Like a good book, the challenges to Nina Wang’s will have kept Hong Kong entranced since her death in 2007.
On 18 May 2015 the Court of Final Appeal (“CFA”) issued what it said it hoped would be “the last stage, or almost the last stage, in protracted and contentious litigation concerned” with her will. The Court decided that the charitable trust to which Nina had left her HK$82 billion estate could not deal with the funds as they saw fit. Instead, Nina’s will imposed certain conditions on the trustee.
The reason the judgment cannot be the last stage is that following the Court’s decision, the matter has been sent back to the High Court to deal with the mechanics of implementing the Court’s decision.
- Challenges to Nina’s will
- Issue in this case
- A matter of interpretation
- Interpretation of Nina’s will
Nina and her husband Teddy both came from Shanghai, where Teddy’s father had started the Chinachem business. Nina and Teddy married in 1955 when they were 18 and 20 years of age respectively. In the years following their marriage they worked hard and expanded the Chinachem business into one of the largest property developers in Hong Kong. In 2012 it employed about 3,300 people and had an annual operating profit of about HK2,480,000,000.
In 1988 Nina and Teddy incorporated Chinachem Charitable Foundation Limited (the “Foundation”). This company was limited by guarantee, which means it did not have shareholders. Instead, the Foundation’s purpose was to carry out charitable activities. Teddy and Nina were the first directors and governors of the Foundation, but they were later joined as governors by employees of Chinachem.
Teddy was kidnapped on 10 April 1990 and never seen again. The High Court made an order presuming him to be dead on 22 September 1999.
In the meantime, Nina continued to run and develop Chinachem. The Foundation continued to make charitable donations and carry out charitable activities. Nina developed a keen interest in philanthropy.
In July 2002 Nina asked her sister to help her draft a will. The key terms of Nina’s (homemade) will were:
- Nina left her entire estate to the Foundation.
- She requested that the Foundation be supervised by a managing organization formed of the Secretary General of the United Nations, the Premier of the PRC Government and the Chief Executive of the Hong Kong SAR.
- Nina directed that the Foundation not only continue all projects which it had undertaken since its establishment, but also that it set up a fund and establish a “Chinese prize of worldwide significance similar to that of the Nobel Prize”. It also had to:
3.1 Safeguard and expand the Chinachem group of companies and business;
3.2 Provide for Teddy’s parents and siblings. One sister, Wang Teh Hwa, was to have her living and medical expenses paid. The other siblings were to have their children’s university and other advance studies paid by the Foundation; and
3.3 Pay for the care and assistance of the staff of the Chinachem group, and the education of their children.
Challenges to Nina’s will
After Nina’s death in 2007, the first issue was whether she had made another valid will in 2006. This claim failed.
The next issue was whether Nina’s 2002 was a valid will. If it was not, then Nina’s mother would have been entitled to her entire estate under the laws of intestacy.
Having found that Nina’s 2002 will was a valid will, the High Court had to appoint executors to administer the estate. This was so because Nina had failed to appoint any herself. The CFA noted this was a common problem with homemade wills.
Issue in this case
The issue for the CFA was whether the Foundation was to hold Nina's estate at its absolute (but charitable) discretion, or whether the Foundation was subject to some or all of the conditions Nina had purported to impose by her will.
A matter of interpretation
To determine this issue, the CFA had to decide how to interpret the various clauses of Nina’s will.
The Court confirmed that the interpretation of wills, as opposed to other documents, has to be considered against the “special” nature of wills. First, a will is a personal expression of wishes and directions. A will concerns only one person’s views, unlike a bilateral or multi-party document. Second, a will is what is known as an “ambulatory instrument”. This means that although it may be written many years prior to the will-maker’s death, it only “speaks” from her death.
Against that background, the CFA applied the following principles to the interpretation of Nina’s will:
- Despite the “special” nature of wills, the modern tenancy is to place more emphasis on the principles that are applicable to the interpretation of all documents than on that “special” nature.
- Words must be read and understood in their context – the will must be read as a whole.
- To determine the interpretation of a will, Courts should check each of the rival meanings of a phrase in the will against the other provisions of the document and investigate the practical consequence of each meaning.
- The Court may take into account the fact that the will was not drafted or even considered by a lawyer. What at first may appear to be an absolute gift (such as the transfer of Nina’s estate to the Foundation) may have conditions or trusts for the benefit of others engrafted onto it. If those conditions or trusts fail, then the recipient of the gift takes absolutely.
- A charitable trustee may hold assets on trust for others, not just for its charitable purposes. However, the court should not readily impose conditions on a charitable gift, unless the will-maker was clear. The Court must pay attention to differences in wording such as “must”, “shall”, “may”, etc.
- The Court can consider evidence outside the will document itself, such as Nina’s sister’s evidence as to the drafting of the will.
- The Court also had to remember that Nina’s will was written in the Chinese language, but had been translated into, and was being interpreted in, the English language.
Interpretation of Nina’s will
Absolute gift to the Foundation,or conditions?
The CFA found that Nina’s will imposed conditions on the gift to the Foundation. The Foundation could not just do what it wanted with Nina’s estate. The Court agreed with the Foundation that the conditions were unworkable as drafted in Nina’s will, but that:
That uncertainty can be cured and clarified by the law’s benevolent treatment of charitable trusts.
Having made this conclusion, the CFA then went on to consider each of the conditions Nina had imposed.
Benefit for Teddy’s parents
Teddy’s parents both died in 2010, so the CFA did not consider the clause of Nina’s will which was apparently for their benefit.
Benefit for Teddy’s siblings and their children
The Court found that these benefits had to be paid. However, the Court noted that carrying out these tasks would utilize such a small part of the trust fund that that portion could be put into a separate fund so as not to detract from the overall charitable nature of Nina’s will.
Benefit for Chinachem employees and their children
Since Nina’s death the Chinachem group had set up a fund for its employees and was working on a scheme for the children. For these reasons, the Court found that the Foundation did not need to do so.
Safe-guarding and expanding the Chinachem group of companies
The CFA held that the Foundation did not need to retain its investments in Chinachem as its only assets. Indeed, it found that the Foundation would probably be in breach of its obligations to prudently manage the trust fund if it did so.
The Foundation argued that its obligation was to complete the projects that had been underway at Nina’s death. However, the Court found that Nina’s will was clear and she wanted those projects completed, and then similar projects undertaken in perpetuity. The Foundation had more than enough resources do carry out those projects.
Nobel-prize like fund
The CFA found that the Chinese prize was a valid condition of the will. However, it found that it would be for the Foundation and “managing organization” (more below) to determine the exact nature of the prize, provided it was charitable. The Court also commented that the statutes of the Nobel Foundation could provide one possible template for the establishment of the fund, but that there was no requirement for them to be followed closely.
Managing organization formed by the Secretary General of the United Nations, the Premier of the PRC Government and the Chief Executive of the Hong Kong SAR
The CFA considered Nina’s sister’s evidence on this:
[Nina’s sister] asked Nina “how to achieve internationality”. Nina suggested the Premier of the People’s Republic of China and the Chief Executive of Hong Kong should be involved in the supervision of the Foundation. [Nina’s sister] then suggested the Secretary-General of the United Nations. Nina “said laughingly on the phone that she hoped it could be achieved.”
The Court found that it was highly likely that Nina knew that the managing organization would not be made up of the Premier of the PRC, the Chief Executive of Hong and the Secretary-General of the UN. However, it held that Nina’s intentions were clear and that the managing organization was “an important part of her plans for her estate.” The Court held that the managing organization should be established and:
The members of the new body should be individuals of unquestionable integrity, experience and judgment. They will no doubt bring a variety of skills to their task, but between them they should be skilled in corporate governance and investment and have deep knowledge of the fields in which the charity is likely to be active…
As noted above, this is not the end of the matter. The High Court will now need to consider and approve the drafting and implementation of a scheme to give effect to the CFA’s decision. However, the case illustrates how far courts will go to give effect to people’s wishes as expressed in their wills.