THE ADVOCATE 499
VOL. 80 PART 4 JULY 2022
SOME THOUGHTS ABOUT THE
WILLS, ESTATES AND SUCCESSION ACT
AND CONSTRUCTIVE TRUSTS:
A REPLY TO WEINTRAUB AND STOREY
By Joel Nitikman, Q.C.
The law on constructive trust is in my view far from straightforward or
settled.
As pointed out by Lord Goff, this area of the law is a matter of great
difficulty.
—Patrick Chan C.J.,
In the Matter of the Application of Robin Potts QC,
1999 HKCU 1118
In the May 2022 issue of this journal,1 Mark Weintraub and Polly
Storey made the following suggestion: s. 60 of the Wills, Estates and
Succession Act (“WESA”)2 permits a disappointed beneficiary who is
a testator’s spouse or child to challenge the testator’s last will and
testament on the basis that it fails to make “adequate provision” for that person.
However, the relief provided for in s. 60 is limited to “the will-maker’s
estate”. That is, the court has no jurisdiction under s. 60 to direct that assets
that are not in the testator’s estate at the time of death be paid over to the
disappointed beneficiary.
To remedy that problem, the beneficiary might seek out assets that the
testator used to own and seek a declaration that the current owner holds
those assets under a constructive trust for the testator’s estate.
For example, the testator may have made an inter vivos gift of various
assets to a relative, friend or paramour, or may have named that person as
a joint tenant of the assets, so that the surviving tenant takes the assets on
the testator’s death, or the testator may have settled the assets on an inter
vivos trust of which the disappointed beneficiary is not a beneficiary. In