Approach to raising and answering requisitions

When deciding whether or not a requisition has been satisfactorily answered, robust common sense is to be applied and there is an assumption of a willing seller and buyer.

In So Mariko v Tse Chun Chung John ([2011] HKEC 541, CA) Mr Ho died intestate and letters of administration were granted to his widow (Madam Ho). In 2001 Madam Ho assigned a flat forming part of the estate to herself and another (the 2001 assignment). Three persons joined as confirmors. There was a recital to the effect that the confirmors were the only people with an interest in Mr Ho’s estate. The flat was assigned twice more and came to be owned by the seller. The buyer’s solicitors raised a requisition seeking proof that there were no other people, other than the confirmors in the 2001 assignment, with an interest in Mr Ho’s estate. Madam Ho’s affirmation (which would have been the best proof) could not be obtained. Instead the seller proferred a statutory declaration made by the solicitor who prepared the 2001 assignment. The question was whether the requisition had been answered properly.

The Court of Appeal held that it had. The perspective is one of robust common sense and there is an assumption of a willing buyer and a willing seller. This was not a case of a necessary document of title but of corroboration of a statement in a recital in the 2001 assignment. There was no need for the best possible proof. In the circumstances, could the court be sure beyond reasonable doubt that that there was no risk of a beneficiary other than the confirmors coming forward to make a claim? The Court of Appeal held that this question could be answered affirmatively.

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