HONG KONG HIGH COURT REAFFIRMS THE SIGNIFICANCE OF USING PRECISE WORDINGS IN WILLS

Background

One of the complications in the recent Hong Kong High Court decision of Harrison Liu v Personal Representative of the Estate of Li Kwok Mi^[1] concerned the large family tree of the deceased, who was a concubine of Lau Yam Shan.

Lau Yam Shan had a wife and five concubines, one of whom gave birth to the father of the Plaintiff, and another gave birth to the mother of the Fourth Defendant. Although the deceased did not have any children of her own, one might say that she was in some sense the grandmother of the Plaintiff and the Fourth Defendant. The Plaintiff and the Fourth Defendant are cousins.

The deceased treated one of her husband's sons, Lau Hing Yiu, most favourably. Under her will, her property was left to (i) Lau Hing Yiu’s male issues in equal shares, or (ii) (if Lau Hing Yiu died without leaving any male issue) any "duly adopted" son of Lau Hing Yiu or his widow "from amongst the grandsons" of Lau Yam Shan. Lau Hing Yiu eventually died without leaving any male issue, as his wife was infertile.

The Plaintiff raised two claims before the Court:

1. firstly, upon a proper construction of the will, “grandsons” included the deceased’s "paternal grandsons" only, and hence the Fourth Defendant was not qualified to inherit the property; and
2. secondly, in any event, the Fourth Defendant was not "duly adopted". The Plaintiff, as the only surviving male issue of the deceased, shall therefore be entitled to inherit the property.

Judgment

Construction of wills

The principles applicable to the construction of wills are well established.

In the Court of Final Appeal decision of Tan Cheng Gay v Tan Choo Suan^[2], Ribeiro PJ confirmed the aim of interpreting a will is to identify the intention of the party or parties by deciphering the meaning of the relevant words of the will in light of the documentary, factual and commercial context, bearing in mind that wills are unilaterally created and are intended to take effect from the time of the testator or testatrix's death. Subject to statute, the court is concerned with "(i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense", but not any subjective evidence of any party's intention. Section 23B of the Wills Ordinance (Cap. 30) also provides that extrinsic evidence may be admitted to assist in the interpretation of a will under certain circumstances.

"Grandsons" or "paternal grandsons"?

In support of the first claim, the Plaintiff highlighted the fact that the deceased was a concubine, and argued that the fundamental principle under Chinese Law and Customs is to preserve the family property belonging to the male line, i.e. the male descendants of the Lau family who bear the surname Lau. In other words, the word "grandsons" in the will should be construed to only mean "paternal grandsons".

The Court, however, considered the deceased was "certainly not a concubine living in a small village in the New Territories who was uneducated, submissive and wholly dependent on her husband". Instead, on the evidence, she treated the property as entirely her personal property and gave careful thought as to her property disposition in the will, such as by giving different interests in the property to her selected family members.

Further, the natural and ordinary meaning of "grandsons" would include both paternal and maternal grandsons, and there is no hard and fast rule under Chinese Law and Customs that only a child of the same family name may be adopted.

More importantly, the Court weighed heavily the factor that Lau Yam Shan did not have any paternal grandsons at the time the deceased made the will. To confine "grandsons" to paternal grandsons would therefore create a real risk that there was simply no qualified person to be adopted by Lau Hing Yiu or his widow. The Court found that this possibility was not what the deceased had contemplated, as she may otherwise have made a further provision to cover it.

Having held that the word "grandsons" in the will intended to cover both paternal and maternal grandsons, the Court decided that the Fourth Defendant fulfilled the requirement in the will to be "from amongst the grandsons" of Lau Yam Shan.

"Duly adopted"?

The Court also rejected the Plaintiff's second claim (i.e. the Fourth Defendant was not "duly adopted"), and accepted the Fourth Defendant's evidence that Lau Hing Yiu adopted him as his son.

In particular, the Court considered a declaration from Lau Hing Yiu, in which he described the status and capacity of the Fourth Defendant as his "duly adopted" son within the meaning of the will, a solemn piece of documentary evidence that bore utmost significance in the question of whether Fourth Defendant was duly adopted. The Court viewed that the declaration was entirely consistent with the Fourth Defendant's case.

Further, the Fourth Defendant could demonstrate Lau Hing Yiu's serious intention to adopt him as his son. For example, the adoption ceremony took place at the family dinner to celebrate the Mid-Autumn Festival, a special Chinese festival for family union. The Court noted that, in theory, the serious intention to adopt Lau Hing Yiu did not mean the Fourth Defendant was duly adopted under Chinese Law and Customs. However, the Court held that it should be "very slow to frustrate and defeat the clear intention of the parties unless there is clear and compelling evidence or authorities supporting that the adoption was invalid, or would or could not be recognized under Chinese Law and Customs". On the facts of the case, there was simply no such clear or compelling materials.

Accordingly, the Plaintiff failed to show that the Fourth Defendant was not the duly adopted son of Lau Hing Yiu. 

Comment

The principles applicable to the construction of wills are well established. As vividly demonstrated in this case, the Court is often required to "go forwards and backwards painstakingly between the various words and phrases, occurring in different parts of the document, which give rise to the problem"^[3]. Hence, the use of precise wordings that convey the actual legal intention of the testator or the testatrix is crucial. Additionally, as the Court highlighted in this case, having a reputable firm of solicitors to draft the wills would help draw any potential ambiguity of the terms, such as "grandsons", to the testator or testatrix's attention in the first place, thereby avoiding any potential arguments on the interpretation of words and phrases in the future.

[1] [2021] HKCFI 2527

[2] (2015) 18 HKCFAR 430

[3] Secretary for Justice v Joseph Lo Kin Ching (2015) 18 HKCFAR 169