WLK by MYW her next friend v. CCIW AND OTHERS

FCMP176/2019

[2025] HKFC 104

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NO 176 OF 2019

________________________

________________________

________________________

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JUDGMENT
( Variation of Cost Order Nisi )
(Paper Disposal)

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1.  After a 5-day trial in August and September 2023, I handed down the Judgment on this Cap 481 application on 16 August 2024 (the “Judgment”)  in favour of the Applicant, and made the Order that the Applicant shall be entitled to 50% of the net estate, to be set off by the interim financial provision payments previously made to her.  I also made the Costs Order against three of the Respondents, who are the three sons of the Applicant who opposed her application.  The Costs Order reads as follows:

“All cost of and arising from this application, including all costs reserved be to the Applicant, it is to be borne by R1, R2 and R7, to be taxed if not agreed.”

2.  The Applicant seeks to vary this Costs Order Nisi by her Summons dated 30 August 2024 (“Variation Summons”), and asks for her costs either from 28 October 2022 or alternatively 23 August 2023 be paid by R1, R2 and R7 on an indemnity basis.

3.  Adopting the nomenclature from the Judgment, R1, R2 and R7 shall be referred to as the Opponents herein.

4.  References will be made to the paragraphs in the Judgment (§).

History of negotiation between the parties

5.  The FDR was conducted on 21 September 2022, and failed.

6.  Following the FDR, the Opponents submitted an Open offer dated 21 October 2022 which proposed that HK$180,000 be paid either as a lump sum or as a monthly payment of $3,000 (over a course of 60 months)  to the Applicant.

7.  The Applicant’s Open Offer dated 28 October 2022 proposed 50% of the estate be paid to her, and the balance to be divided among her 10 children.

8.  The Opponents’ “Without Prejudice Save as to Costs” letter dated 19 April 2023, asked for the Applicant’s claim to be “dismissed”, and 50% of their costs to be borne by the Applicant, her next friend, R3 to 6, and R8 to 10 jointly and severally.

9.  The Applicant’s “Without Prejudice Save as to Costs” letter dated 23 August 2023 proposed 35% of the estate be paid to her, and to allow for interim maintenance payment already made to be set off.

10.  The Opponents’ “Without Prejudice Save as to Costs” letter 24 August 2023 in response offered 20% of the estate to be paid to the Applicant.

11.  During the course of the trial, parties were warned of the costs consequence of the trial and the relative size of the net estate, and were sent out to negotiation at least twice.  The Opponents’ offer was 20% of the estate to the Applicant on the first occasion and on the second occasion, offered to give her 25% of the estate, or they (the Opponents)  walk away with $1.7M lump sum from the estate.

Service of this Summons

12.  The Opponents’ lawyers applied to cease to act on 16 September 2024, the order was made by me in terms of the Cease to Act Summons on the return day of this Variation Summons on 27 September 2024.

13.  Hence, the Opponents were no longer represented at this hearing nor did they make an appearance.  I made the Orders for the Opponents to file affidavits in opposition 35 days from date of affirmation of service, and the Applicant to file their reply 21 days thereafter.  As all of the Opponents live in the US, the Applicant’s legal representation then applied for Service of the Variation Summons out of jurisdiction, and the Order for this was made on 30 October, 2024.

14.  There is an Affirmation of Service by a US agent dated 10 February 2025 describing the various attempts to serve the court documents on the Opponents.  R2 and R 7 were served personally; while it was the agent’s evidence that R1 was probably evading service, hence the court documents were left at his door and also sent via post.  On 14 March 2025, Master Yeung made the Order that the manner in which R1 was served was deemed good and sufficient service on him.

Applicable Legal Principles

15.  The principle is trite that the Court has full discretion on the issue of costs.  While the usual order to be made is that costs should follow the event, other approach can be considered.  Order 62 RDC Rule 3(2)  states as follows:

“If the Court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any proceedings (other than interlocutory proceedings), the Court shall, subject to this Order, order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs.”

16.  I shall also have regard to Order 62 Rule 5(1)  and (2),

“(1)  The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account—

(aa)  the underlying objectives set out in Order 1A, rule 1;

(a)  any such offer of contribution as is mentioned in Order 16, rule 10, which is brought to its attention in pursuance of a reserved right to do so;

(b)  any payment of money into court and the amount of such payment;

(c)  any written offer made under Order 33, rule 4A(2);

(d)  any written offer which is expressed to be “without prejudice save as to costs” and which relates to any issue in the proceedings, but the Court may not take the offer into account if, at the time it is made, the party making it could have protected his position as to costs by means of a sanctioned payment or a sanctioned offer under Order 22;

(e)  the conduct of all the parties;

(f)  whether a party has succeeded on part of his case, even if he has not been wholly successful; and

(g)  any admissible offer to settle made by a party, which is drawn to the Court’s attention.

(2)  For the purpose of paragraph (1)  (e), the conduct of the parties include

(a)  whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(b)  the manner in which a party has pursued or defended his case or a particular allegation or issue;

(c)  whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and

(d)  conduct before, as well as during, the proceedings

17.  The Court is therefore to have regard to whether parties have made reasonable efforts to settle disputes, Order 1A r1 of RDC refers.  Furthermore, an offer made “without prejudice save as to costs”, and which one party unreasonably refuses to accept may be considered in the exercise of the Court’s discretion.

“It has been said on numerous occasions that, in the course of matrimonial litigation, when an offer has been made, if the party to whom it has been made rejects that offer and at trial receives no more than what was contained in the offer, the party is at risk of an adverse order as to costs. Litigants cannot ignore sensible and rational offers of compromise in the comfortable knowledge that they can do so with impunity.” HK v BD [2010] HKCA 357, CACV 252/2009 (15 October 2010)  at §94.

18.  With regard to the claim for Indemnity Costs, I cite the following often quoted authority from the case of LYE v CSS and HWL, FCMC 14787 OF 2002, 6 May 2005, a decision from HHJ B Chu (as she then was)  at §§5 to 8:

“5. Order 62 Rule 28(3)  in both R.D.C. and in R.H.C. provides that the Court in awarding costs payable to one party by another may in any case in which it thinks fit to do so order or direct that the costs shall be taxed on the common fund basis or on the indemnity basis.

6. Any order for costs is in the discretion of the Court. (see Headnote of Re Engindata* Ltd (No. 2) 1993 1 All ER 232).

7. Section 53 of District Court Ordinance Cap. 336 (equivalent to Section 52A of High Court Ordinance Cap. 4)  provides that the Court shall have full power to determine by whom and to what extent the costs are to be paid. See also Hong Kong Civil Procedure, 62/2/5 : -

“The Court of Appeal in Choy Yee Chun (The Representative of the state of Chan Pui Yiu)  v. Bond Star Development Ltd [1997] H.K.L.R.D. 1327, CA reviewed the cases and summarised the law as follows. A taxation of the successful party’s costs on an indemnity basis could properly be ordered where the proceedings were scandalous or vexatious, or had been initiated or prosecuted maliciously, or for an ulterior motive, or in an oppressive manner. Any proceedings instituted or prosecuted in such circumstances as to constitute an affront to the court could properly be the subject of a direction for the taxation of the successful party’s cost on the indemnity basis. However, the circumstances in which an indemnity award might properly be made were not restricted to circumstances beyond the requirement that taxation on an indemnity basis must be “appropriate”. The principle for the award of an order of costs on an indemnity basis applied equally to those who not only instituted proceedings but who defended them. If a plaintiff had been forced to institute proceedings by a defendant whose conduct had been not only hostile in the normal litigious sense, but oppressive and with base ulterior motive, and if the pursuit of a defence constituted conduct which was part of an oppressive game plan, then invocation of the power to award costs on an indemnity basis might well be justified”.

8. I have been referred by the Petitioner’s solicitor, Mr. Ko, to the case of Re Tang Hong Yeun Andy HCB 19585 OF 2003 (at paragraph 18)  quoting Choy Yee Chun (The Representative of the estate of Chan Pui Yiu)  v Bond Star Development Ltd. [1997] H.K.L.R.D. 1327 CA, where it was held that the discretion was not to be fettered or circumscribed beyond the requirement that taxation on an indemnity basis must be “appropriate”. See also Hong Kong Civil Procedure, 62/App/12.

  * should read “Elgindata”

19.  Another leading authority in this subject is the judgment of the Court of Final Appeal in Town Planning Board v Society for Protection of the Harbour Limited (2004)  7 HKCFAR 114 where the Court of Final Appeal stated some of the principles:-

(1)   The Court had a broad discretion to determine how costs should be paid and whether indemnity costs should be ordered.

(2)   The successful party would usually recover more of his costs under an indemnity award than under a party and party award, and in that sense the former might be perceived as achieving a fairer result for the successful party in circumstances such as the present. 

(3)   However, the Judge rightly considered that the existence of such difference between the two types of award was not on its own a sufficient basis for awarding indemnity costs and that the successful should show that the case had special or unusual features for such an order to be made.

(4)   An award of indemnity costs was not confined to cases brought with an ulterior motive, for an improper purpose, or where there was some deception or underhand conduct on the part of the losing party.  It was undesirable to attempt to define the circumstances in which such order would be made, and the discretion was not to be fettered beyond the requirement that indemnity costs much be “appropriate”.

(5)   The attributes of the parties and the character of the proceedings were not irrelevant to the exercise of the discretion to award indemnity costs.  The grounds for making such an order must be connected with the case and might extend to any matter relating to the litigation and the parties’ conduct in it, and also to the circumstances leading to the litigation, but no further.

20.  I would also draw reference from the more recent case of KJ v KMLM and KCK [2014] HKCU 1409 at paragraphs §§21 to 24, the Court of First Instance stated:

“21.  The principles applicable to indemnity costs are well settled. The starting point for taxation in hostile litigation is that costs should be taxed between party to party: See Town Planning Board v Society for protection of Harbour Ltd. (No.2)  and Overseas Trust Bank Ltd v Coopers & Lybrand (a firm). To qualify for costs on an indemnity basis, the successful party should show some special or unusual feature in the case. The proceedings must be instituted or prosecuted in circumstances as to constitute an affront to the court. Usually there must be something disgraceful in the conduct of the losing party or his legal representatives such as to cause the court to feel a proper sense of indignation. Normal litigious hostility would not suffice: See Town Planning Board v Society for protection of Harbour Ltd. (No.2); Overseas Trust Bank Ltd v Coopers & Lybrand (a firm)  and Man Fong Hang v Man Ping Nam. In exercising its discretion as to costs, the court must take into account the conduct of both the successful and losing parties before, as well as during the proceedings: See Order 1A, rule 1(1)  and Order 62, rule 5 of the Rules of the High Court (“RHC”).

22.  If unreasonable conduct is relied on, the losing party’s conduct would need to be unreasonable to a high degree. In this context “unreasonableness” does not mean merely wrong or misguided in hindsight: See Kiam v MGN Ltd (No.2). Advancing a case which is difficult, unlikely to succeed or which in fact fails, or without any foundation in law or fact, or devoid of merits, is not necessarily in itself a sufficient reason for an award of indemnity costs: See Overseas Trust Bank; Shaina Investment Corporation v Standard Bank London Ltd; Golden Sand Marble Ltd v Hsin Chong Construction Co Ltd; Kao, Lee & Yip (a firm)  v Midland Realty International Limited. The court’s finding that the claim or the ground of defence is plainly and obviously incredible on the fact, or that the evidence has been deliberately untruthful will not necessarily in itself warrant an order of indemnity costs. The conduct of the losing party must be of a more venal kind and the conduct of the litigation has in some sense been wicked: Choy Yee Chun v Band Star Development Ltd; and Kao. Lee & Yip.

23.  The court may also mark its disapproval of the conduct pertaining to part only of a party’s case by ordering costs of that part only to be assessed on an indemnity basis, with the rest assessed on party-and-party basis: see Man Fong Hang.

24.  Ms Yip, counsel for the Husband, referred to the uniqueness of family cases which usually involve highly sensitive and emotional matters such carving up of assets as result of breakdown of a marriage. She argued that making a costs order would effectively be pouring salt on the wound, and worse still with indemnity costs. Her argument is based on the English Family Procedure Rules 2010 which are inapplicable to Hong Kong. That part, if the conduct of the losing party is of a more venal kind and the conduct of the litigation has in some sense been wicked, the rules, even if applicable, could provide no answer to an award of indemnity costs. An indemnity costs order is necessary to mark the court’s disapproval of such venal and wicked conduct and to provide consolation to the injured party”.

21.  Pulling the threads together, the summary of the principles drawn from the above authorities for awarding indemnity costs could be the consideration of one or more of the factors below:

a.  the discretion to award indemnity costs was not to be fettered or circumscribed beyond the requirement that taxation on an indemnity basis must be “appropriate”; 

b.  where the proceedings were scandalous or vexatious, or had been initiated or prosecuted maliciously, or for an ulterior motive or improper purpose, or in an oppressive manner, or where there was some deception or underhand conduct on the part of the losing party;

c.  where the pursuit of a defence constituted conduct which was part of an oppressive game plan;

d.  where any proceedings were instituted or prosecuted in such circumstances as to constitute an affront to the court.  Usually with something disgraceful in the conduct of the losing party or his legal representatives such as to cause the court to feel a proper sense of indignation;

e.  the successful party should show some special or unusual feature in the case;

f.  if unreasonable conduct is relied on, the losing party’s conduct would need to be unreasonable to a high degree;

g.  the attributes of the parties and the character of the proceedings could be relevant; 

h.  the conduct of the losing party must be of a more venal kind and the conduct of the litigation has in some sense been wicked.

The Applicant’s Case

22.  Submitted on the Applicant’s behalf, are two speaking notes dated 25 and 26 September 2024 respectively.

23.  The Applicant submits that legal costs of approximately $959,000 has been incurred, and the Opponents legal costs amount to $850,000 from the end of the FDR to the end of the trial.

24.  The Applicant’s counsel relies on three factors in his first speaking note:

a.  Failure to Mediate

b.  Affirmation of Mr Man

c.  Disingenuous offer

Failure to Mediate

25.  The Applicant says that the Opponents took an unreasonable position in discussing the approach to mediation:

a.  The Applicant says that the Opponents had been slow in engaging in mediation, and took over three months after a Court hearing in January 2022 (at which they indicated their intention to mediate), to nominate a name for mediation.

b.  The Applicant also says that the Opponent’s insistence on discovering the whereabouts of the Applicant before agreeing to mediate is irrelevant.

c.  The Opponents at a following court hearing in June 2022 placed a condition that mediation would not take place without information to be provided as to the Applicant.

d.  As a result, no mediation took place and the Applicant submits that the Opponents were being unreasonable, and only meant to delay further progress of the proceedings, probably with the intention that the Applicant (at age 86-87 then and quite ill at hospital)  would pass away prematurely and hence put an end to her claim. 

Mr Man’s Affirmation

26.  Opponents’ attempt to produce the affirmation of their friend Mr Man who attempted to visit the Applicant at hospital, was said by the Applicant’s counsel to be made in apparent disregard of the Applicant’s health (as it was during covid19)  and privacy (as it was in the middle of this litigation).  The Opponents’ attempt to incorporate Mr Man’s affirmation into R1’s narrative affirmation was criticized as a backdoor attempt to introduce previously disallowed evidence. 

Disingenuous offer

27.  The Opponents various offers were disingenuous:

a.  The Applicant says that the first open proposal of a $180,000 lump sum was less than 3% of the estate.  The alternate suggestion to pay $3,000 per month from this $180,000 would mean 5 years of payment up to the time when the Applicant would be around 91-92 years of age.

b.  The Applicant also says that the first WP offer is even worst as it asked the Applicant to drop her claim in its entirety and pay 50% of the Opponent’s costs.  It is said that this proposal takes the parties away from any further potential settlement.

28.  In the Applicant’s second speaking note, reference was made to Order 1A to remind this Court to take into regard the Opponents’ attitude to the reasonable settlement offers that had been made.

29.  Further, it was said that the whole of the case advanced on behalf of the Opponents had been dismissed by me as being unmeritorious issues.

The Opponents’ case

30.  None of the Opponents file any evidence in opposition to this Variation Summons.  No submission was given.

Applying the Principles to this Case

31.  I am not of the view that the mode of the Opponents’ participation in mediation, nor the allegation involving Mr Man’s affirmation by itself or together would give rise to an indemnity costs order.

32.  However, I have found in favour of the Applicant, and indeed dismissed all the arguments put forward by the Opponents. The following are the gist of my findings with regard to the Opponents’ case.

a.  The Opponents accused their mother of not taking care of her children.  I disagreed with the Opponents’ case (§54), and also found that this was contradicted by R3 and R4, whom I found to be credible witnesses.

b.  The Opponents accused their mother of squandering money and went out to gamble when the deceased was incarcerated.  Not only were there no proof as to what exactly was given to the Applicant for her to squander away, there was no evidence to support the Opponents’ allegations except their mere say so (§56).

c.  The Opponents accused their mother of having an extramarital affair when the deceased was incarcerated.  I said in the Judgment that the evidence from the Opponents on this matter was ambiguous and there was nothing to support their contention (§53).  I also take the view that they may be fabricating this extramarital affair as their reason to say that their parents’ relationship had broken down due to this affair; but it was my finding that their relationship had not broken down.

d.  I also concluded that the relationship between the Applicant and the deceased had not broken down due to evidence from the Opponents’ other siblings and the Applicant’s granddaughter, whom I found to be credible; and also from a number of photos put into evidence.  When shown the photos of their parents taken together well into 2016, one of the Opponents said that they were trying to salvage their relationship but did not succeed (§62).

e.  Overall, I found that the allegation of a broken down relationship to be unsupported (§§79-81).

f.  I found that there were good reasons that the Applicant and the deceased were not living together all the time (§§71 to 78).

g.  The Opponents, relying on only something that R7 allegedly heard from the deceased, said that the deceased had given $1M to R4 for the Applicant’s use.  There was no paper trail, nor corroboration; and the alleged recipient R4 denied ever receiving this amount.  It is also implausible that an important payout like this could have been made in this surreptitious fashion (§90).

h.  I found it quite incredible that the Opponents could run a broken down relationship argument when R1 was asked by the deceased to purchase a burial plot for himself and the Applicant, no explanation was given as to why the deceased wanted to purchase a joint burial plot when his relationship with the Applicant was alleged to be so bad.  I found the evidence given by R1 in this regard to be suspicious (§106d), I continue to maintain a strong view that this incident lies diametrically opposite to the Opponents’ case that their parents’ relationship had broken down.

i.  With regard to the Opponents’ case that the testamentary intention of the deceased should be taken into consideration, R1’s role is in particular worthy of mention.  R1 was the person who accompanied the deceased to make his will; R3 who was also present, described in evidence the deceased’s intention to have all the children support their mother from their respective share of the estate; R1 denied this.  I accepted R3’s version of what transpired, and this had placed R1’s evidence in a continuously suspicious light (§§95 and 96). 

j.  I found that where the Opponents were speaking to events in HK, it could only be very much limited to their brief visits here; but the rest are mostly from hearsay, and mostly among the three of them (§106b).

k.  I found the Opponent’s oral evidence to vary in degree of evasiveness and defensiveness (§106c).

l.  I also found the Opponents case to be presumptuous; and that they had given evidence on matters they could not have known, changed their evidence, and made unsubstantiated statements (§107-109).

33.  In re-looking at the case in the context of this application, I give further consideration on the evidence as to what could have been the ulterior motive of the Opponents.  I have concluded in the Judgement that none of the Opponents have a good relationship with the Applicant.  It would appear that they want the money from the estate distributed first and left it to whoever of the other siblings who are “able and willing” to use their own resources to look after the Applicant to do so, but it is clear that they have no intention to chip in.  They want to keep mother in a nursing home in the US to take advantage of the medical benefits she has as a US citizen and so that US can cover her medical costs.  They complained about the siblings who want to have their mother cared for in HK; R2 even said that this decision is “irrational”; and he also said that when the Applicant dies, they need to spend a lot of money to bring her body back for burial (§99).  It is not beyond imagination, that their driver could be financially oriented. 

34.  The Opponents, being 3 sons of the Applicant, are probably more focused on their own monetary interests, instead of considering what is best for their mother’s needs.  At a time when the Applicant is bedridden in hospital, and not expected to return home, they had concocted their case which is unsubstantiated and uncorroborated, to serve only their personal interest.  The conclusion to be drawn from the above, is that the Opponents were speaking from a parallel universe of their own creation. Their credibility was questionable, their conduct disgraceful and unreasonable; and had left this court with a serious sense of indignation.

Offer from the Applicant

35.  During the 5-day trial, the Court had attempted to ask them twice to consider their respective cases, taking into account the costs so far incurred, the costs and stress of continuing to be in trial, and how these relate to the value of the estate.  Nothing came out of the two opportunities to discuss this.

36.  Looking at the Open offer of the Applicant’s case asking for 50% of the estate, this is in line with the divorce standard crosscheck to be applied in a case of this nature.  It is quite clear that should the Opponents’ case fail to come up to proof, as it had, that this would be the result they everyone would be looking at.  The subsequent “Without Prejudice Save as to Costs” offer dated 23 August 2023, just before the trial commenced, made an offer of 35% of the estate.  None of these reasonable or more than reasonable offers were taken up by the Opponents, they had stoically maintained their positions, taking it all the way to a full fledge trial.  Both these offers equate to and subsequently “beat” the final decision of the court.  This alone could be the basis of a higher costs order to be made against the party rejecting these offers; and is a factor that I will be taking into account.

37.  I also agree with the Applicant’s submission that the Opponents’ offers were disingenuous.  This in brief repetition, consists of the Opponent’s proposal of giving the Applicant only $3,000 per month, or asking her to “dismiss” her application and pay for 50% of their costs, or asking to be given $1.7M from the estate so they could walk away.  This last offer, in particular, made little sense when it was clear that the estate, which then held a yet-to-be-sold property, could be valued as low as $6.42M (§147).

Conclusion

38.  The circumstance around this case makes for woeful reading of a series of unreasonable conduct on the part of the Opponents, reflected in the number of accusations against their own mother.  It is a case which was ill conceived from the beginning with practically no proper evidence in support.  For the Opponents to have pursued this to the bitter end left the Court with a strong feeling of affront by the unsubstantiated allegations that were made, the quality of the evidence given, and the time and cost of all parties concerned; this is clearly a case for the Court to mark its disapproval by making an order that costs be taxed on an indemnity basis.

39.  I therefore grant the Applicant’s Summons to vary the Costs Order, which shall be as follows :

All the costs of and arising from this application, including all costs reserved be to the Applicant, to be borne by R1, R2 and R7 on a party to party basis up to 28 October 2022; and then from 29 October 2022 and thereafter on an indemnity basis, to be taxed if not agreed. 

40.  Costs of this application be to the Applicant, to be borne by R1, R2 and R7 on a party to party basis, to be taxed if not agreed. There shall be certificate for counsel.

Mr Fergus Chan instructed by Hugill & Ip, Solicitors, for the Applicant

R1 to R12 acting in person

FCMP 176/2019

[2024] HKFC 157

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NO. 176 OF 2019

_______________________

_______________________

______________________

______________________________________

JUDGMENT
(Financial Provision for Family and Dependants)

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Introduction

1.  This is an application by the Applicant (the “Wife”) as the surviving spouse of the husband, CSS (the “Deceased”), through her Next Friend, MYW (“Madam M”), for reasonable financial provision from the Deceased’s net estate under the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481) (the “Ordinance”).

2.  The Deceased passed away at age 87 in August 2018 in Hong Kong, leaving the Wife and his 10 children, being the 1^st to 10^th Respondents (collectively the “Children”).

3.  The 11^th and the 12^th Respondents are the 6^th and 10^th Respondents respectively in their capacity as the executrixes of the Deceased’s last will dated 3 December 2013 (“the Will”).

4.  The 1^st, 2^nd and 7^th Respondents (“R1” R2” “R7”, and collectively "the Opponents") oppose the Wife’s current application.

5.  The 3^rd, 4^th, 5^th, 6^th/11^th, 8^th, 9^th, 10^th/ 12^th Respondents (“R3” “R4” “R5” “R6” “R8” “R9” and “R10”, together “theRemaining Siblings”) maintain a neutral stance to this application.

Background

6.  The Deceased and the Wife were married in China in 1953 by way of customary marriage through family arrangement. Prior to the Deceased’s retirement, he had made a living as a red minibus driver. The Wife had been a housewife throughout the marriage.

7.  Between 1956 and 1971, the Deceased and the Wife gave birth to R1 to R10. The following are the respective year of birth and gender of the Respondents:

Respondent	Son / daughter	Year of Birth
R1	Son	1956
R2	Son	1957
R3	Daughter	1959
R4	Son	1960
R5	Son	1962
R6	Daughter	1963
R7	Son	1967
R8	Daughter	1968
R9	Daughter	1970
R10	Daughter	1971

8.  As at the date of trial, except for R3, R6 and R10 who live in Hong Kong, the rest of the children of the Deceased and the Wife live in the US.

9.  Between 1972 to 1974, the Deceased was incarcerated for drug charges for 2 ½ years.

10.  In 1984, the Deceased and the Wife registered their marriage in Hong Kong.

11.  In 1988, the Deceased purchased a property in Ap Lei Chau (the “Property”), which is the major asset in the Deceased’s estate.

12.  The Deceased and the Wife both obtained US residency status and after 1988, had to spent time in the US to fulfil the residency requirements.

13.  In November 2012, Wife was diagnosed to have dementia.

14.  In mid-2013, on the Deceased’s instructions, R1 purchased a joint burial plot for the Deceased and the Wife.

15.  On 3 December 2013, the Deceased made the Will which named R6 and R10 as the executrixes and R1 to R10 as the beneficiaries of his entire estate. No provision was made for Wife.

16.  At the end of 2016, the Deceased was diagnosed with dementia, and subsequently with cancer of the bladder.

17.  On XX August 2018, the Deceased passed away. The Deceased’s net estate (the “Estate”) comprises of the Property, approximately HK$1.86 million in bank accounts and listed stocks. In accordance with the Will, the Estate is to be divided equally among R1 to R10, with no provision for the Wife.

18.  Gathering at a meal after the Deceased’s funeral, most of the siblings were supportive of the decision to have the Wife stay permanently in Hong Kong to be cared for by those children who live here. The Opponents disagreed. Wife came back to Hong Kong in September 2018 and resided at the Property.

19.  In December 2020, the Wife was admitted to the hospital and became bedbound; based on doctor’s diagnosis, she will not be able to leave the hospital going forward.

Litigation History

20.  On 9 September 2019, the Wife, through Madam M, who is also her granddaughter and child of R3, made an application under sections 3 and 4 of the Ordinance for reasonable financial provision from the estate of the Deceased.

21.  On 15 May 2020, the Wife took out a summons for interim financial provision under section 7 of the Ordinance.

22.  On 13 October 2020, the Wife amended the summons and sought only an interim financial provision of HK$12,095 per month and an order for the Wife to remain at the Property.

23.  On 4 February 2022, DDJ R Chow ordered that the Respondents do pay interim financial provision of HK$12,095 per month, to be paid out of the Estate to the Wife from 9 September 2019.

24.  On 24 October 2022, the Wife made an application for litigation funding from the Estate but was dismissed by DDJ Eugene Yim on 20 March 2023.

25.  The trial eventually took place before this Court for 5 days commencing 28 August 2023.

Wife’s Case

26.  It is the Wife’s case that the Deceased was the sole breadwinner of the family whereas she was a housewife and the main caregiver of the family. The Wife remained the lawfully wedded wife of the Deceased until he passed away. They had a long marriage, from the time of their customary marriage until the Deceased’s passing, it has been 65 years.

27.  The Wife denies the Opponents’ allegation that the Deceased gave $1 million to R4 for the benefit of the Wife as a clean-break settlement. She says it is a bare allegation without proof.

28.  She says that the Deceased did not include the Wife as a beneficiary under the Will as he expected the Children to utilise their shares of the Estate to look after the Wife following his death.

29.  The Wife claims that she is entitled to 50% of the Estate as a reasonable financial provision under section 5 of the Ordinance and by way of a notional divorce cross-check.

1^st, 2^nd and 7^th Respondents’ Case (the Opponents’ Case)

30.  The Opponents deny the Wife’s allegation that she and the Deceased had a long marriage. It is the Opponent’s case that the relationship between the Deceased and the Wife was a “fossil marriage” which has broken down since 1974.

31.  They say that Wife has been an absent mother who did not care for the Children, and she spent time away from home including gambling away the Deceased’s money. They say she had an extramarital affair when the Deceased was imprisoned which continued after he was released. And that the Deceased and Wife lived physically apart; and even when under the same roof, they lived in separate rooms.

32.  The Opponents then claim that $1 million was paid to the R4 in 2009 for the Wife’s use in the US. It was a “clean-break settlement” between the Deceased and the Wife, and that she has not depended on the Deceased ever since.

33.  The Opponents also claim that the Deceased’s testamentary freedom and wishes should be respected, and that the Deceased did not fail to make reasonable financial provision for the Wife.

34.  The Opponents claim that no order should be made regarding this application.

Parties’ Open Offer

35.  The Wife’s stance is always to accept 50% of the Estate, inclusive of the net sale proceeds of the Property and after deducting expenses and liabilities with costs to the Wife.

36.  The Opponents’ initial open offer was that the Wife is entitled to either a lump sum of $180,000 or a monthly sum of $3,000 for her maintenance for the remainder of her life.

37.  Considering the size of the Estate and the legal costs incurred, I have repeatedly, since the start of the trial, invited the parties to negotiate settlement. On the first day of the Trial, the Opponents revised their open offer that the Wife shall be entitled to 20% of the Estate.

38.  On the fourth day of the Trial, the Opponents further revised their offer that the Wife shall be entitled to 25% of the Estate or the Opponents be paid a lump sum of $1,700,000 and waive their entitlements to the Estate.

39.  None of the open proposals were accepted by the Applicant.

40.  As for the Remaining Siblings, they adopted a neutral stance and did not make any proposal.

Evidence

41.  The Wife by her Next Friend, Madam M submitted a total of 8 affirmations in these proceedings. She had also submitted a Form E in November 2021. She gave oral evidence at the Trial to support the Wife’s case.

42.  The Opponents had submitted a total of 4 affirmations in these proceedings. No Form E has been submitted. All 3 of them gave oral evidence at the Trial to support their case.

43.  For the Remaining Siblings, only the R3, R4, R6 and R10 submitted affirmations. No Form E has been submitted. They also gave oral evidence at the Trial.

The Issues

44.  There are 3 disputed issues before me, I shall discuss them below.

Issue 1: Long Separation and Fossil Marriage

45.  Ms Yu, together with Mr Tang, counsels for the Opponents, argue that the Deceased did not fail to make reasonable financial provision for the Wife and therefore no order should be made out of the Estate. Ms Yu submitted that the Deceased and the Wife had a long separation since 1974 and the marriage between them was a “fossil marriage”. She referred to paragraph 54-14 of William, Mortimer and Sunnucks on Executors, Administrators and Probate 21^st ed.:

“Fossil marriages

If cohabitation ended some time before the death of the deceased, and the parties to the marriage had arranged their lives on the footing that the marriage had ended, the court is most unlikely to disturb that footing. In effect, it is likely to treat the applicant as a former spouse.”

46.  There is no statutory definition of fossil marriage in the Ordinance. However, it is important to determine whether there has been a long separation between the Deceased and the Wife as it is a relevant factor for this decision. Mr Chan, acting for the Applicant, and Ms Yu highlighted the relevant chronological events that I should take into account, and I shall discuss them in order.

1972-1974: Alleged Extramarital Affairs of the Wife and Squandering of Family Assets

47.  It is undisputed that the Deceased and the Wife were committed to each other as husband and wife and the family used to enjoy a good standard of living before the Deceased was imprisoned from around 1972 to 1974.

48.  While the Deceased was serving his time in prison, Wife was living with the Children and a domestic helper at a property on Bowen Road. The Deceased also entrusted his assets, including some properties to the Wife during this time.

49.  On the evidence of all of the Opponents, Wife developed an extra-marital affair with a Mr S, a tenant of the Deceased’s property on Caine Road while the Deceased was imprisoned. They claim that Wife often went out with Mr S and gambled together, leaving the Children behind. R1 also says that Mr S and his co-workers often went to the Bowen Road property to play mahjong with the Wife.

50.  Further, it is R1 and R2’s evidence that Wife did not take care of the family while the Deceased was away. Only the maternal grandmother, a domestic helper and the elder siblings took care of the family while the Wife did nothing and always gambled. They say that the Wife has squandered the family assets which the Deceased transfer to her before and during his prison term. The Opponents say that it was on these bases that the marriage had broken down.

51.  R4 denied these allegations. During this period, R4 was in his early teens, as he only left for Canada around 1977 and then to the US in 1978. He only agreed that Mr S was a tenant of the Deceased’s property on Caine Road and moved out after the Deceased was released from jail.

52.  R4 also denied that the Wife did not take care of the family. He says that the Wife breastfed the baby siblings, and the domestic helper shared the household responsibilities with Wife.

53.  I am of the view that the Opponents’ evidence was vague regarding the relationship between the Wife and Mr S, in particular R7 was only age 5 at the relevant time. There were some occasions that some of them went out with the Wife and Mr S but there is no cogent evidence presented to the Court that the Wife and Mr S were more than friends and had an extramarital affair. There was mention that the extramarital affair continued even after the Deceased returned home in 1974, again there is a lot of ambiguity around this including allegations of R2 seeing him on Caine Road as Mr S also lived there, or R2 says he heard from his mother’s friends that the relationship had continued. None of the Opponents said exactly when Mr S disappeared from their lives.

54.  I disagree with the Opponents’ argument that the Wife did not take care of the family while the Deceased was imprisoned. In fact, R2 and R7 did say that the Wife fed and played with the Children. Further, the Wife gave birth to 10 children between 1956 and 1971. She was taking care of 10 Children on her own during this period, she obviously needed help, one can only imagine what it was like to be looking after children from age sixteen to one. It is understandable that the Wife had to care for the newborns and the younger siblings and required assistance with the household chores. The Opponent’s argument that the Children were cared for by the helper and therefore Wife is not their caregiver cannot stand. Domestic helpers act on instructions from their employer, they cannot negate or diminish the role of a mother. Mr Chan rightly submits that if domestic helper can replace a caregiver in this manner, then a lot of mothers in Hong Kong are not their children’s caregivers.

55.  It is also the Opponents’ case that the Wife squandered away a lot of family assets. It was first brought to light only at trial that the Deceased owned multiple properties prior to his incarceration when each of the Opponents gave oral evidence. There was no consensus nor evidence of what these properties were, how many there were, or of their value. Anyhow, the Opponents say the Wife sold all the properties entrusted to her by the Deceased (except for the Caine Road property for rent and the Bowen Road property for the family self-use) for gambling but they did agree under cross examination that part of the sale proceeds were used for family expenses.

56.  Mr Chan submits that the Wife was at all material times a housewife with no financial resources. Given the sole breadwinner of the family was incarcerated, I am of the view that it was perfectly understandable that she would be feeling financially insecure. She had no means to raise sufficient funds to support the family, so she had to utilize the entrusted properties and assets for their livelihood. In any event, there was insufficient evidence before me to conclude that the Wife squandered the family assets for an alleged gambling habit.

1974-1982: The Wife and the Deceased lived apart

57.  After the Deceased was released from jail, he reunited with the family at the Bowen Road property. It is not in dispute that the Wife moved to Cordial Mansion on Caine Road with R3 and R6 in 1975 and the R8, R9 and R10 moved to live with their grandmother during 1974 to1976. 8 years after the Deceased’s release in 1982, the family moved back together under one roof at Tin Hau Temple Road.

58.  The Opponents say that this was when the relationship broke down, the couple quarreled; R2 further says that after the Deceased learnt about the extramarital affairs between the Wife and Mr S, the Deceased wanted to file a divorce, and he said he was the one who persuaded the Deceased not to proceed with the divorce. R2’s evidence also revealed two more incidents, he said the Deceased had brought a woman home; and he also said the Wife had “kicked” the Deceased out of Bowen Road property shortly after he returned home from imprisonment, hence he had to move to the Caine Road property with all the Children; neither of these events were corroborated by any of the other respondents.

59.  The Bowen Road Property was sold around this time. The Deceased took back the rented property a Caine Road from Mr S, and moved there with R1, R2, R4, R5 and R7 (all the sons). At this time, Wife rented Cordial Mansion, also on Caine Road and lived there with the two elder daughters R3 and R6. According to Mr Chan, the two addresses on Caine Road are only 10 minutes walking distance apart.

60.  Mr Chan challenged R7 that the family had to adopt such a living arrangement since the Caine Road Property was too small. R7 disagreed and said there were 2 bedrooms and 1 living room in the Caine Road property.

61.  Ms Yu submits that the Wife and the Deceased were living apart by choice as the marriage had broken down.

62.  Mr Chan submits that even if the Wife had extramarital affairs with Mr S, such a relationship ended when the family moved back together. There were photos which showed that the Wife and the Deceased travelled together to various places in the early 1980s, including Korea, the Philippines and Las Vegas. The Opponents argue they were trying to salvage their relationship but did not succeed.

63.  I have no information on how big were the respective properties at Bowen Road and Caine Road. Whatever the conditions were back then, one can appreciate why the Wife had to economize when the Deceased was incarcerated, with 10 mouths to feed and a domestic helper, it makes sense to me that they had to squeeze into one place (at Bowen Road), and use the other property (Caine Road) to generate rental income. With the release of the Deceased, and generating income again, I can also understand why they were able to adopt a less crowded living arrangement after. There was evidence that there was no more domestic helper after 1974, so care of the Children was split up. Wife took the two elder daughters with her, the care of the three youngest daughters was assisted by grandmother. But this separation of households was temporary. When R1 and R4 left for Toronto and then US in 1977 and 1978, the family were able to move back together in 1982 with two less headcounts.

64.  As for the alleged extramarital affair with Mr S, I agree with Mr Chan that even taking the Opponents’ case to the highest, that there was an extramarital affair with Mr S, she and the Deceased were reunited in the early 1980s when they moved back in together as one family unit. Referring to those photos which showed them travelling together, and despite the Opponent’s contention, I am of the view that it could equally be interpreted as the couple spending time together which supported an on-going relationship.

1984-2015: Registration of Marriage and Immigration to the United States

65.  In 1984, the Wife and the Deceased registered their marriage in Hong Kong. It is argued that the purpose of the registration was to facilitate the Children’s application for immigration to the US.

66.  By this time, R1and R4 had immigrated to the US. After R4 obtained his US citizenship in 1986, he sponsored the Wife and the Deceased’s applications for immigration to the US.

67.  During this period, the family moved from Tin Hau Temple Road to Tsat Tse Mui Road in North Point in 1985, and subsequently purchased the Property in 1988.

68.  In the meantime, R2 had left for the US in 1986; and R7 in 1987.

69.  In 1988, the Wife and the Deceased’s applications were approved, and they were issued their Green Cards respectively.

70.  After the Wife obtained the immigrant visa, she petitioned for the Children (except for R1 and R4 who were already US citizens by then) to apply for immigration to the US.

71.  To satisfy the residency requirement, the Wife and the Deceased were required to stay for at least 6 months in the US every year. The Wife did not always travel to the US with the Deceased. From 1988 to 2009, the Wife began to travel between Hong Kong and the US frequently and spent around half a year in each place. The Deceased travelled less in the initial period as he was still working, at least until his retirement in 1997 (R4 says he retired in 2003). It is also not in dispute that the Deceased did not enjoy living in the US, he did not like the culture nor spoke the language; in the end, he did not satisfy the US residency requirement and eventually gave up his Green Card in around 2010.

72.  During the Wife’s stay in the US, she mainly lived with R4 and also visited different children to help look after the grandchildren. It was R4’s evidence that whenever the Wife travelled to the US, the Deceased gave her pocket money. The Deceased also travelled to the US; he lived with the R1 from December 1986 to September 1987, and also stayed with R1 on some of his subsequent visits. Still, there were times when the Wife and the Deceased met up in the US and travelled together around the US to visit the Children and grandchildren. There were photographs to show that the couple attended a friend’s wedding in 2002, and attended someone’s birthday in 2005.

73.  It is the Wife’s case that when she returned to Hong Kong from the US, she resided at the Property with the Deceased; while the Opponents’ case was that she only lived at the Property with the Deceased from 2000 to 2009.

74.  In around 2009, the Wife began to stay in the US for a longer period of time in order to be naturalized as a US citizen, R4’s evidence is that the law requires her to stay more than 6 months in a year for 5 consecutive years. He also says that it was his wish that she could enjoy free medical care and other US benefits. Still, the Wife would travel back to Hong Kong from time to time and lived with the Deceased at the Property. The Opponents’ case is that Wife has moved to the US permanently in 2009, that the Deceased had given her a clean-break settlement of $1 million paid to R4, and no longer supported her after 2009. R1 also said that the Deceased had “allowed” the Wife to stay at the Property only out of sympathy, and R7 said that the Deceased gave pocket money to the Wife prior to 2009 out of sympathy and compassion.

75.  In 2012, the Wife was diagnosed with dementia. She continued to travel between the US and Hong Kong but less frequently, when her condition worsened, R4 or R5 would travel back to Hong Kong with her.

76.  In 2015, Wife became a US citizen, and was entitled to the US Supplemental Security Income from September 2016 as a US citizen.

77.  This is the period when the Wife was shuttling between Hong Kong and US. Some of the children were in the US at that time with young families of their own. When the Wife is back in Hong Kong, she must be staying at the Property with the Deceased, it has not been suggested that she has alternate accommodation. It is incomprehensible for the Opponents to say that the Wife only lived at the Property between 2000 and 2009, the Opponents’ case did not proffer any suggestion, not to say proof, as to where the Wife could possibly be living if not at the Property. Ms Yu says that it is R1 and R7’s case that they did not have the Wife’s phone number. Furthermore, I would query how much would they know as none of them live in Hong Kong, and when they are visiting here, Wife might have been on one of her US stints, as indeed this was posed by Mr Chan on cross-examination. The fact that both R2 and R7 visited Hong Kong briefly and did not see Wife’s belongings at the Property was quite coincidental but neither here nor there. Their case is consistently missing the piece where none of them appear to converse with the Wife or find out from her or even care about her whereabouts when this alleged separation or living elsewhere in Hong Kong took place.

78.  I can also accept that the Deceased and the Wife chose to live with different children when they visit the US, they may well have preferences for a child, the living environment, or favorite grandchildren. I can also accept that the Deceased was less enamored by the US and eventually opted not to take up the US status, and would probably spend less time in the US than the Wife; but that does not mean they have separated, and in a state of the alleged “fossil marriage.”

Conclusion of this Issue

79.  It is the Opponents’ case that the deceased and Wife had separated, they bear the burden of proof.

80.  There is insufficient evidence before me to conclude on a balance of probability that the relationship between the Wife and the Deceased had broken down and they separated after 1974. Having different living arrangements did not mean they were separated. Wife has no income of her own, and must have remained financially dependent on the Deceased. None of the Children say they are financially supporting their mother, they might have given her the occasional pocket money but that is not the same as financial support. There were photos taken together at different times over the period, and R4 produced one of them together that was taken as recently as 2016.

81.  If they had intended to be separated, they could have divorced after the Children got their US status, or in 2009 when the alleged clean break payment was made; but they remained lawfully wedded. All marriages have their ups and downs, but they were never divorced. The Deceased planned that they would lie together, side by side, on their passing when he bought the joint burial plot for the both of them in the US.

Issue 2: $1 Million “Clean-Break Settlement”

82.  The Deceased retired in either 1997, or 2003 from R4’s memory. The precise year is not very relevant to the issues before me. After he retired, he sold his minibus for HK$3,500,000 and he gave the Wife HK$200,000 which she placed on a time deposit.

83.  The Opponents alleged that the Deceased also paid HK$1 million to R4 for the Wife’s use in 2009 but no evidence was provided for such payment. They mainly rely on R7’s recollection of a conversation with the Deceased on this payment, and R1 and R2 were told by R7 of this conversation.

84.  R4 denied he had ever received this lump sum payment of HK$1 million from the Deceased. He only admitted that he received a payment of HK$200,000 from the Deceased. He said this amount was used for Wife’s spending when she stayed with him.

85.  Ms Yu argues that the HK$1 million dollar was a “clean-break” settlement between the Deceased and the Wife in 2009 and the Wife has not been dependent on the Deceased ever since. Relying on paragraph 6-085 in Ross, Inheritance Act Claims (5^th Ed), she says the Deceased had therefore made reasonable financial provision for the Wife.

86.  Ms Yu refers to cases regarding “clean-break” settlement, where Husband and Wife had divorced for a long time and (1) they had reached a settlement agreement (Re Fullard [1982] Fam 42; Brill v Proud [1984] Fam Law 59; Cumming Burns v Burns [1985] 7 WLUK 76) or (2) no subsequent financial support was provided or maintenance claimed (Cameron v Treasury Solicitor [1996] 2 FLR 716; Barrass v Harding [2001] 1 FLR 138).

87.  Mr Chan says no such payment was made and even if made, argues that such lump sum payment should not be treated as a “clean-break” settlement per se. One should look at the intention of the alleged payment.

88.  In the present case, the Wife and the Deceased remained married, I have examined above whether there was a long separation between them and whether they had a fossil marriage (i.e. Issue 1). As I am of the view that there is insufficient evidence before me to conclude that there had been a long separation between the Wife and the Deceased, I am unable to accept that the position here is “as if” they have divorced for a long time.

89.  There is no independent paper trail that this payment had taken place.

90.  A clean-break settlement must involve agreement from both parties. There is no settlement if one side says he has paid off the other party, and there is no evidence that any amount given is meant for a particular purpose or accepted as such. Here, the alleged payment was made by the Deceased to R4, the Opponents do not say that the money was received by the Wife. Even if such a payment did take place, there is no evidence that the Wife agreed to accept this payment on a clean-break basis, or agreed to R4 receiving the money on her behalf. I am unable to conclude with such lightweight allegations, that there was even a settlement agreement between the Deceased and the Wife, let alone determine the intention of such payment if it was ever made.

91.  The Opponents say that thereafter the Deceased did not support the Wife. On this, I do not have any evidence from any of the Children, that they were financially supporting the Wife. There was mention of the Children giving pocket money to the Wife when they see her, more out of filial piety, but clearly not to undertake the financial support of their mother. The only other evidence I have is that R4 paid for the Wife living with him and his family when she visited, and sometimes the Deceased paid him some amount for that purpose. In the absence of any other evidence, and as the Wife has only been a housewife throughout her life, there is only one person who could be financially supporting the Wife, and that would be the Deceased. I have found that the Wife must have continued to live with the Deceased on her return trips to Hong Kong, the Deceased also paid for her livelihood, airfares to the US and her pocket money.

92.  Mr Chan also argues that the alleged payment intention contradicted the Deceased’s subsequent actions which I shall further discuss below.

93.  I therefore find that the Opponents have not come up to proof that $1million was paid to the Wife or R4 and that it was for a clean-break settlement.

Issue 3: Testamentary Intention of the Deceased when he executed the Will in 2013

94.  In mid-2013, R1 purchased a joint burial plot in the US for the Deceased and the Wife. This was on the Deceased’s instructions, which R1 executed with the money remitted to him from R10 on the Deceased behalf.

95.  It was R3’s evidence, that it was her who raised the issue of the Deceased’s need to make a Will. She said she discussed this with R1. She also said it was R1’s view that as Wife has a place of accommodation and her needs are limited, R1 suggested to the Deceased that Wife could be supported by the Children together and there was no need to make provision for her. A few months after this conversation in late 2013, R3 and R10 took the Deceased to a law firm to make his Will. R3 said the Deceased was concerned as to who would look after Wife but eventually he signed on the Will on the reassurance that R1 had promised the Deceased that the Children would utilize the assets from the Estate to financially support the Wife after his death. According to R3, it was on this premise that the Deceased decided that the Estate is to be divided equally among the 10 Children and the Wife was not named as a beneficiary in the Will.

96.  R1 disagreed. He says that the Deceased never explained why he had decided not to make any provision for the Wife. In his affirmation, he said that it was not stated in the Deceased’s Will that he expected his children to utilize the funds in the Estate to look after the Wife financially. In his second affirmation, R1 had also said that the Deceased knew that some of his children do not have a good relationship with the Wife and it is “just unbelievable” that he would expect all ten of them to look after their mother financially with the funds from the Estate.

97.  In 2016, the Deceased was diagnosed with dementia. In August 2018, the Deceased passed away.

98.  After the Deceased’s funeral, the Children had a meal together and discussed how to take care of the Wife. It was discussed among the Children that each of them would contribute a part of their shares of the Estate to support the Wife. The Opponents say that they did not agree.

99.  It was at this meeting that the siblings other than the Opponents proposed to bring the Wife to Hong Kong permanently for care. The Opponents opposed strongly to this, they say that Wife should stay permanently in the US. R1 says that Wife could be placed in a nursing home where the costs of her care can be covered by the US Medicaid / Medi-Cal, with limited supplement by the family; and the Children can all receive the distribution from the Estate right away. It is his contention that the estate should be distributed first and then for the Children to contribute to the Wife after. This approach was echoed by R2 and R7, and on cross examination of R7, he says that:

“My father’s wish was to give us his … a share of .. to us from his estate first and then whoever among the siblings was willing to support the mother, they would do so.”

R2 further said in his affidavit that as the wife’s burial plot is in the US, she should stay there so they do not have to spent $100,000 or more to bring her body back for burial when she passed; in the discussion to use the Estate assets to look after the Wife first before distribution, he objected to having his share of the Estate being taken from him indefinitely; and that those who are “able and willing” can contribute to the Wife after each receives their distribution. He called the decision of the other siblings to bring Wife to Hong Kong “irrational”.

100.  Against this backdrop, Wife was brought back to Hong Kong in September 2018. The Remaining Siblings each made contributions to support the Wife until the interim maintenance order was made.

101.  Both Mr Chan and Ms Yu cited Ilott v The Blue Cross and others [2018] AC 545 where the Court emphasized that testamentary freedom shall be preserved, and the Court has only limited power to interfere.

102.  It is clear that there are contradictory accounts of the Deceased’s true testamentary intention. It is not the intention of the legislature that a Court needs to specifically consider why someone has been insufficiently or not provided for such that an application under Cap 481 is required. But I will make the following observations.

103.  If there was indeed a clean-break settlement between the Deceased and the Wife in 2009, it would logically flow that the Deceased would not have intended to make any provision to the Wife in his Will. But I have found above that there was no clear-break settlement. The Wife continued to live with him at the Property after 2009, she was still flying in and out of the US. And in 2013, the Deceased purchased a joint burial plot for himself and the Wife. Furthermore, as the Wife was suffering from dementia in 2012, which is an obvious and progressive condition, it makes sense for the Deceased to decide not to place money in her hands when he made his Will.

104.  I rely on the evidence of R3 and find her to have given clear unwavering answers. Her evidence is pertinent especially with regard to her role in accompanying the Deceased to make his Will. It is also important in that she said that R1was aware of the Deceased’s intention. She also says in her oral evidence how the Deceased had sought reassurance that all the siblings would contribute to the care of the Wife from their share of the Estate before executing his Will.

105.  On a balance of probabilities, I am of the view that the Deceased had the intention to provide for the Wife, and he gave his Estate to the Children so that they could use the funds to look after her.

Credibility of the witnesses

106.  The Opponents’ case rests heavily on inviting me to believe the whole of R1, R2 and R7’s evidence. However, this is my observation on their evidence:

a.  All of the Opponents live in the US. R1 left Hong Kong for studies in Canada late 1977 and moved to the US the year after, he was aged 22 then; R2 went to the US in 1986 at age 29 and R7 around 1987 at age 20. To the extent they did recall relevant events before they respectively left, these were events between 36 - 46 years ago.

b.  To the extent that they were speaking to events in Hong Kong after their respective departures, it would come from their occasional trips when they came back here for visits, or they said they heard from the other siblings, or sometimes from phone conversation with the Deceased himself, or the Opponents were exchanging information between themselves; but rarely saw or heard first-hand themselves.

c.  My observation of the Opponents’ oral evidence is that they vary in degrees of evasiveness and defensiveness, R2 and R7 have a tendency to ramble on to get things off their chests instead of answering cross examination questions direct. Furthermore R2, has a habit of answering questions in a confusing manner with either “I disagree, I don’t know” or “No, I don’t know” in the same sentence.

d.  I also have particular issue with R1’s version regarding the joint burial plot, in his first affirmation, he says it was purchased in accordance with the Deceased’s instructions and paid by the Deceased. In his second affirmation, he added more to this and said the Deceased only wanted to buy for himself and it was him who persuaded the Deceased to include his mother; in his oral evidence in chief, he then sought to add even further that the Deceased asked him to pay for the Wife’s burial plot, and R1 also seemed to suggest that “Strictly speaking, he did not”, meaning his father did not pay for it. All these additional embellishment throw his evidence into suspicion.

107.  The general tenor of the Opponents’ evidence is quite literal: they did not see the Deceased and the Wife together, therefore they were separated.

a.  They assume because the Deceased and Wife lived in separate household between 1974 to 1982, they had a broken-down relationship since 1974. But R3 who is close in age to them and has continuously lived in Hong Kong does not support this contention.

b.  There are various occasions when the Opponents attempt to give evidence to events that they could not have known. They would not know how the Wife is taking care of their other siblings with whom they do not live and therefore could not be in a position to say the Wife did not take care of the Children; nor could they speak to whether and how their parents communicated before 1982. In particular for R7 said the marriage broke down in 1974 due to the Wife’s squandering big sum of money and the extramarital affair, and that the Wife did not look after the Children; back in 1972, he was only 5. When put to him that he could not have understood that the Wife had an affair with Mr S due to his young age, he said in oral evidence that he casts his mind back, and he therefore knows that it was. He also said the Wife never visited R8, R9 and R10 when they were living with the grandmother, again not something he could have known. R7 in his affirmation said that there was no contact between the Deceased and the Wife after 2009 in “whatever form”, this is clearly not true as borne out at least by numerous photos evidence before the Court; in his examination in chief, he was led to clarify that he actually meant “no direct contact”. R1 says that after 2009, the Wife did not need financial support as she has “abundant assets” with money given to her by the Deceased and her Children; again there was no basis for this statement.

c.  There was no explanation by the Opponents on why the parents came back to live together in 1982, from then until 1987 when R7 also left for the US, the family lived at Tin Hau Temple Road and then Tsat Tsz Mui Road, they say that Wife and the Deceased were not living in the same room but no details were given, or Wife would be “living elsewhere” but cannot say where it was. There was no evidence that the family had other properties after 1982 and no explanation as to where Wife could possibly be living if not at the Property.

d.  After Wife obtained US residency in 1988, she started travelling back and forth to fulfil the requirement for her green card status. From the Opponents’ point of view, they might have known that Wife would be staying with R4 or R5 when she was in the US; but they would not know the Wife’s life in the US, any contact between the Wife and the Deceased, and they did not know her travel pattern. They are certainly not in much of any position to speak to Wife’s life with the Deceased after 1988 when she was splitting time between US and Hong Kong.

108.  R2 says he called the Deceased every month and he did not hear the Deceased mention about the Wife. And then he says he returned to HK in 1990 and he did not see Wife’s belonging at the Property. R7 said the same thing when he visited in 2014. What is strange to me about these coincidental accounts is that neither of them goes on to say whether they made enquiry as to where their mother was. R7 had further said in oral evidence that the Deceased did not know where the Wife lived, and R7 said he did not have the Wife’s telephone number.

109.  It was quite clear to me that none of the Opponents have a close relationship with Wife. There was no mention that they contact her when they come back to Hong Kong, there was no evidence that they make any attempt to find their mother when they all say that she lives elsewhere. Nor did they say that they would verify things heard from the Deceased about the Wife, the obvious example here being the alleged payment of $1 million. R7 was the only one in the family who heard this, he said the Deceased told him in 2009, yet this matter was only brought to light as an issue at this trial.

110.  As for Ms M, she has attested to the time she spent with both the Deceased and the Wife on their regular family lunches when they were respectively or together in Hong Kong, and could be on a bi-weekly basis. I accept that a part of the evidence she gave was hearsay information told to her probably by her mother or her aunts of events before her time. I am conscious of this and have attached the relevant weigh to her evidence. R3, her mother, also spoke to the time when she would see both or either of the Deceased and the Wife for “yum cha”, sometimes by herself and sometime with her sisters if they have time off. As R3 lives in Hong Kong, I find this evidence carry much weight as she is speaking to events first hand, and as mentioned above, I found R3 to be a credible witness.

111.  I find that Ms Yu’s criticism of R4’s evidence unnecessarily harsh. However, I find his evidence useful and relevant as he deposed largely to the time when he applied for his parents to go to the US, the time the Wife stayed with him, he also spoke to the time when both his parents visited him and his family, of how the Wife travelled around the US and look after the grandchildren; and when her cognitive function deteriorated, how she would still be traveling but he or R5 had to escort her back to Hong Kong. These evidence was also firsthand. In Court, I find him to be a truthful witness, his answers were clear and in line with his written evidence, he also admits to his inability to comment on certain questions posed to him as he was not present at those relevant times. He produced a number of photos and spoke to the times when those were taken, as mentioned above, one was of the couple together in 2016, two years before the Deceased’s passing.

112.  R6 and R10’s evidence pertains to the estate accounts, and the Wife’s expenses, they were informative, and remained unchallenged in my view.

Legal Principles

113.  It is common ground that the Court has jurisdiction in this matter. The Deceased died domiciled in Hong Kong and is survived by the Wife and their 10 children: Section 3(1)(a) and 3(1)(i) of the Ordinance.

114.  Section 3(1) provides that an applicant may apply to the Court for an order under section 4 “on the ground that the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant”.

115.  The Wife claims as the surviving spouse of the Deceased under section 3(1)(i). In this Application and under section 3(2)(a), reasonable financial provision for a spouse means “such financial provision as it would be reasonable in all the circumstances of the case for such a person to receive, whether or not that provision is required for his or her maintenance”. It is clear from this section that the surviving spouse may be entitled to a reasonable financial provision over and above that which is required for his or her maintenance.

116.  If this Court is satisfied that the disposition of the Deceased’s estate effected by the Will, is not such as to make reasonable financial provision for the Wife, the Court may make any one or more of the orders for financial provision under section 4, including lump sum order, periodical payment, transfer of property, settlement for the benefit of the Wife, and in any combination as it deems appropriate.

117.  Oliver J in Re Coventry [1980] 1 Ch 461 at 469G sets out a two-stage test in considering an application for reasonable financial provision under the Ordinance by

“first in determining the reasonableness of such provision (if any) as has been made by the deceased for the applicant's maintenance and, secondly, in determining the extent to which the court should exercise its powers under the Act if, but only if, it is satisfied that reasonable provision for the applicant's maintenance has not been made.”

118.  In Ilott v Mitson (No 2) [2018] AC 545 at [23], Lord Hughes JSC said that in the two-stage test set out in Re Coventry, the first one is of value judgment and the second one is of discretion and in most cases a very large degree of overlap between the two stages. He then enjoined the factors to be considered in section 5(1) of the Ordinance and modified the test into (1) did the will/intestacy make reasonable financial provision for the claimant and (2) if not, what reasonable financial provision ought now to be made for him?

119.  In the present case, there is no dispute that the Will has not made any financial provision for the Wife; hence, the remaining question is whether, and to what extent, the Court should exercise its discretion in favour of the Wife.

120.  Matters to which the Court is to have regard in exercising powers under section are set out in section 5(1):

5. (1) Where an application is made for an order under section 4, the court shall, in determining whether the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is such as to make reasonable financial provision for the applicant and, if the court considers that reasonable financial provision has not been made, in determining whether and in what manner it shall exercise its powers under that section, have regard to the following matters—

(a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b) the financial resources and financial needs which any other applicant for an order under section 4 has or is likely to have in the foreseeable future;

(c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d) any obligations and responsibilities which the deceased had towards any applicant for an order under section 4 or towards any beneficiary of the estate of the deceased;

(e) the size and nature of the net estate of the deceased;

(f) any physical or mental disability of any applicant for an order under section 4 or any beneficiary of the estate of the deceased;

(g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

121.  In Lilleyman v Lilleyman [2013] Ch 225 at [37] - [38], Briggs J observed that there is no limit to the matters in section 5(1) to which, in any particular case, the Court may have regard as evident in section 5(1)(g). There is also no hierarchy among the matters to which the court must have regard and each of them may be of infinitely variable weight, on the particular facts of any given case.

122.  Further, when an application is made by a surviving spouse, there are additional matters set out in subsection (2) that the court should have regard to:

(2) Without prejudice to the generality of paragraph (g) of subsection (1), … , the court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have regard to—

(a) the age of the applicant and the duration of the marriage or union of concubinage;

(b) the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family.

123.  It follows that the same subsection sets out the “notional divorce” consideration. It provides that:

“… in the case of an application by the wife or husband of the deceased, the court shall also, unless at the date of death a decree of judicial separation was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a decree of divorce ”. (emphasis added)

The “Notional Divorce” enquiry as a cross-check

124.  Mr Chan invites the Court to consider the legislative intent of the Ordinance and to give effect to it by carrying out the exercise of a notional divorce by considering the factors set out in section 7 of the Matrimonial Proceedings and Property Ordinance (Cap. 192) and the principles developed in LKW v DD (2010) 13 HKCFAR 537. He referred to Moody v. Stevenson [1992] Ch. 486 (CA) Waite J held that the objective of the Ordinance is that “the acceptable minimum posthumous provision for a surviving spouse should correspond as closely as possible to the inchoate rights enjoyed by that spouse in the deceased's lifetime by virtue of his or her prospective entitlement under the matrimonial law”.

125.  In response, Ms Yu referred to Re Besterman [1984] Ch 458 and Re Krubert [1997] Ch 97 on the correct approach. In Re Besterman, Oliver LJ held that the consideration of the equivalent of our section 7 of the Matrimonial Proceedings and Property Ordinance (Cap. 192) is merely one of the factors to which the court is to have regard and the overriding consideration is what is reasonable in all the circumstances.

126.  I agree with Ms Yu. In a divorce, there are two spouses who need provision, whereas under the Ordinance there is only one. (see Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (Sweet & Maxwell, 21^st Edn) at [54-10]). However, the needs of the other beneficiaries should also be taken into account.

127.  Black J in P v G (Family Provision: Relevance of Divorce Provision) [2006] 1 FLR 431 at [236] said the true contemplation of our Ordinance,

“…what the statute contemplates in a case such as this is not that the entire fictional ancillary relief case should be played out within the Inheritance Act claim but that the court should simply reach sufficient of a conclusion about how it would have been resolved to take that factor into account in considering what would be reasonable financial provision under the 1975 Act.”

128.  Briggs J agreed with Black J’s approach and held that the “notional divorce” enquiry is just a cross-check. He said in Lilleyman v Lilleyman at [60] that the divorce cross-check,

“…should be treated neither as a floor nor a ceiling in relation to the relief available under the Inheritance Act, nor as something which requires a meticulous quasi divorce application to be analysed side by side with the application of the separate provisions in section 3 of the Act. The divorce cross-check is just that, a cross-check, no more and no less. It is, like all the other matters to be taken into account under section 3, of infinitely variable weight on the facts of each particular case”. (emphasis added)

129.  For completeness on this guidance, I would also refer to the decision of HHJ I Wong in the case of LWH v YMY (Financial Provision for Family and Dependents [2023] 1 HKLRD 1004 where he says the following:

55. It is significant to note that subsequently, upon the recommendation of the Law Commission (LAW COM No 331) (Intestacy and Family Provision Claims on Death), the relevant provision in the 1975 Act was amended expressly providing in UK’s section 3(2) that nothing requires the court to treat such provision as setting an upper or lower limit on the provision which may be made by an order.

56. I acknowledge Hong Kong has not adopted similar amendments. Yet I do not think this is material. In my view, it must be right that the divorce notion is just a cross-check. It cannot be a ceiling nor a floor otherwise it would fetter the court’s discretion which is clearly intended to be conferred upon the court under the legislation.

130.  I now turn to consider the matters set out in section 5(1) of the Ordinance.

Section 5(1)(a): the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future

131.  The wife is the only applicant in the present application. She has all along been a housewife.

132.  According to the Wife's Form E, the total value of her assets was HK$62,433 and her monthly income is only the old age allowance from the Hong Kong Government of HK$3,815 per month.

133.  At trial, Madam M and R6 confirmed that the Wife is unfit to be discharged from the hospital. R6 also provided an updated account of the Wife’s financial needs as follows:-

Items	Monthly Expenses (HK$)
Diapers and Necessities	1,500
Wet Towels	350
Cleanser	156
Bandages	560
Tonic Food, Pork and Dried Fruit	12,960 (11,700 + 660 + 600)
Total	15,526

134.  I note that these expenses are very basic, I also recall that R6 was not even able to buy better quality tonic food for the Wife because of the financial restraints. The Wife is now being awarded HK$12,095 per month as interim financial provision. Together with the old age allowance of HK$3,815 per month, the Wife’s monthly income would be HK$15,910 similar to her current monthly financial needs of HK$15,526.

135.  Given the Wife’s old age and her medical condition, it is foreseeable that she will require more financial resources to provide additional and intensive care, and her financial needs may well increase.

Section 5(1)(b): the financial resources and financial needs of any other applicant

136.  Apart from the Wife, there is no other applicant.

Section 5(1)(c): the financial resources and financial needs which any beneficiary of the estate has or is likely to have in the foreseeable future

137.  None of the Children filed a Form E.

138.  R2 once expressed a need for financial resources from the Estate, he mentioned that there was a debt of US$30,000. In his oral evidence, he stated that this has now been repaid.

139.  There is no evidence that any of the Respondents require or is likely to require an urgent distribution of the Estate. Only the Wife is in need of immediate financial provision from the Estate.

Section 5(1)(d): any obligations and responsibilities which the deceased had towards any applicant for an order under section 4 or towards any beneficiary of the estate of the deceased

140.  Mr Chan referred to Lilleyman v Lilleyman at [42] which states that “obligations and responsibilities” under section 5(1)(d) includes “moral rather than merely legal obligations and responsibilities”. He submits that the Deceased was the breadwinner of the family while the Wife was a primary caregiver of the family, the Deceased had taken up the moral obligations and responsibilities to financially support the family, including the Wife.

141.  According to my findings above, Wife was not separated from the Deceased, the obligation he had towards her had continued. This is evident in his financial support, that she has continued to live with him when she was in Hong Kong, and he bought a joint burial plot for the both of them.

142.  There is no evidence that the Deceased had any obligations and responsibilities towards any of the Children.

Section 5(1)(e): the size and nature of the net estate of the deceased

143.  The net estate of the Deceased includes “all property of which the deceased had power to dispose by his will (otherwise than by virtue of a special power of appointment) less the amount of his funeral, testamentary and administration expenses, debts and liabilities, including estate duty (if any)” under section 2 of the Order.

144.  The parties do not dispute the nature of the estate as illustrated in the Grant of Probate. However, the Opponents challenged the size of the estate, especially the cash at bank as no documentary evidence was supported for the balance.

145.  On the evidence before the Court, the property of the Estate comprises (1) the Property, at the agreed valuation of HK$6 million in the open market or HK$4.77 million in the secondary market after deducting the premium payable to the Housing Authority and (ii) cash alleged to be HK$2,218,426.88, including cash at bank, sales proceeds of stocks in the Estate, social security and interest.

146.  Other expenses, debts and liabilities only include the interim financial provision to the Wife at HK$568,465; management fees, Government rent and rates of the Property have been paid on-going.

147.  Hence, the net estate of the Deceased consists of (1) the Property, either at HK$6 million in the open market or HK$4.77 million in the secondary market and (2) cash of HK$1,649,961.88, excluding the interest income for June and July 2023.

Section 5(1)(f): any physical or mental disability of any applicant for an order under section 4 or any beneficiary of the estate of the deceased

148.  The Wife is currently bedridden and non-communicative which requires continuous medical and nursing care. She also has dementia. As per the latest medical report dated 26 June 2023, the Wife is not fit for discharge from hospital for home care.

Section 5(1)(g) – any other matters, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant

149.  I was invited by the parties to consider the issues including (1) fossil marriage; (2) clean-break settlement; and (3) testamentary intention.

150.  I have already dealt with these matters under the discussion of these 3 issues above.

Section 5(2)(a): the age of the wife and the duration of the marriage and section 5(2)(b): the contribution made by the wife to the welfare of the deceased, including any contribution made by looking after the home or caring for the family

151.  The Wife is now 89 years old. As of the date of death of the Deceased, the marriage was over 65 years.

152.  Regarding the contribution made by the Wife, she was a housewife who has looked after the family over the years, she is a mother of 10 children who took care of them since their birth. It is arguable that the Wife’s contribution reduced when the Children immigrated to the US or got married and left home; but one should not forget she sponsored the Children, (except for R1 and R4) for immigration to the US and a number of them have settled down and built their lives there. There were also occasions that the Wife travelled to the US to visit the Children and helped to look after her grandchildren.

Deciding the Outcome

153.  The legislation gives me the power to consider a generous allocation of the Estate to the Wife, one that is more than her needs. I am guided by what I consider to be judicious in the circumstances of the case. Having considered all the factors above, including the notional divorce cross check guidance, I have decided that the Wife should be given 50% of the net Estate. I decide that as at this stage of her life and in her condition, her carers should have access to financial resources for her needs without feeling the restraints of limited funds, nor should her children dip into their own resources (as they already had) when there can be access to the Estate.

154.  During the trial, I found out from R3 that the Wife has not made a Will. In the event of her passing and in intestacy, her children will be entitled to her estate. Therefore, what is not spent for her care will eventually be shared between all her Children. In a roundabout way, the Deceased’s Estate will go back to the Children, eventually.

Costs

155.  There is no reason why costs should not follow the event, I will therefore award Costs to the Applicant.

Order

156.  The Order shall be as follows:

a.  A lump sum equivalent to 50% of the net Estate shall be paid to the Wife, subject to deduction from this amount of the interim provisions already paid to her; this lump sum to be held for her benefit by those of her children as determined and agreed between R3, R4, R5, R6, R8, R9 and R10.

b.  For the avoidance of doubt, the interim financial provision by the Order of DDJ R Chow shall continue until the aforesaid lump sum is paid out from the Estate.

c.  The balance 50% of the net Estate to be shared equally between R1 to R10.

d.  All costs of and arising from this application, including all costs reserved be to the Applicant, it is to be borne by R1, R2 and R7, to be taxed if not agreed. This to be a Costs Order Nisi which shall be made absolute from 14 days hereof.

157.  Last but not least, I would like to thank the able assistance of all the counsels in this matter.

Mr Fergus Chan instructed by Hugill & Ip, Solicitors, for the Applicant

Ms Christine Yu and Mr Felix H.Y. Tang instructed by Rowdget W. Young & Co., Solicitors, for the 1^st, 2^nd and 7^th Respondents

The 3^rd, 4^th, 5^th, 6^th/ 11^th, 8^th, 9^th & 10^th/ 12^th Respondents appearing in person

FCMP 176/2019

[2023] HKFC 58

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 176 OF 2019

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DECISION

( Litigation Funding )

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INTRODUCTION

1.  In these proceedings, the Applicant seeks reasonable financial provision to be made out of the estate (“the Estate”) of her late husband (“the Deceased”) pursuant to section 4 of the Inheritance (Provision for Family and Dependants) Ordinance, Cap 481 (“the Ordinance”).

2.  The Deceased passed away on 8 August 2018, leaving his last Will dated 3 December 2013 (“the Will”).

3.  The 1^st to 10^th Respondents are the children of the Deceased and the Applicant.

4.  There is no dispute that the Applicant is the lawful wife of the Deceased within the meaning of section 3(1)(i) of the Ordinance.

5.  Under the Will, the Estate is to be divided among the 1^st to 10^th Respondents with no provision being made to the Applicant.

6.  The 6^th and 10^th Respondents were appointed by the Will as the executrixes of the Estate and are therefore named as the 11^th and 12^th Respondents respectively in their capacity as the executrixes.

7.  The Applicant commenced these proceedings by way of an originating summons filed on 9 September 2019 (“Originating Summons”) through her next friend, MYW (“Madam Ma”). Madam Ma is a granddaughter of the Applicant.

8.  According to the Open Offer dated 28 October 2022, the Applicant seeks 50% of the net Estate of the Deceased in these proceedings.

9.  Following an unsuccessful Financial Dispute Resolution hearing on 21 September 2022, the trial of the Originating Summons is scheduled to be heard before Her Honour Judge T Kwan on 28 to 31 August and 1 September 2023.

10.  By a summons dated 24 October 2022 (“the Summons”), the Applicant applies for litigation funding from the Estate as follows:

“The 11^th Respondent and the 12^th Respondent, as the Executrices of [the Estate of the Deceased] pursuant to the Will of [the Deceased], do pay to the Applicant’s solicitors from the Estate, as litigating funding for the Applicant, a sum of:

(1) HK$26,000 per month to be backdated to the date of the Originating Summons filed herein on 9 September 2019; and

(2) From 1 November 2022 onwards, HK$125,000 per month, until the final determination of the Originating Summons …”

11.  The application for litigation funding is opposed by the 1^st, 2^nd and 7^th Respondents – who are beneficiaries under the Will.

12.  By letters dated 5 January 2023 (which were handed to the Court by the 6^th Respondent on 9 January 2023), the 3^rd, 4^th, 5^th, 8^th, 9^th and 10^th Respondents wrote to the Court respectively stating that they were taking a neutral stance in these proceedings and, on such basis, seeking to be excused from attending the hearing on 9 January 2023.

13.  While it is not expressly stated in her letter to the Court, I take that the 10^th Respondent was also indicating a neutral stance to the Summons in her capacity as the 12^th Respondent.

14.  The 6^th Respondent (who is also the 11^th Respondent in her capacity as an executrix of the Estate), acting in person, was present at the hearing. She did not file any evidence in response to the Summons. Nor did she file any written submissions.

15.  Upon enquiry by the Court, the 6^th Respondent indicated that she was taking a neutral stance to the Summons in her capacity as an executrix but she objected to the Summons in her capacity as a beneficiary under the Will on the ground that the Estate should be used to support the living expenses of the Applicant rather than legal fees.

16.  I should record that subsequent to the hearing, the Court received a letter dated 11 January 2023 from the 6^th/ 11^th Respondent(s) to clarify that she is actually supportive of the Summons.

17.  As a result, all other parties were given an opportunity to comment on the contents of that letter from the 6^th/ 11^th Respondent(s) on or before 20 January 2023. No comments or further submissions were received by the Court.

BACKGROUND

18.  This is not the first time the Applicant has made an application for interim financial provision under section 7 of the Ordinance.

19.  Previously, the Applicant applied for, inter alia, interim financial provision for her living expenses by a summons dated 15 May 2020 (as amended on 9 October 2020).

20.  By a decision dated 4 February 2022 (“the Decision”), Deputy District Judge R Chow ordered interim financial provision at the rate of $12,095 per month to be paid out of the Estate to cover the living expenses of the Applicant.

21.  The learned Judge also held in the Decision:

“80. The Wife’s Summons amended on 13 October 2020 seeks only interim provision in the sum of HK$12,095 per month and an order for the Wife to remain at the property. Legal costs provision is not sought in the Amended Summons.

81. The Wife only asks for the legal costs provision by the Next Friends’ affirmations. I am not satisfied that this is the proper way to claim the legal costs. This item is not allowed in this application.” (emphasis added)

22.  The factual background of this case was set out in detail in §§8 to 39 of the Decision.

23.  I shall highlight the salient facts relevant for the purpose of the present application in the following paragraphs.

24.  The Applicant and the Deceased went through a Chinese customary marriage in 1953 in Mainland China.

25.  The 1^st to 10^th Respondents were born to the Applicant and the Deceased between 1956 and 1971.

26.  There is no dispute that the Deceased was the sole bread winner of the family until their children respectively reached the age of majority and became financially independent.

27.  The Applicant and the Deceased registered their marriage in Hong Kong in 1984.

28.  On 8 August 2018, the Deceased passed away in Hong Kong at the age of 87.

29.  The Applicant was born on 8 January 1935. She is now 88 of age. She was diagnosed with dementia in 2014.

30.  According to a medical report by Dr Gabriel Hung dated 30 May 2019, the Applicant was assessed to be suffering from severe cognitive deficits consistent with Dementia of Alzheimer’s type and was therefore a mentally disordered person within the meaning of the Mental Health Ordinance, Cap 136.

31.  It is also stated in the medical report that the Applicant showed “no appreciation of her husband’s death” and “no appreciation of her assets and her financial needs”.

32.  As noted above, the Will does not make any financial provision in favour of the Applicant.

33.  Probate was granted on 13 March 2019 to the 11^th and 12^th Respondents as executrixes named in the Will.

34.  According to the Schedule of Assets and Liabilities as at the date of his death, the net Estate of the Deceased comprised: (1) a landed property located at Yue On Court, No 3 Yue On Court Road, Hong Kong (“the Property”); (2) cash in bank accounts then totalling: $1,860,213.47; and (3) stocks in various publicly-listed companies[1].

35.  The Property was purchased under the Home Ownership Scheme and is presently estimated to have a net value of about $4,977,126 after deducting the premium payable to the Housing Authority.

36.  According to the Affirmation of the 11^th Respondent filed on 27 October 2022, the bank balance in the account of the Deceased’s Estate as of 15 October 2022 is $1,745,190.28, including the sale proceeds of the stocks and shares held in the name of the Deceased, which were sold by the Executrixes some time ago.

37.  As such, the Estate has a current value of about $6.7 million.

38.  It is the Applicant’s case that the 3^rd and 6^th Respondents accompanied the Deceased to attend a solicitors’ firm to make the Will in December 2013 and the Deceased expressly stated to the lawyer that he did not include the Applicant as a beneficiary under the Will because he expected the 1^st to 10^th Respondents to utilize the Estate to look after the Applicant financially after his death.

39.  The Applicant commenced the present proceedings because the 1^st, 2^nd and 7^th Respondent refused to follow such intention of the Deceased and insisted that the Estate be distributed according to the Will.

40.  The case of the 1^st, 2^nd and 7^th Respondents is that the marriage between the Deceased and the Applicant broke down in the 1970s. In about 1972, the Deceased broke the law and was sentenced to prison for 2.5 years. During the time when the Deceased was in prison, the Applicant squandered the family assets and was discovered to have an extramarital affair.

41.  The Deceased was very upset after being released from prison. After that, the Deceased and the Applicant lived separate lives. The Deceased and the Applicant registered their marriage in 1984 purely to enable their under-aged children to apply for residency in the USA.

42.  According to the 1^st, 2^nd and 7^th Respondents, it was a conscious decision of the Deceased not to make any provision to the Applicant under the Will because he had already sufficiently provided for her in the past.

APPICABLE LEGAL PRINCIPLES

43.  Section 7(1) of the Ordinance provides that:

“Where on an application for an order under section 4 it appears to the court—

(a) that the applicant is in immediate need of financial assistance, but it is not yet possible to determine what order (if any) should be made under that section; and

(b) that property forming part of the net estate of the deceased is or can be made available to meet the need of the applicant,

the court may order that, subject to such conditions or restrictions, if any, as the court may impose and to any further order of the court, there shall be paid to the applicant out of the net estate of the deceased such sum or sums and (if more than one) at such intervals as the court thinks reasonable; and the court may order that, subject to this Ordinance, such payments are to be made until such date as the court may specify, not being later than the date on which the court either makes an order under section 4 or decides not to exercise its powers under that section.” (emphasis added)

44.  The leading authority on section 7 of the Ordinance is ACLS v HSB(T)L [2013] 2 HKLRD 444 (CA), in which Lam JA (as he then was) said at p 450, §§22–23:

“22. In our judgment, the proper construction of s.7 must have regard to the statutory scheme of the Ordinance as a whole.

23. The primary objective of the Ordinance can be found in s.3. In short, it is to provide an avenue for persons who are the dependants of a deceased person to seek reasonable financial provision from the estate of the deceased where the will of the deceased or the law as to intestacy (or a combination of both) does not make sure provision. However, for any other person who claimed to be a dependant, he or she can only apply if he or she had been maintained, either wholly or substantially, by the deceased immediately before the death. That means that the deceased had been making a substantial contribution towards the reasonable needs of that person, see s.3(3).”

45.  His Lordship went on to set out the relevant legal principles at pp 455–456, §§36–42:

“36. In Barnsley v Ward (unreported) English Court of Appeal 8 Jan 1980, Templeman LJ held that an applicant for interim maintenance had to overcome three hurdles:

First, she must show that she is in immediate need; secondly, that there is property forming part of the estate which is or can be made available to meet that need and, thirdly, she must satisfy the court that it is right in the circumstances to exercise the court’s discretion and make an order in the manner sought.

37. It is to be noted that unless the court imposes a condition for repayment when making an order for interim maintenance (and the court does have the power to impose such order, see Tyler’s Family Provision 3^rd Edn at p.374), the applicant needs not repay any interim maintenance paid to him or her even though at the end of the day the court is not minded to order any relief after trial. Given that an applicant has to show immediate need for financial assistance, in many cases it might not be practical to impose such condition. Alternatively, even if such condition is imposed, that applicant might not have the means to repay.

38. With the above analysis of the statutory scheme in mind, we can now turn to the requirement in s 7(1)(a) on “immediate need of financial assistance”. Though in some parts of the judgment the judge referred to immediate financial need, the actual wording in the statute is “immediate need of financial assistance”. This is not a mere semantic point. If the financial needs of an applicant can be met by his own financial resources or had been met from other sources, he would not be regarded as having an immediate need for financial assistance.

39. It follows from the above analysis of the statutory scheme that interim maintenance should only be granted (at a stage where the actual entitlement of a claimant has yet to be established) in a very clear case where the immediate need of financial assistance is shown. Since there is no obligation on the part of a claimant to repay (subject to conditions to such effect being imposed and the resources of the claimant to meet such conditions), there is a real risk that the beneficiaries to the estate may suffer a detriment if at the end of the day the court held at the trial that such claimant was not entitled to any relief. As mentioned, there are many factors at play in an application under the Ordinance, an important one being fairness amongst all the beneficiaries to the estate. Thus, the court cannot look at the matter merely from the angle of the reasonable need of a claimant and the resources available in the estate. In this respect, the position under the Ordinance is very different from a case for interim maintenance in the matrimonial context, especially when the claimant is not a spouse or former spouse of the deceased.

40. Turning to the disagreement between the parties, viz whether “immediate” means “current” or “current and urgent”, our first observation is that something urgent must be something stemming from some current need. If one goes to the dictionary meanings of the word “immediate” in the New Oxford Dictionary cited by Mr Lam, we do not think it is right to narrow down the meaning of the word by choosing between “current” or “urgent”. In the context of s 7(1), it should be noted that it is a requirement applicable to every scenario. In other words, it is a requirement which applies as much to a surviving widow as an applicant having no blood or adopted relationship with the deceased. In our view, “immediate need” means something which calls for immediate attention. We do think it is desirable to put any further gloss on this expression.

41. Urgency can be a facet of an immediate need but it cannot be said that a case must be urgent before it requires immediate attention. It all depends on the circumstances. There is an element of flexibility built into the concept of “immediate need” which makes it an appropriate test to be adopted under s7(1)(a) which is universally applicable. In some cases, the urgency of the need is relevant for determining whether there is an immediate need for financial assistance. In other cases, it is not so much a matter of urgency as opposed to a matter of the seriousness of the consequences of not dealing with the need that calls for immediate attention.

42. On the other hand, we cannot accept the submission of Mr Lam that the requirement under s7(1)(a) is satisfied by the Plaintiff showing a current liability to repay a substantial debt. First, as mentioned, the immediate need is the need for financial assistance. Thus, if the current financial need of an applicant has been met by other sources (albeit by way of a debt from another relative), there is no immediate need for financial assistance. Second, depending on one’s usage of the expression, something can be current but not requiring immediate attention.” (emphasis added)

46.  Ms Christine Yu, counsel for the 1^st, 2^nd and 7^th Respondents, helpfully drew my attention to Yip Wing Ching v Yip Shung Kin & Anor [2020] 1 HKC 180. In that case, the applicant applied for the transfer of half of the net estate of his deceased wife under the Ordinance. Likewise, prior to the determination of the application, he applied for interim maintenance and legal fees from the deceased’s estate under section 7 of the Ordinance.

47.  After referring to the above legal principles from ACLS v HSB(T)L, supra, DHCJ William Wong SC (as he then was) said at pp 186–187, §§25–27:

“25. Further, it is established law that:

(1) “Immediate need” means something calling for immediate attention. Urgency and the seriousness of the consequences of not dealing with the need are relevant considerations. On the other hand, “immediate need” should not be equated with “current need”. (See ACLS v HSB(T)L (supra) at §§40 – 41, 44)

(2) The test for “immediate need of financial assistance” is a fairly strict test and is stricter than the test employed by the court to determine whether reasonable provision should be made for the applicant’s maintenance. (Tyler’s Family Provision, 3^rd ed, at page 372)

(3) The applicant has to proffer to the Court and the other side convincing evidence that there is immediate financial need. (See Smith v Smith [2011] EWHC 2133 (Ch) at §30 per Mann J)

26. I am of the view that the assets of the estate should be the last resort of a dependant’s immediate financial needs. An applicant carries the burden to prove that his or her immediate need for financial assistance cannot be met by his own financial resources or had not been met from other sources. The Court has to take into consideration the interest of other beneficiaries of the estate.

27. The merit of an applicant’s case under section 4 of the Ordinance is also a material consideration for the Court. If an applicant can demonstrate that he or she is bound to get some relief at the end of the proceedings, I can see that the Court will be more inclined to allow interim maintenance to be granted. On the other hand, if it can be shown that the applicant’s case is bound to fail under section 4 of the Ordinance, then there will be no point in making any interim maintenance. I agree that the Court should in its discretion make an interim order only if the applicant has a strong prima facie case for provision. (Tyler’s Family Provision, 3^rd ed, at page 373)” (emphasis added)

48.  It can be seen from the above authorities that the test under section 7 of the Ordinance is a stringent one – the applicant carries the burden to establish by convincing evidence a very clear case that there is an immediate need of financial assistance.

IMMEDIATE NEED OF FINANCIAL ASSISTANCE

49.  Ms Lareina Chan, who appeared with Mr Fergus Chan, submitted on behalf of the Applicant that there has always been “an immediate and pressing need” for litigation funding.

50.  It is the evidence of Madam Ma in §11 of her 5^th Affirmation filed on 24 October 2022 that:

“It can be seen that the total of Part 1 and Part 2, ie. the legal costs which were already incurred as at the date of the Form H, amounted to HK$936,000 (ie. HK$750,000 + HK$186.000). Thus far, I was having to borrow money in order to pay for the legal costs on behalf of [the Applicant], as her next friend. All along, it was hoped that these proceedings could be settled, and so far as possible, I looked for short-term measures in order to “get by”, little by little, month by month, particularly as it also costs money in order to take out a litigation funding. However, it cannot be disputed that all along, there was certainly a need – an immediate and pressing need – on behalf of [the Applicant], for litigation funding. With the sums that are necessary in order for this matter to go towards Trial, and for the Trial itself, such short-term, “little by little” measures are wholly unfeasible, and the legal costs will, post-FDR hearing, escalate exponentially. I cannot continue to borrow money for legal costs, particularly at the figures that will be required moving forward.” (emphasis added)

51.  It is also Madam Ma’s evidence that it will require a further sum of $1,025,000 to take the case up to and including trial. On such basis, the Applicant seeks a monthly sum of $125,000 (for 8 months)[2]. She also seeks a monthly sum of $26,000 (for 36 months)[3] to be backdated to the date of the originating summons to cover the legal costs previously incurred.

52.  At the hearing, when queried by the Court, Ms Chan confirmed (on instructions) that the legal costs incurred in the sum of $936,000 were actually paid.

53.  The evidence filed on behalf of the Applicant, however, is completely silent on when, how and from whom Madam Ma managed to borrow the said sum of $936,000, not to mention any reason why Madam Ma is no longer able to borrow from the same or other source(s). No supporting document (e.g. bank statements, loan agreements or text messages between the lender(s) and Madam Ma) has been produced.

54.  There is also no evidence that the lender(s) was going to press for or demand repayment of the sum of $936,000.

55.  As rightly pointed out by Ms Yu, even after the Applicant’s case on immediate need of financial assistance was specifically challenged in the 1^st Respondent’s 4^th Affirmation filed on 28 November 2022, Madam Ma’s 6^th Affirmation filed on 12 December 2022 (which is her evidence in reply) conspicuously does not contain any further particulars/ documents to make good the Applicant’s case.

56.  More specifically, the 1^st Respondent contended in §3 of his 4^th Affirmation that “the Applicant did not and does not have any immediate need of financial assistance for litigation funding because [Madam Ma] and the other 7 Respondents (i.e. the 3^rd to 6^th, 8^th to 10^th Respondents) have been paying for the Applicant’s legal costs; and together they should have fully settled all costs incurred up to now”.

57.  The 1^st Respondent also referred to a WhatsApp message sent by the 5^th Respondent to a group of family members including the 1^st, 2^nd and 7^th Respondents on 14 July 2019 (Exhibit CCIW-2).

58.  In that WhatsApp message, the 5^th Respondent said: “… 因為到目前為止，你哋三個都沒有任何行動，所以，我哋七個有咗以下嘅決定：… 不過，你哋三個要負責埋我哋呢邊律師費嘅所有支出，到目前為止，大概HK$200,000，因為喺你哋三個話要用律師對話，所以我哋先要請律師” (emphasis added).

59.  The above WhatsApp message appears to suggest that at least part of the legal costs incurred on behalf of the Applicant came from the 3^rd to 6^th and 8^th to 10^th Respondents.

60.  At the hearing, Ms Yu further drew my attention to §22 of the Applicant’s Answers filed on 11 January 2022[4], which reads:-

“Answer to Q22

The Applicant’s monthly expenses have been paid out of the 3^rd to 6^th Respondents’ and 8^th to 10^th Respondents’ entitlements to the funds in the Deceased’s estate. Given that these payments were made to satisfy the Applicant’s immediate, urgent and/or pressing expenses and needs for the time being, it remains to be seen whether those Respondents will subsequently seek reimbursement of these expenses out of any award to be made in the Applicant’s favour.” (emphasis added)

61.  When questioned by the court why such financial assistance from the 3^rd to 6^th and 8^th to 10^th Respondents in favour of the Applicant was not addressed in the Applicant’s Form E, no satisfactory answer was supplied on behalf of the Applicant save that Ms Chan said to the Court (again on instructions) that such financial assistance was only for living expenses (but not for legal fees).

62.  However, no explanation was given as to why the 3^rd to 6^th and 8^th to 10^th Respondents could not finance at least part of the litigation funding sought.

63.  The above matters raised on behalf of the 1^st, 2^nd and 7^th Respondents were not specifically addressed or contested by Madam Ma in her evidence in reply, save for a very general statement that “[i]t cannot simply be assumed that I could or should continue to find ways to borrow money in order to pay for [the Applicant’s] legal fees, including for a full Trial”[5].

64.  As correctly submitted by Ms Yu, none of the 3^rd to 6^th and 8^th to 10^th Respondents has come forward to give evidence when they must be in the best position to respond to the above matters.

65.  In this regard, what Mann J said in Smith v Smith & Ors [2012] 2 FLR 230 at 235, §30 is apposite:-

“[30] She claimed to have one bank account with Barclays. She has not produced any statements from which a limited investigation of her financial means would no doubt be possible. How far it would take one, one does not know, but she did not produce them. True it is she was not challenged to produce them, but it seems to me it behoves an applicant in an application under s 5 to proffer to the court and to the other side convincing evidence of the case that there is immediate financial need. Mere statements of fact are not necessarily going to be sufficient and on the facts of this case they are certainly not sufficient.”

66.  In my view, the same can be said about the evidence (or the lack of it) proffered by the Applicant in support of her application under section 7 of the Ordinance.

67.  Ms Yu also took an additional point that no attempt was made by the Applicant to apply for legal aid. This is of course one of the conditions under what is commonly known as the Currey test for litigation funding in divorce cases.

68.  Both parties accepted that there is no direct authority that the Currey test is applicable to section 7 applications under the Ordinance in Hong Kong.

69.  I do not find it necessary for me to resolve whether the Currey test is applicable or not for the present purposes.

70.  It suffices for me to say that, as noted in §§19–21 above, Madam Ma first referred to the question of legal costs in these proceedings in §14 of her 3^rd Affirmation filed on 15 May 2020.

71.  The fact remains that since then no attempt has been made on behalf of the Applicant to apply for legal aid, especially as it is the Applicant’s own evidence that this is not a “big money” case.

72.  This reinforces Ms Yu’s point that there was (and is) no immediate need of financial assistance, bearing in mind DHCJ William Wong’s dictum that the assets of the estate should be the last resort of a dependant’s immediate financial needs (see Yip Wing Ching, supra, p 187, §26).

73.  For all the reasons stated above, I have no hesitation in finding that the Applicant has failed to satisfy the stringent test that there is a very clear case of immediate need for financial assistance.

OTHER CONSIDERATIONS

74.  At the hearing, Ms Chan emphasized that the Applicant has a strong prima facie case under the Originating Summons. It is correct that since the Applicant is a surviving spouse of the Deceased, she is not required to show that she had been wholly or substantially maintained by the Deceased.

75.  That said, the 1^st, 2^nd and 7^th Respondent are running a case that there was a very long period of separation between the Applicant and the Deceased, which (if proved) may impact on the award to be received by the Applicant.

76.  These are, however, not matters that I can form a judgment at the stage and can only be resolved at trial.

77.  In any event, the merits of the Applicant’s case under section 4 of the Ordinance does not (and cannot) assist the Applicant’s application here, given that she is unable to demonstrate a very clear case of immediate need for financial assistance.

78.  In §§28–29 of her skeleton submissions, the Applicant also referred to other factors under section 5 of the Ordinance. For the same reason, I do not consider any such factor to be able to advance the Applicant’s case.

79.  In this regard, I should mention that the Applicant is seeking close to $2 million in legal fees by the Summons when the size of the Estate is about $6.7 million (see §37 above). As pointed out by Ms Yu, even taking her case to the highest, the Applicant is unlikely to be awarded more than half of the value of the Estate.

80.  Even if I am wrong on the aforesaid analysis and there is an immediate need for financial assistance (which I do not accept), it is clear to me that the amount sought by the Applicant is disproportionate and excessive.

81.  For the avoidance of doubt, I have duly considered all other submissions ably advanced by Chan. None of those points is able to assist the Applicant.

DISPOSITION

82.  For the above reasons, I dismiss the Summons.

83.  The Applicant is unsuccessful in her application. I make an order nisi that the Applicant shall pay the costs of and occasioned by the Summons to the 1^st, 2^nd and 7^th Respondents (including all costs reserved), on a party to party basis, with certificate for counsel, to be taxed if not agreed. Such order nisi shall become absolute if no application to vary the same is made within 14 days from the date of this decision.

84.  Lastly, it remains for me to thank Ms Chan and Mr Chan for the Applicant and Ms Yu for the 1^st, 2^nd and 7^th Respondents for their able assistance.

Ms Lareina J Chan and Mr Fergus Chan instructed by Hugill & Ip, Solicitors, for the Applicant

Ms Christine Yu instructed by Rowdget W. Young & Co., Solicitors, for the 1^st, 2^nd and 7^th Respondents

The 6^th/ 11^th Respondent appearing in person

The 3^rd, 4^th, 5^th, 8^th, 9^th & 10^th/ 12^th Respondents acting in person (attendance excused)

FCMP 176/2019

[2022] HKFC 26

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 176 OF 2019

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DECISION
( Interim Financial Provision )

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INTRODUCTION

1.  The husband (“the Deceased”) of the Applicant (“the Wife”) passed away without making financial provisions for her in his last will.

2.  Represented by the daughter of the 3^rd Respondent as her Next Friend, the Wife by an Originating Summons filed on 9 September 2019 claims reasonable financial provision under the Inheritance (Provision for Family and Dependents) Ordinance (Cap. 481) (“the IPFDO”).

3.  There are currently 2 applications before this Court. 

4.  The first and main application is by the Wife to apply for an interim financial provision under the IPFDO for (i) monthly expenses; (ii) an order to remain in the Deceased’s property; and (iii) legal costs incurred.

5.  The 1^st to 10^th Respondents are children of the Deceased and the Wife.  The 11^th and 12^th Respondents are the 6^th and 10^th Respondents respectively in their capacity as the executrixes of the Deceased’s last will.

6.  Only the 1^st, 2^nd and 7^th Respondents (“the Opponents”) defend the Wife’s claim and oppose her present application. 

7.  The second application is the Opponents’ application to file and serve additional affirmation in opposition to the Wife’s application for interim financial provision.

BACKGROUND

8.  The Deceased and the Wife were married in 1953 by customary marriage.  They registered their marriage in Hong Kong in 1984. 

9.  The Deceased and the Wife gave birth to the 1^st to 10^th Respondents between 1956 and 1971.

10.  The Applicant is 85 years old, she was diagnosed with dementia of Alzheimer’s Type since 2014. 

11.  The Deceased died at the age of 87 in August 2018 in Hong Kong.  The Deceased’s estate (“the Estate”) comprises a property (“the Property”), approximately HK$1.86 million in bank accounts, and stocks in various companies. 

12.  According to the Deceased’s will dated 3 December 2013 (“the Will”), the estate is to be divided among the 1^st to 10^th Respondents, no provision has been made for the Applicant.

THE WIFE’S CASE

13.  The Deceased and the Wife had a long marriage of 65 years before the death of the Deceased.

14.  The Deceased had worked as a mini-bus driver and always been the sole bread winner for the family.  The Wife had always been a housewife.

15.  Since 1988, the family had lived at the Property that was purchased through the homeownership scheme.

16.  All of the Respondents except for the 3^rd, 6^th and 10^th Respondents are US citizens now living in the US.   Although granted residency in the US, the 10^th Respondent stayed in the US for only 2 years before returning to Hong Kong, the 3^rd and 6^th Respondents did not fulfil the stay requirement to qualify for green card. 

17.  The 1^st and 4^th Respondents were the first to stay in the US since 1978.  The 4^th Respondent applied for residency for the Deceased and the Wife in 1983 and their applications were approved in 1986. 

18.  Since then the Deceased and the Wife had to travel back and forth between Hong Kong and the US to meet the green card requirement.  The Wife became US citizen in 2015.

19.  After the Deceased retired at 65, he sold his minibus and invested in the stock market in 1997.  He continued to financially support the Wife and paid her a few thousand dollars every month as pocket money.  The Deceased opened 2 fixed deposit accounts with HK$1.85 million and used the monthly interest to cover the Wife’s living expenses.  All household expenses, utilities and management fees were settled by auto-pay from his bank accounts.

20.  The Wife and the Deceased were diagnosed with dementia in 2014 and 2016 respectively.

21.  The 3^rd and 6^th Respondents accompanied the Deceased to the law firm for making the will, the Deceased expressly told the lawyer that he did not include the Wife as a beneficiary under the Will because he expected that the 10 Respondents would utilise the Estate to look after the Wife financially following his death.

22.  Now, the Opponents are unwilling to follow the intention of the Deceased and insist that the Estate be distributed instead of letting the Estate by used for taking care of the Wife’s financial needs before distribution.

23.  After the death of the Deceased, the Wife relocated to Hong Kong in 2018.  The Wife had been staying at the Property and taken care of by the domestic helper who used to take care of the Deceased.

24.  After the Deceased had dementia in 2016, the 1^st to 10^th Respondents each contributed to a fund for payment of the domestic helper.  After the death of the Deceased, that fund was used to cover the expenses of the Wife but when the balance became low, the 1^st to 10^th Respondents except the Opponents made another contribution.  Again, the 1^st to 10^th Respondents except the Opponents agreed to use the fund to settle part of the legal costs already incurred by the Next Friend in these proceedings.  At the time of this application, the legal costs were incurred up to the region of HK$300,000.

25.  After the Deceased’s bank accounts had been unfrozen after the Grant of Probate on 13 March 2019, the 6^th and 10^th Respondents drew money from the accounts to cover the monthly expenses of the Wife.

THE OPPONENTS’ CASE

26.  The marriage between the Deceased and the Wife broke down in 1970s.  During the time when the Deceased was in prison between 1972 and 1974, the Wife had an extramarital affair and squandered the family asset including the Deceased’s hard-earn money and properties.

27.  The Deceased was very upset when he was out of prison and wanted to divorce her.  The 2^nd Respondent persuaded the Deceased not to divorce the Wife to avoid leaving psychological impact on his younger siblings.

28.  The only reason why the Deceased and the Wife subsequently registered their marriage in 1984 was for their under-aged children to apply for residency of the US.

29.  Even though the Deceased let the Wife stay at the Property, they led separate lives under the same roof.

30.  The Deceased would give the Wife HK$1,000 per month as pocket money.

31.  The Deceased told the 7^th Respondent that he had given the Wife HK$200,000 after selling the minibus in 1997 for time deposit which was subsequently paid to the 4^th Respondent. The Deceased also told the 7^th Respondent in 2009 that he had given HK$1 million to the 4^th Respondent to take care of the Wife for life in the US. 

32.  The Wife would travel back and forth to the US and spending around half a year in the US.  In 2009, the Wife settled down in the US with the 4^th and 5^th Respondents.  Since then the Deceased no longer paid the Wife the pocket money.

33.  The Deceased made the Will in December 2013 but did not provide for the Wife under the Will because he had already provided for her.

34.  The Deceased instructed the 1^st Respondent to purchase a burial lot for him and the Wife and said it was the last thing he needed to do for her in August 2013.

35.  In January 2016, the 2^nd Respondent also heard the Deceased say he had already given her enough money to live in the US for her entire life.

36.  It is just that the 4^th Respondent reneged on his promise and denied having received the HK$1 million for taking care of the Wife.

37.  The other Respondents moved the Wife to Hong Kong despite the objection of the Opponents.  It would be the Wife’s best interest to stay in the US.

38.  The Opponents find the continued use of the Estate to provide for the Wife objectionable by the 6^th and 10^th Respondents in their capacity as executrixes.  The Opponents have instructed their solicitors to request their executor’s account of the Estate.

39.  The Wife should be able to sustain her own living with the money the Deceased had given her and the Supplemental Security Income (“SSI”) as a US citizen.

GROUNDS OF OPPOSITIONS

40.  The Opponents oppose the present application for an interim order on the following grounds:

     (1) Reasonable financial provision has been made to the Wife;

     (2) The Wife has no immediate need of financial assistance;

     (3) The amount claimed is too high; and

     (4) The Court has no jurisdiction to allow the Wife to remain in the Property.

APPICABLE LEGAL PRINCIPLES

41.  The Wife’s present application is made under s.3 and s.7 of the IPFDO as the wife of the Deceased for interim provision with s.5 to be taken into consideration. 

REASONABLE FINANCIAL PROVISION HAS BEEN MADE?

42.  The Opponents submits that the Wife is unable to show that the Deceased has failed to make reasonable financial provision for her. 

43.  It is the Opponents’ case that the marriage had broken down in as early as 1974 by reason of the Wife’s extramarital affair and squandering of family asset and the Deceased had already made sufficient financial provisions for the Wife including the HK$200,000 and HK$1,000,000 as clean break settlement.

44.  The Opponents accept that it is premature and not necessary for the court to resolve the factual disputes at this juncture.

45.  Whether the Wife had an affair and had squandered family assets in the 1970s, the undisputed fact remains that the Deceased and the Wife registered their marriage in Hong Kong in 1984 which suggests that the marriage subsisted.   If it was due to a need to facilitate those Respondents under 18 to move to the US, there was no longer such need when all the Respondents had obtained residency in the US in 2000s.

46.  If the marriage was there just as a matter of form, there should be no need for the Deceased to allegedly give the Wife pocket money and the HK$200,000 for time deposit.

47.  When the HK$1 million for clean break settlement was allegedly made in 2009, it would also be a good time for divorce, yet the Deceased and the Wife stayed married. 

48.  For whatever reason the Deceased and the Wife were not divorced, if the Deceased considered the marriage having come to an end and there was a clean break settlement, there should be no reason why he would purchase burial lot for both the Wife and himself for them to be buried together in 2013.

49.  By the time the Wife stayed in the US in 2009, she would be taken care of by the 4^th and 5^th Respondents, it would not be unreasonable for the Deceased to not give the Wife monthly payments.

50.  I am of the view that the undisputed facts do not sit well with the Opponents’ case that the marriage had broken down long ago or at all.

51.  Another major dispute is whether the Deceased had a clean break settlement with the Wife for HK$1 million.  There is no evidence whatsoever of what terms or arrangement of the alleged clean break settlement were between the Deceased and the Wife.   The Wife did not even receive the HK$1 million herself even the Opponents’ case.

52.  The only evidence available is that the 7^th Respondent allegedly heard the Deceased say he gave the 4^th Respondent HK$1 million for him to take care of the Wife in the US.  It is the Opponents’ own case that the 4^th Respondent had denied receipt of the money.  This will be a major factual dispute at trial.

53.  Whether the alleged HK$1 million can be considered a clean break settlement based on the present evidence is in doubt.

54.  Assuming there was the HK$200,000 that the Deceased gave the Wife in 1997, it was so long ago.  It is the Wife’s case that the money had long been exhausted for her expenses which is reasonable.

55.  Reasonable financial provision under s.3(2) of the IPFDO means “such financial provision as it would be reasonable in all the circumstances of the case for such a person to receive, whether or not that provision is required for his or her maintenance”.

56.  One of the factors that the Court has to take into account by reference to s.5(2) of the IPFDO is to “have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a decree of divorce”. 

57.  The marriage sustained until the death of the Deceased.  The Wife has dementia and 85 years of age, she has no earning capacity and has been a housewife.  She has limited asset.  Even if there was financial provision previously made to the Wife, it was made a long time ago, and the fund has been exhausted by now.  The Wife’s entitlement to Old Age Allowance is clearly not enough to sustain her living.  The size of the Estate consists of at least HK$1.86 million in the Deceased’s bank accounts in addition to the Property and value of the Deceased’s stocks.

58.  There are serious factual disputes at trial.  However, based on the present evidence before me, it is my preliminary view that it is likely that the Wife would be entitled to have a share of the asset of the Deceased at the time of his death had it been a divorce.

IMMEDIATE NEED OF FINANCIAL ASSISTANCE?

59.  S.7 of IPFDO allows for an interim order for an applicant who “is in immediate need of financial assistance, but it is not yet possible to determine what order (if any) should be made”.

60.  As discussed by Lam JA (as he then was) in ACLS v HSB(TL)L in [2013] 2 HKLRD 444, §§40 – 47, “immediate need” means something which calls for immediate attention and that urgency can be a facet of an immediate need and in other cases it is the seriousness of the consequences of not dealing with the need calls for immediate attention.

61.  The Opponents argue that the Wife’s application was made only on 15 May 2020 long after the death of the Deceased on 8 August 2020, it shows that the Wife had no immediate needs.

62.  There had also been difficulties on the part of the Wife to serve the Originating Summons on the Opponents out of jurisdiction which caused delay.

63.  More importantly, in the present case, the monthly expenses had been met by the withdrawals from the Deceased’s accounts since the Grant of Probate on 13 March 2019, it was only due to the Opponents’ challenge of the use of the Estate that it became necessary for the Wife to make the application.  I do not consider the argument of delay carries much force.

64.  The Opponents submit that the Wife should have abundant financial resources and her need can be met by her own or other sources.

65.  From the Wife’s evidence, she has only limited asset in the banks which would not be enough to sustain her for more than 1 or 2 months assuming her mental incapacity does not hinder her making use of the such resources.

66.  The Wife does have the old age allowance in the sum of HK$3,585 per month.  This amount is far from enough to sustain her living monthly.  The Wife is no longer entitled to the SSI as she is not residing in the US.

67.  The Opponents submit that the Wife’s expenses can be met by the 1^st to 10^th Respondents, but the evidence is clear that the Wife’s monthly expenses are met with the withdrawals from the Deceased’s accounts, none of the 1^st to 10^th Respondents or the Next Friend have since then personally contributed to the Wife’s monthly expenses.

68.  The Opponents argue that the domestic helper was employed by the 10^th Respondent who signed the employment contract, she should be personally responsible for the wages.

69.  Based on the mental condition of the Wife, she is clearly not in a position to enter into an employment contract with the domestic helper.  In the employment contract, the domestic helper’s workplace is the Property, so clearly the domestic helper’s job was solely to take care of the Wife.  While it is true that the 10^th Respondent might be personally liable under the contract, the salary was not personally paid by her but from the Deceased’s bank account.  Further, there is a term that provides for termination of the employment of the domestic helper by 1-month notice, the 10^th Respondent would not be personally liable to a limited extent under the termination clause of the employment contract.

70.  The 1^st Respondent offers to take care of the Wife in the US, that way she would be entitled to the SSI again.  The offer is not made by way of an undertaking, there would be difficulties of enforcement even if it was by way of an undertaking.  Given the 1^st Respondent’s serious allegations and negative remarks made against the Wife in his affirmations, I have serious reservation that it was a genuine offer to take care of the Wife.  There would be other issues relating to the travelling by the Wife who is mentally unfit, especially during COVID-19.  In any event, whether the Wife is willing to take up on the offer depends entirely on her, there is simply no acceptance of such offer.

71.  Having regard to the above, I am of the view that the Wife is in immediate need of financial assistance.

CLAIMED AMOUNT TOO HIGH?

72.  The breakdown of the Wife’s monthly living expenses of around HK$15,680 as follows:

Utilities	HK$600
Management Fees	HK$780
Food	HK$3,000
Household Expenses	HK$200
Domestic Helper	HK$6,000
Meals out of home	HK$1,000
Transport	HK$1,000
Clothing/Shoes	HK$500
Personal Grooming	HK$500
Medical/Dental	HK$1,500
Other (Nutritional Supplement)	HK$600

73.  After taking into account of the Old Age Allowance from the government in the sum of HK$3,585 per month, the Wife is now claiming the total amount of HK$12,095 per month for monthly expenses.

74.  The Opponents argue that the Wife’s expenses are too high considering her age, medical needs and basic living needs, no figures have been suggested by them.

75.  The Opponents complained that no receipts had been provided save for utilities, management fees, medical/dental, nutritional supplements in the total sum of $3,480 had been provided. 

76.  I have considered each of the above item.  I consider these amounts claimed to be reasonable. 

77.  The employment contract states HK$4,630 as the wages for the domestic helper, it was explained that when taking into account of extra working days on Sundays and public holidays, the total amount as the wages of the domestic helper would become HK$6,000. I consider this explanation reasonable.

78.  There is no dispute that the Estate is not big enough to afford the monthly expenses of the Wife.  The amount in the bank account alone would be enough to sustain the monthly expenses of the Wife for about 13 years.

79.  I accept the sum of HK$12,095 being the reasonable sum as interim financial provision for the Wife’s monthly expenses after deduction of the Old Age Allowance.  I also consider that justice requires that the interim provision should begin from the date of the Originating Summons.

LEGAL COSTS

80.  The Wife’s Summons amended on 13 October 2020 seeks only interim provision in the sum of HK$12,095 per month and an order for the Wife to remain at the property.  Legal costs provision is not sought in the Amended Summons.

81.  The Wife only asks for the legal costs provision by the Next Friends’ affirmations.  I am not satisfied that this is the proper way to claim the legal costs.  This item is not allowed in this application.

REMAIN IN THE PROPERTY?

82.  It is submitted by the Opponents that the Court has no jurisdiction to grant an order for the Wife to stay in the Property.

83.  S.7 of the IPFDO provides that “the court may order that, subject to such conditions or restrictions, if any, as the court may impose and to any further order of the court, there shall be paid to the applicant out of the net estate of the deceased such sum or sums and (if more than one) at such intervals as the court thinks reasonable; and the court may order that, subject to this Ordinance, such payments are to be made until such date as the court may specify, not being later than the date on which the court either makes an order under section 4 or decides not to exercise its powers under that section.”

84.  The Opponents rely on the case of Smith & Smith & ors [2012] 2 FLR 230, §20 in which Mann J says:

“There was a limited debate before me as to the jurisdiction if any to order occupation of the house. For reasons which will appear, I do not think it necessary to go into that question. I shall assume for the purpose of this judgment that the jurisdiction exists, although it is not possible to see that it exists at least under the Inheritance Act, but on the basis that I am going to make the assumption I do not need to lengthen this judgment by considering the question. That, then, is the basis of the claims made by the claimant in the application before me.”

85.  I share Mann J’s view. I am not of the view that I have the jurisdiction to order that the Wife be allowed to remain rent free in the Property.  No order would be made to such effect.

86.  However, if the Wife has to stay somewhere else, obviously further expenses and costs would be incurred, and one can expect an application for upward variation of the order for interim financial provision to be then made.

APPLICATION TO ADDUCE ADDITIONAL EVIDENCE

87.  The second application to be dealt with here is the application by the Opponents to adduce as additional evidence affirmation filed on 29 April 2021 in opposition to the Wife’s application.  In essence, the evidence is from the 7^th Respondent’s friend that the Wife had been hospitalized for a few months.

88.  Relying on Ladd v Marshall [1954] 1 WLR 148, the Opponents submit that the additional evidence was not available at the scheduled time of their filing of evidence to oppose and lodging of skeleton submissions.  There are “genuine extenuating circumstances” that justify the addition evidence to be adduced.

89.  I do not agree that the additional evidence could not have been made available earlier.  In the 2^nd Affirmation of the 1^st Respondent filed on 29 July 2020, he already learnt that the Wife was hospitalized on 31 March 2020. In the 4^th Affirmation of the Next Friend filed on 26 August 2020 explained that the Wife had been in and out of hospital for different lengths of time.  The Opponents had ample opportunities to adduce further evidence if they considered the Wife’s hospitalization to be of importance long before their present application.

90.  Further, the Wife’s present application is for interim financial provision, if there are new development of matters that turn out to be of significance that should be taken into account, the Opponents could always apply for a variation of any interim order made.  I do not agree there genuine extenuating circumstances that justify the Opponents’ present application.

91.  I would therefore dismiss the Opponent’s application for adducing additional evidence.

92.  Costs should follow the event.  I make an order nisi that costs of the Opponent’s Summons be to the Wife, to be taxed if not agreed.

CONCLUSION

93.  By reason of the foregoing, in relation to the Wife’s Summons, I order that the Respondents do pay interim provision in the sum of HK$12,095 per month be paid out of the Estate of the Deceased to the Wife from 9 September 2019.

94.  The proper costs order in my view for the Wife’s Amended Summons is an order nisi for costs to be in the cause of the Originating Summons.