Nanyang Commercial Bank Ltd v Personal Representative of Vannee Nativivat
Court of First Instance
Miscellaneous Proceedings No 2027 of 2011
Anthony To J in Chambers
Civial Procedure
19 December 2012, 27 March 2013

Presumption of advancement — applied in Hong Kong to relationship between mother and adult child — whether evidence of mother’s subsequent conduct admissible to rebut presumption

A mother (“M”) and her son (“D2”) held five joint accounts with a bank; the balance would go to the survivor in the event of either death. M was diagnosed with cancer in June 2010 and subsequently asked to freeze the accounts. In December 2010, M informed the bank that the monies in the accounts belonged to her solely, with D2 made a joint holder for convenience. M died in June 2011; she left two wills, one dated 2004 appointing D2 as one of the executors, and another dated December 2010 disinheriting D2 and appointing his three siblings (collectively, “D1”) as executors. D2 claimed he was entitled to the accounts as their sole remaining beneficial owner. The bank applied and was granted an application for interpleader proceedings and the accounts were ordered to be paid into court pending final determination, after which D2 appealed.

Held, dismissing D2’s appeal, that, inter alia:

Both the presumptions of advancement and of resulting trust were evidential tools whose weight varied with the circumstances; they could only be raised in the absence of evidence of parties’ intention or where the evidence was even. Where presumption of advancement is concerned, where funds were placed into the joint account of an ageing parent and an adult child, an inference might be drawn that the arrangement was one of administrative convenience for the child to manage the parent’s financial affairs rather than a gift. Here, D1 and D2 each had a prima facie claim to the accounts and it was hence only appropriate for the bank to bring interpleader proceedings, since it was difficult for it to decide which party had a better claim. Indeed, it would have risked being sued if it made a wrong decision or chose not to do anything.

 

Jurisdictions: 

Thomson Reuters – Sweet & Maxwell are the publishers of the Authorised Hong Kong Law Reports & Digest ("HKLRD") and the Authorised Hong Kong Court of Final Appeal Reports ("HKCFAR"), and providers of Westlaw HK (www.sweetandmaxwell.com.hk / www.westlaw.com.hk).