The Plaintiff applied for a further distribution of HK$2.8 million out of the Deceased's
(i.e. the parties’ mother) estate, on the basis that a HK$5.6 million promissory note
payable on demand from the Plaintiff to the Deceased, dated 2015 (“Promissory
Note”), was wrongly taken into account by the Defendant executrix (the Plaintiff’s
sibling) to reduce the Plaintiff’s share.
It was common ground that the Deceased, who passed away in October 2022, did not
enforce the Promissory Note in her lifetime, such that the 6-year contractual limitation
period had lapsed.
On the facts, Recorder William Wong SC found that the Deceased’s intention was to
make a demand on the Promissory Note only if the Plaintiff entered into debt (i.e.
bankruptcy), or if he became divorced (the “Triggering Events”).
The first basis on which the Court found for the Plaintiff was that these Triggering
Events did not occur, such that the Promissory Note was not yet payable.
Alternatively, the Court also found for the Plaintiff on the application of Cherry v
Boultbee, an equitable rule that a person who owes an estate money cannot claim a
share thereof without first making the contribution, which operates similarly to a set-
off. Before this decision, In re Akerman [1891] 3 Ch 212 was frequently cited for the
proposition that even the expiry of the limitation period does not prevent the sums
from being netted off under Cherry v Boultbee. The Defendant relied on this to argue
that the Executrix correctly took the Promissory Note into account.
However, as the first case in Hong Kong, the Court held that the rule in In re Akerman
is not inflexible and that the Court retains a discretion in the matter, to be exercised in
accordance with equity and conscience. Based on (i) the Deceased’s clear intention
not to enforce the Promissory Note until the Triggering Events, and (ii) fairness
between the Plaintiff and Defendant, the Court exercised its discretion to disallow the
taking into account of the Promissory Note after 6 years had lapsed, and the Plaintiff
received the additional distribution.
Ernest Ng and Joshua Wang, instructed by H.Y. Leung & Co. LLP, acted for the
successful Plaintiff.
For Ernest’s full profile, see here
For Joshua’s full profile, see here
The judgment of Recorder William Wong SC [2026] HKCFI 1768 can be found here
