LWH v. YMY AND OTHERS

FCMP 188/2017

[2023] HKFC 8

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NO. 188 OF 2017

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JUDGMENT
( FINANCIAL PROVISION PURSUANT TO THE INHERITANCE
(PROVISION FOR FAMILY AND DEPENDANTS)
ORDINANCE (CAP 481) )

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Introduction

1.  This is an application by a surviving spouse for financial provision under the Inheritance (Provision for Family and Dependants) Ordinance (Cap 481) (“the Ordinance”).

2.  The deceased, YSK (“the deceased”) was diagnosed with terminal colon cancer in mid of 2016 and died shortly thereafter on 20 January 2017, leaving the applicant, being his surviving spouse, the 2^nd respondent his mother and the 3^rd respondent, his minor daughter.  The 1^st respondent is the deceased’s youngest sister and the sole executrix and trustee of the deceased’s Will dated 11 August 2016 (“the Will”). 

3.  By an order dated 14 July 2020, the Official Solicitor has been appointed as the guardian ad litem of the 3^rd respondent.

4.  In this judgment, for the ease of reference, I shall refer to the applicant as “the wife”, the 1^st respondent “the sister”, the 2^nd respondent “the grandmother” and the 3^rd respondent “the daughter”.

Background

5.  The deceased is an indigenous villager of the New Territories.

6.  The deceased, born in April 1962, was 54 years old when he died.  The deceased married the wife in January 2001; at that time, he was 39 years old and the wife was 28.  This was the second marriage for the deceased.  He had no child from the previous marriage which, according to the sister, lasted for a few months only.

7.  The deceased had worked as a gardener before he fell ill.  According to the sister, his monthly salary was $9,800. This was not challenged by the wife.

8.  The wife has always been in gainful employment. She is an assistant clerical officer with the Government.  In August 2007, the wife and the deceased gave birth to the daughter. When the deceased passed away the wife was 43 years old and the daughter was 10.  They are now 49 and 15 respectively.

9.  The grandmother is now 77 years old.  She retired decades ago.

The Will

10.  On 11 August 2016, shortly after he was diagnosed with cancer, the deceased made his last Will and Testament.  The deceased’s only substantial asset is a 3-storeyed village house (“the House”) at the locality of his village. Under the Will, he gave the grandmother the part of the House identified as Block A and the daughter the other part of the House identified as Block B.  He also gave all the residuary estate to the daughter.  No provision whatsoever was made for the benefit of the wife.  He appointed the sister as the sole executrix of his Will and the guardian of the daughter. 

The Probate Proceeding

11.  Probate was granted by the High Court on (date and month) 2020.

12.  There have been a number of contentious applications made to the Probate Court for the rectification of the Will.  The latest one resulted in a Decision dated (date) being handed down by Master (name of Master).  I have read the learned Master’s Decision.  I agree with counsel and solicitor-advocates appearing before me that the outcome of the decision or the rectification would have no bearing on the distributive exercise (if any) to be undertaken by this court.  That said, it has to be mentioned that given the modest size of the estate, these unnecessarily contentious applications drained much money in the form of legal costs from the estate and intensified the hostility between the parties which I have no doubt have contributed to their inability to compromise their differences. 

The Interim Payments to the Wife, the Daughter and the Grandmother

13.  On 18 September 2017, the wife made an application under sections 3 and 4 of the Ordinance for reasonable financial provision from the estate of the deceased.  On the same day, she also took out an inter-parte summons for interim relief under section 7 of the Ordinance, seeking a monthly sum of $20,000. 

14.  In response, the sister gave an undertaking to the court and the wife to pay monthly sums of (1) $5,000 being interim financial provision for the wife and (2) $15,000 per month as advanced maintenance for the daughter, commencing from 16 November 2017. On 3 May 2019, the sums were varied down to $14,000 and $4,000 respectively due to the decrease in rental receipts of the House.  There were months when payments were not made in full due to vacancy of the units.  This has been the situation up to this day.

15.  At the same time, the sister has been paying the grandmother out of the rentals a monthly sum of $8,500 for the grandmother’s living expense.

Facts Not in Dispute

The House

16.  The House was built in about 1992 by the deceased. The House has 3 floors, being Ground Floor, First Floor and Second Floor.  There are 2 units on each floor, making up 6 units in total, viz “GA”, “GB”, “1A”, “1B”, “2A” and “2B”.  Under the relevant Grant, the House may only be divided horizontally, but not vertically.  So far a Deed of Mutual Covenant has not been prepared for the sale of the House in parts.

17.  At all times, since the House was built, the 4 units on the First Floor and the Second Floor have been rented out for income. Although the deceased had a full time job, it seems not in dispute that he relied more on his rental income rather than his wages for living.

18.  The deceased is the only son in the family. He used to live at unit GA.  That had been the situation since the completion of the House up to his departure for hospice where he eventually passed away. The wife and the daughter also lived in the unit with the deceased before their moving away in November 2012. Unit GB is slightly larger than unit GA (by approximately 60 to 70 ft²) because unit GB has a kitchen.  For this reason, the deceased (and the wife as well) had to cook or dine at unit GB. 

19.  The grandmother has been living at unit GB for the last 30 years or so. As a matter of fact, both units on the ground floor had been used as the home of the extended family. The grandfather had lived there till his death in 1995 and the sister had lived there up to 2014 when she moved out upon getting married.

20.  It is not in dispute that, prior to the wife’s moving out, unit GA was the former matrimonial home of the deceased and the wife. As said, the wife and the daughter, together with their domestic helper, moved out of it in November 2012 and never returned to live there. They have since been living in a leased flat.

21.  The sister and the grandmother’s case is that the deceased and the wife had separated from each other as from November 2012; they led separate lives and were not husband and wife in any real sense. 

22.  On the other hand, the wife gives the explanation that she was forced by the situation, viz the mental condition of the deceased, to have moved out.  In reality, they, as husband and wife, still loved each other very much.  At trial, the nature of their relationship as from November 2012 till the passing of deceased was subject to close scrutiny.  At issue is whether their marriage had ended in November 2012.

23.  At this juncture, I need to mention that on 10 October 2017 the wife returned to unit GA where she had confrontation with the grandmother (“the October 2017 Incident”).  It is unnecessary to go into this incident in any details; both gave a different version exonerating her side.  All I need to say is that the matter was unhappily ended by the intervention of the Police. I have no doubt this incident was the last straw in the parties’ relationship.  Since then, there was no meeting or communication between them whatsoever.

24.  Another issue that is subject to debates is whether the entire House is matrimonial or only part of it is matrimonial. 

25.  I shall deal with these issues below.

Parties’ Open Offer

26.  The sister maintains a neutral stance since she has no interest in the Estate or the outcome of the proceeding.  Her duty as the sole executrix of the Estate is to administer the Estate according to the orders made by the court.

27.  The wife agrees that the grandmother should continue to live at unit GB.  The wife’s initial open offer was that she is to pay the grandmother a monthly sum of $17,000 for her maintenance plus a life interest in unit GB.  In return, the ownership of GA, 1A and 1B of the Property be given to her and the ownership of GB, 2A and 2B be given to the daughter and that each party is to pay her own costs.

28.  In the afternoon of the first day of trial when Mr Liu was in the middle of his opening, he, on behalf of the wife, further revised her open offer by substituting a lump sum of $3,000,000 for the monthly sum of $17,000, with the other terms remained unchanged.  On the second day of the trial, she increased the lump sum to $3,500,000.

29.  The grandmother’s stance is always that she should be able to retain GA and GB so that she may continue to live there.  The units on the 1^st floor and the 2^nd floor are to be given to the wife and the daughter. The grandmother remains neutral as to how these units are to be divided between them.  In other words, by and large, the grandmother proposes that each is to take 1/3 of the estate. 

30.  The grandmother made a revised offer on the 2^nd day of the trial. It is unnecessary to go into any details of this revised offer.  Broadly speaking, after the legal costs of about $3,337,000 having been deducted from the net estate, the grandmother is to keep the Ground floor, with the remaining $5,000,000 goes to the daughter and $3,863,000 goes to the wife.

31.  As for the daughter, the Official Solicitor, on her behalf, initially adopted a neutral stance provided that her share under the Will is not diminished, adversely affected or otherwise prejudiced.  This, as I said at the beginning of the trial, was unrealistic.  Mr Ng, on behalf of the Official Solicitor, made a proposal on the 4^th day of the trial.  In brief, units 2A and 2B are to be sold for payment of legal costs and the balance of about $3,763,000 is for the benefit of the wife.  The grandmother is to keep units GA and GB while the daughter is to have the 1A and 1B.  In return, the grandmother pays into court $1,500,000 for securing periodical payments of $30,000 per month for the benefit of the daughter.  The end result was that the grandmother is to obtain about $5,000,000 while the daughter would have about $6,500,000. 

Legal Principles

32.  The jurisdiction of the court is not in dispute – the deceased, being domiciled in Hong Kong, is survived by the applicant wife: Section 3(1)(a) & 3(1)(i) of the Ordinance. 

33.  Pursuant to Section 3(1), an applicant may apply to the court for a wide variety of orders 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”.

34.  Section 3 of the Ordinance stipulates the classes of persons who may apply for financial provision.  There are altogether 9 categories and a surviving spouse is at section 3(1)(i).

35.  An applicant who is the surviving spouse (or a tsip or male partner of the deceased by a union of concubinage) is in a position different from other categories of applicants in terms of the standard of “reasonable be financial provision”.  In the case of a surviving spouse, “reasonable financial provision” 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 the provision is required for his or her maintenance”: see section 3(2)(a).

36.  In the case of applicants under other categories (eg a former wife or former husband or a parent of the deceased), the definition of “reasonable financial provision” is less generous as it means “such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance”.  In addition, such an applicant would have to satisfy the court that the deceased, otherwise than for full valuable consideration, was making a substantial contribution in money or money’s worth towards his reasonable needs: Section 3(2)(b) & (3).

37.  Thus, the higher standard entitles a surviving spouse reasonable financial provisions that are more than what is required for his or her maintenance (ie beyond her needs).

38.  Section 4 sets out the powers of the court to make a range of orders including a lump sum, periodical payment, sale of asset, etc, and in any combination as it deems appropriate.  There are also powers for the court to make such consequential and supplemental provisions as the court thinks necessary or expedient: see Section 4(4).  It is well settled that the discretionary power conferred to the court is very wide.

39.  Hence, this is a two stage test. The first question is whether the Will has made reasonable financial provision for the wife.  This is an objective test: see Re Coventry, [1980] 1 Ch 461, at 469G.  If the first question is answered in the negative, the second question is whether, and to what extent, the court should exercise its own wide powers. The court is enjoined to consider the matters contained in section 5(1) of the Ordinance.

40.  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 powers in favour of the wife.

41.  Section 5 sets out the matters that the court is to have regard in exercising its powers.  Subsection (1) provides,

(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.

42.  As observed by Briggs J (as he then was) in Lilleyman v Lilleyman [2013] Ch 225 (a “big money-short marriage” case), it is evident from paragraph (g) that there is no limit to the matters to which, in any particular case, the court may have regard.  And neither section 5 nor any other part of the Ordinance imposes any hierarchy among the matters to which the court must have regard.  Each of them may be of infinitely variable weigh, on the particular facts of any given case: at [37] & [38].

43.  Where an application is made by a surviving spouse, a former spouse or a tsip or male partner of the deceased by a union of concubinage, 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.

44.  Further, the same subsection sets out the so-called “notional divorce” enquiry.  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

45.  At trial, there were debates over the interplay between the “notional divorce” enquiry and the wife’s claims under the Ordinance. 

46.  The Ordinance has its root in the English Inheritance (Provision for Family and Dependants) Act 1975.  Probably due to the changes in their social values the English have seen a number of amendments to their 1975 Act since its enactment which Hong Kong has not adopted.  For instance, the categories of persons entitled to apply have been expressly expanded to cover civil partners and cohabitees.  Caution should be taken to this development when reference is made to the English legislation.  That said, in my view, the English authorities continue to provide useful reference and guidance when there are little authorities in the local context.

47.  Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (Sweet & Maxwell, 21^st Edn), speaking of the “notional divorce” enquiry, pointed out that this is only a guideline; and in a divorce there are two spouses who need provision, whereas under the Ordinance there is only one: [54-10]. 

48.  Wall LJ noted the difference between a marriage terminated by dissolution and a marriage terminated by death.  He said in Cunliffe v Fielden [2005] EWCA Civ 1508, [2006] 2 WLR 481 at [30] that, 

30. As I have already indicated, there is self-evidently a profound difference between a marriage which ends through the death of one of the spouses, and a marriage which ends through divorce. For present purposes, some elementary facets of that difference suffice. A marriage dissolved by divorce involves a conscious decision by one or both of the spouses to bring the marriage to an end. That process leaves two living former spouses, each of whom has resources, needs and responsibilities. In such a case the length of the marriage and the parties' respective contributions to it assume a particular importance when the court is striving to reach a fair financial outcome. However, where the marriage, as here, is dissolved by death, a widow is entitled to say that she entered into it on the basis that it would be of indefinite duration, and in the expectation that she would devote the remainder of the parties' joint lives to being his wife and caring for him. The fact that the marriage has been prematurely terminated by death after a short period may therefore render the length of the marriage a less critical factor than it would be in the case of a divorce.

49.  The learned judge then commented at [31] that there is “an inevitable degree of artificiality” in conducting the “notional divorce” exercise required by the section. 

50.  Speaking of the “notional divorce” enquiry, Black J (as she then was) said in P v G, P and P (Family Provision: Relevance of Divorce Provision) [2004] EWHC 2944 (Fam), [2006] 1 FLR 431 that it is not necessary to embark upon a slavish and wholly artificial comprehensive enactment of the ancillary relief process: at [67]. 

51.  At [223], the learned judge said,

An application by Mrs P for ancillary relief would have been decided in accordance with the well-known principles set out in s 25 of the Matrimonial Causes Act 1973, which I do not intend to rehearse here. Although the statute does not state explicitly the aim of the courts when exercising the wide powers it confers, as Lord Nicholls said in White v White, implicitly the objective must be to achieve a fair outcome without discriminating between husband and wife in their respective roles in the family. The putative outcome upon which the judge settles by virtue of having carried out the exercise of considering the parties' position in the light of the statutory provisions should be checked against the yardstick of equality of division and equality departed from only if, and to the extent that, there is a good reason to do so. This is not, however, to say that there is a presumption of equal division or even that it is the starting point.

52.  The learned judge further said at [224] that the provision that the surviving wife might reasonably have expected to receive on divorce is only one of the factors to which the court is required to have regard.  She said the statute did not contemplate the playing out of the entire fictional ancillary relief case, but rather that the court should simply reach a sufficient conclusion about how it would have been resolved and to take that factor into account in considering what would be reasonable financial provision for the application.  An over-exact approach would provide a thoroughly undesirable opportunity to spend the assets of the estate on litigation, rather than on provision for the family, without materially assisting the court in its task: at [235] & [236].

53.  Black J then went on to hold that, given the particular circumstances of the case before her, the conclusion that an equal division of assets would have been the likely outcome on divorce was sufficient guidance for the purpose of the “notional divorce” enquiry.

54.  Briggs J echoed Black J’s approach: 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”.

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.  [1]

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.

57.  I am aware that our Court of Appeal in Tam Mei Kam v. HSBC International Trustee Ltd and Others (10/02/2017, CACV181/2016) (a judgment referred to by Mr Liu) has said that the “notional divorce” enquiry is designed to ensure that on death, a surviving spouse would be in no worse position than would have been the case if the spouse had been divorced.  Mr Liu agreed with my observation that apparently P v G, P and P and Lilleyman v Lilleyman were not drawn to the Court of Appeal’s attention and that the Court of Appeal did not set any principle of law that the “notional divorce” standard is the floor.

58.  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

59.  The wife is the only applicant in the present application.  She is a pensionable civil servant.  Her monthly income, inclusive of local education allowance, is about $36,500.  She still has 11 years to go before her retirement at the age of 60.  By then, she would be entitled to a lump sum of at least $1,700,000 plus a monthly pension of $7,000, these are calculated on the basis of her current salary, which in due course should be more by the time of her retirement. 

60.  At trial, the wife was cross-examined on her health and the possibility of an early retirement due to her disclosure of having suffered from a thrombotic stoke in March 2021.  I am satisfied that on the balance of probability the wife should be able to work up to her retirement age.

61.  Mr Liu agreed that the wife is able to support her own living.  Indeed, it is accepted by all that the wife is capable of financially independent from her own employment.

62.  It should not be forgotten that section 5(8) of the Ordinance provides that,

“In considering the financial resources of any person for the purposes of this section the court shall take into account his earning capacity and in considering the financial needs of any person for the purposes of this section the court shall take into account his financial obligations and responsibilities.”

63.  The wife has been living with and taking care of the daughter. She, being the natural and lawful mother of the daughter, has financial obligations and responsibilities to maintain the daughter.  At the same time, for the reason that the daughter is a beneficiary under the Will, the wife is effectively competing with her daughter for a share in the estate. 

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

64.  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

The grandmother

65.  There is no suggestion that the grandmother, being at the age of 77, would have any earning capacity. Her financial resources are limited. 

66.  The wife acknowledged that the grandmother had been maintained by the deceased since 2000 (when she and the deceased started cohabitation) and has always been living at unit GB. 

67.  On the sister’s evidence, the mother was given a monthly sum of $6,500 to $7,500, being the rental receipt of unit 2B, by the deceased for her maintenance. On the top of that, the grandmother is also in receipt of an old age allowance of about $3,500 from the Government and occasionally some pocket money of $1,000 to $2,000 from her. The sister is also the paying the utilities for the grandmother.

68.  The wife said the monthly payment out of the rentals was merely $6,500.  I do not think this difference is material.

69.  At trial, the sister was subject to extensive cross-examination by Mr Liu on her financial situation.  It could readily be seen where Mr Liu was coming from.  He tried to establish that the sister could be a financial resource for the grandmother.  This line of questions naturally caused Mr Chan’s complaint (and I think is justifiable) that this issue had not been raised by the wife previously whether by way of discovery or otherwise.  It matters not if the wife only had this ground in her mind shortly before she came to trial or she kept the cards close to chest. Either way had the colour of an ambush and was unwarranted.

70.  The sister and her husband owned a factory premise and a car via a company.  The factory is being rented out for $25,000 per month.  She is working as an administrator for an engineering company with a monthly wage of $40,000. Her husband is running another engineering company. While the sister said her husband’s exact financial position is unclear to her, she confirmed that a substantial part of her legal costs in the proceedings and the legal costs of the grandmother were loaned from her husband.  She is financially supporting the elder sister’s family; specifically, she has been assisting the younger son of her elder sister, a full-time student at the Institute of Vocational Education, in the sum of about $6,000 per month.  Her elder sister is a bankrupt, had her house burnt down in November 2021 and is taking refuge at Unit GB, staying with the grandmother.  It seems to me clear that the sister has taken upon herself some moral obligations towards her elder sister, same for the deceased who had taken upon himself the moral obligation to maintain his mother whether before or after his demise.  The sister fairly accepted that after the conclusion of this litigation, it is possible that she may have some ability to support the grandmother instead of giving the grandmother some pocket money occasionally.

71.  The grandmother is visited by health issues occasioned by aging such as osteoporosis. They are not particularly alarming.  She reported that she needs $11,150 per month. This is on the basis that she is occupying unit GB rent-free and this figure has not been challenged. Indeed, the wife agrees that the grandmother should continue to live in the unit for the rest of her life (hence, she offers a life interest) and she further agrees that sooner or later the grandmother would have the need of employing a maid in which event the grandmother would need about $18,000 per month.

72.  Mr Liu seemed to have suggested that the legal expenses, which were provided to the grandmother by the sister and her husband, need not to be returned.  I do not agree. The sister and her husband have no interest in the proceeding.  There is no basis for them to have done so.

The daughter

73.  Prior to the death of the deceased, the daughter was financially dependent upon her parents. The sister accepted that the deceased had been making payments for the maintenance of the daughter but she had no knowledge of the amount.

74.  There are inconsistences in the wife’s evidence as to how much she was paid by the deceased.

75.  The wife accepted that the total rentals of the House were about $32,000 ($8,000 × 4 units).  She first said in her 1^st affirmation of 15 September 2017 that the deceased used to pay her $12,000 for her and the daughter’s maintenance.

76.  She later gave another version and said in her 3^rd affirmation of 6 May 2019 that on the top of the said $12,000, the deceased also settled some of the expenses directly.  I am sure the wife said this because the sister in her earlier affirmation said that, according to the bank records, the wife did not receive that much and that she exaggerated her expenses.

77.  Then in her oral evidence, the wife mentioned the deceased gave her the rental of one unit since marriage.  

78.  The records produced by the wife in fact did not support the figures she alleged.  It appears that the sums were in the range between $6,500 and $9,500 per month.  I am aware of the wife’s explanation that some of the cash did not go to her bank account and so they were not reflected on records.  On the totality of evidence, I have doubts over what the wife said.  I am not convinced that she was paid as much as $12,000 per month.

79.  The wife first reported her financial needs in her 1^st Affirmation of 15 September 2017 where she said her general expenses (ie her and the daughter’s) were $26,810 (inclusive of rental $11,200), personal expenses were $12,900 and the daughter’s expenses were $17,200, totalling $56,910.  On the basis that the daughter took up half of the general expenses, her monthly needs would be $30,605.

80.  Allowing for one moment that the deceased used to give her a monthly sum of $12,000 and given her wages were $28,265 at the time (ie a total sum of $40,265 at her disposal), she would still have a shortfall of $16,645.  It should also be noted that she did not receive any interim payment since the death of the deceased. It was not until starting from November 2017 that she was paid $20,000: see [14] above.  Before then her monthly deficit should have been even more serious.

81.  The wife’s total monthly expenses increased to $63,500 in her Form E of 12 January 2018 of which $30,200 were general expenses, $15,700 were her personal expenses and $17,600 were the daughter’s personal expenses.  Hence, the daughter’s monthly needs increased to $32,700.  At the same time, the wife reported her monthly income was a little bit short of $30,000 only.  She would still have a shortfall of $13,500.

82.  The interim payment was varied down to $18,000 per month on 3 May 2019: see [14] above.  The wife’s total monthly expenses however further increased to $65,100, comprising general expense $27,500, personal expense $10,100 and the daughter’s personal expense of $27,500; the daughter’s total needs being $41,250 per month. At the same time her monthly income was $37,400, as reported in her Form E of 23 December 2021 and 21 January 2022.  There was a shortfall of nearly $10,000 per month. 

83.  In this connection, it should be recalled that the sister was not able to pay the interim payments in full in each and every month.  According to the wife, as at 21 January 2022, $316,600 was in arrears.

84.  Therefore, on the wife’s evidence she has been running on deficit in each and every month at least since the demise of the death.  I am aware that the wife vaguely referred to her savings and stocks investments and loans to explain how she managed.  In my view, it is hard to fathom that, faced with the uncertainties in litigation and perennial shortfalls, she would have allowed her monthly expenditure to have expanded in the way she asserted, including having opted to change the daughter to an international school in September 2019, which I will deal with in the following paragraphs. I am not convinced that the wife’s version regarding her and the daughter’s monthly needs is credible.  I agree with Mr Li that there is an element of exaggeration.

85.  The daughter used to attend a prestigious local primary school; the monthly school fees were only in the region of a few hundred dollars.  She was arranged by the wife to attend an international school for her secondary education.

86.  In her affirmation of 6 May 2019, when the wife set out the additional expenses of the daughter, there was no mention of international school education. It transpired that the daughter commenced her international school in September 2019. It is hard to believe that at the time of the affirmation, the wife did not contemplate of the move.  Yet, the very first time the wife informed the parties of the change was in her 4^th affirmation of 10 September 2019 where she said the daughter had been admitted to an international school for the academic year 2019/2020, the annual tuition fee being $193,000 plus a levy. It was a unilateral decision on the part of the wife without any reference to the sister who was appointed by the deceased to be the daughter’s guardian under the Will.  There was no mention of the plan in the wife’s 1^st Form E of 12 January 2018 (at that time the daughter was attending Primary 5) at Part 1.13 (details of the present and proposed future educational arrangements) or at Part 5.4 (the manner in which the daughter was being and in which the wife and the deceased expected her to be educated).  There was no explanation in any documents whatsoever on why there was such a change; particularly whether the daughter had been admitted to any local secondary school or whether an international school education was considered to be more appropriate in terms of the daughter’s propensity or interest and if the answer is in the positive, in what way. There is also no reference by the wife as to whether or not she had considered the financial implication on her or the estate.

87.  In the absence of any explanation from the wife, it is difficult to understand why she took the move she did.  I have also come to the view that, regardless of whether the deceased had met with the fateful disease, the wife’s living standard could not support an international school education.  On the above analysis, I cannot rule out the possibility that the move was litigation driven.

88.  The wife said there was a consensus or an understanding between her and the deceased that the daughter should attend schooling at UK at the age of 16. She mentioned vaguely that she and the deceased discussed this matter when the daughter was attending kindergarten. She also said it was the normal practice of indigenous villager to study overseas.

89.  The wife accepted that according to her figures in her Form Es, even without going to an international school in Hong Kong, if the daughter is to attend her education in the UK at the age of 16, this would require about $3,420,000.  If international school is included, this would be another sum of $2,688,000, totaling $6,108,000.  She conceded (in my view, rightly) that neither she nor the deceased would have the money for the daughter’s education and the only asset available is the House. Significantly, there was no mention whatsoever by the wife that she and the deceased had discussed how the daughter’s education in the UK could be financed.  On this analysis, I have doubts over if there was such a consensus.

90.  That said, the fait accompli created by the wife is that the daughter is attending an international school.  There is no suggestion from the sister or the grandmother that this should not continue, neither is there any suggestion that the daughter should not go overseas for her education. 

Section 5(1)(d): any obligations and responsibilities which the deceased had towards any applicants or towards any beneficiary of the estate of the deceased.

91.  While I consider there is some force in Mr Li’s submission that, on evidence, the monies paid by the deceased prior to his death was for the maintenance of the daughter, nevertheless, it is agreed by all that the deceased had obligations and responsibilities towards the wife. Further, at least for the last 30 years prior to his death, he had taken up the obligations and responsibilities of maintaining the grandmother. 

92.  It has been emphasized by Mr Ng, for the daughter, that the deceased’s obligations towards the daughter is higher than his towards the grandmother.  Mr Ng must be right when he was referring to legal obligations and responsibilities.  However, it has been held that the phrase “obligations and responsibilities” includes moral rather than merely legal obligations and responsibilities: see Lilleyman v Lilleyman, at [42] and [43]; and In re Goodchild, decd [1997] 1 WLR 1216.  In my assessment, the obligations and responsibilities that the deceased had taken up towards his mother and reflected in his Will is a factor that cannot be ignored. 

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

93.  “Net Estate” is defined in section 2(1) of the Ordinance, which is the aggregate of the assets in relation to which the court’s powers are conferred. 

94.  The parties generally have no dispute over its size and nature.  The expenses and liabilities of the estate are to be deducted before assessment of the deceased’s “net estate”.

95.  The House is the only substantial asset. There are some jewelleries and gold ornaments in the safe deposit box, which, according to the Will, should go to the daughter. Their values are unknown but nobody has ever suggested that they are of significant values.  I believe it is safe to assume that their values have no impact on the outcome of the proceeding.

96.  It is unclear as to whether there was an insurance policy which presumably should be of some value.  The wife said there was but sister was not aware of its existence.  At trial, the parties did not dwell in this issue.

97.  Further, there should be the following deductions:

(1)  The sister’s and the daughter’s legal costs in the present proceeding and in the Probate proceeding are to be paid out from the estate. 

(2)  The costs to be incurred in the partition of the House for sale of the units.

(3)  I am aware that the wife spent about $255,600 on funeral and other expenses for the deceased.  The quantum is largely undisputed.  On the other hand, the wife also received condolence money in the tune of $55,000.  I agree with Mr Li that this is a matter between the wife and the sister as the executrix in the administration of the estate.

98.  On the other hand, the interim payments made in favour of the wife, the daughter and the grandmother have to be added back for the purpose of the present exercise. 

99.  I set out the particulars of the net estate below.

Net Estate
	Item	Amount (HK$)	Total Amount (HK$)
Assets
1	Cash at bank and in hand	30,000
2	House : Ground Floor	6,500,000
	First Floor	5,000,000
	Second Floor	7,200,000
Item nos 1 to 2		Sub-Total:	18,730,000
Liabilities
3	Rental deposit to be paid to the tenants of the House (Unit 1A, 1B and 2A)	(52,000)
4	Expenses on funeral, medical treatments for the Deceased and renovation of the House incurred and paid by the wife	(255,700)
5	Renovation expenses for the House paid by the sister (as of 27 January 2022)	(325,000)
6	Property Tax	(36,500)
7	Sundries	(2,000)
8	Short-term tenancy of a small piece of land adjourning the House (renewable every 6 months, as at 27 January 2022)	(301,000)
9	Bank Charges	(1,550)
10	Annual Insurance Premium incurred by the sister	(17,300)
11	Commission paid to the estate agent for leasing of the Properties	(20,600)
Item nos. 3 to 11		Sub-total:	(1,011,650)
Legal Costs
The Present Proceeding
12	Estimated Legal and Professional fees incurred by the sister in this proceeding	(1,060,000)
13	Estimated Legal and Professional fees incurred by the daughter in this proceeding	(1,050,000)
Item nos 12 to 13		Sub-total:	(2,110,000)
The Probate Proceeding
14	Estimated legal and professional fees incurred by the sister in the Probate Proceeding (subject to taxation) and the future work to be done including the preparation of the partition of the House for the sale of it	(1,700,000)
15	Estimated Legal and Professional fees incurred by the grandmother in the Probate Proceeding (subject to taxation)	(220,000)
16	Estimated Legal and Professional fees incurred by the daughter, represented by the wife as her next friend, in the Probate Proceeding (subject to taxation)	(650,000)
Item nos 14 to 16		Sub-total:	(2,570,000)
Adding Back
17	Interim maintenance advanced to the wife (up to December 2022 at $4,000 monthly)	165,000
18	Interim maintenance advanced to the daughter (up to December 2022 at $14,000 monthly)	600,400
19	Interim maintenance advanced to the grandmother (up to December 2022 at monthly)	491,750
Item no. 17 to 19		Sub-total:	1,257,150
		Net Total:	14,295,500

Section 5(1)(f) – any physical or mental disability of the applicant or the beneficiaries

100.  I have already dealt with these matters under the financial resources and needs of the wife, the daughter and the grandmother above.

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

101.  I accept it was the grandmother who had performed household chores for the deceased since November 2012 and took care of him on daily basis when he was terminally ill.  All these were done out of her natural love as mother of the deceased. 

102.  Mr Li asked the court to consider that the grandmother could have made a proprietary claim to the House if the deceased and the wife were to divorce themselves but has not done so because she is a beneficiary under the Will. 

103.  With respect, I disagree. First, there is no evidence in this regard. Secondly, the grandmother could have made such a claim in the present proceeding, as in the case of LZX v WYL (provision: family and dependants) [2012] 5 HKLRD 29 where the father of the deceased was joined as a party for the determination of the beneficial interest in the major assets in the estate.

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

104.  The wife is 49 years old.

105.  On record, from January 2001 to January 2017, this was a marriage of 16 years.  However, it is common ground that the wife and the daughter left the deceased in November 2012 and never returned to live with him.

106.  The wife’s case is that she was forced to do so because of the deceased’s mental condition. The deceased had a history of psychological/mood problems and had violent dispositions against her.  The deceased was also diagnosed to have suffered from morbid jealousy; he always suspected the wife of having extra-marital affairs.  In order to avoid further conflicts, and upon the advice of the social worker, she moved out of the home with the daughter.  The wife said divorce was an easy option for her; indeed, it was so suggested by the social worker. She however did not choose it because the deceased would be mad upon facing this.  The wife emphasized that all along the deceased loved her and the daughter.  In fact, they loved each other very much.  In order to stabilize the deceased’s situation, the wife said no matter what she took the daughter and the domestic helper back home every weekend.  At times, she also returned for taking care of matters upon the deceased’s request. The deceased also visited the daughter after work and played with her in some public places. 

107.  The wife said she had hoped for returning to live with the deceased again upon his recovery from psychological/mental illness.  The deceased, however, refused to receive medication. 

108.  For the above reasons, notwithstanding that the wife conceded that she and the deceased had been “living apart” since November 2012, she claimed they were never separated.

109.  The sister does not agree.  Her case is that the deceased and the wife had separated as husband and wife as from November 2012.  She rejected the suggestion that the deceased had violent disposition against his wife. The sister accepted that the deceased had alcoholic issues and that, upon the advice of the social worker, she and the wife had accompanied the deceased on several occasions for consultations with psychiatrists at the Kowloon Hospital.

110.  The sister agreed that the deceased loved the wife and the daughter very much and always hoped that they would return home.  She further accepted that the wife and the daughter returned to the deceased’s home every Saturday for dinner.  This, however, was for giving the deceased access to the daughter so as to maintain the father-and-daughter relationship.

Relevant legal principles on separation

111.  Section 11C of the Matrimonial Causes Ordinance (Cap 189) provides that for the purpose of using one-year separation or two-year separation as a ground for divorce, “a husband and wife shall be treated as living apart unless they are living with each other in the same household”. 

112.  The judicial authorities are that cohabitation of a couple is generally seen as essential. It is said by the Court of Final Appeal in WLK v TMC (2010)13 HKCFAR 618, [2010] 6 HKC 571 that in matters of ancillary relief the basis upon which our courts recognize the existence of a de facto married state is the fact of continuous cohabitation comparable to married life.  It is only in exceptional cases that absence of physical cohabitation may still be treated as de facto marital.  “Emotional interlocking” between the parties cannot be regarded as an approximation of a matrimonial state. As Ribeiro PJ said in WLK v TMC (2010) 13 HKCFAR 618, at [105],

105.  There may be highly exceptional cases (such as where parties are unable to cohabit – because, for instance, they have high-powered jobs in different countries – but have children and otherwise generally conduct themselves as if they are married) where the absence of physical cohabitation may not stand in the way of treating them as in a de facto marital state. However, in the absence of such special circumstances, I can see no basis for construing the statutory powers and discretions to extend to relationships which do not involve cohabitation of the kind described above, however emotionally intense those relationships might be.  There is no reason in logic or policy for regarding an “emotional interlocking” as an approximation of a matrimonial state.  Thus, in M v M (Short Marriage : Clean Break), Singer J noted:

“There is not a case in the calendar where a court has expressly taken into account (whether while assessing the impact of the duration of the marriage, or simply as a circumstance deemed relevant) a relationship which did not involve cohabitation.”

113.  Cheung JA, after having referred to WLK v TMC and other authorities,[2] gave his views on this issue in PLTO v KLK [2013] 2 HKLRD 1089 at [60],

60.  Drawing the threads together, in my view, it is plain common sense that when parties are not physically living together in the same place it does not mean, in the context of the MCO, that they are living apart or have become separated because they may be forced to adopt such a lifestyle by, for example, the nature of their work.  There must be a recognition by them that the marriage has come to an end.  On the other hand, where the couple is living physically in the same house, they can only be regarded as living apart or separated if they are living separately as two households, meaning they live entirely separate lives.

Discussion

114.  The undisputed fact is that the deceased and the wife had lived under separate households since November 2012.  They should be treated as living apart.  The next question is, whilst they were living apart, were they separated as husband and wife?   This is a question of mixed fact and law.

115.  In support of her assertion that the deceased was suffering from morbid jealousy, the wife adduced a letter dated 1 February 2011 by a NGO called the Stewards. This letter recorded that the deceased was violent against the wife under the influence of alcohol and was suffering from morbid jealous features for suspecting his wife having extra marital affairs.  The wife had to call police for help a couple of times.  However, I note this letter was just a letter of referral by a social worker.  It certainly did not contain any diagnosis. Quite to the contrary, it expressly said that the deceased did not carry any diagnosis.

116.  There are facts that I find or not in dispute in support of the wife’s claim.  I accept that:

(1)  some of the wife’s personal belongings were at all times kept in the deceased’s home;

(2)  the wife all along had the key to unit GA with her; that she was given the key of the safe deposit box that was opened jointly by the deceased and her; and that she was given the deceased’s Identity Card before his demise;

(3)  the wife regularly visited the deceased at the hospital before his death, including on the night before his death;

(4)  the wife might have assisted the deceased in finding his last job;

(5)  it might have been the case that the wife returned to see the deceased more or accompanied him for medical consultations towards the end of his life; and

(6)  notwithstanding the sister was the executrix, the wife was allowed to have paid various expenses, insurance premium and the funeral expenses of the deceased; and that she received condolence money as the deceased’s spouse. 

117.  On the other hand, there are facts I find or not in dispute in support of the sister’s contention.

118.  The wife acknowledged that

(1)  her address was never disclosed to the deceased;

(2)  the deceased never visited her home;

(3)  the choice of the daughter’s primary school was made by her.  She merely informed the deceased of the choice;

(4)  she and the daughter returned in Saturday afternoons and left after dinner;

(5)  she never stayed overnight with the deceased since her departure; and

(6)  she never had any intimate relationship with the deceased since 2011.

119.  The wife also acknowledged the “family” of 3 never went for overseas vacation since her moving out.  It is significant to note that the wife and the daughter went for a vacation in Malaysia at the time when the deceased was found to have cancer and that while the wife said she and the deceased had had a lot of happy times together, not a single photograph or WhatsApp message was exhibited.

120.  The wife said in evidence that since marriage it was her who handled the tenancy matter together with the deceased.  This, however, did not sit well with what she said in her affirmation that it was the deceased who used to handle all the tenancy agreements and fill in all the tax returns by himself.  To me, it is telling. The wife is a clerical officer.  If the husband and wife had worked together in respect of the tenancy matters, as a matter of common-sense, it should be the wife who was to handle these matters.

121.  I accept that after the marriage the wife might have assisted the deceased in handling some tenancy matters but I doubt very much the extent of her involvement.  I do not accept she was so involved after she had moved out.  I however accept she was allowed to handle the tenancy matters in respect of units 1B and 2B when the deceased’s days were numbered.  It is not difficult to understand why the deceased did that because, according to his Will, units B were to be given to the daughter.

122.  The wife acknowledged that when the deceased had known of the diagnosis, everyone knew his life span was just a few months.  She admitted she did not know the deceased preferred to stay at home as long as he could before being sent to hospice care. Strikingly, in the final days of the deceased when his health was fragile, and even upon so requested by the grandmother, she did not return to live with the deceased.  It is hard to understand why she had rejected the suggestion if their relationship had not broken up and they still loved each other as alleged by the wife.  I disbelieve the wife’s evidence that she returned 5 days each week for taking care of the deceased.  This was not mentioned in any of her affirmations.

123.  The wife admitted that all along the deceased had not been on medication for his mental illness.  She was not forthcoming when being cross-examined about her evidence that she had accompanied the deceased to attend the Kowloon Hospital.  It seemed she did go with the deceased once or at most a few times and the sister also accompanied them and that all these happened shortly before and after her moving out.

124.  The wife acknowledged that she was told of the Will towards the end of the funeral service. I accept the sister’s evidence that the deceased expressed to her and her elder sister that he wanted to make a Will to ensure that the grandmother and the daughter would be taken care of as he was concerned the wife might have a new relationship in future. At the same time, the deceased appointed the sister to be the guardian of his daughter.  He specifically instructed the sister not to mention of the Will to the wife.  It is telling as to how the deceased saw his marriage or relationship with the wife. 

125.  Needless to say, the conclusion on whether the wife and the deceased had separated is not to be arrived at by which side has a longer list. Some facts carry more weight than the others.

126.  I have no doubt that the deceased’s relationship with the daughter was good, but it did not mean the deceased had not separated with the wife.  The wife admitted that, for the protection of the daughter, she never allowed the daughter to stay with her father alone. The wife was evasive when it was put to her that she returned to the House because the social worker had suggested that she should give access to the deceased.  She did not answer whether that was the case. Her answer was merely that she could not recall whether the social worker had given this advice.  On balance, I regard that the wife saw her marriage had ended and that the wife and the daughter returned to the deceased’s home for the purpose of giving access. 

127.  While I accept that the deceased suffered from some mental issues that led to the leaving of the wife, I cannot accept this could be an explanation for the parties to have led their separate lives and at the same time as “husband and wife” in the following years.  I have no doubt that the deceased loved the wife but it cannot be so said on the part of the wife. 

128.  The fact is the two of them was no longer in existence a voluntary partnership in which “mutual emotional, economic and general support” was provided; see EJB v CJB [2011] 5 HKLRD 508, at [90].  Neither party had made any efforts in reconciling.  There is no evidence of any attempt to maintain a social life as a couple; but rather, the parties settled on a pattern of separated lifestyle/relationship.

129.  I agree with Mr Chan that the manner in which the deceased and the wife behaved since November 2012 could be explained by the “emotional interlocking” between them.  This concept was elaborated by Hartmann JA (as he then was) in EJB v CJB at [92],

92.  By way of a general observation, it needs to be said that, when couples separate, it does not mean that their feelings for each other are thereby set to one side.  In many marriages, especially if there are children, a degree of ‘emotional interlocking’ will bind the parties perhaps for the rest of their lives.  In the early stages of separation there may be attempts to see if reconciliation is possible.  Our law encourages such attempts.  Using Mrs Irving’s expression, neither party at that stage may wish to simply ‘abandon’ their marriage.  But realistically, if the parties are no longer living together as man and wife, if the reason for their separation is the contemplation of the end of their marriage, attempts at reconciliation can only in the very rarest of cases be equated to a continuation of the married state.

130.  On the above analysis, I find that the deceased and the wife had separated from each other since November 2012. The duration of the marriage is therefore 11 years.

131.  As regard the contribution of the wife, there was no complaint from the sister and the grandmother.  I have no doubt that each of the deceased and the wife had contributed their due share to the family during these 11 years.  The wife also contributed to the welfare of the deceased by providing him access to the daughter. This helped greatly in maintaining the father-and-daughter relationship.

The divorce cross-check

132.  A marriage is now recognised to be an essentially equal partnership.  In consequence, the division of the available property upon breakdown of the marriage must be conducted upon the basis of fairness and non-discrimination.  Four principles have been identified by Riberio PJ in LKW v DD (2010) 13 HKCFAR 537.

133.  The first is the implicit objective of a Section 7 (ancillary relief) exercise is to arrive at a distribution of asses which is fair: see [56].

134.  The second is that the concept of fairness requires the refutation of any gender or role discrimination.  There is no place for discrimination between a husband and wife and their respective roles: see [57].

135.  The third is that with a view to eliminating insidious discrimination and promoting fairness, judges should check their tentative views on distribution against a “yardstick of equal division” or what Lord Nicholls referred to as “the equal sharing principle” in Miller v Miller / McFarlane v McFarlane [2006] 2 AC 618: see [60] & [61]. 

136.  The fourth principle is that the court should not countenance any attempt to engage in costly and often futile “minute retrospective investigation”: see [62].

137.  Ribeiro PJ reminded us that financial provision applications are highly fact-specific. As such, the principles enunciated in LKW v DD are in the nature of guidelines only.

138.  Ribeiro PJ further set out the 4 steps to be taken in a section 7 exercise.  In brevity, they are:

(1) the ascertainment of the financial resources of each of the parties;

(2) the assessment of the parties’ financial needs;

(3) if there are surplus assets after the parties’ needs have been catered for, then the court would apply the sharing principle to the assets, with a yardstick of equal division, which means the assets should be divided equally unless there is a good reason for departure from equal division. The answer is to be found in the factors set out in section 7 and the implicit objective of fairness; and

(4) the weight to be given to each factor is a matter of discretion of the court.

139.  I have already dealt with the financial resources of the deceased and the wife.  There are two major assets only, viz, the House and the wife’s pension.  The House is worth $18,700,000 while the wife’s pension (with 30% discount) is worth $1,190,000, totalling $19,890,000.

140.  The deceased was 54 years old and the wife was 43, which means the deceased would still have 11 years to go before his retirement at the age of 65.  As for the wife, her retirement age with the Government is the age of 60; so she would still have 17 years to go; 6 years longer than the deceased.

141.  There is clearly a huge disparity in the parties’ earning capacity.  The wife’s earning capacity is much higher and her job is secure and stable.  Her income was about $30,000 (with local education allowance) per month and is now $37,000 odd but the deceased earned $9,800 only as a gardener.  She also had the benefits of medical and dental care.  The wife’s pension safeguarded her living for the rest of her life while the husband did not have this benefit upon their divorce.   On the other hand, the deceased, as a cancer patient, would need to spend more on medical care; and after divorce, he would not be eligible for the medical benefits provided by the wife’s employer.

142.  I am aware that apparently the deceased relied more on his rental income than his earnings for his living. Yet, it has to be borne in mind that if the House was to be distributed between the parties there would be a drop, perhaps a substantial one, in his rental income; on the other hand, the wife would see an increase in her monthly receipts if she chose to have her units rented out.

143.  At the time of a hypothetical divorce the daughter was merely 10 years old.  Both the deceased and the wife would have the burden of maintaining the daughter for say another 14 years or so.  Her financial needs would include her education expenses up to university level.  Apart from maintaining themselves and the daughter, the deceased also carried the burden of maintaining the grandmother including providing a roof above her head. 

144.  I have no doubt that part of their needs could be met out of the parties’ monthly receipts.  Taking a board brush approach, there should be surplus assets available for distribution.  I have found that the parties saw their marriage had ended in November 2012, so it was a marriage of about 11 years with a child. This length of period would generally call for equal division of the assets.  As I see it, the age, the illness and the inferior earning capacity of the deceased discussed above would have tipped the balance in his favour.  Another factor that was subject to examination at trial is whether the entire House or merely a part of it was matrimonial.

145.  I discussed in details the legal principles regarding the sharing of non-matrimonial assets in SSLT v SMFC (Ancillary relief: Non-matrimonial Assets) [2019] HKFLR 458 at [89] – [104].  Briefly stated, even where a property is identified as ‘non-matrimonial’, there is no hard and fast rule that such property should be excluded.  It is very much a matter within the judge’s discretion to be exercised taking account of all the circumstances of the particular case: LKW v DD, at [91] and PW v PPTW (Ancillary relief; non-matrimonial property) [2015] HKFLR 213 at [50].

146.  There are two approaches to the issue of how the sharing principle is applied in respect of non-matrimonial property. They are the ‘telescoped approach’ and the ‘two stage approach’.  In Hong Kong, the Court of Final Appeal favoured the ‘telescoped approach’ in WLK v TMC (Ancillary relief): at [84].  It has been said by the Court of Appeal in PW v PPTW that whatever approach the court chooses to adopt, the same relevant factors apply.  Apart from the fact that a property being ‘non-matrimonial’, the court may also consider other facts, such as the duration of the marriage, the extent of intermingling, springboard effect and passive economic growth. Ultimately, it is a question of fairness whether non-matrimonial asset or the extent of which ought to be excluded from the sharing principle.

147.  It was held by Moylan J (as he then was) in the English case of AR v AR (Treatment of Inherited Wealth) [2011] EWHC 2717 (Fam), [2012] 2 FLR 1 that the sharing principle could apply to non-matrimonial property if such an approach was justified by the circumstances of the case. 

The House

148.  The deceased, being an indigenous village, built the House under the Government’ Small Grant Policy. 

149.  The sister and the grandmother said the House is the ancestral house of their family.  It was built with the finance provided by the deceased’s father (“the late grandfather”). 

150.  According to the grandmother, the late grandfather lived in another house in the village.  That house had collapsed (now a bare site, according to sister) and the whole family moved to live in the House.  According to the grandmother, the source of finance for building the House was initially from a building mortgage, the building mortgage was repaid from the sale of an adjacent piece of land by the late grandfather. That was the reason why the grandmother said she has half of the House, as reflected in the will of the deceased. 

151.  The sister gave a similar version but there was some inconsistency as to whether it was a piece of land or a house that was sold by the late grandfather for building the House.  I do not think this is material.  The deceased had little education and skill.  There was no suggestion that he had his own means of building the House.  On balance, I incline to agree with the sister and the grandmother that there was financial assistance from the late grandfather.  That appeared to be the stance taken by Mr Ng, too.  It was never said in any of the affirmations of the sister and the grandmother that the money was a loan to the deceased or that any person other than the deceased had any interest in the House.

152.  The sister said the intention of the late grandfather and the deceased was that the House should be their family assets. It was always the intention of the late grandfather that the grandmother was entitled to reside the Unit GB.  All family members including the deceased agreed to this arrangement.

153.  I take the view that it is unnecessary to descend into what is meant by an “ancestral” house.  It is largely a matter of semantics. The objective fact is the House is the only house of the family and the deceased was the only male descendant in the family.  It is natural for them, being indigenous villagers, and the House being located in the vicinity of the village, to have regarded it as the ancestral house and for the deceased to have wanted to keep it.

154.  The land on which the House is built was acquired in January 1989 and the building of the House was completed 9 years before the marriage of the deceased with the wife.  Clearly the House was a piece of pre-marital asset. That said, the importance of the source of the assets may diminish over time.  Wilson LJ (as he then was) mentioned 3 scenarios at [18] of K v L (Non-Matrimonial Property: Special Contribution) [2011] EWCA Civ 550, [2011] 2 FLR 980:

(a)  Over time matrimonial property of such value has been acquired as to diminish the significance of the initial contribution by one spouse of non-matrimonial property.

(b)  Over time the non-matrimonial property initially contributed has been mixed with matrimonial property in circumstances in which the contributor may be said to have accepted that it should be treated as matrimonial property or in which, at any rate, the task of identifying its current value is too difficult.

(c)  The contributor of non-matrimonial property has chosen to invest it in the purchase of a matrimonial home which, although vested in his or her sole name, has – as in most cases one would expect – come over time to be treated by the parties as a central item of matrimonial property.

155.  At all times, the 4 units on the 1^st and 2^nd floors have been rented out for income.  Unit GA was the deceased’s home and became the matrimonial home of the deceased and the wife; and unit GB has always been the home for the grandmother.  It was the home of the sister too before her marriage in 2014. As referred to above, unit GB had a kitchen which unit GA did not have; so the deceased (and the wife and the daughter as well) had to dine at unit GA.  It can further be argued that not only unit GA was matrimonial but also part of unit GB was. 

156.  There is no evidence on how the rental income were utilized during the parties’ relationship.  What is sure is the deceased made use of the rental income (or part of it) on the maintenance of both his own family and the grandmother.  As I said above, the deceased had taken upon the moral responsibility of taking care of the grandmother financially.  Indeed, I incline to consider that given that they shared their living spaces the grandmother might also be considered as part of the household. 

157.  As said above, I accept the wife assisted in handling some tenancy matters during the relationship, though I have doubts over the level of involvement as claimed by her.  I do not find she was so involved during the period of separation, except for the few months prior to the death of the deceased.

158.  On the above evidence, it seems clear to me that the deceased had brought the House, which initially was non-matrimonial, into the marriage. There must have been intermingling of the rental income with the family’s general revenue.  I do not think any individual unit should be ring-fenced and not considered as being available to the claim.

159.  I have found that the relationship ended in November 2012.  There was a lapse of 4 years prior to the notional divorce.  By the time of the notional divorce, the House was non-matrimonial, specifically, unit GA was not the matrimonial home of the deceased and the wife. 

160.  I have also found that the maintenance provided by the deceased during the separation period was not as much as $12,000 that the wife asserted.

161.  The units on 1^st and 2^nd floors were rented out for income.  The deceased could not have just sat back and waited for the value of the House to appreciate.  Constant upkeeps, repairs and management had to be done to keep the units habitable or even competitive in the market.  It is therefore not a case of passive economic growth.  According to my finding, the wife did not play a part in these activities during their separation.

162.  I have come to the ultimate question of whether there should be equal sharing in the notional divorce of this case.

163.  Whilst I accept that a 11-year relationship would generally call for equal division, I have taken the view that the age, the illness and the interior earning capacity of the deceased are factors in favour of departure from equal division.  I also take the view that the constant activities carried out by the deceased for maintaining the value of the House during the separation in which the wife played no part (except the few months prior to death in respect of units B) should also be a factor in favour of the deceased.

164.  Doing the best I can and taking a board brush approach, I consider that in fairness to the wife and the deceased, the wife should be given 45% of the matrimonial assets in a hypothetical divorce and the husband be given the remaining 55%.

The Outcome

165.  Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (Sweet & Maxwell, 21^st Edn) commented at 53-01 that the law gives the court the discretionary power to rewrite a particular will or alter the effect of the statutory rules of intestacy, so as to make reasonable provision for members of what might be called the “family circle” of the deceased.  In so doing, the court has to balance the competing claims of the applicant and the beneficiaries by reference to their different resources and needs, and the obligations and responsibilities owed by the deceased to each of them. The relative weight to be given must depend on the facts of the particular case and there is sufficient flexibility in the powers of the court to make orders accommodating different parties: see 54-03.

166.  The wife said she and the daughter want to move back to the House.  In response, the grandmother has no objection to them living on the 1^st floor or the 2^nd floor. The daughter was also reported to have expressed the wish to move back to the House sometime in the future.  I say it is a wish because she had no idea as to when this would happen.  It has to be borne in mind that at the time of expressing her wish, the daughter was merely some 14 years old. Experience tells me that teenagers would have many ideas and wishes and these ideas and wishes come and go.  Added to this is the wife’s aspiration of sending the daughter to study overseas at the age of 16; it is only roughly one year away from now.  For these reasons, I consider I should not give much weight to the daughter’s wish. 

167.  The wife said it is customary for indigenous villagers to study overseas.  In this regard, I am aware the sister was sent to attend university at the UK but at the same time the deceased had little education.  I do not consider what indigenous villagers customarily would do in terms of education is determinative.  After all, education is personal to the daughter.  She should be able to receive the form of education that is appropriate to her propensity, interest and ability.  I am aware that, according to Mr Lee of the Official Solicitor who had interviewed the daughter, she preferred to study abroad, but made no mention of the destination. 

168.  It was submitted by Mr Ng that the Will does not provide for a 50/50 division of the estate because all the residuary estate would go to the daughter.  On evidence, it is quite clear that the residuary estate, which comprised mainly of the money in bank accounts and the jewelleries and ornaments in the safe deposit box the values of which are insignificant.  The residuary estate clause in the Will was meant to be a “catch all” provision just in case something was missed out. 

169.  The reality is this is not an ancillary relief claim but a claim under the Ordinance involving 4 parties. The cruel fact is about $4,680,000 (see item nos 12 to 16 at [99] above) have been spent on legal costs which eventually would have to be paid out from the House.  I do not see how the “wish lists” of the parties could all be fulfilled without having resorted to liquidating the House or part of it. 

170.  The net estate, as set out in [99] above, is $14,295,500.  Family proceedings are dynamic; as such, exact figure is not possible.  Experience as a family judge informs me that I shall err on the safe side. I round it down to $14,000,000. 

171.  I consider a lump sum of $5,645,500 in favour of the wife should be an appropriate amount.  This is on the basis of 45/55 division obtained from the “notional divorce” enquiry, and I have taken the wife’s pension of $1,190,000 into account.  In coming to this conclusion, I am mindful of the advices given in the authorities referred to above and that the “notional divorce” enquiry is just a cross-check.

172.  Unit GA does not have a kitchen; it would be difficult to have it rented out or sold, if not entirely impossible. The sister may need to carry out some conversion works and to meet some legal requirements, such as preparing a Sub-Deed of Mutual for the purpose. 

173.  The grandmother should continue to live at unit GB and this unit should be given to her absolutely. This would fulfil the deceased’s wish of keeping the House – at least one unit – within the family.  The unit GB is slightly larger than the unit GA.  The whole of the ground floor is valued at $6,500,000.  I have no evidence before me as to how much unit GA and unit GB are worth individually.  Assuming that the units are worth on 45/55 basis, GA is worth $2,925,000 and unit GB is $3,575,000. 

174.  It is likely that the remaining units would have to be liquidated for legal costs, for payment in favour of the wife and for division between the grandmother and the daughter.

175.  I reckon that the remaining sum should be about $4,779,500, as set out below:

Net Estate	$14,000,000
Less
Lump sum to the wife	($5,645,500)
Value of GB (to be retained)	($3,575,000)
Net total (about):	$4,779,500

176.  The remaining sum is to be divided between the grandmother and the daughter.  I consider it is appropriate that the grandmother is to be given a lump sum of $800,000.  I am aware this sum may not be adequate to cover her living expenses in full, but it has to be borne in mind that she is to have the unit GB.  I have also taken the likely financial support, though not to a full extent, that the sister and the elder sister may be able to offer into consideration.

177.  The residuary, which should be in the region of $4,000,000, is for the benefit of the daughter. This should be more than sufficient for her living and overseas education if she chooses to do so.  In coming to this figure, I have taken the view that the wife, as mother, is also responsible for the maintenance of the daughter.

178.  I appreciate it takes time for the rectification of the Will and for the partition of the House, which falls into the Law Society’s Consent Scheme.  All these processes would take time to carry out.  I give the sister a year’s time to do so. 

179.  The sister experiences difficulties in contacting the daughter due to her strained relationship with the wife, which no doubt arises from the litigations.  The wife admitted that her relationship with the sister and the grandmother has been bad, particularly after the October 2017 Incident.  She has not allowed the daughter to see the sister and the grandmother in private. 

180.  I am told that despite all these difficulties the sister is willing to continue to administer the Estate as executrix and hold any entitlement on behalf of the daughter.  I think this is the correct direction.  I believe it is important for the daughter to maintain her relationship with the paternal family.  The sister has been entrusted by her dear brother, the deceased, to take care of his daughter.  She should try her best to fulfil his last wish.  It is hopeful that with the conclusion of this proceeding, their relationship could improve in time.

Order

181.  For the above reasons, I make an order that a lump sum of $5,645,500 is to be paid to the wife within one year.

Costs

182.  The costs of the sister, as trustee of the Estate, should be paid out from the Estate, on an indemnity basis.

183.  Similarly, the costs of the daughter (including the Official Solicitor’s costs) are to be paid out from the Estate on an indemnity basis. The daughter’s own costs to be taxed in accordance with the Legal Aid Regulations.

184.  In F v F (No 2) [2003] 3 HKLRD 976 at [22], Hartmann J (as he then was) reminded us of “the long-established principle that costs are determined not by dividing litigation into quantifiable subjects and figures, like a profit and loss account, but rather by way of overall impression”.

185.  Without seeking to be precise, it can be seen from the result that neither the wife nor the grandmother have achieved what they asked for.  In the circumstances, I think it is fair that they should bear their respective costs, and I so order.  The wife’s own costs to be taxed in accordance with the Legal Aid Regulations.

186.  The costs orders are by way of orders nisi.