ambiguous in the light of surrounding circumstances.

Shop 2 and Cockloft

66.  The Deceased and her husband acquired Shop 2 together with Cockloft 2 back in 1990, and since the acquisition, they had been leasing Shop 2 and Cockloft 2 together as one single unit for rental income.

67.  Again under the Assignment, what was acquired by the Deceased and her husband was 2/84^th parts or shares of the concerned lot,  together with the sole and exclusive right and privilege to hold use occupy and enjoy Shop 2 and Cockloft 2[17].  The DMC provides  that the owner of the Shop 2 on the ground floor  is entitled to the  exclusive use occupation and enjoyment of  that shop  including the Cockloft 2[18].

68.  Having considered the Assignment and the DMC, I am satisfied that Shop 2 and Cockloft 2 are inseparable and the owner of the 2 undivided shares shall have exclusive right of them as one single unit.  In light of this, I am of the view that the bequest of Shop 2 without mentioning Cockloft 2 was again ambiguous in the light of surrounding circumstances.

Discussion

69.  First of all, as said earlier, there was no challenge to the validity of the 2006 Will and that the Deceased had gone to see Mr Hui herself.  I accept A1’s evidence that he was not aware of the Deceased making a will until after the Deceased had made the 2006 Will.  The evidence of Mr Hui was also that it was Deceased who told him that she wanted to change her 1998 Will. 

70.  Under the 1998 Will, A1 was appointed the sole executor and trustee of the will and under Clause 3 concerning “Distribution of Assets”, there were 3 categories of assets set out, namely:

(A) Jewellery

(B) Immovable Properties

(C) Residuary estate

71.  So far as (A) Jewellery and (B) Immovable Properties were concerned, these were bequeathed to R3, and there were provisions in the event that R3 should predecease the Deceased. Under (B), the Deceased only mentioned two properties namely Shop 3 and the Apartment (with no mention of the Car Parking Space), and both were bequeathed to R3.

72.  The Deceased then stated in the opening paragraph under (C) Residuary Estate (“Opening Paragraph”) that “Apart from what was listed above, the rest of my assets  including all movable properties and immovable properties (herebelow collectively referred to as (“Residuary Estate”) will be distributed as follows:…..”[19], and she then made provisions for 5 specific legacies, namely  3 for the Deceased’s siblings and 2 for charities and after payment of those specific legacies the Residuary Estate was to be bequeathed to A1

73.  In the 2006 Will, in contrast to the 1998 Will, under the “Distribution of Assets” there were no categories (A) or (B) in Clause (3) but 8 sub-clauses, 2 sub-clauses in relation to the bequests of Apartment and Shops Nos 1, 2, 3 & 4, 1 sub-clause in relation to the bequest of jewellery, and 5 sub-clauses in relation to specific legacies, respectively to the Deceased’s younger sister, R4 and also Deceased’s niece and the same two charities.  

74.  Although there were no categories (A) or (B), there was however a category (C) “Residuary Estate” and the Opening Paragraph stated thereunder “Apart from the assets mentioned above, the rest of my residuary estate including my stocks, foreign currencies gold etc, after deducting my debts, funeral expenses and administration expenses…”[20] was to be bequeathed to the Applicants, Rs, R3 and R4 in equal shares. 

75.  Mr Hui appeared as Applicant’s witness under a subpoena and that he is being sued by the Applicants and he was naturally guarded in giving his evidence.  Having said this, he is an officer of the Court and was under a duty to assist the Court and to give truthful evidence.

76.  As Mr Hui had pointed out during the trial, in the Opening Paragraph of Category (C) of the 1998 Will, the Deceased had clearly referred to other immovable properties and their distribution under the Residuary Estate.  According to Mr Hui, the Deceased had told him when she attended his office in 2005 for the preparation of the 2006 Will, she wanted to provide for the distribution of all her landed properties, and thereafter to provide for specific legacies and then  the Residuary Estate which would only consist of movable properties such as stocks, bank deposits etc.

77.  Mr Hui’s evidence was also clearly that the Deceased’s intention was that the bequest of the Apartment should include the Car Parking Space, and further the bequest of Shop 1 should include Cockloft 1 and Shop 2 would include Cockloft 2.

78.  Having considered the evidence from Mr Hui as to the Deceased’s intention, as well as comparing the contents of the 1998 Will and the 2006 Will, I was of the view that it was the Deceased’s true intent and wish under the 2006 Will to bequeath the Car Parking Space, together with the Apartment to the Applicants, and to bequeath to A1, Cockloft 1 together with Shop 1 and Cockloft 2 together with Shop 2.

Conclusion

79.  For the above reasons, I granted an order in terms of paragraph 2 of the originating summons, namely the declaration sought by the Applicants as to the true intent and wish of the Deceased.  For this reason, there was no need for the Court to consider rectification.

80.  At the hearing, I have also ordered that costs of the originating summons be borne by the Estate. 

81.  For avoidance of doubt, I dismiss Rs’ counterclaim.