Illegitimate son’s right to Tso distributions

In Tang Chun Kit v Tang Lo Ping ([2004] HKEC 1105, CFI) P was the illegitimate son of the member of a Tso. D was the manager of the Tso who, in essence, sought the court’s directions as to how to proceed. P sought to have his name recorded in the Register of Indigenous Inhabitants in respect of the Tso. He also made a retrospective claim to a share of distributions made since his birth.

The court heard expert evidence as to the relevant Chinese customary law. The parties accepted that membership of a Tso was a birthright and did not depend on having gone through any formalities ([17]). There was a question as to whether illegitimate sons were entitled to a full share or only a half share. Insufficient evidence on this point was made available to allow the court to settle this point and so a second hearing was arranged. By the time of this hearing ([2005] HKEC 1469) the parties had agreed that illegitimate sons were entitled to a full share ([8]).

P accepted that he could not make a retrospective claim. The court held that D had acted reasonably in relying on the records of the Tso in making earlier distributions. There was no duty to conduct a full enquiry as to the membership of the Tso before making a distribution ( [2004] HKEC 1105, [39]).

As to costs, the court applied the general rule that the trust fund should bear the costs of an action seeking directions as to the administration of the trust ([2005] HKEC 1469, [20]).

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