M AND OTHERS v. X

FCMP 100 /2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NUMBER 100 OF 2012

----------------------------

-----------------------------------------------

J U D G M E N T

(Application by Dependants for Financial Provision under Cap. 481)

-----------------------------------------------

Background

1. X, the Respondent (hereafter called “X”) and A (hereinafter called “the Deceased”) were married in October 1970 in China.  They had a son born in November 1975.  In 1979, the Deceased moved to Hong Kong and commenced Chinese medicine practice here.  X continued to live in China.  Tragically, their son passed away in 2003 in China.  In October 2010, the Deceased did not feel well.  He attended the Accident and Emergency Department of the Queen Elizabeth Hospital and was hospitalized on 8 October 2010.  Since he thought that he had not been properly taken care of at the Queen Elizabeth Hospital, he discharged himself from the hospital and returned to home in the night on 12 October 2010.  In the morning on 13 October 2010, he spat blood. Then the Deceased was sent to an Ear, Nose and Throat specialist, who in turn sent him to the St. Teresa’s Hospital.  He died at the St. Teresa’s Hospital on 17 October 2010.  The Deceased did not leave a will.  Letters of Administration of the estate of the Deceased was granted to X as the administratrix, who is entitled to claim the estate of the Deceased in intestacy under the Intestates’ Estates Ordinance, Cap.73.  As stated in the Schedule attached to the Letters of Administration, the assets of the Deceased were as follows:-

(a)  Cash and deposit at bank (including HKD and foreign currencies) in the total amount of HKD10,345,267.04;

(b)  Insurance Policies and MPF Accounts in the amount of HKD116,434.43;

(c)  Two landed properties in Lantau (hereinafter called the property “A” and “B” respectively) and a landed property in Kowloon (hereinafter called the property “C”);

(d)  Jewellery contained in safe deposit box;

(e)  Keys deposits in the amount of HKD1,420.

As to liabilities, there was a bank instalment loan of HKD123,321.07 DR.  in addition, the 1^st Applicant (hereinafter called “M”) said that she paid for the Deceased’s medical and funeral expenses and should be reimbursed an aggregate sum of HKD166,101, while X said she spent legal costs of HKD200,000 for the application for the Letters of Administration of the estate of the Deceased.

Application before the Court

2. In the present proceedings, the Applicants are seeking:

(a)  as dependants for an Order for the payment of:- (i) for the dependency of the 1^st Applicant, the sum of HKD540,000; (ii) for the dependency of the 2^nd Applicant, the sum of HKD556,000; (iii) for the dependency of the 3^rd Applicant, the sum of HKD592,000; (vi) for the accommodation and utilities for the benefit of the Applicants, the sum of HKD990,000, being reasonable financial provision from the estate of the Deceased under the Inheritance (Provision for Family and Dependants) Ordinance, Cap.481 (hereinafter called the “Ordinance”);

(b)  for an Order for the payment of the said sum of HKD166,101 incurred by M for the Deceased; or

(c)  alternatively, for an Order that the Applicants are entitled to the whole of the estate of the Deceased i.e. the abovementioned properties A, B & C, cash and deposit at bank and the jewellery contained in the safe deposit box being gift made by the Deceased to the Applicants.

3. At the beginning of this trial, upon having had a short discussion initiated by the Court, Ms Siu, appeared for the Applicants, accepted that it is not appropriate to prosecute the said application for the payment of the sum of HKD166,101, as it being a debt claim is not a matter in the Ordinance, in the present proceedings.

4. Regarding M’s alternative application for an Order that she is entitled to the said gifts made by the Deceased to the Applicants, not only this is not a matter in the Ordinance, but also does not this Court have the jurisdiction to hear and determine such application.  M and her children are seeking to claim against the Deceased’s estate under the doctrine of Donatio Mortis Causa. She said that in the night on 15 October 2010 at the hospital bed, the Deceased made the said gifts to the Applicants in contemplation of his death.  Donatio Mortis Causa is an equitable doctrine and was held to be a trust raised by operation of law (see Re Estate of Lung Nga Lai Eilly [2011] 5 HKLRD 402, at 416).  The amount or value of her claim under the doctrine of Donatio Mortis Causa clearly exceeds the equity jurisdiction of the District Court as provided by s.37 of the District Court Ordinance, Cap. 336.

5. Accordingly, the application for the payment of the said sum of HKD166,101 and for an Order under the equitable doctrine of Donatio Mortis Causa is dismissed with no order as to costs, without prejudice to the Applicants making fresh claim under a separate action, if they so desire.

6. This hearing is about the Applicants’ application as dependants falling within s.3(1)(ix) of the Ordinance for reasonable financial provision from the Deceased’s estate.

The evidence

7. A lot of evidence was adduced.  Both parties filed voluminous affirmation evidence prepared by the parties and the witnesses.  I heard oral evidence from the parties.  “Kwok”, a long time patient and a good friend of the Deceased, and “Chau”, who had lived in the same building with the Deceased and had known the Deceased for 6 to 7 years, testified for M.  “Hua”, the Deceased’s late son’s girl friend, and “Huan”, her sister, testified for X.

The 1^st, 2^nd and 3^rd Applicants’ case

M’s evidence

8. M is a divorcee with two children from her former marriage.  She was born on 2 October 1973 (now aged 40) in China.  She was married in February 1995 in China and later gave birth to the 2^nd Applicant, a girl, in October 1999 (now aged 14) and the 3^rd Applicant, a boy, in September 2001 (now aged 12).  In 2003, she moved along with her family to live in Hong Kong.

9. M divorced in 2006.  In the same year, she met the Deceased when she visited him as a patient.  According to M, the Deceased’s marriage with X was unsuccessful.  Since he left China for Hong Kong in 1979, the Deceased and X had rarely met, even less so after their son died in 2003.  Though the Deceased and X were not divorced, their marriage was in fact over when she met the Deceased in 2006.  Among other things, M relied on the contents of letters of various dates exchanged between X and the deceased and the son respectively, and also a letter written by Hau to the Deceased dated 20 October 2006, in support of her contention that the relationship between the Deceased and X had totally broken down.

10. The Deceased and she being both originated from Kaiping, they spoke the same dialect.  They soon developed an intimate relationship.  The Deceased and the Applicants had lived as a family at the property C since about mid 2007.  The Deceased also used the property C as his clinic.  According to M, immediately before the Deceased’s death, the Applicants were being wholly maintained by the Deceased.  The Deceased introduced her to his neighbours and friends as his wife and the 2^nd and 3^rd Applicants as his children.  Since they lived together, the Deceased had assumed the responsibility to support the Applicants as his dependants to the extent that not only had the Deceased provided for their living expenses, also did he make known to the Applicants on numerous occasions that he would pay for the children’s university education in the future.  The Deceased dined with the Applicants at the property C.  They went out and had meals out on holidays. The Deceased and the children got on so well that he changed the children’s names.  He used his family name as their surname and gave them new given names of his choice.  The children greeted him as father.

11. M used to reside at a rented flat that was a few blocks away from the property C.  Even though she had lived with the Deceased since mid 2007, at his request she kept the rented flat.  It is because the presence of the young children at the clinic during the business hours would be an unnecessary distraction to the Deceased from the consultation with his patients.  At the end of a school day, the children would go to the rented flat and stay there until the clinic’s business hours ended.  They returned to the property C for dinner and slept there.

12. The Deceased gave her about HKD20,000 per month in cash for food and the other household expenses.

13. After she met Kwok through the Deceased’s introduction in 2008, Kwok and she became friends.

14. In Christmas 2008, the Deceased introduced Kwok and her to Huan when they and the children went to Tsimshatsui East to admire the Christmas lights.

15. She had worked as a caretaker of the building where the property C situated at the monthly salary of HKD6,500 for the period from May to September 2009.

16. She used to live on Comprehensive Social Security Assistance (“CSSA”).  She ceased receiving CSSA in about May/June 2009.

17. In August 2010, the Deceased introduced Kwok and her to Hua when they and the children took a trip to Lantau.

18. In the night on 15 October 2010 at the hospital bed, the Deceased told her in the presence of Kwok that should he die:-

(i) The property C would be hers;

(ii) The property A and the property B would be given to the children respectively;

(iii) She needed not worry about living, as he had enough money to provide for the Applicants to live on and to pay for the children’s university education;

(iv) She could take the keys of his two bank safe deposit boxes that were kept in the drawer of his desk at the property C;

(v) The title deeds of the property A and the property B were kept at the bank safe deposit boxes;

(vi) The jewellery and cash contained in the bank safe deposit boxes would be hers; and

(vii) She should bury him in Lantau.

19. She took the keys of the two bank safe deposit boxes, the keys to the property A and the property B and all of the Deceased’s bank books from a drawer of the Deceased’s desk at the clinic and put them in a drawer of hers on the day following the Deceased’s death.

20. She informed the Birth and Death Registry about the death of the Deceased, and on or about 28 October 2010 informed the Deceased’s brothers of his death.

21. X attended at the property C with her relatives on 9 November 2010.  At her demands and threats, M gave a set of the key to the property C, the keys to the property A and the property B and all bank books to X.  She gave the Deceased’s Death Certificate and his Hong Kong Identity Card to X on the next day at the funeral parlour.  However, she kept the 2 sets of keys to the 2 bank safe deposit boxes with her.

22. She paid the Deceased’s medical and funeral expenses.

23. The Deceased was buried at the Tseung Kwan O Chinese Permanent Cemeteries.  At her instructions, a contractor put up at the Deceased’s grave a tomb stone marked with the inscription that described her as the Deceased’s wife and the 2^nd and 3^rd Applicants as his children.

24. She made a Statutory Declaration at the Home Affairs Department as to her cohabitation relationship with the Deceased on 11 November 2010.

25. She wrote to the Probate Registry about her cohabitation relationship with the Deceased on 16 November 2010.

26. She wrote to the Home Affairs Department on 30 March 2011 making an enquiry about whether the Deceased left any will in his safe deposit boxes.

Kwok’s evidence

27. Kwok had known the Deceased for more than 10 years.  She attended the Deceased’s clinic as a patient in 1996.  She became a long term patient of the Deceased as she needs to take Chinese medicine and to receive acupuncture therapy regularly.  Her mother passed away in 2003 and her elder brother died of cancer a few months later.  She felt very depressed.  At that time the Deceased confided to her that his son also died of cancer in 2003.  He comforted and encouraged her to live positively and shared with her a lot of his life experience.  They got close and became good friends.  According to her, the Deceased lamented that his wife did not take good care of his son and failed to discipline him according to his way.  She said he was angry about his wife.

28. She often visited the Deceased at the property C.  She had seen a woman hanging around at the clinic since mid 2006.  From time to time, she saw her doing household chores there.  She thought the woman was a part time maid but she did not ask the Deceased about her.  During a visit in early 2007, she saw the Deceased, the woman and two children dined together in the property C.

29. In 2008, the Deceased introduced M to her, whom then came to know the woman that she saw at the clinic is the 1^st Applicant and the children are the 2^nd and 3^rd Applicants.  They went to the Ocean Park.  She heard the Deceased greeted M as “wife” (老婆), M greeted the Deceased as “husband” (老公) and the children greeted the Deceased as “father” (爸爸).  She asked the Deceased about their relationship.  He told her that he and M were cohabiting.  She was frequently invited to have dinner with the Deceased and the Applicants at the property C and was befriended with M. She greeted M as “Mrs. Au” (“區太”)

30. In Christmas 2008, at the Deceased’s introduction, she met Huan.  She was introduced by the Deceased as his best friend.  The Deceased, Huan, the Applicants and she went to Tsimshatsui East together to admire the Christmas lights.  She did not remember how the Deceased introduced M to Huan, though she recalled the children greeted the Deceased as “father”.  Also did she observe the Deceased and M holding hand.

31. In August 2010, she met Hua when the Deceased, the Applicants, Hua and she took a trip to Lantau.  Again, she could not remember how the Deceased introduced M to Hua but she recalled the children greeted the Deceased as “father”.

32. She supported M’s case that in the night on 15 October 2010 at the hospital bed, the Deceased told M in the her presence that the property A, the property B and the property C would be given to the children and M respectively and M should take the two keys of the bank safe deposit boxes and the cash and jewellery there, should he die.  Also did she hear the Deceased said to M that he had enough money to provide for M’s living and the children’s university education and M should bury him in Lantau.  Kwok added that the Deceased further said to M that she could ignore his Mainland wife, who was useless (“內地老婆無用，不用理她”).  On top of it, she said the Deceased told her that she should see M more often than before.

33. According to Kwok, during the telephone conversation between her and X dated 28 October 2010, at X’s enquiry she said there was money for the Deceased’s funeral but she did not mention there was HKD200,000 in cash at the clinic.

34. At the funeral, the 3^rd Applicant took the role as the Deceased’s son, wore a mourner’s outfit and a hood of sackcloth and carried out the Taoist ritual of “carry the banner and buy water” (擔幡買水).  The 2^nd and 3^rd Applicants respectively as the Deceased’s daughter and son sat next to X.  M and she, both wore in white, sat at the reception desk.  She said M was minded to wear a mourner’s outfit and a hood of sackcloth like what the wife of the Deceased should do at the funeral but X strongly objected the idea.  In deference to X’s strong objection, M eventually gave up her idea.  M ordered a wreath, decorated with scrolls, on which the names of M as the widow and the 2^nd and 3^rd Applicants respectively as the daughter and son of the Deceased have been written, for display at the funeral parlour.  Due to X’s strong objection, the description of the 1^st, 2^nd and 3^rd Applicants’ relationship with the Deceased as shown on the scrolls was changed from “wife” to “a good friend” and “daughter and son” to “god daughter and god son” respectively.

35. She agreed with M that M bought a paper house burnt in a bonfire for the Deceased.

36. X, M and she sat on the hearse and went to bury the Deceased at the Tseung Kwan O Chinese Permanent Cemeteries.

37. She agreed that X paid HKD1,000 to her after the funeral.  She gave the money to M a few days later.

Chau’s evidence

38. Chau had lived with the Deceased in the same building and had known the Deceased for 6 to 7 years.  The Deceased and she came to know each other as he was the chairman and she was a member of the Incorporated Owners Committee of the building.  They always chatted about cats and dogs.  It always occurred to her that the Deceased and the Applicants were a family.  The Deceased introduced M as his “wife” (“太太”) and the 2^nd and 3^rd Applicants as his children to Chau.  She greeted M as “Mrs. Au” (“區太”). Chau recounted that many owners in the building also regarded M as the Deceased’s wife.  She recalled that some owners disliked M’s employment with the Incorporated Owners Committee because they thought it was inappropriate for the chairman to employ his wife working at the building.

X’s case

X’s evidence

39. According to X, the Deceased and she remained very close until his sudden death.  The love between them had never faded.  She believes the Deceased would not be unfaithful to her and disbelieves the Applicants and the Deceased lived together as a family.

40. As soon as she learnt about the death of the Deceased, she immediately telephoned the clinic on 28 October 2010.  The telephone call was answered by Kwok.  During the telephone call, Kwok introduced her as a patient who offered to help in the funeral and told her there was about HKD200,000 cash which could be used for the Deceased’s funeral.

41. When she met M and Kwok at the clinic on 9 November 2010, they also introduced themselves as the Deceased’s patients who volunteered to help in the funeral.

42. She paid HKD1,000 to each of Kwok and M and also paid HKD100 to each of the children for their help.

43. At M’s request, she allowed her to stay at the property C for a few days.  On 14 November 2010, she intended to return to the property C but M wrongfully refused to let her in.

Huan’s evidence

44. Huen is practising Chinese medicine in PRC and a sister of Hua.  She knew the Deceased in 2006 when she started to learn acupuncture from him at the clinic.  During the period from 2006 to the Deceased’s death, she frequently visited the Deceased at the property C.  Every time when she was there, the Deceased was working alone. She said the Deceased always mentioned to her that he gave credit to X for his achievement because X gave up her study for work in order to support his living and studying and that he wanted to spend more time with X and to take good care of her after he retired.

45. In Christmas 2008, the Deceased introduced the Applicants and Kwok to her.  They went to Tsimshatsui East to admire the Christmas lights.  She said M was introduced by the Deceased as his patient but not as his family, and she did not observe any intimacy between the Deceased and M at that time.

46. At the funeral she heard M requested X to let her stay at the property C for a few days since her relatives had come to Hong Kong to visit her, to which X agreed.

Hua’s evidence

47. Hua was a girl friend of the Deceased’s late son.  She noted that differences had been arisen in the relationship between the Deceased and X.  For example, X was a permissive mother despite that the Deceased wanted X to be more authoritative in her parenting style.  Along with, the Deceased wanted X to be a full time housewife but X persisted in working part time.  However, she disagreed with M’s contention that what she wrote in the letter to the Deceased dated 20 October 2006 shows that she considered the relationship between the Deceased and X had totally broken down.  Because she felt sorry for the Deceased, who was deeply sadden by the death of the son, she wrote the said letter to give him a few words of consolation and encourage him to move on and let go of the sadness. Being an outsider, she did not know exactly what the relationship between the Deceased and X was.

48. The Deceased, the Applicants, Kwok and she went to Lantau in August 2010.  The Deceased introduced Kwok and M to her as his patients.  She did not observe any intimacy between the Deceased and M.

The relevant statutory provisions

49. S.3(1) of the Inheritance (Provision for Family and Dependants) Ordinance, Cap. 481 (the “Ordinance”) provides:-

“(1) Where after the commencement of this Ordinance a person dies -

(a) domiciled in Hong Kong; or

(b) having been ordinarily resident in Hong Kong at any time in the 3 years immediately preceding his death,

and is survived by any of the following persons -

…

(ix) any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the Deceased was being maintained, either wholly or substantially, by the Deceased

that person may apply to the Court for an order under section 4 of the Ordinance 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.”

50. In the present case, the Applicants claim that they fall within s.3(1)(ix) of the Ordinance.

51. Reasonable financial provision is defined in s.3(2) of the Ordinance as follows:-

“(2)  In this Ordinance, “reasonable financial provision” –

(b)  in the case of any other application made

by virtue of subsection (1), means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance”

52. S.3(3) of the Ordinance provides:-

“(3) For the purpose of subsection (1)(ii), (iv), (v), (vi), (viii) and (ix), a person shall be treated as being maintained by the Deceased, either wholly or substantially, as the case may be, if the Deceased, otherwise than for full valuable consideration, was making a substantial contribution in money or money’s worth towards the reasonable needs of that person.”

53. It is noted a wife or a tsip or male partner of the deceased applicant enjoys different rights compared with any other applicants. Under s.3(2)(a) of the Ordinance, in the case of any application made by a wife or a tsip or male partner of the deceased under s.3(1)(i) or s.3(1)(iii) respectively, “reasonable financial provision” means such financial provision as it would be reasonable in all circumstances of the case for such a person to receive, whether or not that provision is required for his or her maintenance.  Under s.3(2)(b), in the case of any other application made by virtue of subsection (1), “reasonable financial provision” means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.

54. Under s.4 of the Ordinance, where an application is made for an order under this section, the Court may, if satisfied 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, make one or more orders for periodical payments, lump sum or property transfer orders for the applicant.

55. It is clear that even if the Applicants can establish they fall within s.3(1)(ix), the Court retains a discretion whether or not to exercise its powers to make on or more of the orders which it may make under s.4.

56. S.5 of the Ordinance sets out the factors which the Court shall have regard in exercising its powers under s.4 of the Ordinance:-

“(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.”

57. Without prejudice to the generality of the paragraph (g) of subsection (1), where the applicant is a dependant, as in the present case, the Court should take into account the factors set out in s.5(5) and (6).  These factors relate to the extent to which and the basis upon which the deceased assumed responsibility for the maintenance of the applicant, and to the length of time for which the deceased discharged that responsibility and to the closeness of the relationship between the applicant and the deceased immediately before the death of the deceased.  Under s.5(7), the Court has to take into account of the facts as known to the Court at the date of the hearing of the application.  Under s.5(8), 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.

58. In order to succeed in the present applicant, the Applicants bear the burden of proof to show that they were being maintained, either wholly or substantially, by the Deceased immediately before his death. If they can get over the first hurdle, then they have to persuade the Court to exercise its discretion to award such financial provision that is reasonable in all the circumstances for their maintenance by considering the factors as set out in s.5.  The first part of that composite problem is a question of fact, but the second is not.  It is a question of discretion. 

59. In Re Coventry (Deceased) [1980] 1 Ch 461, in which the applicant is the child of the deceased, the English Court of Appeal approved a two-question approach in the exercise of such discretion (see Goff LJ at 486G-H and Buckley LJ at 495D-G), i.e.:-

(1)  firstly, ask and answer whether reasonable financial provision has been made by the deceased for the applicant’s maintenance; and

(2)  secondly, which arises only if the first is answered in the negative, ask and answer the extent to which the Court should exercise its powers under the Act.

The abovementioned two-question approach was adopted by Judge Bebe Chu PFCJ in LZX v WYL (provision: family and dependants) [2012] 5 HKLRD 29, where the wife of the deceased is the applicant. (see para 140)

60. In Re Rowlands (Deceased)) (FD & CA) [1984] FLR 813, which is also an application by the widow, Cumming-Bruce LJ pointed out at 823B-C that the second question above in fact compressed the statutory words “whether and in what manner to exercise the powers” into a single question when in fact the draftsman had posed, not one question but two, i.e.:-

(1) whether it should exercise the power to make financial provision for the applicant at all; and

(2) if so, in what manner it should exercise such power.

61. His Lordship said, at 822E-H:-

“ As a matter of construction, the first point to note on the provisions of s.3(1) is this. The court has to answer three questions. The first is the question whether reasonable financial provision for the applicant should be ordered out of the estate. In relation to that exercise, the court is enjoined to have regard to all the matters thereafter specified in the section. If the court answers the first question in the affirmative it then has to decide whether to exercise its powers at all, and at that stage has again to have regard to all the matters thereafter set out by the draftsman in the sub-section. If the court decides to exercise its powers, it then has to determine in what manner to exercise them, and again for that purpose to have regards to all the matters set out in the rest of the section. That is important because it is perfectly plain from the language that those factors set out in subs (1) fall for mandatory consideration by the court when answering each of the three questions which the legislation requires the court to answer. What I have said is expanding somewhat what was said in the judgment of Oliver J (as he then was) in Re Coventry (Deceased) [1980] 1 Ch 461. The report is the report of the decision of the Court of Appeal, but begins by reporting the judgment of Oliver J at first instance...”

Upon having noted that ss.1, 3 and 9 of the Inheritance (Provision for Family and Dependants) Act 1975 are equivalent to the ss.3, 5 and 12 of the Ordinance, Deputy District Judge Simon Lo adopted the abovementioned three-question approach in Re Estate of CNC [2011] 4 HKLRD 544, which is an application by the widow, too.

62. The parties agreed that this Court should adopt the three-question approach in the present case. 

Discussion on the Merits of this application

Issues

63. After having read the affirmation evidence and heard the testimony of the parties and their witnesses, I regard that to answer the above questions, the following issues are required to be considered by the Court:-

(i) How close was the relationship between the Deceased and X?

(ii) What was the relationship between the Deceased and the Applicants, if any?  How close was the relationship?

(iii) Did the Deceased assume responsibility for the maintenance of the Applicants and if yes, how long did the Deceased discharge that responsibility?

(iv) If the Court answers in the affirmative to the questions (iii) above, is 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, such as to make reasonable financial provision for the Applicants?

(v) If the Court answers the above question (iv) in the negative, whether the Court should exercise the power to make financial provision out of the estate for the Applicants at all, and if so, to what extent it should exercise such power?

How close was the relationship between the Deceased and X

64. Against the backdrop that M sought to portray that the marriage between the Deceased and X had been over for a long time, X said the Deceased and her remained very close, and until his sudden death, they talked on telephone every week, the Deceased would come back to visit the family many times every year, she also often visited him in Hong Kong and each time when they visited each other, they slept together as husband and wife.  She said the Deceased told her they could live in Lantau where they could breed bees after his retirement. 

65. X produced some letters written by the Deceased to her in the 80s to show that the Deceased and she had a good relationship.  It is noted the messages shown in these letters, at best, only represented the Deceased’s view in the 80s, shortly after he came to Hong Kong in 1979.  Despite that X has tried to show at great length that the Deceased and she all along was in a good relationship, she is unable to produce any documentary evidence, such as a recent letter, a telephone bill or a photo, to present the alleged continuing good relationship between them.  On the other hand, there is evidence suggesting that the Deceased and X was not in a good relationship:- 

(a) In the son’s letter to the Deceased dated 15 January 1994, he referred to him having a “broken family” (“家庭的破裂”);

(b) In the Deceased’s letter to the son dated 15 August 1994, the Deceased wrote “Even though I seldom fail or may even be said as has never failed in my deeds and I spent my life trying hard, your mother has refused to listen to me, which represents the most devastating strike that I have suffered in my life and it is also my biggest failure” (“我從來做事或辦事很少失敗，也可以講得完全沒有，為是一生中付出最多教你母親不聽，令我一生中最大打擊，也是我最大失敗者”)

(c) In X’s letter to the Deceased dated 20 November 1997, X said the Deceased “was unwilling to make the application for X and the son to go to Hong Kong” (“不願意為我母子辦申請出港 ”) The Deceased was in Hong Kong for about 31 years.  It is noted there were plenty of time and opportunities for him to apply for X’s residence in Hong Kong but he chose not to do so.

(d) The respective travel records of the Deceased and X show that they had not seen each other often at least since 2001.  X said in Court that her travel records that were produced to the Court are incomplete and do not display all of her travels to Hong Kong because she had returned some of the permits /re-entry permits that she had used to the issuing authority.  According to her, she visited the Deceased at least one to three times every year in Hong Kong during the period from 1997 to 2007 and the Decease came back to Kaiping to visit her from time to time.  I am incredulous to her evidence in this respect.  What she said in Court as abovementioned is contradictory to the travel records produced as well as what she said in her Affirmation filed on 28 August 2012.  In the paragraph 12 of the said Affirmation, she said after the death of the son in 2003, “I did not want to go outside but I just wanted to stay at home.  The Deceased felt helpless and was very sad too.  The Deceased had then concentrated more on his work in Hong Kong and came back less often, around once or twice every year.” On can infer from the above statement that the Deceased and X did not see each other often after the death of the son.  It can also be seen from the travels records produced that after the death of the son in 2003, the Deceased returned to Kaiping only once or twice a year during around the Ching Ming Festival. 

(e) M produced the bills of the land line telephone at the clinic. They show that the Deceased and X rarely communicated by the telephone.  X explained that the Deceased often used other telephone number to call her, which could not be shown on the said bills. Yet she is unable to produce any phone bills as evidence.  It can be seen from the phone bills produced by M that the Deceased used the land line telephone to call the son and various persons in Kaiping.  In the circumstance, it is strange that he would have always used other telephone numbers, instead of his home telephone, to call X.  I am incredulous to X’s explanation.

(f) M had taken care of the Deceased since the Deceased was sick and hospitalised.  The Deceased was suffering from serious illness and was hospitalised on 8 October 2010 and eventually passed away on 17 October 2010.  There was a period of about 10 days in between.  During the 10-day period, the Deceased did not contact X nor did X contact the Deceased.  X only knew about X’s death on 28 October 2010.  At first sight, the Deceased was contented with the care by M and did not see the need to contact X even at the verge of his death.  If indeed X kept regular contact with the Deceased, it is inconceivable that she did not know the Deceased’s serious illness and hospitalisation before 28 October 2010.  There was nothing to stop them from at least calling each other.  The fact that they did not call each other strongly supports M’s case that X was not in a good relationship with the Deceased.

66. Taking an overview of the evidence, I find that X is not as truthful as she should be about the closeness of the relationship between the Deceased and her.  After having carefully considered, I regard that the Deceased and X had not communicated often, they had not seen each other often and they had not been in a good relationship at least since about 2001, or 2003 at the latest.

What was the relationship, between the Deceased and the Applicants, if any?  How close was the relationship?

67. M said the Deceased and she developed an intimate relationship in 2006, the Deceased and the Applicants had lived as a family at the property C since about mid 2007 and immediately before the Deceased’s death, the Applicants were being wholly maintained by the Deceased.  Mr Wong, Counsel for X, doubted M’s case in this respect and raised the following queries:-

(i) If the Applicants cohabited with the Deceased, why would they keep her rented flat?  According to M, the flat was kept for the children’s use after school so that the Deceased would not be distracted by the presence of the young children when he saw patients at the clinic.  If so, why was the tenancy terminated in August 2010? Why did M use the address of the rented flat as her address for the application for CSSA?

(ii) The Deceased and M came from the same village.  Why had they never visited each other’s family and relatives?

(iii) If the Deceased had supported the Applicants since about 2006 or 2007, why did M not stop receiving CSSA until May 2009?  Why did M need to work as a caretaker for HKD6,500 per month when her children were only aged 8 and 10 respectively? 

68. Therefore, Mr Wong contended that the Applicants did not cohabit with the Deceased but instead were living in the rented flat and furthermore, the Deceased did not financially support the Applicants but instead M needed to do manual work for living and/or to live on CSSA.

69. Despite Mr Wong’s doubts and queries, I take notice of the following:

(a) There are photos showing the Deceased spending time with the Applicants at the property C, in his shorts and vests, having meals, holding hand, hugging and having fun and dance;

(b) There are photos showing the Deceased going out with M and the children from time to time;

(c) There are photos showing the Deceased celebrated important events, including his birthday and his graduation with the Applicants (but not X);

(d) The birthdays cards given by the children to the Deceased in 2008 and 2010 respectively show the children greeting the Deceased as father, and apparently the Deceased happily accepted them;

(e) In the said birthday cards from the children to the Deceased, the children thanked the Deceased for that he had taken care of them for many years (“多年來照顧”);

(f) In the card from him to the Deceased on the Father’s day, the boy greeted the Deceased as father and signed with a name bearing the Deceased’s family name as his surname and used a first name allegedly given to him by the Deceased;

(g) In a receipt issued by a Tony Dance Studio dated 7 August 2010, the children were named with the Deceased’s family name as their surname and using the first names allegedly given to them by the Deceased.

70. In my view, the abovementioned facts are indisputable and supporting the Applicants’ case that they lived with the Deceased at the property C as well as their claim for dependency.

71. The “family” relationship between the Deceased and the Applicants is supported by Chau.  I regard that Chau is an independent witness who is not interested in the outcome of the litigation.  She also impressed me as an honest and credible witness.  After having seen and heard her at Court, I am prepared to accept her evidence as true and correct.  Chau’s evidence supports M’s case that the Applicants had lived with the Deceased as a family in the property C since about 2007.

72. In his closing submission, Mr Wong pointed out some inconsistencies in M and her witnesses’ evidence.  The way I see it, it is not surprising that M or her witnesses have been unable to recall every detail of events happened some years ago in view of that a long time has been elapsed since then.  

73. Huan started to learn acupuncture with the Deceased in 2006.  For the period from 2006 to the Deceased’s death, she had frequently visited the Deceased at the property C.  She saw the Deceased work alone at the clinic every time.  She and her sister both said they did not observe any intimacy between the Deceased and M when they went out with them in 2008 and 2010 respectively.  For my part, it is predictable that the Deceased chose to hide his close relationship with M from the sisters who and X know each other, bearing in mind that the Deceased and X were married at all material times.  Huan said she would give the Deceased a telephone call before she visited him.  As such, it was easy for the Deceased to make some arrangements, for which I surmise he actually did, so as to ensure that Huan and M would not meet each other at the clinic during the former’s visits.

74. By the same token, it is not surprising despite that the Deceased and M came from the same village, they had never visited each other’s family and relatives.

75. About Mr Wong’s query as to why M used the rented flat as her address for the CSSA application, Ms Liu, Counsel for M, contested that the fact M used any one of the two addresses that she had at that time for the CSSA application is neither here nor there.  M paid rent for her rented flat.  She did not pay any rent for the property C.  Presumably, her rent payment was a subsidised item under CSSA.  In my view, probably that is the reason why M would choose to use the address of the rented property for the CSSA application even if the Applicants were living with the Deceased at the property C.

76. Mr Wong queried why M needed to work in 2009.  For my part, the fact that she had worked for about 5 months during 2009 is neither here nor there.  The Applicants were living on CSSA.  She did not “need to” work to survive no matter whether the Applicants were fully maintained by the Deceased at that time.  M was aged 36 and the children were aged 8 and 10 respectively at that time.  I agree that the children at their young age needed M’s care.  However, no doubt working at the same building where she lived gave her a big edge in making time despite her work commitment for the care of her children’s need.

77. I agree with Mr Wong that M did not give a satisfactory explanation on why she did not cease receiving CSSA before May/ June 2009 presuming the Applicants had been fully maintained by the Deceased since mid 2007.  This is a factor that casts doubt on M’s case.

78. Be that as it may, one has to look at the evidence in the round.  M’s case in relation to the relationship between the Deceased and the Applicants is supported by contemporaneous documentary evidence, including photos, cards, receipt, and the testimony of Chau, a credible witness.  Notwithstanding Mr Wong’s ability of arguing to the contrary, on the whole I accept that:

(a) The Deceased had lived with the Applicants as a family in the property C since about mid 2007;

(b) The Deceased treated M and the 2^nd and 3^rd Applicants as if they were his wife and children respectively;

(c) The Applicants had been substantially maintained by the Deceased for the period from about mid 2007 to the time when M quitted her employment in 2009 (she having ceased receiving CSSA earlier in the same year) and had been wholly maintained by the Deceased thereafter up to immediately before his death.

79. M said the Deceased gave her about HKD20,000 per month in cash for food and the other household expenses.  Apart from her testimony, there is no documentary evidence, such as bank statements showing the cash flow, produced in support of her evidence in this respect.  The Deceased received cash payment from his patients.  It is not surprising that he made the said payments in cash.  The amount of HKD20,000 per month as alleged is reasonable.  After having carefully considered, I accept that the Deceased gave M about HKD20,000 per month in cash for food and the other household expenses.

80. M said the Deceased promised to the Applicants that he would pay for the children’s university education in the future.  It is undisputed that the Deceased set high expectations on the deceased son’s education.  The evidence shows the Deceased and the children got on extremely well.  In my view, it is probable that the Deceased promised to provide for the university education of the children.

81. Notably, neither party had called the children to give evidence at the trial. Litigation is often a gruelling, overwhelming and emotionally draining process.  For my part, it is unsurprising that M chose to keep the children away from the tension, bitterness and conflict that they might encounter in an adversarial litigation system. 

Did the Deceased assume responsibility for the maintenance of the Applicants and if so, how long did the Deceased discharge that responsibility?

82. In Jelley v Iliffe [1981] 2 All ER 29, Griffiths LJ said at 39E-F:-

“In practice the evidence of the applicant will reveal the relationship with the deceased and if it also shows an arrangement subsisting at the time of death under which the deceased was making a substantial contribution in money or money’s worth to the reasonable needs of the applicant it will, as a general rule, be proper to draw the inference that the deceased has undertaken to maintain the applicant and thus ‘assumed responsibility for the maintenance’ within the meaning of s 3(4). It should not be necessary to search for any other overt act to demonstrate the ‘assumption of responsibility’. If such an overt act were necessary I suspect that most claims intended to be covered by the 1975 Act would fail.”

83. Applying Jelley v Iliffe, the bare fact that the Applicants were being maintained by the Deceased under the abovementioned arrangements subsisting at the Deceased’s death is sufficient to raise a presumption that the Deceased had assumed responsibility for their maintenance within the Ordinance, and it is unnecessary to prove any other overt act demonstrating the assumption of responsibility.

Is 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, such as to make reasonable financial provision for the Applicants?

84. Since the Deceased did not leave a will and the law of intestacy does not make any financial provision for the Applicants at all, the answer to this first question is obviously in the negative.

Whether the Court should exercise the power to make financial provision out of the estate for the Applicants at all, and if so, to what extent it should exercise such power?

85. In her closing submission, Ms Liu said “In the beginning of the trial, the Court dismissed paragraphs 5 and 6 of the OS for want of jurisdiction with no order as to costs. [transcript 8D] Accordingly, the issues relating to the gifts made by the Deceased to the Applications (including but without limitation the landed properties and others) as well as the issue on reimbursement were not subject matters in this case and had not been dealt with in examinations. The above issues involving the ownership of the properties remain outstanding and will be litigated in another forum. This Court shall not make any finding of facts that may relate to the above issues.”  Regrettably, what was said by Ms Liu in her submission above is incorrect. The following is the gist of what was discussed at the beginning of the trial on 2 July 2013 when Ms Siu appeared (see transcript 4O-6J):-

“ COURT: I am going to dismiss the application under paragraph 6. I see no reason why I shouldn’t do this.

MS SIU: Okay. If that is the case, even without paragraph 6 we still have paragraphs 1 to 5 to deal with.

COURT: Yes, of course, and obviously to hear and determine the 1^st applicant’s application under paragraphs 1 to 5, the court would need to hear evidence regarding the alleged gifts given by the deceased immediately before his death.

MS SIU: Yes, of course.

COURT: And probably the court would be required to make fact finding in this respect as well.

MS SIU: I understand

COURT: But be it as it may, it seems to me I have no jurisdiction to make any order in terms of paragraph 6 of the originating summons.

MS SIU: I fully appreciate that, your honour.

COURT: Do you need a moment? Then I am going to make a big decision. I will give you 15 minutes, all right?

MS SIU: I will take instructions from my client. Thank you.

COURT: All right. I thought I already had the matter. All right, 15 minutes.

Hearing adjourns – 11.04 am

Hearing resumes – 11.50 am

Appearances as before

MS SIU: Your Honour, my client has made a firm decision. That’s why – thank you, your Honour, for granting me the time, because I do need to explain thoroughly to her the consequence of her decision.

COURT: Yes.

MS SIU: And in fact it’s for health reasons that she decide to go ahead because she cannot – she has not sleeping well, and she does want to go ahead with her case. She knows that will be abandoning a lot of her entitlement. I mean, at least my instruction, but – yes.

COURT: Let’s make it clear. The dismissal of the application under paragraph 6 is for want of jurisdiction. In other words, the court has not made a decision on the matter of the merits.

MS SIU: Yes, Sorry – I’m not saying she forfeit that part. She will still …

COURT: You said abandoning, so …

MS SIU: Yes. No, no.

COURT: …let’s clear the record.

MS SIU: Yes. Sorry. I just want to verify that she …

COURT: She has not abandoned anything.

MS SIU: I understand.

Court: This is my decision. My decision is to dismiss her application under paragraph 6 of the originating summons for want of prosecution.

MS SIU: Yes. But does it mean…

COURT: For want of jurisdiction.

MS SIU: Yes. Anyway, the decision has been made, thank you, your Honour, so I would prefer to…

COURT: Unless you would add anything to correct me.

MS SIU: No, I don’t, your Honour. You are correct. I have discussed with her the possibility, because your Honour does have the discretion and you can rule …

COURT: As to whether to transfer the case, yes.

MS SIU; Yes, you can rule on whether to transfer the case. But I have explained to my client. But in fact she made the decision that she wanted to go ahead today because she does want to get this over with.

”

86. In fact, Ms Siu referred to the alleged gifts by the Deceased in her Opening Submission (see transcript 12G-J) and M and Kwok gave evidence in the examination in chief and under cross examination in great details in relation to the alleged gifts by the Deceased (see transcript 64C-E, 177G-178T and 246G-248O).  The Applicants’ application under Donatio Mortis Causa was dismissed at the beginning of this trial but in my view, this does not mean that the Court is not required to hear the parties’ factual disputes on this issue.  By virtue of s.5 of the Ordinance, the financial resources and financial needs which the Applicants as well as X have or are likely to have in the foreseeable future are factors which the Court shall have regard in exercising its powers under s.4 of the Ordinance.  In considering these matters, the Court is required to ask and answer the question of whether the Deceased give the whole estate to the Applicants as alleged by M and Kwok.  That is what I shall do in the following.

87. M’s claim under the doctrine of Donatio Mortis Causa is supported by Kwok.  Meanwhile, X and her witnesses are unable to present a case on the facts relating to this issue, inasmuch as they were not present at the hospital in the night on 15 October 2010.  In Re Estate of Lung Nga Lai Eilly, where the plaintiff and her children sought to claim against the deceased’s estate under the doctrine of Donatio Mortis Causa, Deputy High Court Judge Lisa Wong SC said, at para 20:

“ As far as factual issues are concerned, the plaintiff and the other defendants have no respective cases of their own to present to the Court, but that does not follow that the Court must then totally accept Madam Kong’s evidence. On the contrary, where the Court is dependent wholly on the evidence of a witness who may be a beneficiary of the estate, the Court must scrutinise such evidence rigorously: see Birch v Treasury Solicitor [1950] 1 Ch 298, 301 and Official Administrator v Luk Hoi Tong Co Ltd [2005] 3 HKC 615 at para.136.[A] ”

88. During the cross examination of M and Kwok, Mr Wong raised the following queries on M’s claim in this respect:

(a) Why did the Deceased not make a will if he wished to leave all of his estate to M?

(b) Is it unreasonable that the Deceased intended to leave nothing to X, his wife for 40 years?

(c) Why did M not immediately inform X or the Deceased’s brother of the Deceased’s sudden illness?

(d) Why did M surrender the keys of the properties, the bank passbooks and fixed deposit certificates to X on 9 November 2010?

89. It is also noted that according to M, the Deceased did not say that the wife could ignore the Mainland wife, who is useless but Kwok said otherwise.

90. X agreed that there were differences between the Deceased and her but she repeatedly affirmed that their mutual affection and marital status had never changed (“夫妻情份無變”).  It is my finding that the Deceased and X was not in good relationship but at the same time, it is a fact that the Deceased and X had never petitioned for divorce.

91. X called Huan and Hua to give evidence as her witnesses.  Huan said the Deceased always mentioned to her that he gave credit to X for his achievement because X gave up her study for work in order to support his living and studying and that he wanted to spend more time with X and to take good care of her after his retirement.  As the evidence shows, Huan and Hua are not close to X.  Huan met X only three times before the commencement of these proceedings.  They firstly met fortuitously in 2003 as the son was admitted to the hospital where she worked.  Since 2003, she had kept in contact with the Deceased but the next time that she and X met again is in March 2010 when the Deceased visited her father in Kaiping.  Then they saw each other at the Deceased’s funeral.  I regard that the sisters are independent witnesses who are not interested in the outcome of the litigation. After having carefully considered, I am prepared to accept their evidence as true and correct.  Huan’s evidence indicates that it is unlikely that the Deceased intended to give all of his estate to M and leave nothing to X.

92. It is both X and Huan’s evidence that at the funeral M asked X to let her stay in the property C for a few days.  Not to mention, such request is inconsistent with M’s claim that the Deceased had given the property C to her.

93. I also take note that M has failed to give a satisfactory and credible explanation as to why she surrendered the keys to the landed properties, the bank passbooks and fixed deposit certificates to X on 9 November 2010.  In her Affirmation filed on 7 May 2012, M said when X and her relatives appeared at the properties C and demanded and threatened her to release the keys to the properties and the bank books to her, she did so.  During cross-examination, M was asked how she was threatened by X and her relatives.  She said they shouted to her ferociously and she was aggrieved and distraught at that time.  She made a Statutory Declaration at the Wanchai Office of the Home Affairs Department as to the cohabitation relationship between the Deceased and her on 11 November 2010.  She wrote to Probate Registry on her cohabitation relationship with the Deceased on 16 November 2010.  In the said letter she also stated that the Deceased at his death bed said he would give some of his estate to her.  She was obviously well aware that being a mere cohabitant of the Deceased and having not a single piece of paper showing that she would be entitled to any interest in the Deceased’s estate, she needed to do as much as she could within her ability to safeguard any interests that she might have in the Deceased’s estate.  However ferocious X and her relatives in their words were, to which X denies, and in grieving and distraught M was, as conscious as she was about the need to safeguard her interests in the Deceased’s estate, it seems to me that she would not surrender the keys to the landed properties, the bank passbooks and fixed deposit certificates to X on 9 November 2010 if the Deceased did give the said properties and money to her as she alleged. 

94. There is more to say about the letter written by M to the Probate Registry dated 16 November 2010.  In the letter, she said “Before he died at the hospital, the Deceased said he would give some of his estate to me. However, as only Ms Kwok, his friend, was present, and there was no time to get a lawyer to witness, [I] understand [what he said] is invalid in law!” (“…先生在醫院臨終前曾說會將遺產分給本人。但因當時祇得其朋友郭小姐在場，又趕不及找律師見證，明白在法律上無效！”).  Her past position was that the Deceased’s promise or gift to her dated 15 October 2010 is invalid in law.  Such position is in stark contrast of her present claim under the equitable doctrine of Donatio Mortis Causa.  

95. The above-mentioned factors compelled the Court to be cautious in assessing the overall credibility and reliability of M and her witnesses’ evidence.  Having carefully considered M and Kwok’s evidence in this respect, I reject their allegations that in the night on 15 October 2010 at the hospital bed, the Deceased made the said gifts to the Applicants in contemplation of his death.

96. The Court is required to consider the financial resources and financial needs which the Applicants have or are likely to have in the foreseeable future. M is a housewife and full time mother.  She used to live on CSSA. As shown in her Form E, she has no substantial assets.  As to liabilities, she owed debts of HKD180,000.  The children do not have any financial resources. The Applicants are now staying in the property C.  If they are not allowed to continue to stay there, there will be a housing need for them.  Their current monthly expenses (excluding housing need) are HKD9,695.  When the two children grow older, the education and other expenses will go up.

97. The Court is required to consider the financial resources and financial need which any beneficiary of the estate of the Deceased has or is likely to have in the foreseeable future. X now owns the entire estate.  According to her Form E, her assets include: (1) bank deposits of over HKD20,000, which is her “own money”; and (2) from the estate of the Deceased, bank deposits in the total sum of HKD7,800,000, the said properties A, B and C, the said jewellery contained in the safe deposit box and two landed properties in Kaiping valued at HKD300,000.  The value of the said properties A, B and C and the jewellery is agreed by the parties at HKD4,800,000 (totally) and HKD120,000 respectively.  She is making a monthly rental income of HKD378 from one of the two landed properties in Kaiping.  Her current monthly expenses are about HKD5,644.8. 

98. X has already spent more than HKD2 million out of the estate.

99. Under s.5(1)(d) of the Ordinance, in determining whether and in what manner it shall exercise its powers under s.4, the Court shall have regard to the obligations and responsibilities which the Deceased had towards the Applicants.  The term “obligations and responsibilities” is taken into account in a broad sense of obligation and responsibility, including those that are not binding in law (see In the Estate of Tang Sum On, HCMP2506/2009, unreported, Deputy High Court Judge Au-Yeung, 7 June 2012, at para 121).  

100. It is my finding that the Deceased gave M HKD20,000 per month for food and the other household expenses.  There is no evidence that the Deceased made any periodical payments to X immediately prior to his death.

101. The Court is required to consider the size and nature of the net estate of the Deceased.  “Net estate” is defined in s.2 of the Ordinance as follows:

‘“net estate”, in relation to a deceased person, means:

(a)  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);

(b)  …

In the premises, the net estate of the Deceased is the sum of:- (a) bank deposits in the total amount of HKD10,345,267.04; (b) insurance policies and MPF Accounts valued at HKD116,434.43; (c) the properties A, B and C agreed at the value of totally HKD4,800,000; (c) the jewellery contained in the safe deposit box agreed at the value of HKD120,000; (d) two landed properties in Kaiping valued at HKD300,000 and (e) key deposits of HKD1,420 LESS:- (i) a bank instalment loan of HKD123,321.07; (ii) the said amount of HKD166,101 (see paragraph 1 above but note that this liability is disputed by X) and (iii) the said legal costs of HKD200,000 (see paragraph 1 above).

102. Neither the Applicants nor X has any physical or mental disability.

103. I bear in mind that, in deciding what would be reasonable for an applicant’s maintenance within the meaning of the Ordinance, In re Coventry, where the applicant is the child of the deceased, it was held (per Goff LJ at p 485C-D and per Buckley LJ at p 494 C-F):-

“That in deciding what would be reasonable for the plaintiff’s maintenance within the meaning given to reasonable financial provision by section 1(2)(b), it was not to be limited to just enough to enable a person to get by nor was it to be extended to anything reasonably desirable for his benefit or welfare but meant such financial provision as would be reasonable in all the circumstances to enable the plaintiff to maintain himself in a manner suitable to those circumstances.”

104. I remind myself of the provision of s.5 of the Ordinance, which sets out the factors which the Court shall have regard in exercising its powers under s.4 of the Ordinance.  I place particular significance on the finding that the Deceased had lived with the Applicants as a family and the Applicants had been wholly or substantially maintained by him for a substantial period of time.  He treated them as if they were his family members.  All in all, I consider that the Court should exercise the power to make financial provision out of the estate for the Applicants. 

105. As to the extent to which the Court should exercise its powers, I regard the claim for HKD3,000 per month for the maintenance of each of the children until they finish education is reasonable in all circumstances of the present case.  I also place particular significance on that he promised to pay the children’s university education.  I regard that it shows the Deceased intended to financially provide for the children until they finish tertiary education.  There is evidence showing that children are doing well in school. It is probable that they will receive tertiary education in the future.  I regard that the estimated additional sum of HKD40,000 a year for the children’s tertiary education is modest and reasonable and is suitable to the circumstances of the present case.  In the estimate of her claim for dependency, the M adopts a multiplier approach.  Such approach, which can achieve a clean break, has been accepted by the Court (see In the Estate of Tang Sum On at para 138). However, I agree with Mr Wong’s submission that it is unreasonable for M to expect she would be maintained for life by adopting a multiplier of 15 and claiming the periodical payment of HKD3,000 per month for her personal expenses for 15 years.  In considering the financial needs of any person for the purpose of s.5, the Court shall take into account of her earning capacity (see s.5(8)). It is noted that she worked in 2009.  She can work to meet her personal expenses especially when the children are now aged 12 and 14 respectively. About the claim for the period payment of HKD4,000 per month for housing and utilities for a multiplier of 15 years, apparently the Deceased assumed the responsibility to provide for the Applicants’ housing need.  Despite that I find that M can work, I also take into account of that she does not receive much education, now aged 40 and does not appear to have any special skill.  In any respect, it is impracticable to expect her to earn enough to provide for her and/or the children’s housing need.  Altogether, I am satisfied that an order in terms of the paragraphs 1, 2 and 4 of the Originating Summons herein would be reasonable in the circumstance i.e.:-

(a)  For the 2^nd Applicant (before housing need), in the sum of HKD520,000, being the estimated sum of HKD3,000 per month for 6 years of secondary school education and 4 years of tertiary education and an estimated additional sum of HKD40,000 per year for 4 years of tertiary education;

(b)  For the 3^rd Applicant (before housing need), in the sum of HKD556,000, being the estimated sum of HKD3,000 per month for 1 year of primary education, 6 years of secondary school education and 4 years of tertiary education and an estimated additional sum of HKD40,000 per year for 4 years of tertiary education;

(c)  For housing and utilities in the sum of HKD990,000, being the estimated sum of HKD4,000 per month for rent and the estimated sum of HKD1,500 per month for utilities for 15 years;

Costs

106. The application for the payment of the said sum of HKD166,101 and for an Order under the equitable doctrine of Donatio Mortis Causa is dismissed with no order as to costs.  At any rate, the time and costs spent by the parties on the aforesaid application should be minimal.  The Applicants are successful in their application for reasonable financial provision from the Deceased’s estate.  It appears there is no reason why costs should not follow the event. 

Order

107. In conclusion, it is ordered that the Respondent shall pay the 1^st Applicant:-

(a)  For the dependency of the 2^nd Applicant, the sum of HKD520,000;

(b)  For the dependency of the 3^rd Applicant, the sum of HKD556,000;

(c)  For accommodation and utilities for the benefit of the Applicants, the sum of HKD990,000; and

(d)  It is ordered nisi that the Respondent shall pay the Applicants’ costs of their application for reasonable financial provision from the Deceased’s estate under the Ordinance, with certificate for Counsel.  The Applicants’ own costs shall be taxed in accordance with Legal Aid Regulations.  The costs order nisi becomes absolute after 14 days hereof unless a party has applied to the Court for varying the order.