YE HONG YING v. CHAN LUP YING

HCMP3459/95

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3459 OF 1995

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J U D G M E N T

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History

1. Mr Fung Chi-fong ("Mr Fung") died on 25th January 1993 in Macau. Mr Fung had two wives. He married Ye Hong-ying, the Plaintiff, in Shanghai in 1938. He married Chan Lup-ying, the Defendant, in Shanghai in 1945. The Plaintiff bore Mr Fung six children, one of whom died when he was an infant. The Defendant bore Mr Fung four children. All the children are now adults.

2. Mr Fung left Shanghai for Hong Kong in 1957. He was joined by the Defendant in Hong Kong in 1962. Their children, namely, Fung Wai-chuen (also known as Peter Fung), Fung Wai-tung, Fung Wai-leung and Fung Wai-kam, all came to Hong Kong. The Plaintiff remained in Shanghai until 1987 when she left to join her daughter in England. Since then she has been living with her daughter and is now living in Ontario, Canada.

The application

3. In 1987, Mr Fung made a will leaving the entirety of his estate to the Defendant. The Plaintiff seeks financial provisions for herself under the Deceased's Family Maintenance Ordinance ("DFMO") and the Inheritance (Provision for Family and Dependants) Ordinance, Cap.481 ("IPFDO").

Dependant

4. Section 4 of DFMO enables the Court to make reasonable provision for the maintenance of the dependant of a deceased person if no reasonable provision was made by the deceased having regard to the disposition of the deceased's estate effected by his will or the law relating to intestacy or a combination of both matters. 'Dependant' is defined as the surviving spouse of the deceased by a valid marriage. 'Valid marriage' includes a marriage celebrated or contracted outside Hong Kong in accordance with the laws in force at the time and in the place where the marriage was performed. The DFMO was repealed by the IPFDO which came into operation on 3rd November 1995. The IPFDO applies to person who died after the commencement of that Ordinance (s.3(1)), but it specifically preserves the continued operation of DFMO where the deceased died before 3rd November 1995 (s.33).

Marriage

5. The Plaintiff produced a Notarial Certificate issued by the City of Shanghai Notary Office which states that according to the Dossier Record of Shanghai in 1950, the Plaintiff is the wife of Mr Fung. While it was initially disputed by the Defendant whether the Plaintiff is in fact the wife of Mr Fung, this was not pursued at the hearing of this application. I find that the Plaintiff is Mr Fung's wife and a dependant within DFMO. I also have no doubt whatsoever, that both the Plaintiff and the Defendant know Mr Fung had two wives during his lifetime. They know of the existence of each other and their respective families have recognised and accepted each other as the other families of Mr Fung. The real dispute in this application is what financial provisions should be made for the Plaintiff.

The two Ordinances

6. In this case, there are two applications by the Plaintiff. The first is an application for maintenance under the DFMO. The second is an application under the IPFDO to vary the order that may be made under the DFMO. This approach was adopted in accordance with the judgment of Patrick Chan J. (as he then was) in Kung Lok Ping v. Ngai Fook Sang and Ngai Fook Ying, Deborah (HCMP No.158/1995) where the Plaintiff made an application under the DFMO, but before the hearing, the DFMO was repealed by the IPFDO. The learned Judge analysed the differences between the two Ordinances which include, among other things, that under the DFMO, the aim is to ensure the widow can have a reasonable living while under the IPFDO, the aim is to ensure the widow can have a reasonable share in the estate. The analysis of the differences and the approach adopted by the learned Judge are not challenged by the parties in this case, although Mr Lam, Counsel for the Defendant, reserves his view on the correctness of the approach. I will respectfully adopt the same approach in this application as well.

Date of valuation

7. Under s.4 of the DFMO, the Court is to order payment out of the net estate of the deceased. The issue is on which day the net estate should be valued. Mr Ismail, Counsel for the Plaintiff, submits that the valuation must be done at the time of the deceased's death on 25th January 1993. Accordingly, any increase or decrease in the value of the estate assets after that day must be excluded. His arguments are based on

(i) definition of 'net estate' in s.2(2) of DFMO and in particular the words "payable out of his estate on his death";

(ii) the definition of 'death duties' in s.2(1);

(iii) s.8 and in particular "have effect as from the day of the deceased's death";

(iv) s.9 and in particular "deceased at the time of his death had been domiciled in the Colony".

He further submits that under the IPFDO, the net estate must also be valued at the time of the deceased's death. He referred to the definition of 'net estate' in s.2(1), s.10, s.11(1), s.12(4) and s.21.

8. Mr Lam, on the other hand submits that the concern is how the Court should exercise its discretion, and that being the case, the Court must have regard to the present value of the estate. He refers to the wordings of the Ordinances and a number of authorities in support of his submission :

R. v. Shanahan [1971] 3 All ER 873;

Lusternik v. Lusternik [1972] 2 WLR 203 at 208;

Re. Borthwick [1948] 1 Ch.645 at 651;

Re. Coventry [1960] 1 Ch.461 at 465C;

White v. Barron [1980] 144 CLR 431;

Anthony Dickey's Family Provision after Death (1992) at pages 139 to 140.

9. In Kung Lok Ping, Patrick Chan J. did not adopt the value of the estate at the time of hearing for the purpose of the calculation. He, however, did not expressly decide on this issue.

My view

10. In my view, in applications under the Ordinances, it is essential to establish, as a starting point, the value of the net estate at the time of the death of the deceased. The value of the estate after death may fluctuate from time to time due to change of circumstances, for example, fluctuation in the price of shares or real estate of the deceased. Hence, it is necessary to establish a benchmark of the value of the deceased's net estate first. However, having established this benchmark, the Court must take into account the current value of the net estate in making the financial provisions. Even in the absence of authorities, this must be clear enough. For example, if a property of the deceased has been destroyed since his death, the Court must consider this and cannot possibly make financial provisions without taking this matter into account. In any event, this is clear from both Ordinances. Under s.7(1)(d) of DFMO, the Court shall have regard to any other matters or things which, in the circumstances of the case, the Court may consider relevant or material in relation to that dependant or to persons interested in the estate of the deceased or otherwise. In s.5(1)(g) of IPFDO, the Court shall have regard to 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. Section 5(7) further provides that :

"In considering the matters to which the Court is required to have regard under this section, the Court shall take into account the facts as known to the Court at the day of the hearing."

In my view, in an application under the Ordinances, the current value of the net estate may well be treated as a relevant consideration although it has to be recognised that the question ultimately depends on the circumstances of the case.

Business of Mr Fung

11. During his lifetime, Mr Fung was the sole proprietor of a firm called New Carrier Plastic Works ("New Carrier"). When the Plaintiff and her children came to Hong Kong, they assisted Mr Fung in the running of New Carrier. In the 1980s, the factory of New Carrier was moved from Hong Kong to Shenzhen. According to the Defendant, by 1987 Mr Fung had effectively retired from the business activities, since then New Carrier had been operated by Fung Wai-chuen, the Defendant's eldest son. Mr Fung also had interest in two companies, namely, New Kingly Plastic and Metal Manufactory Limited ("New Kingly") and Carley Plastic Enterprises Limited ("Carley"). New Kingly was established in 1982. According to the Defendant, it remained a dormant company until 1993. According to the business registration, New Carrier carried on business as a branch of New Kingly on 2nd January 1993. Carley was incorporated on 31st October 1991, it was founded by Mr Fung and Ho Hsiung Hsu ("Mr Hsu"). The shares of Carley were held by Mr Hsu, Chen Hsiu-feng, Mr Fung, Fung Wai-kam and Fung Wai-chuen. Carley supplied material to New Carrier for manufacturing plastic Christmas trees which was its line of business.

12. New Kingly purchased the stock-in-trade and the fixed assets, including machinery of New Carrier after the death of Mr Fung. According to Fung Wai-chuen, the business of New Kingly was not profitable save that he and his family members, namely the Defendant, his brother and sister were able to draw a reasonable salary from the company to maintain their living. The business of Carley was also not profitable.

Properties of Mr Fung

1. Flats D and E, 5/F, Po On Mansion, On Shing Terrace, No.1 Tai Yue Avenue, Taikooshing, Hong Kong ("Flats D and E, Po On Mansion")

13. These are two adjoining premises and are connected by an opening in their kitchen area. Flat E is in the sole name of Mr Fung while Flat D is registered in the names of Mr Fung and the Defendant as joint tenants. The premises was occupied by Mr Fung during his lifetime together with the Defendant, the daughter, Fung Wai-kam and the younger son Fung Wai-leung. The family members continue to live in the premises. After the death of Mr Fung, Fung Wai-leung's wife came to Hong Kong from China and lives in the premises as well.

2. Factory B, 3/F and car-parking space, No.26 on G/F, Chai Wan Industrial Centre, No.20 Lee Chung Street, Hong Kong ("Factory B")

14. Factory B was formally occupied by New Carrier as its business premises. Factory B was registered in the names of the Defendant and Mr Fung as joint tenants. On 7th November 1992, Mr Fung signed a preliminary agreement to sell Factory B to Wing Hang Bank Limited. The sales price was HK$16,330,000. On 25th November 1992, the Defendant and Mr Fung entered into a formal agreement for sale and purchase of Factory B with Wing Hang Bank Limited. Under the preliminary agreement, the deposit of $1 million was paid directly to Mr Fung. A further deposit of $3,899,000 was paid. The sale was completed on 30th March 1993.

15. The deposit of $3,899,000 was utilised as follows : on 10th December 1992, $2,826,000 was paid as the balance of the purchase price of the purchase of Workshop No.1 on 1/F, Hong Kong (Chai Wan) Industrial Building, No.26 Lee Chung Street, Chai Wan, Hong Kong ("Workshop No.1"). Workshop No.1 was purchased on 12th January 1993 in the name of New Kingly. The sum of $3,970 was paid as management fee and deposit in respect of Workshop No.1. The balance of $1,069,030 was paid to Mr Fung on 14th December 1992.

3. Carpark No.29, G/F Chai Wan Industrial Centre ("Carpark No.29")

16. This was registered in the sole name of Mr Fung.

4. Carpark Nos.17 and 18, Sing King Industrial Building (Carparks No.17 and No.18")

17. These two carparks are registered in the names of Mr Fung and the Defendant as joint tenants.

Liabilities towards Wing Hang Bank Limited

18. According to the Defendant, at the time when Factory B was sold, New Carrier owed Wing Hang Bank about $40 million, Wing Hang Bank Limited granted credit facilities to New Carrier. As security for the credit, the following properties were mortgaged to the Bank : Factory B, Units D & E, Po On Mansion and Carparks No.17 and No.18.

19. Pursuant to the order of Deputy Judge Woolley (as he then was), Ernst & Young, Chartered Accountants, was appointed as the Court Expert for the purpose of evaluating the estate of Mr Fung. It prepared a valuation report of the value of the estate of Mr Fung as at the time of his death and on 31st May 1997. A Supplementary Report was prepared on 7th January 1999.

Valuation by Ernst & Young

The valuation is as follows :

LIABILITIES

The Plaintiff's valuation

20. The Plaintiff, based on the valuation of Ernst & Young, submits that adjustments should be made to the valuation both as of the date of death of Mr Fung and 12th January 1999 which was the first date of hearing of this proceeding. The Plaintiff's valuation is set out as follows :

THE PLAINTIFF'S ESTIMATE OF THE NET VALUE OF THE ESTATE

LIABILITIES

FURTHER LIABILITIES

The Defendant's further adjustments

21. The Defendant does not provide an estimate of the value of Mr Fung's estate at the time of his death. Based on Ernst & Young's valuation as of 31st May 1997, the Defendant makes adjustments to reflect the current value of the estate. The Defendant's estimates are set out as follows :

Valuation at death

Comments

22. In my view, subject to adjustments, the valuation by Ernst & Young should be used as the basis of calculating the value of the estate of Mr Fung. I shall now proceed to make adjustments and to comment on the Plaintiff's adjustment of Ernst & Young's valuation.

1. Investment in New Kingly of $700,000

23. This is the par value of the shares held by Mr Fung in New Kingly. As New Kingly was not trading at the time of the death of Mr Fung, I think it is reasonable to value the investment at the par value.

2. Investment in New Carrier

24. The Plaintiff includes in the valuation the value of New Carrier at $4,710,000. This represents the value of the net book value of the fixed assets of New Carrier in the sum of $2,800,000 and the stock-in-trade in the sum of $3,838,933.87 less liabilities of $1,930,000. In a sales agreement signed between the Defendant as the sole executrix of Mr Fung and New Kingly, it was recorded that the fixed assets of New Carrier was sold to New Kingly at $720,819 and the stock was sold at $3,838,933.87 (Exhibit 42 of Ernst & Young's Valuation Memorandum). I agree that the book value of the fixed assets and stock-in-trade should be taken into account in assessing the value of New Carrier. However, instead of identifying these two sums less the liabilities as the value of investment of Mr Fung in New Carrier, these two sums would be adjusted later on under the heading of "Net sole proprietorship liabilities".

25. The Plaintiff suggested that New Carrier was throughout operated and controlled by Mr Fung while the Defendant and her children merely acted as employees for Mr Fung. I do not accept that to be the case. The Defendant and Mr Fung Wai-chuen are the persons most familiar with the operation of New Carrier. In my view, New Carrier was a typical family business run by the family members. I accept the Defendant's case that she and her children had worked very hard in New Carrier. I accept that starting from 1987, Mr Fung had left the operation of New Carrier to his son, Mr Fung Wai-chuen. I find, however, he still maintained control of the business as one would expect of a patriarch in a Chinese family. Although the sales agreement records that the sale was on the day of the death of Mr Fung, in my view, the agreement was only written subsequently. The date was probably chosen to represent the day of sale between the parties. In my view, the book value of the fixed assets rather than its sales value should be adopted because at the time of death, the sale had not taken place yet.

3. Other assets : amount due from the Defendant

26. Mr Ismail submits that the sum of $2,826,000 should be included in the assets of Mr Fung because this sum which formed part of the deposits for the sale of Factory B was given to the Defendant. From the evidence, this sum in fact was used to acquire Workshop No.1 registered in the name of New Kingly. The purchase was made during the lifetime of Mr Fung. Since this sum came from the deposit, Mr Fung must have authorised the use of this money. Mr Fung had shares in New Kingly. The value of Workshop No.1 should be reflected in the value of the shares in New Kingly.

4. Liabilities - legal cost payable : $596,252

27. According to Ernst & Young (Section 4.5), the legal cost payable by the estate is based on the estate value of HK$33,475,200 which is the gross value of the estate estimated by Chan and used in the calculation of estate duty. However, according to the Certificate of Receipt of Estate Duty dated 11th August 1997 issued by the Inland Revenue Department, the total aggregate value of Mr Fung's estate on which estate duty was leviable is $15,044,500. The amount payable will therefore be :

1st $10,000,000	$259,500
($15,044,500 - $10,000,000) x 1%	50,445
Total	$309,945
Reimbursement of expenses	$102,000
Total	$411,945

5. Amount due to the Defendant of $5,339,000

28. Ernst & Young said this amount is due to the Defendant, being her share of the proceeds of sale of Factory B of which she and Mr Fung were the joint tenants. Under the law of survivorship, on the death of Mr Fung, his interest in Factory B should pass to the Defendant. However, for the purpose of estate duty assessment, the Defendant had treated Factory B as solely owned by Mr Fung. This apparently was a decision taken by her accountants and the solicitors. I am at a loss why Factory B was treated as solely owned by Mr Fung and included as part of his estate. Mr Lam submits that it was based on the view of the solicitors that Factory B was deemed to be the asset of Mr Fung because of the provisions relating to gifts under s.6 of the Estate Duty Ordinance. I must say that I really do not understand the argument. However, whatever the legal position may be, the Defendant had treated Factory B as belonging to Mr Fung. As such, I can only proceed on the same basis. This being the case, the estate of Mr Fung is not liable to the Defendant for the proceeds of sale or any part thereof.

6. Net sole proprietorship liabilities (i.e New Carrier)

a) Ernst & Young's valuation

29. The net sole proprietorship liabilities was $11,090,137. According to Ernst & Young's valuation, this amount is made up as follows :

Assets
Due from New Kingly	$2,631,000
Accounts receivable	$3,000
Cash on hand	$1,000
Cash in bank	$21,000
	$2,656,000
Liabilities
Trust receipts and bank loans	$3,731,000
Bank overdrafts	$10,015,000
	$13,746,000
Net deficit	($11,090,000)

b) Amount due from New Kingly

30. According to Ernst & Young, the amount due from New Kingly is in respect of the fixed assets and stock-in-trade sold to New Kingly by New Carrier on 25th January 1993, net of the New Carrier liabilities paid off by New Kingly.

Due from New Kingly
Stock-in-trade	$3,838,934
Accounts payable	($865,402)
Accrued expenses	($862,744)
Hire purchase	($200,653)
New Carrier liabilities
paid by New Kingly ($1,928,799)	$1,910,135
Fixed assets sold to New Kingly	+ $720,819
	$2,630,954 ========
(rounded up to :	$2,631,000) =========

31. Ernst & Young seeks to justify the sale figure of $720,819. However, I take a different view. The sale was not between two independent parties. While there is a difference between the book value and the sales value of the fixed assets, one must recognise that these assets have been used in the same business by the same family. Upon the death of Mr Fung, the business carried on by Fung Wai-chuen would require the same fixed assets in its production. Hence I consider the book value of the fixed assets should be used in the valuation.

c) Recalculation

32. Accordingly the net deficit should be calculated as follows :

Asset :
1) Stock-in-trade	$3,838,934
2) Fixed assets	$2,800,000
	$6,638,934
Less New Carrier liabilities already
paid by New Kingly	$1,928,799
Due from New Kingly	$4,710,135
Other Asset	$25,000
	$4,735,135
Bank Liabilities
Trust receipts & bank loans	$3,731,000
Bank overdrafts	$10,015,000
	$13,746,000
Net deficit	($9,010,865) =========

33. The liabilities after the adjustment are $12,266,858 which are made up as follows :

Original valuation of liabilities	$19,869,300
Less Amount due to Defendant	$5,339,000
Less adjustment in net deficit of New Carrier Difference of $11,090,000 and $9,010,865	$2,079,135
Less adjustment in legal costs Difference of $596,252 and $411,945	$184,307
	$12,266,858

The net value (before real estate properties)

34. The net asset of the estate (before real estate properties) is $7,414,637 (i.e. $19,681,495 less $12,266,858).

The net value (after real estate properties)

35. The sum of $4,350,000 representing real estate properties include properties registered in the sole name of Mr Fung and those of which he was a joint tenant. In my view, it is only appropriate to include those properties of which Mr Fung was the sole owner, namely, Carpark No.29 and Flat E, Po On Mansion, which were valued at $500,000 and $2,300,000 respectively. Mr Ismail, initially conceded that only these two properties should be included in the estate of Mr Fung, seeks in his closing submission to include in the estate other properties of which Mr Fung was a joint tenant. Quite apart from the fact that the case proceeds on the basis of his concession, there really is no justifiable reason to include the other properties of which Mr Fung was a joint tenant. Accordingly the net value of the estate at the time of Mr Fung's death was $10,214,637 which is made up as follows :

Net estate (before real estate properties)	$7,414,637
Carpark No.29	$500,000
Flat E	$2,300,000
	$10,214,637
	==========

Current value

36. I will now turn to the current valuation of the estate as of 12th January 1999. Again, I will base the valuation on the one made by Ernst & Young and see whether adjustments should be made.

1. Cash and bank balance

37. As of 31st May 1997, the amount of cash and bank balance was $6,588,469. As shown from the letter dated 16th December 1998 from Wing Hang Bank Limited, this amount is no longer available. Mr Ismail accepts that the figure should be nil. Although there is no evidence on this matter, it appears that the money had been used to discharge the various indebtedness of Mr Fung with the Bank.

2. Investment in unlisted companies : New Kingly

38. Ernst & Young put the value of investment in New Kingly at zero because of the loss sustained by New Kingly and that it is unlikely to generate any profit in the future. There is no contrary evidence suggesting that the loss sustained by New Kingly is false. However, it seems that Ernst & Young has ignored the fact that New Kingly is still the owner of Workshop No.1. The property was purchased on 10th December 1992 in the sum of $3,140,000. The property is charged to Wing Hang Bank Limited, although there is no evidence on the current value of this property. However, so long as this property exists, Mr Fung's shares in New Kingly should have some value. I would use the same par value of $700,000 for Mr Fung's investment in New Kingly.

3. Receivable from sale of Factory B

39. The proceeds of $11,431,000 had been utilised as follows :

(i) $1.5 million to discharge the estate duty; and

(ii) Balance of $9,931,000 was used to discharge the overdraft indebtedness of Mr Fung with Wing Hang Bank (see Appendix 4 of Valuation Memorandum).

4. Tax liabilities

40. Under the tax liabilities, the estate duty of $1,203,031 was paid, so this amount no longer forms a further liability on the estate.

5. Net sole proprietorship liabilities

41. The net sole proprietorship liability of $4,953,140 as of 31st May 1997 was calculated by Ernst & Young as follows :

Assets
Due from New Kingly	$2,631,000
Accounts receivable	$3,000
Cash on hand	$1,000
Cash in bank	$21,000
	$2,656,000
Liabilities
Trust receipts and bank loans	0
Bank overdrafts	$7,609,000
	$7,609,000
(Net deficit)	($4,953,000)

42. As of 16th December 1998, the overdraft indebtedness was further reduced to $2,470,068. But as I have said earlier the asset of New Carrier should be $4,735,135 and not $2,656,000. The difference between the asset of $4,735,135 and the current bank liability of $2,470,068 is $2,265,067. Thus New Carrier has a net asset of $2,265,067.

Real estate

43. The value of the property has changed since the last valuation : Carpark No.29 is now valued at $400,000 and Flat E, Po On Mansion is now valued at $2.9 million, making a total of $3.3 million.

Net current value

44. The net current value of the estate including real estate property is in the sum of $7,263,821.

		12/1/1999
Assets
	Cash and bank balances	0
	Investment in unlisted companies	$2,060,000
	New Kingly	$700,000
	Carley	$1,360,000
	Other assets	$50,699
	Key deposits	$320
	Jewels	$10,000
	Unpresented cashier order	0
	Amount due from Carley	$40,379
	Receivable from property sale (Factory B)	0
Net sole proprietorship asset		$2,265,067
		$4,375,766
Liabilities
	Taxes	0
	Profits tax	0
	Estate duty	0
	Legal costs payable	$411,945
		$411,945
Net Asset Before Adding Real Estate
	Properties	$3,963,821
	Properties
	i) Carpark No.29	$400,000
	ii) Flat E, 5/F, Po On Mansion	$2,900,000
		$3,300,000
Net Current Value of Estate After Adding
	Real Estate Properties	$7,263,821

Further adjustments

1. Overdraft account

45. Although both parties submit that $242,402.57 should be further deducted to take into account the increase in indebtedness of the overdraft account, the final indebtedness as of 16th December 1998 was $2,470,067.72. Thus this sum should not be further deducted.

2. Interim payment

46. Pursuant to the order of Deputy Judge Woolley, the Defendant had been paying interim payment of $6,000 per month from 1st February 1997 to 31st January 1999, making a total of $144,000, this amount should be deducted.

3. Legal costs

47. The Defendant's estimate of legal costs of both parties in these proceedings together with fees of the Court expert amounted to $3,447,100. These costs have not been taxed and may be a generous estimate. The Defendant's costs in relation to her application for probate is estimated at $454,000. The Plaintiff's estimate of the parties' costs in the probate action (she is challenging the will) is $700,000. While the legal costs of this proceeding may properly come out from the estate (the Defendant is clearly sued on behalf of the estate), I have reservation that the legal costs of the probate action should come from the estate. I am only prepared to reserve a further $500,000 for legal costs to be deducted from the estate.

The total further deduction

48. The total further deduction is, applying rounded figures, $4,044,000 ($3,400,000 + $144,000 + $500,000).

Net value

49. As such the net value of Mr Fung's estate is $3,219,821 ($7,263,821 less $4,044,000).

Ignoring current value?

50. Mr Ismail submits that between 1993 and 1999, the estate of the deceased had plunged from over $10 million to, according to the Defendant, a deficit. He urges me to ignore the current value of the estate. He refers to the affidavits provided by the Defendant in relation to her application for probate in which her estimate of the value of the estate ranged from $15,418,000 to $5,800,000. In her 1st affirmation filed in this proceeding, her estimate of the value of the estate was at a deficit of $5,098,000 and in her 3rd affirmation, the value was $4,091,000.

51. In relation to the current value of the estate, apart from the value of Mr Fung's shares in the two companies, I do not think the Plaintiff can really raise any justifiable challenge to the decrease in the value of the estate. As shown in Ernst & Young's Valuation Memorandum, even after the application of part of the proceeds of sale to reduce the overdraft, the overdraft at 31st May 1997 remained at $7,609,104 due to the withdrawals of unpresented cheques and interests. Cash and bank balances had also to be utilised to repay the various loans. It is true that the Defendant had never given an explanation as to the different values that she had attributed to the estate, however, in this regard, she relied on the expertise of her accountants and lawyers. As to the Plaintiff's complaint that while New Carrier was previously trading at a profit, New Kingly and Carley are now trading at a loss, the only thing I can say is that circumstances change and even according to Ernst & Young, there is no evidence of leakage of funds from these two companies.

Reasons for not providing for the Plaintiff

52. According to the Defendant, in 1987, Mr Fung told her that as his business was built up with the support of the Defendant and her children, he intended leaving the whole of his estate to the Defendant. Mr Fung also told her that the Plaintiff could be looked after by her children. As he had fully supported the Plaintiff's children to study abroad and as they had already completed their high education, her children should, according to Chinese tradition and virtue, look after their mother, the Plaintiff. The Defendant and Mr Fung then attended the solicitors' office for the execution of the will.

53. What Mr Fung said was, of course, hearsay in nature, but the Defendant was not cross-examined on this point. In my view, it is not necessary to speculate on this. I think Mr Fung was probably guilt-ridden of leaving his other family behind in Shanghai. Throughout the years, he sent them gifts and money. This continued even after the will was made. Had Mr Fung remained alive, I have no doubt that he would continue to provide for the living expenses of the Plaintiff and he might even purchase a flat for the Plaintiff to live in. However, in considering the provisions to be made for the Plaintiff, I must take into account the fact that Mr Fung had indeed provided for the education of three of his children with the Plaintiff to study in England. He must have incurred some substantial amounts of money in this regard.

54. Mr Lam submits that I should consider the Defendant's children, on the other hand, had to work in Mr Fung's business without the benefit of education. Mr Ismail submits that this is an irrelevant consideration. In my view, the matter is not as irrelevant as it may appear. The fact is that the Defendant's children did not have the opportunity of studying because they had to help Mr Fung's business. While they received salaries, these were not commensurate with the efforts they put into the business.

55. Mr Ismail submits that in his letters to the Plaintiff, Mr Fung complained about not getting assistance from others, in particular, Mr Fung Wai-chuen. This shows that the one in charge of the business was Mr Fung himself. I do not agree with this view. Mr Fung was writing to his other family with the Plaintiff. It is only natural that he would not say too much about the help he received from the Defendant and her family. What the Defendant acquired by way of joint properties with Mr Fung is reflected to a certain extent in the overseas education of the Plaintiff's children provided by Mr Fung. Furthermore, although the Defendant is now the owner of two properties by reason of survivorship, these properties are mortgaged to the Bank.

The Plaintiff's position

56. The Plaintiff has moved to Canada with her daughter in 1992. She lives together with her daughter and relies on her for support. The maintenance she seeks is Canadian $3,602 per month which is made up as follows :

	CAD
Proposed Rental for a Senior Citizen's Apartment - One bedroom unit	$631.00
Utilities	$40.00
Insurance	$191.00
Groceries	$250.00
Clothing	$100.00
Transportation	$200.00
Health expenses (not covered under Government programs, include dental care and medicine)	$300.00
Entertainment	$100.00
Personal Care	$50.00
Household	$40.00
Telephone	$80.00
Miscellaneous	$180.00
Nursing services (3 hrs. Daily at $16/hr)	$1,440.00
	$3,602.00 =======

57. The Plaintiff said that she would like to live in her own place and hire someone to look after her. Although no explanation was given as to the Senior Citizen's Apartment referred to in her answer, this may well be in the form of an old people's home.

58. Mr Ismail submits that the provisions under DFMO should be CAD$4,000 per month until the death of the Plaintiff or re-marriage. The variation under IPFDO should be firstly CAD$4,000 per month and secondly HK$4,211,489 which is one-third of the net estate of the deceased which, according to Mr Ismail's calculation, is $12,634,461.

The Order

59. The Plaintiff is now an elderly person. She was born in 1921 and is now 78 years of age. She had lived in China throughout her adult life and for the past 10 years or so she has been living with her daughter either in England or in Canada. In these circumstances, it is totally unrealistic at this stage of her life for her to live on her own.

1. Under DFMO

60. Doing the best I can and bearing in mind that there is no indication that the Plaintiff has to move to the Senior Citizen's Apartment immediately, I would order that under DFMO a monthly payment of HK$6,000 is to be paid to the Plaintiff with effect from 1st February 1999 until her death or re-marriage.

2. Under IPFDO

61. I will vary the above order by ordering that a lump sum of HK$1.2 million is to be paid to the Plaintiff. This is about one-third of the current net estate. The effect of the Order is that the Defendant will only be required to pay the periodic payment of $6,000 from 1st February 1999 to date.

Consequential Order

62. In Jennery v. Jennery and Another [1967] 1 Ch.280, it was held by the English Court of Appeal that :

"... that an order made under the Inheritance (Family Provision) Act, 1938, was not an order for payment of money, but merely established the rights of the claimant, who was then put in the position of any legatee, with the same rights to start an administration action to force the administrators to act; and that, therefore, the proper course for the widow was to commence proceedings for administration of the estate."

63. Whatever the position may be in England, under s.4 of the IPFDO, the court is given wide power in relation to financial provision, including the power to transfer or settle properties (s.4(1)(c) and (d)). Under s.4(4), it is further provided that "an order under this section may contain such consequential and supplemental provisions as the court thinks necessary or expedient for the purpose of giving effect to the order or for the purpose of securing that the order operates fairly as between one beneficiary of the estate of the deceased and another ...".

64. Carpark No.29 is free from mortgage. Flat E, Po On Mansion is now valued at $2.9 million. The overdraft indebtedness to the bank by the estate is $2.4 million. I will order Carpark No.29 to be sold at not less than $400,000 and Flat E, Po On Mansion to be sold at not less than $2.9 million to satisfy part of the lump sum award. To ensure this matter is fully dealt with, such as the time of the sale, I would, in default of agreement, give liberty to the parties to restore the matter before me.

Costs

65. The Plaintiff is to have the costs nisi of this proceeding, her own costs is to be taxed in accordance with Legal Aid Regulations.

Comment

66. It is my wish that the two families should make peace and treat this proceeding as the last litigation between them. Apart from further reducing the value of the estate, I can see no legitimate reason for having a contested probate action. In view of the order I have made, I would strongly urge the parties to reach an overall settlement so that probate can be obtained as soon as possible and the two properties I have mentioned can be sold as early as possible to discharge the estate's liability towards the Plaintiff.