WLK by MYW her next friend v. CCIW AND OTHERS

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

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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 “the Remaining 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.