TCG AND OTHERS v. TCS AND ANOTHER

HCMP246/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 246 OF 2013

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J U D G M E N T

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Introduction

1.  The main relief sought by the 4 plaintiffs in these proceedings is in relation to the proper construction of the joint will dated 6 February 2008 (“Joint Will”) (and the joint Codicil dated 8 May 2008) (“Joint Codicil”) made by their deceased father Mr Tan Kiam Toen (“Father”) and their mother Madam Ng Giok Oh (“Mother”).

2.  The issue in particular is whether the Joint Will (and the Joint Codicil) shall govern only those assets of the Father which are held under or in his “name”, in contradistinction to Father’s assets which are held under or in the name of or by others but on trust for the Father.

3.  The plaintiffs, which I shall call respectively P1, P2, P3, P4 and the 1^st defendant, D1, are siblings and they were the only children born out of the marriage between Father and Mother.  D1 and P3 are daughters, D1 being the elder.  P1, P2 and P4 are sons.

4.  Pursuant to leave given on 24 April 2013, the Secretary of Justice was joined by the plaintiffs as the 2^nd defendant, as parens patriae, in light of the interests of the charities under the Joint Will, but the Secretary of Justice had not filed any evidence, and held only a watching brief at the hearing.

Background

5.  The Father was born in about 1919 in Mainland China.  He came from a humble background with no formal education.  He left his hometown in about 1935 when he was about 17 and went to work in Indonesia as a labourer.  He married the Mother in 1943.  She was born in Fujian in 1922 and is now about 91.

6.  It seems after the marriage, the Father’s life gradually improved and eventually he became a very wealthy man.  He set up a company in Singapore in 1961 called Afro–Asia Shipping Company (“AAS”) which ran a shipping business and apparently traded in tin, tea, coffee, rice, rubber and cement[1]. AAS’s principal assets now comprise of a commercial office building in Singapore and approximately 13.37% interest in a publicly listed company in Singapore called EnGro Corporation Ltd (“EnGro”).  Through AAS a loan of about S $17m (“Loan”) was made available for the purchase of a further 26.56% interest in EnGro through 70% shareholding of a Hong Kong company called Afro-Asia International Enterprise PTE Limited (“AAIE”) and the Loan remained outstanding in the books of AAS.  30% shareholding of AAIE was and remains registered in name of a third party.  The remaining 70% shareholding, or 3.5m shares were registered in the respective names of the daughters P3 and D1, 1.75m each (“Relevant Shares”).  AAIE was apparently set up for the purpose of the acquisition and investment of shares in EnGro[2].

7.  The Father died domiciled in Hong Kong on 15 November 2008, leaving as his last will the Joint Will and the Joint Codicil, and D1 was appointed the sole executrix and trustee thereunder.  At the time of his death, he and the Mother and D1 were residing in a property on Bowen Road in Hong Kong (“Bowen Residence”).

8.  To set out a fuller picture, the Father had made a total of three wills including the Joint Will and the Joint Codicil and there were also arrangements/proposals which had been made by him in relation to the Relevant Shares, and the chronology is as follows:

(i) On 21 April 2006, the Father and the Mother had each made a will in Singapore (“2006 Will”) prepared by their lawyer there, and they both signed a joint statement (“Joint Statement”)[3].  The 2006 Wills and the Joint Statement were in English and both daughters, namely D1 and P3 were named executrices.  The Father’s 2006 Will covered all his properties moveable and immovable whatsoever and wheresoever situation, and essentially after payment of debts and expenses, his estate was divided as to 50% for the Mother, and the remaining 50% for his 5 children in equal shares of 10% each.  He declared in that will that he had no assets which were held by his daughters or by any other person in trust for him and that all the assets previously belonged to him or financed by him which were held by his daughters were not held in trust for him.  This was re-iterated, among other things, in the Joint Statement.

(ii) After the 2006 Wills and the Joint Statement, the two daughters D1 and P3, on the instruction of the Father[4], wrote a joint letter addressed to the Father and the Mother on 21 December 2006 (“2006 Undertaking”)[5].  In the 2006 Undertaking, the two daughters stated that although they were the beneficial owners of the Relevant Shares in AAIE which in turn held 29,641,700 shares in EnGro, they undertook that in the event of the death of the Father, they would give part of the Relevant Shares to the Mother and their brothers in the manner stated therein, and further if AAIE were to be liquidated, they would give various shares in EnGro to the Mother and their brothers in the manner stated therein.

(iii) Then, on 30 March 2007, the Father and the Mother each signed another will in Hong Kong prepared by a firm of solicitors here, Hastings, revoking all previous wills (“2007 Will”)[6].  The two witnesses were solicitors of Hastings, including a Mr Fu. This time the 2007 Wills were in Chinese and D1 was appointed the sole executrix.  The Father’s 2007 Will covered the Father’s assets described as “名下所有在香港以及其它任何地方的財産(包括動産及不動産)”.  In the 2007 Will, after payment of debts and expenses, the Father bequeathed all his “remaining assets” to the Mother and if she did not survive him for 30 days, all his remaining assets were to be donated to charities.  He stated therein that as his children had all been adequately provided for during his lifttime, they were not to receive anything from his “remaining assets”.

(iv) Subsequently on 31 January 2008, the Father made a statutory declaration apparently with the intention that the EnGro shares held through the Relevant Shares of AAIE were to be distributed to his family members[7].  A copy of this statutory declaration was not produced in the proceedings before this court.

(v) Shortly thereafter, on 6 February 2008, the Father and the Mother made the Joint Will, revoking all their previous wills.  The Joint Wills were in Chinese and were prepared by Mr Fu.  About 3 months after the Joint Will, on 8 May 2008, the Father and the Mother signed the Joint Codicil, also in Chinese and prepared by Mr Fu.  Copies of the relevant contents of the Joint Will and the Joint Codicil are attached to this judgment as “A” and “B” for easy reference.

(vi) Thereafter, in July that year, all the plaintiffs, except P2, came to Hong Kong to celebrate the Mother’s birthday. There was a family meeting on 12 July 2008, the day after the Mother’s birthday, when P1, P3, P4 went to the Bowen Residence, during which there was a discussion among the P1, P3, P4, D1 and their parents in relation to a proposal for the Father to set up a family trust to hold, among other things, the over 31m EnGro shares held through the Relevant Shares in AAIE[8].

(vii) On 16 August 2008, the Father and the Mother both signed a Chinese letter addressed to all their 5 children (“Parents’ Letter”)[9].  In the Parents’ Letter, the Father and the Mother stated their intention to donate their assets for charitable work had been made known to the children during a family meeting in September 2004 and the children had not expressed any objection thereto.  The Parents’ Letter referred to P1’s proposal for the shares in EnGro held respectively by AAIE, AAS, and another company which I will simply call Performance be injected into a family trust.  The Father and the Mother, however, went on to say, among other things in the Parents’ Letter, that their intention was to leave the majority of their assets to charitable and Buddhist organizations in Singapore, Hong Kong and Mainland China, and for the EnGro shares held through the Relevant Shares AAIE to be given to the children.  They then set out in a schedule attached to the Parents’ Letter as to the number of the Relevant Shares in AAIE and in Engro which each of the children was to receive (“Share Distribution Schedule”). The number of shares to be received by each of the children in the Share Distribution Schedule was different from that set out in the 2006 Undertaking. There were also references in the Parents’ Letter as to their decision to sell the commercial office building held by AAS to discharge the Loan, which apparently according to the accounting record was from AAS to D1 so that the shares to be received by the children would not be subject to any encumbrances. They further expressed their wishes on how to deal with a company Newtown and some monies from another company East Gate.  Towards the end of the Parents’ Letter, they informed their children that they would be instructing solicitors to draft a Deed of Family Arrangements (“DFA”) to reflect all their wishes and would put into effect their wishes after execution of the DFA by all the children.

(viii) In response to the Parents’ Letter, P2 sent a Chinese handwritten letter on behalf of all his brothers on 12 October 2008[10] (“Sons’ Letter”).  The sons expressed that basically they had no objection to the proposed Share Distribution Schedule relating to the Relevant Shares or the EnGro shares held pursuant thereto, but would ask their parents to consider some issues and for reasons set out therein and among other things, they proposed that the EnGro shares held through the Relevant Shares in AAIE should remain as one block to be held in a family trust and that the EnGro shares held through AA (or AAS) should also be dealt with at the same time.

(ix) It appears thereafter that on about 28 October 2008, there were some further discussions[11].  It further appears that instructions were indeed given to Hastings to draft a DFA and that Leading Counsel was instructed to advise thereon[12] and the intention was that the Father would execute the DFA personally.

(x) The DFA was never finalized or signed by the Father and on 15 November 2008, the Father sadly passed away.

(xi) The Father’s wishes as reflected in the 2006 Undertaking, the Parents’ Letter and those discussions on about 28 October 2008 in relation to the Relevant Shares in AAIE and also the EnGro shares have been described by the plaintiffs as being the Father’s unexecuted wishes (“Unexecuted Wishes”).

9.  Clause 2 of the Joint Will provides that :

「我們謹此聲明這份囑書將管轄及處理我們名下所有(不論在世界任何地方)的財産。」(“Clause 2”)

10.  The Joint Will then went on to basically provide that among other things, upon the death of one spouse, the surviving spouse would be entitled during lifetime to the income of the assets of the deceased spouse and upon the death of both, all the assets held under their names are to be held by the Executrix, and that after payment of debts and expenses, would go to various charitable/medical/educational organisations in Hong Kong, Fujian and Singapore in the manner stated therein.

11.  None of the 5 children, namely the plaintiffs and D1, was a beneficiary under the Joint Will.  The subsequent Joint Codicil provided, among other things, that-

(i)   The property in Sydney, Australia, of which D1 held jointly with the Father and the Mother, is to be bequeathed to D1, upon the death of both the Father and the Mother;

(ii)   The Bowen Residence held by the Father and the Mother as joint tenants, is to be bequeathed to D1 after the death of both the Father and the Mother.

12.  Save as provided aforesaid in the Joint Codicil, the Joint Will remained unchanged. As sole executrix and trustee of the Will, D1 obtained a full grant covering all the estate of the Father on 6 May 2009 (“Grant”)[13].  Annexed thereto is a schedule of assets and liabilities filed on 27 March 2009 (“1^st Schedule”)[14] and the Relevant Shares in AAIE were listed by D1 as part of the Father’s assets, of which 1.75m shares were stated to be held by D1 in trust for the Father, and the remaining 1.75m shares were stated to be held by P3 in trust for the Father.  There was subsequently an additional schedule of assets filed on 9 June 2011 to include some omitted 67 HSBC shares and 1 share in another company (“2^nd Schedule”)[15].

13.  The Grant was resealed in Singapore on 15 November 2010 (“Singapore Grant”)[16], and the schedule of assets in Singapore  (“Singapore Schedule”) consists of:

(i)   2,542,590 shares in AAS stated to be held by D1 as nominee for the Father, of market value of S$56,521,366.24, at date of death;

(ii)   Various pieces of art works, antiques, porcelain vases, furniture, located in two properties in Singapore, of value to be ascertained.

14.  After the death of the Father, the Mother had sent a letter of instructions on 20 November 2008 and further on 1 April 2009 to Hastings, to prepare a draft Deed of Family Arrangements to carry out the Father’s Unexecuted Wishes in relation to the distribution of the Relevant Shares and the EnGro shares as expressed in the Parents’ Letter[17].

15.  The subsequent events appear to be as follows:

(i) On 2 April 2009, there was a meeting held at the offices of  Hastings during which the plaintiffs, D1 and the Mother were all present when the Joint Will and the Joint Codicil were read to the plaintiffs. Hastings were then acting for D1 in her carrying out her duties as executrix, and the Mother in drafting the DFA to fulfil the Father’s Unexecuted Wishes.  A draft DFA and Release was then circulated to the plaintiffs during the meeting[18].  At about the same time, a letter dated 2 April 2009 drafted by a barrister John Brewer instructed on behalf of the Mother to prepare the draft DFA (“DFA Letter”)[19] was also shown to the plaintiffs. The DFA Letter sets out the Mother’s reasons for implementing the DFA and explanations on the terms of the draft DFA.

(ii) On 9 April 2009, Hastings sent an email to P2 to further explain the steps in the implementation of the proposals set out in the draft DFA.

(iii) Eventually the Mother and D1 executed a DFA in Chinese and on 3 August 2009 the partially executed DFA was sent by courier to the plaintiffs for execution and return[20].

(iv) The three sons raised further queries and on 28 August 2009, Hastings replied to deal with such queries[21].  The DFA was eventually never executed by the plaintiffs.

(v) P2, P3 and P4 then commenced proceedings in Singapore against D1 being one of the defendants therein, over the beneficial interest in the Relevant Shares in AAIE and also the shares in AAS held by D1, and the defendants therein counterclaimed against all the plaintiffs (all proceedings collectively called “Singapore Proceedings”). In the Singapore Proceedings, the plaintiffs denied that the Father held the sole beneficial interest in the Relevant Shares in AAIE or those shares in AAS held by D1.

(vi) There was eventually a proposed settlement agreement in the Singapore Proceedings[22] but it did not go through for various reasons and those proceedings are still ongoing with the next hearing in October 2013.

16.  On 4 February 2013, the plaintiffs issued the originating summons in present proceedings in relation to the construction of the Joint Will (and the Joint Codicil) and consequential directions/orders.  At the time when the originating summons was issued, the plaintiffs had two complaints in respect of the 1^st Schedule which were:

(i) The Relevant Shares in AAIE should not be included, as those shares were not held under or in the name of the Father, and the issue of the beneficial ownership of the Relevant Shares is the subject of the Singapore Proceedings;

(ii) The collection of antiques, paintings and works of art (“Art Collection”) owned by the Father and kept by him personally at the Bowen Residence had not been included in the 1^st Schedule.

17.  D1 explained that she had not included the Art Collection in the 1^st Schedule because she had not had the time to collect and collate all the items, and not yet been able to obtain any valuation.  After the issue of the present proceedings, D1 had filed a further additional schedule to include the Art Collection[23] (“3^rd Schedule”).

18.  The outstanding matter is whether the Relevant Shares in AAIE should have been included in the 1^st Schedule, or indeed if any other assets found to be held by others in trust for the Father should be included in the 1^st Schedule.

The Legal Principles

19.  The general principles for construction of a will have been conveniently set out in detail by Poon J in his Judgment in the Secretary for Justice v The Joint and Several Administrators of the Estate of Kung Nina & Ors[24] , which I quote 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.^[25] 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.^[26]

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.^[27] 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.^[28] The court must also try to give a sensible meaning and effect to every part of a will under construction.^[29]

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.^[30] 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 :^[31]

‘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.^[32]  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.^[33]”

20.  Poon J’s attention was drawn to the recent decisions of the English House of Lords including Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd^[34] and Investors Compensation Scheme Ltd v West Bromwich Building Society^[35] and the decision of our Court of Final Appeal in Jumbo King Ltd v Faithful Properties Ltd^[36], as it was 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^[37].  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 in that case, Poon J 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 in the case before him.

21.  The above sets out the common law principles.  As for statutory provisions, section 23 B of the Wills Ordinance[38] 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 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.  With the above general legal principles and provisions in mind, I turn to the present case.

The Main Issue

23.  In fact, the only issue in the present case is whether, upon the true construction of the Joint Will, the Joint Will governs the disposition and administration of –

(i)   All assets belonging to the Father (including assets held by or in the name of other person(s) on trust for the Father; or

(ii)   Only those assets held in the name of the Father or by the Father personally, excluding assets which the Father was beneficially entitled to but held by or in the name of other persons(s) on trust for him.

24.  The Unexecuted Wishes of the Father remained unexecuted at the time of his death.  As pointed out by Mr Chow, Leading Counsel for D1, the present contention is not to give effect to the Unexecuted Wishes, as in the event this court were to find in favour of (ii) above as contended by the plaintiffs, any assets which were not held in the personal name of the Father at the time of his death would fall into intestacy, under which subject to payment of a net sum of HK$500,000 to the Mother, with interest, one half of such assets would be held in trust for the Mother absolutely[39], and the remaining half for the children in equal shares.  Thus, so far as the Relevant Shares in AAIE are concerned, it seems that in case of intestacy of this part of the Father’s estate, the plaintiffs would end up with much less than what was set out by the Father in the Share Distribution Schedule in the Parents’ Letter and the Mother would end up with 50%.

25.  Although there was no evidence on the value of the net estate  if the court were to find in favour of (ii), the bequests to the charities in the Joint Will may be affected, in particular the bequests to the various Singapore institutions in clause 9 of the Joint Will.

26.  Mr Chow has pointed out to this court that in construing a will, the general principle is that a court is disposed in favour of charities, as said by Poon J in the Nina Kung case[40], quoting what Lord Loreburn said in Weir v Crum-Brown[41], that there is no better rule that a benignant construction will be placed upon charitable bequests.  In the Nina Kung case, the issue was over the construction of the bequest of the residuary estate of the deceased to a charitable foundation, namely whether the bequest was an absolute gift or only to the foundation to hold on trust on terms.

27.  The Weir case was in relation to the construction of a bequest of the residue of the deceased’s estate to the trustees for a charitable purpose, as to whether it was void for uncertainty as contended by the next of kin and it was held not.  As pointed out by Mr Ho, what Lord Loreburn had said was in that context.  Although I accept that the present case is different from the Nina Kung case and the Weir case in that the issue before the court is not in relation to the meaning of a specific charitable bequest, but as pointed out above, the charities in the Joint Will may be affected in the event of the court finding in favour of (ii).

Discussion

28.  Mr Ho’s submission was that the meaning of the words “名 下” in Clause 2 was plain and clear, and further there was no evidence on the “surrounding circumstances” to indicate that those two words ought to be construed differently from that contended by the plaintiffs and in fact the evidence on the “surrounding circumstances” would reinforce the plaintiffs’ interpretation of Clause 2[42].  Such evidence on “surrounding circumstances” relied on by him were:

(i) As evident from the 2006 Wills and Joint Statement, the Father was well conscious of the distinction between assets held in his own name and assets held by others on trust for him ;

(ii) The evidence of D1 and the Mother suggested that one “fact” in the mind of the Father when making the Joint Will was that there were assets belonging to him which were not held under or in his name, but held under or in the name of others (including D1);

(iii) If D1’s contention that the Relevant Shares in AAIE  were beneficially owned by the Father but held under the respective names of P3 and D1 on trust for him were correct, that “fact” would also have been in the mind of the Father when he made the Joint Will;

(iv) The Joint Will was not a home-made will, but was drafted by solicitors who must have knowledge about the distinction between legal and equitable ownership of assets;

(v) The lawyer who prepared the Joint Will would have ascertained from the Father the assets and properties he wanted to be covered by the Joint Will, and would have enquired about whether such assets were held in his name or otherwise.

(vi) The deliberate use of the words “名下” in Clause 2 of the Joint Will (in contradistinction to the use of the English phrase “all my properties” as in clause 2 of the 2006 Wills shows that the Joint Will was intended only to cover those assets held under or in the name of the Father.

29.  There was no dispute that evidence on ‘surrounding circumstances’ would be admissible.  The court is entitled to consider the surrounding circumstances known to the Father when he made the Joint Will. There was also no dispute that the Father knew the distinction between properties held in his own name and those held by others, and this was also borne out in the Parents’ Letter.

30.  The Father’s 2006 Will was in English and was quite different from his subsequent wills, and further in the Father’s 2006 Will, he bequeathed all his assets, as to 50% to the Mother and the remaining to the children, 10% each. There were no bequests to any charities, and in clause 6 thereof, the Father specifically declared that he had no assets which were held by his daughters or by any other person in trust for him, which issue is now subject of the Singapore proceedings.

31.  The subsequent wills were in Chinese and drafted by the same solicitors firm, namely Hastings.  In the 2007 Wills, the words “名下” were used in clause 4. Mr Ho had said there was no equivalent of Clause 2 in the 2007 Wills and thus Clause 2 must have been inserted in the Joint Will for a purpose.  Although clause 4 of the 2007 Will was worded slightly differently from Clause 2 of the Joint Will,  the words “名下” did appear in clause 4 of the Joint Will, which  stated that the  Father bequeathed 名下所有在香港以及其它任何地方的財産(包括動産及不動産) to the Mother, and if she did not survive him for 30 days, then all assets to charities. 

32.  There was no real change in the language in the Joint Will, the main changes from the 2007 Will being upon the Father’s death, the Mother was to have a life interest in the income from those assets governed by the Joint Will, and upon the Mother’s death, everything would go to charities. As in the 2007 Will, the Father stated clearly that he and the Mother did not intend the children to benefit from any assets governed by the Joint Will.

33.  On the face of it, the two words, “名下” may mean “under or in the name of”, if isolated from the rest of the contents of the Joint Will, but in deducing the Father’s intention, one has to have regard to the contents of the Joint Will as a whole.  The Father’s intention is to be collected from the whole of the Joint Will.

34.  In the Joint Will, after the two words, “名下”, Clause 2 in fact went on to state “所有(不論在世界任何地方)的財産”.

35.  As has been set out in Williams on Wills, the rule is that a will must be so construed that effect is given to every word, and the court has no right to disregard a word provided some meaning can be given to it, and that the meaning is not contrary to some intention plainly expressed in other parts of the will[43].

36.  As further set out in Williams on Wills, the above rule is not inflexible.  According to the context or by reasoning from the scope of the will words may be rejected, or may be regarded as merely explanatory, expressing what would otherwise have been true under the will.  There need be no departure made from the rule giving words their usual meaning merely because they are in that sense only surplusage, or because other words, inconsistent with their use in that sense but insufficient to give them any other sense, may have to be rejected[44].

37.  The Father and the Mother appointed D1 as their sole executrix and trustee in Clause 4 of the Joint Will.  Clause 5 of the Joint Will provides that upon the death of one spouse, after payment of all expenses, the surviving spouse is entitled to enjoy the income from the assets of the deceased spouse for life.  There is no specific power for the surviving spouse to sell any assets and there is no specific provision that the surviving spouse is to be entitled to the use of any capital. 

38.  It is then provided in Clause 6 that upon the death of the surviving spouse, all the assets of the Father and the Mother are to be given to the trustee with the powers stated therein and for bequests to various charities.

39.  Mr Ho’s submission was that any reference to assets , or ‘remaining assets’ in the Joint Will had to be read subject to Clause 2  and that Clause 2 referred only to assets held in the personal names of the Father and the Mother.

40.  Having considered the whole of the Joint Will, I am of the view that Clause 2 should not be construed in such a narrow sense.  I accept Mr Chow’s submission that the words “名下所有(不論在世界任何地方)的財産” can be all embracing and are entirely apt to cover all the assets of the Father and the Mother and to include assets beneficially belonging to them or either of them but held on trust on his/her behalf by another, and not only restricted  to assets held or in the personal name of the Father or the Mother.

41.  Further, reading the Joint Will as a whole, the Father’s intention was that upon his death, the Mother would be entitled, during her lifetime, to the income from all his assets.  Thus the Father must have intended the Joint Will to cover his income producing assets which he believed he had at the date of the Joint Will, as opposed to or rather than, for example his Art Collection or furniture.  I further accept what Mr Chow said, that it did not make sense that the Father was only referring to those assets held in his name or by him personally and was leaving the other assets undisposed of after his death to fall into intestacy. The Father’s intention of not leaving anything to his children is also clear from clause 11 of the Joint Will. 

42.  Having considered the Joint Will as a whole, the Father’s intention is clear and that the Father had intended the Joint Will to govern all his assets wherever situate, not merely those in his personal name but also assets held in the names of others in trust for him in which he had a beneficial interest.

Section 23 B- Extrinsic Evidence on ‘Subjective Intention’

43.  In light of the above, I do not need to consider s 23 B of the Wills Ordinance.  If I were to find that the Joint Will is unclear or that the language used in the Joint Will is ambiguous on the face of it, namely the words “名下所有 (不論在世界任何地方)的財産” are ambiguous, then under s 23B (1)(b) and s 23B(2), extrinsic evidence of the Father’s subjective intention would be admissible to assist in the interpretation.

44.  Mr Ho relied on the 2006 Will and the 2006 Undertaking to support the plaintiffs’ contention that the Father had wanted to give his entire estate to the Mother and their 5 children, including the Relevant Shares in AAIE.  It is, however, clear that thereafter the Father changed his mind when he made the 2007 Will, revoking his earlier will.

45.  Mr Ho further referred to D1’s own evidence and also her testimony in the Singapore Proceedings. What D1 had said was that the Father had also considered giving away the Relevant Shares in AAIE and the underlying EnGro shares to members of the family around the time of or after the execution of the Joint Will, but it was subject to the plaintiffs, the Mother and D1 agreeing to certain conditions and signing a DFA[45].  Although D1 did agree that it had always been the Father’s intention from about October 2007 that he would not want to give the Relevant Shares in AAIE to charity or to anybody else, except to family members and that this had always been his intention as of at least 31 January 2008, she later went on to say that she had to be very clear on this, because the Joint Will, when it was done, covered everything but subsequently the Father made changes in the Parents’ Letter[46].  D1 later again confirmed that the Joint Will covered everything that belonged to her parents, including the Relevant Shares in AAIE[47].

46.  What happened after the Father’s death, the Mother and D1 did try to carry out the Father’s Unexecuted Wishes.  As Mr Chow pointed out, all those events in relation to the meeting the meeting at the office of Hastings on 2 April 2009, the draft DFA and the DFA Letter, and the partially signed DFA or the agreement to settle the Singapore Proceedings happened after the Father’s death, and cannot be regarded as evidence of the Father’s subjective evidence at the date of the Joint Will.

47.  The lawyer who prepared the Joint Will was Mr Fu.  There was no affidavit filed by him in the proceedings herein, but he had filed affirmations in the Singapore Proceedings and also gave oral evidence there.  When he was cross examined as to whether as of 31 January 2008, the Father did not intend for the Relevant Shares in AAIE to be given to charity, Mr Fu replied that the background was that the Father and the Mother from the very beginning wanted to give away all their assets to the charities, and later on, the Father did not want the family to go into litigation or dispute and started to think about giving some of his assets to the children[48].  Mr Fu then went on to agree that the Father had intended to give the children the EnGro shares held through the Relevant Shares in AAIE inter vivos, and said his idea was that if the children were to accept his offer, it would be good and he could give away whatever he had during his lifetime, inter vivos, but if the children did not accept his offer, then all his assets on the date of his death would be given to the charities[49].

48.  Mr Fu’s clear evidence was that it was his instruction from the Father and the Mother throughout numerous meetings and the draft unexecuted wills prepared prior to the Joint Will, that the Father’s wishes were that during his lifetime, if the children were to accept his offer, then he would give the shares to the children inter vivos, and if they did not accept it, all shares would go to charities[50].

49.  Further, bearing in mind that the Joint Will is a single document signed jointly by both of the Father and the Mother, the Mother should be the best person to say what the joint intention of her and the Father was at the time of signing the Joint Will. She stated clearly in her affirmation that their joint intention was that the Joint Will would govern all their assets, including such assets held in names of others in which the parents, or either of them, had beneficial interest[51].  I accept that the Mother’s evidence supports D1’s construction of the Joint Will.

50.  Having considered the relevant extrinsic evidence, had there been any ambiguity in the Joint Will, I would come to the same conclusion, namely the Joint Will is meant to govern the disposition and administration of all assets belonging to the Father including all the assets held by or in the name of other person(s) on trust for the Father and in which he had a beneficial interest.

Conclusion

51.  In light of the above, I do not need to deal with the consequential orders/directions set out in paragraphs 1A – 3 of the plaintiffs’ originating summons.

52.  The parties are directed to lodge with court and exchange their written submissions on costs within the next 21 days.  I will then dispose of costs on paper.

53.  Finally, I would like to thank all Counsel for their very helpful submissions to the court.

“A” - Joint Will

“B” - Joint Codicil