WMF v. TY aks TLY, the executrix to the estate of the Deceased

FCMP 24/2023

[2025] HKFC 77

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NO. 24 OF 2023

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JUDGMENT
(Financial Provision for Family and Dependants)

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Introduction

1.  This was the trial of the Applicant’s claim as the widow of the Deceased for financial provision from the Deceased’s estate under the Inheritance (Provision for Family and Dependents)  Ordinance, Cap. 481 (“the Ordinance”)[1].

2.  The Respondent is the sole executrix of the Deceased’s estate.

Background

3.  The Deceased was born in Mainland China in October 1938.  He had 2 marriages in his lifetime.  Within his first marriage, there was a daughter born in 1963 (“1^st Child”)  who was at the age of 61 at the time of this trial.  The Deceased divorced with his first wife and came to Hong Kong in 1964.

4.  The Deceased later developed a relation with one Madam Wong who gave birth to 2 children, namely the Respondent in 1970 (“Elder daughter”)  and a younger child in 1976 (“Younger daughter”).  At the time of this trial, both the Elder and Younger daughters are working.  They are respectively at the age of 54 and 48.

5.  The Applicant was born in Mainland China in 1943.  She came to Hong Kong in 1977 and had her first marriage where she gave birth to a daughter (“Madam N”)  who was at the age of 60 at the time of this trial.  Madam N is a citizen of the United States and was residing there.

6.  There was no dispute that the Applicant is also a citizen of the United States.  From time to time during the marriage with the Deceased, the Applicant had travelled to visit Madam N in the United States though she claimed to have no intention to relocate there.

7.  In November 1988, a wedding banquet was held between the Deceased and the Applicant without formal registration of their marital relationship.  Since then, the Applicant started to live with the Deceased, the Elder and Younger daughters.  The Applicant was a housewife.

8.  In September 1990, the Applicant and the Deceased registered their marriage in Hong King.

9.  In October 2021, the Deceased passed away due to pneumonia.  He died testate having made a Will in Chinese in January 2019 (“the Will”)  with the assistance of lawyers[2].

10.  In July 2023, Probate was granted to the Respondent[3].

Estate of the Deceased

11.  As per the Form E filed by the Respondent on behalf of the Estate[4] and the Schedule of Assets and Liabilities, the net value of the Estate are as follows :-

Area	Description	Amount
Hong Kong	Bank Accounts	HK$1,782,750[5] and US$505,903[6] (or HK$3,946,047)
	Sub-total :	= HK$ 5,728,797
Mainland China (PRC)	PRC property and a car park	RMB520,000[7] (or HK$572,000)
	CCB Account	RMB30,207[8] (or HK$33,227)
	Bank of Communication	RMB5,362[9] (or HK$5,889)
	Sub-total :	= HK$ 611,116
	Total	HK$6,339,913

12.  Besides, there was a private limited company by the name “UT” Holdings Limited of which the Deceased held 3,333 shares with unknown value. The other shareholders of the “UT” Holdings Limited are the Applicant and the Younger daughter.  It was undisputed that the company had no active business activities operation for over 10 years and had no assets, no financial statement was produced in these proceedings.   

13.  It was the Respondent’s case that after she obtained the grant of Probate, she had paid administrative fees to ascertain values of the PRC Property and the latest amount of the estate was as follows :-

Estate money received from Standard Chartered Bank	HK$ 5,761,673
Estate money received from Bank of China	HK$ 10,429
	HK$ 5,772,102
Less:
Legal costs and disbursements relating to the grant of Probate, miscellaneous costs for ascertaining the PRC property, bank charges to ascertain PRC bank accounts, legal costs and disbursements	HK$ 266,750
Add:
A sum of HK$5 million was put in fixed deposit for earning interest from 21/9/2023 to 22/4/2024	HK$ 125,612
Total :	HK$ 5,630,964[10]

Beneficiaries under the Will and their respective shares of the Estate

14.  Apart from the Applicant spouse who was at the age of 80, the Deceased was survived by the following issues at the time of his death in 2021 :-

-  The 1^st Child aged 61;

-  The Respondent (Elder daughter)  aged 54;

-  The Younger daughter aged 48

15.  In respect of the PRC property and a car park, it was devised, given and bequeathed as follows :-

-  The Applicant  - 40%

-  The Respondent   - 20%

-  The 1^st Child - 20%

-  The Younger daughter   - 20%

(As per Clause 2 of the Will)

16.  In respect of all interests in the CCB Account to be devised, given and bequeathed as follows :-

-  The Applicant   - 40%

-  The Respondent  - 20%

-  The Younger daughter   - 20%

-  The 1^st Child - 20%

(As per Clause 3 of the Will)

17.  In respect of all interests in the Bank of Communication Account, the Respondent was to hold the same as a Trustee and to set up a fund to pay all funeral expenses.  The remaining part of the fund to be invested at the sole discretion of the Respondent in her capacity as the trustee.  The profits arising therefrom are to be devised, given and bequeathed as follows :-

-  The Respondent   - 50%

-  The Younger daughter  - 25%

-  The 1^st Child - 25%

(As per Clause 4 of the Will)

18.  The residuary estates are to be divided by the Respondent, the Younger child and the 1^st Child in equal shares.

(As per Clause 5 of the Will).

19.  Hence, the Applicant’s share of the Deceased’s estate under the Will was around HK$242,091 (that is HK$228,800 + HK$13,291)  breakdown as follows :-

(a)  40% of the PRC property and carpark – HK$572,000 x 40% = HK$228,800; and

40% of all interests in CCB Account – HK$33,227 x 40% = HK$13,290.8.

The Applicant’s case

20.  The Applicant was running a “needs” case in the way and in context akin to a “notional divorce” scenario.

21.  The Applicant first filed her Form E on 16 August 2023[11] setting out her then monthly expenses.  In her 3^rd Affirmation dated 2 April 2024[12], she came up with her monthly expenses at the time at HK$23,980 which she anticipated would increase to HK$50,670 a month[13]. The breakdown of which are as follows :-

Items	Current Expenses	Anticipated Expenses
Rent	HK$ 6,600	HK$ 19,000
Utilities (electricity, gas, rates, telephone & water	HK$ 760	HK$ 1,300
Domestic helper	HK$ 0	HK$ 4,870
Medical/dental	HK$ 4,500	HK$ 4,500
Household expenses	HK$ 1,000	HK$ 2,000
Transport	HK$ 4,000	HK$ 4,000
Food	HK$ 2,000	HK$11,000
Meals out of home	HK$ 5,000	HK$ 4,000
Personal Emergency Link Service	HK$ 120	HK$ 0

  Total:  HK$23,980  HK$50,670

Applicant’s expenses proposed and agreed by the Respondent

22.  At trial, the Applicant revised the amount of monthly expenses in terms of her financial needs of which the Respondent made her proposals in response as per the following table, signed by the parties and submitted under Part B of Exhibit “A”.

23.  Besides, parties’ positions on calculation, interim payments and types of orders to be granted are also contained under Parts C, D and E of Exhibit “A” respectively.

“B. Financial Needs of the Applicant

Items	Applicant’s revised claim (HKD)	Respondent’s case (HKD)
1. Rent	19,000	10,000
2. Utilities (electricity, gas, rates, telephone & water)	1,300	700
3. Domestic helper	4,870	4,870
4. Medical/ dental	4,500	(not medical/ dental) 1,000
5. Household expenses	2,000	1,000
6. Transport	4,000	1,000
7. Food	6,000	4,000
8. Meals out of home	2,000	700
Sub-total:	43,670	23,270
9. For hiring a domestic helper (one-off): a. Domestic helper application fee b. Visa application fee c. Insurance d. Reimbursement/ misc. costs	17,800 3,100 5,972 3,000	Disagreed
Sub-total:	29,872	23,270 (should be 0)
Total of the Claim:	43,670 x 12 x 13.08 = 6,854,443.2 Plus one-off expense: 29,872	Wrong approach

C. Life expectancy of the Applicant

Applicant’s case	Respondent’s case
13.08 years	Subject to the approach to be adopted by the Court

D. Agreed Advanced payments made to the Applicant as of 5 June 2024

Applicant	Respondent
HK$685,000 + ongoing at $25,000 per month until final determination of the case	HK$685,000 + ongoing $25,000 until final determination of the case

E. Type of Order

Applicant	Respondent
Lump sum	Transfer of property order + lump sum

24.  By way of background, the Applicant said in 1993 the Deceased purchased a residential property under the Home Ownership Scheme (“HOS”)  at Fullview Garden, Chai Wan, at the price around HK$610,000.  Initially it was intended to be registered under the joint names of the Deceased and herself.  However, given that the Deceased at that time had to travel frequently between Mainland China and Hong Kong, it would be more convenient for the Applicant to be the sole legal owner. Hence, the Applicant became the sole owner.

25.  After the purchase, the entire family, that is, the Deceased, the Applicant and the 2 daughters, moved to live in the HOS flat for about 6 years until it was sold in 1999.  According to the Applicant, the Respondent has always been a capable woman with strong determination.  The reason for selling the HOS flat was due to the Respondent’s persistent and forceful efforts on the Deceased to sell the HOS flat.  At the time, the Respondent came up with the idea that both the Deceased and the Applicant to live with her under her care and arrangement.

26.  In order to keep the family together and to avoid any argument, the Applicant reluctantly sold the HOS flat in 1999 at the price of HK$1,600,000.  After deducing the land premium, outstanding mortgage, all costs and expenses related to the sale, the net proceeds was around HK$80,000 to HK$100,000 which the Deceased allowed the Applicant to take the entire sum.  Ever since the sale of the HOS flat in 1999, for the following 17 years, the family moved around different rented properties as their accommodation and it was the Respondent who arranged and paid for all the rental.

27.  In 2013, the Deceased started to pay the costs of accommodation.  At first, they rented a property in Hoi To Court, Causeway Bay which was about 900 square feet in terms of size.   Later, they rented Kwong Chiu Terrace in North Point which was the last home that the Applicant resided.  Shortly after the death of the Deceased, the Applicant was told by the Respondent that she would not renew the tenancy.  With no other option, the Applicant left Kwong Chiu Terrace which she described in her evidence as being “kicked out” by the Respondent.  Given her old age and lack of income, she sought assistance from her sis-in-law who helped her financially and rented the property at Wing Hing Street.  According to the Applicant, this was all done in a haste and that she even had not viewed the Wing Hing Street property before it was rented.

28.  With respect to her case of dependency, the Applicant said the Deceased had been paying her and the family expenses by himself.  The Deceased paid the rent, the domestic helper, food, utilities and other household expenses, including the costs of keeping his own car.  In addition, the Deceased would give her a monthly sum of HK$10,000 as her pocket money.   In Lunar New Year, the Deceased would further give her HK$30,000 to HK$50,000.  Before the Covid-19 pandemic, the Deceased would travel on at least 2 short trips in a year with her and also travelled with her to Canada, United States and Europe for long trips.  The Applicant described that it was a very comfortable lifestyle.

29.  To support her needs of accommodation in these proceedings, the Applicant produced 2 comparable listings in the same area as Kwong Chiu Terrace where she last resided prior to her being “kicked out”.  One of which was Full Wealth Garden of 451 square feet (net)  in terms of size at HK$17,500 rental per month[14].  The other one was Fortress Metro Town of 410 square feet (net)  in terms of size at HK$19,000 rental per month[15].

30.  The Applicant gave evidence that the Wing Hing Street property was in a terrible condition.   There were no security guards.  The whole building was so old that it was in the condition of awaiting redevelopment.

31.  With respect to her case on the need to hire a domestic helper, the Applicant gave evidence that she had replaced both of her knees and after that she now suffered less pain.  However, she was suffering from serious eczema to both of her hands which had caused pain to her even when performing simple tasks.  Thus, the Applicant asked for medical expenses and also the need to hire a domestic helper.  Apart from such need at her advanced age at present, this was actually her standard of living which she enjoyed during the marriage. 

32.  For hiring a domestic helper, the Applicant also claimed a one-off expenses of HK$38,372 to cover related expenses for the hiring such as agency fees, visa fees, airfare and insurance[16], let alone the minimum wage of HK$4,870 a month. 

33.  With a domestic helper on board, the monthly food and utilities expenses would also be considerably higher.  This followed by the need to rent a 2-bedroom property to cater for the helper.  Accordingly, a higher costs on rental was inevitable.

The Respondent’s case

34.  Emphasis was placed by the Respondent on the Applicant’s needs so alleged and claimed are not necessarily required; or even if so required, the amount of which was exaggerated.  Further, there was no sufficient evidence to support the amount claimed.

35.  The Applicant’s citizenship with the United States was also a factor to be noted as there would not be any accommodation costs in Hong Kong as and when the Applicant relocate to the United States, which she could do so anytime if she so wishes.  Being a citizen of the United States, the Applicant in principle would be entitled to benefits including medical benefits there.  More importantly, according to the Respondent, there was also the common understanding that the Applicant would reside in the United States with Madam N after the Deceased passed away.

36.  In 1990, the Deceased’s retail business in home appliances collapsed.  This was soon after the Deceased registered his marriage with the Applicant.  The Deceased then decided to sell the property in Mei Foo Sun Chuen where they were living at the time.  The family then rented a place at Belvedere Garden to live in[17].

37.  The Deceased later started a business which was described as “New Venture” which involved land development projects in the Mainland China, requiring the Deceased to spend around 20 days a month in the Mainland China. The Deceased only spent a few days with the Applicant in Hong Kong.  From the Respondent’s observation, during the time when the Deceased stayed in Hong Kong, they always quarrelled with each over money.  The Applicant always wanted the Deceased to give her more money[18].

38.  In 1990, the Respondent carried on the business of investing in different financial investments, publication and retail business in books with bookstores, and investing in various projects in the Mainland China such as coal mining, rice milling etc and she managed to make a fortune out of it.  Given the success of her business venture, the Respondent said she was able to and did provide maintenance to the Deceased around HK$20,000 to HK$30,000 a month in cash since 1994[19].  In her oral evidence at trial, the Respondent said she started to pay maintenance to the Deceased as early as 1989 since she started to work.

39.  As a result of the success of the “New Venture” and with her maintenance, the Respondent said the Deceased became financially healthy around 1993.  The Deceased then decided to buy the HOS flat which the Applicant referred to in her evidence.

40.  In 1996, the Respondent suggested to the Deceased and the Applicant to move to one of her flats in Ying Piu Mansion for a better living environment.  Her suggestion was accepted.  The Deceased and the Applicant then moved to Ying Piu Mansion and the HOS flat, given that it could not be rented, was then used as a warehouse.

41.  In 1997, the Respondent suffered a financial downturn.  She then suggested that the Deceased and the Applicant to move out the Ying Piu Mansion and live with her so that she could rent out the Ying Piu Mansion to relieve her financial stress.  The Respondent denied that she urged the Applicant to sell the HOS flat now alleged by the Applicant.  The sale of the HOS flat was entirely the Applicant’s own decision[20].

42.  The Respondent denied the Deceased had provided accommodation since 2013 as the Applicant so alleged.  Throughout the years, she used her corporate vehicle (which she used for her own business/investment) to arrange for renting, and also payment, of accommodation for the Deceased and the Applicant.

43.  However, the Respondent was only able to produce the last tenancy agreement of the Kwong Chiu Terrace[21] where her corporate vehicle signed as the tenant could be seen.  The Respondent also produced some bank statements of her personal accounts[22] and the corporate vehicle bank accounts[23] in an attempt to prove that it was her who paid the costs of accommodation and not the Deceased.

44.  The Respondent further explained that from time to time she would transfer sums of money from her personal bank account to her corporate vehicle bank accounts for debiting the monthly rental but she was unable to trace back every single dollar and cents of such payment.

45.  At paragraphs 21 to 23 of her Affirmation[24], the Respondent said she and the Younger daughter had paid maintenance to the Deceased and also the costs of travelling overseas.

46.  At paragraphs 24 to 27 of her Affirmation[25], the Respondent sets out the financial needs of the 1^st Child and the Younger daughter, both of them are beneficiaries under the Will. 

47.  At paragraph 34 of her Affirmation[26], the Respondent considered the caretaking of the Applicant should vest in the Applicant’s biological daughter in the United States.   Further, the Respondent knew the Applicant had earned as much as HK$1 million from the stock market few years ago when she followed the investment advice of the Deceased.  Such earning had never been disclosed by the Applicant.  It was thus believed that the Applicant had sufficient financial resources in the foreseeable future.

Any Third party beneficiary?

48.  On 29 May 2024 (that is, 7 days before the trial commenced on 6 June 2024), there was a Notification issued by the Legal Aid Department that the Younger daughter had applied for legal aid wished to be joined as a party to these proceedings. Nonetheless, the trial proceeded as scheduled and such application by the Younger daughter  was later refused by the Legal Aid Department on 8 August 2024.

49.  There was no third party beneficiary in these proceedings nor was there any such application by the 1^st Child, the Respondent (as the Elder daughter in her personal capacity)  or the Younger daughter. 

Witnesses’ credentials

50.  The only factual witnesses are the Applicant and the Respondent.  Neither the 1^st Child nor the Younger daughter participated in the trial as witnesses or any of them had filed any witness statement, Form E or affirmation.

51.  The Applicant gave solid evidence on her items of claims and was able to answer questions in a clear and non-evasive manner.  Although there are momentary pause and hesitation when she appeared puzzled in the witness box, I believe those are mere hiccups which came about given her advanced age of 80 and having to give live evidence in a court of law.  I do not see how this would affect her credentials and truthfulness of the evidence that she provided.

52.  The Respondent also gave evidence in an orderly and profuse manner.  From my observation, there are occasions when the Respondent tempted to bring matters to the court’s attention whenever there are no or insufficient documentary evidence to support those matters.  To a certain extent, this had resulted in her testimonies somehow less than forthcoming.

53.  Overall speaking, however, I find the Respondent’s evidence reliable though may not entirely be the truth bearing in mind that some of the episodes that had happened between the Deceased and the Applicant took place many years ago (when the Respondent was in her early or mid-twenties, say for instance, the Deceased’s “New Venture” business around 1993)  and further that she might not know the full background leading to those episodes.

Interim Payments made to the Applicant

54.  Around 1 November 2021, the Respondent had paid to the Applicant a sum of HK$10,000 on behalf of the Deceased’s estate.

55.  Since 15 July 2023, the Respondent had been making interim payment of HK$25,000 a month on behalf of the Deceased’s estate to the Respondent which, counting up to the month of May 2024 before the trial commenced on 6 June 2024, was 11 months in the total sum of HK$275,000 (that is HK$25,000 x 11 months).

56.  On 22 September 2023, the Respondent further, on behalf of the Deceased’s estate, paid to the Applicant a sum of HK$400,000 for her to satisfy the immigration department requirements on financially capability to hire a domestic helper. 

57.  Thus, the total sum advanced by the Respondent to the Applicant added up to HK$685,000 which was undisputed.  

Parties’ Open Proposals

58.  Applicant’s latest revised open proposals as at 6 June 2024 are :-

“A lump sum settlement of HK$4,200,000 (inclusive of the HK$400,000 advance payment and inclusive of costs)  in  full and final settlement of these proceedings”

59.  At paragraph 26 of the Respondent’s Closing Submissions, reference was made to Section C3 of her Opening Submissions in terms of the Hong Kong courts approach in assessing the Applicant’s claims. 

60.  At paragraph 38 of the Respondent’s Opening Submissions, the open proposals are :-

“38.1 In respect of the Hong Kong assets :-

Description	Amount (HK$)
50% of the current value of the Hong Kong assets in §15 above	2,815,482.20 (being 50% x $5,630,964.41)
Less :
Amount received by the Deceased (sic)	(685,000)
Total :	2,130,482.20

38.2 In respect of the PRC assets :-

(a)  50% of the proceeds of sale of the PRC Property and CPS;

(b)   The amounts in the CCB Account and the BoComm Account can be used to pay off the administrative fees, legal costs or tax for the sale of the PRC Property and CPS.  If there is any surplus in either or both bank accounts, the Applicant will be entitled to 50% of the remaining sum.”

The Law

(a)  statutory provisions

61.  There is not much dispute between the parties as to the law.

62.  For the sake of completeness, I now set out the relevant provisions in the Ordinance which are, namely, sections 3, 4, and 5 as follows :-

“3. Application for financial provision from deceased’s estate

(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—

(i)  the wife or husband of the deceased;

(ii)   a former wife or former husband of the deceased who has not remarried and was being maintained, either wholly or substantially, by the deceased immediately before his death;

(iii)a tsip or male partner of the deceased by a union of concubinage;

(iv)  a parent of the deceased who immediately before the death of the deceased was being maintained, either wholly or substantially, by the deceased;

(v)  an infant child of the deceased, or a child of the deceased who is, by reason of some mental or physical disability, incapable of maintaining himself;

(vi)  an adult child of the deceased who immediately before the death of the deceased was being maintained, either wholly or substantially, by the deceased;

(vii)  any person (not being a child of the deceased)  who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage and was being maintained, either wholly or substantially, by the deceased immediately before his death;

(viii)  a brother or sister of the half blood or the whole blood of the deceased who immediately before the death of the deceased was being maintained, either wholly or substantially, by the deceased;

(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 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.

(2)  In this Ordinance, reasonable financial provision (合理經濟給養)—

(a)  in the case of any application made—

(i)  by virtue of subsection (1)(i)  by the husband or wife of the deceased (except where the marriage with the deceased was the subject of a decree of judicial separation and at the date of death the decree was in force and the separation was continuing); or

(ii)  by virtue of subsection (1)(iii)  by a tsip or male partner of the deceased by a union of concubinage, means such financial provision as it would be reasonable in all the circumstances of the case for such a person to receive, whether or not that provision is required for his or her maintenance;

(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.

(3)   For the purposes of subsection (1)(ii), (iv), (v), (vi), (vii), (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.

4.  Powers of court to make orders

(1)  Where an application is made for an order under this section, the court

may, if it is 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 any one or more of the following orders—

(a)  an order for the making to the applicant out of the net estate of the deceased of such periodical payments and for such term as may be specified in the order;

(b)  an order for the payment to the applicant out of that estate of a lump sum of such amount as may be so specified;

(c)  an order for the transfer to the applicant of such property comprised in that estate as may be so specified;

(d)  an order for the settlement for the benefit of the applicant of such property comprised in that estate as may be so specified;

(e)  an order for the acquisition out of the property comprised in that estate of such property as may be so specified and for the transfer of the property so acquired to the applicant or for the settlement thereof for his benefit.

(2)  An order under subsection (1)(a)  providing for the making out of the net estate of the deceased of periodical payments may provide for—

(a)  payments of such amount as may be specified in the order;

(b)  payments equal to the whole of the income of the net estate or of such portion thereof as may be so specified;

(c)  payments equal to the whole of the income of such part of the net estate as the court may direct to be set aside or appropriated for the making out of the income thereof of payments under this section, or may provide for the amount of the payments or any of them to be determined in any other way the court thinks fit.

(3)  Where an order under subsection (1)(a)  provides for the making of payments of any amount specified in the order, the order may direct that such part of the net estate as may be so specified shall be set aside or appropriated for the making out of the income thereof of those payments; but no larger part of the net estate shall be so set aside or appropriated than is sufficient, at the date of the order, to produce by the income thereof the amount required for the making of those payments.

(4)  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 and may, in particular, but without prejudice to the generality of this subsection—

(a)  order any person who holds any property which forms part of the net estate of the deceased to make such payment or transfer such property as may be specified in the order;

(b)  vary the disposition of the deceased’s estate effected by the will or the law relating to intestacy, or by both the will and the law relating to intestacy, in such manner as the court thinks fair and reasonable having regard to the provisions of the order and all the circumstances of the case;

(c)  confer on the trustees of any property which is the subject of an order under this section such powers as appear to the court to be necessary or expedient.

5.  Matters to which court is to have regard in exercising powers under  section 4

(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.

(2)  Without prejudice to the generality of paragraph (g)  of subsection (1), where an application for an order under section 4 is made by virtue of section 3(1)(i), (ii)  or (iii), the court shall, in addition to the matters specifically mentioned in paragraphs (a)  to (f)  of that subsection, have regard to—

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

(b)  the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family, and, in the case of an application by the wife or husband of the deceased, the court shall also, unless at the date of death a decree of judicial separation was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a decree of divorce.

(3)  Without prejudice to the generality of paragraph (g)  of subsection (1), where an application for an order under section 4 is made by virtue of section 3(1)(iv), the court shall, in addition to the matters specifically mentioned in paragraphs (a)  to (f)  of that subsection, have regard to the age of the applicant and the contribution (if any)  in money or money’s worth made by the deceased towards the needs of the applicant immediately before the death of the deceased.

(4)  Without prejudice to the generality of paragraph (g)  of subsection (1), where an application for an order under section 4 is made by virtue of section 3(1)(v), (vi)  or (vii), the court shall, in addition to the matters specifically mentioned in paragraphs (a)  to (f)  of that subsection, have regard to the manner in which the applicant was being or in which he might expect to be educated or trained, and where the application is made by virtue of section 3(1)(vii)  the court shall also have regard—

(a)  to whether the deceased had assumed any responsibility for the applicant’s maintenance and, if so, to the extent to which and the basis upon which the deceased assumed that responsibility and to the length of time for which the deceased discharged that responsibility;

(b)  to whether in assuming and discharging that responsibility the deceased did so knowing that the applicant was not his own child;

(c)  to the liability of any other person to maintain the applicant.

(5)  Without prejudice to the generality of paragraph (g)  of subsection (1), where an application for an order under section 4 is made by virtue of section 3(1)(viii)  or (ix), the court shall, in addition to the matters specifically mentioned in paragraphs (a)  to (f)  of that subsection, have regard 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.

(6)  Without prejudice to the generality of paragraph (g)  of subsection (1), where an application for an order under section 4 is made by virtue of section 3(1)(ix), the court shall, in addition to the matters specifically mentioned in paragraphs (a)  to (f)  of that subsection and subsection (5), have regard to the closeness of the relationship between the applicant and the deceased immediately before the death of the deceased.

(7)  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 date of the hearing.

(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.”

63.  From reading the above statutory provisions, it is abundantly clear that the standard of “reasonable financial provision” varies between an applicant who is the surviving spouse of the deceased from other categories of applicants.

64.  For surviving spousal applicant, the standard was “such financial provision as it would be reasonable in all the circumstances of the case for such a person to receive, whether or not the provision is required for his or her maintenance.” (Section 3(2)(a)  supra)    

65.  For applicants other than the surviving spouse, the standard was less generous (my emphasis) to mean “such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.” (Section 3(2)(b)  supra)

66.  Further, for applicants other than the surviving spouse, he or she would have to satisfy the court that the deceased, otherwise than for full valuable consideration, was making a substantial contribution in money or money’s worth towards the reasonable needs of that applicant. (Section 3(3)  supra)

67.  In the present case, given that the Applicant was the surviving spouse of the Deceased, a more liberal and generous approach would be applied when considering her “reasonable financial provision” under the Ordinance.  That said, I am minded to say the different standard for surviving spousal applicant entitles the Applicant to receive more than what was required for her maintenance; that is to say, the provisions could be above and beyond her needs.

(b)   case law

68.  In the case of Re Coventry [1980] 1 Ch 461 at 469G, Oliver J sets out a two-stage test in considering an application for “reasonable financial provision” under the Ordinance as follows :-

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

69.  In the later case of Ilott v Mitson (No 2)  [2018] AC 545 at [23], Lord Hughes JSC said the two-stage test set out in Re Coventry,the first one is of value judgment and the second one is of discretion and in most cases a very large degree of overlap between the two stages.

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

The “Notional Divorce” enquiry

71.  When an application was made by a surviving spouse, there are additional matters set out in Section 5(2)  of the Ordinance that the court should have regard to.  This is the so-called “notional divorce” enquiry, an approach not commonly accepted in our jurisprudence and, had been considered by our Court of Appeal in the case of Tam Mei Kam v HSBC International Trustee Ltd and Others (CACV No.181/2016) as a mere “cross-check” to ensure that on death, the surviving spouse would be in no worse position than would have been the case if the spouse had been divorced.

72.  Pausing here, I have in mind the case of Re Besterman [1984] Ch 458 on the correct approach of “notional divorce”.  In Re Besterman, Oliver LJ held that the consideration of the equivalent of our section 7 of the Matrimonial Proceedings and Property Ordinance, Cap. 192, is merely one of the factors to which the court is to have regard and the overriding consideration is what is reasonable in all the circumstances.

73.  In divorce cases, there are two spouses who need provision, whereas in cases under the Ordinance there is only one. (see Williams, Mortimer and Sunnucks on Executors, Administrators and Probate(Sweet & Maxwell, 21^st Edn)  at [54-10]).  Moreover, the needs of any other beneficiaries should also be taken into account in an application under the Ordinance.

74.  In the case of P v G (Family Provision: Relevance of Divorce Provision)  [2006] 1 FLR 431, Black J considered what the Ordinance contemplated to achieve and said :-

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

75.  Going back to the case of Lilleyman v Lilleyman (supra), Briggs J also agreed with Black J’s approach and held that the “notional divorce” enquiry is just a “cross-check”. At para.60 of the Judgment, it was said that the divorce “cross-check” :-

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

76.  Finally and lately, in the recent case of LWH v YMY (Financial Provision for Family and Dependents [2023] 1 HKLRD1004 where our learned brother Judge I Wong, faced with debates over the interplay between “notional divorce” enquiry and the wife’s claims under the Ordinance, said :-

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

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

77.  So much has been said on the case law, I would now move on to consider each of those matters set out in Sections 5(1)  and (2)  of the Ordinance.

Section 5(1)(a)  : the financial resources and financial needs which the applicant has

or is likely to have in the foreseeable future

78.  The Applicant has been a housewife since she “married” the Deceased back in 1988 or registered their marriage 2 years later in 1990.

79.  According to her Form E dated 14 August 2023, the total value of her assets was HK$233,801.67[27] and Old Age Allowance of HK$4,060[28], making a total sum of HK$237,861.67 as her financial resources.

80.  In terms of increased financial needs per month, even though not immediate required at present, but would be required in the foreseeable future includes :-

-  Domestic Helper (para 4.4 of Form E), estimated at HK$5,000;

-  Rent (para 4.4 of Form E), estimated at HK$8,000;

-  Additional food and household expenses after domestic helper was hired (para 4.4 of Form E), estimated at HK$2,500;

-  Medical expenses (para 4.4 of Form E), estimated at HK$1,200

81.  Given the Applicant’s old age of 80, her limited financial resources, her need for accommodation, domestic helper and medical expenses, all of which I agree with, my concluding views on this head is that the Applicant would require more financial resources to cover her monthly expenses and anticipated expenses.

Section 5(1)(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

82.  Apart from the Applicant herself, there is no other applicant in these proceedings.

Section 5(1)(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

83.  None of the beneficiaries under the Will, namely, the 1^stChild, the Respondent (in her own capacity)  or the Younger daughter had filed any Form E on their respective financial resources or financial needs or come up with any application for their needs.

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

84.  On the facts and evidence, the only obligations and responsibilities that the Deceased had or owed to was towards the Applicant, his 31-year wife whom he had been supporting during the marriage until his death in 2021.

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

85.  Parties are able to jointly agree on the size and nature of the net estate at trial as follows[29] :-

Agreed Items of the estate	Agreed Amount (HKD)
1. Shares in “UT” Holdings Ltd	0
2. Estate money received from Hong Kong bank   accounts	5,772,102.09
3. Interests earned from fixed deposits of   HK$5,000,000 from 21 September 2023 to 22   April 2024	125,612.32
4. A residential unit in GuangXi and car parking   space	572,000.00
5. Estate money received from CCB Account in   PRC	33,227.70
6. Estate money received from BoComm   Account in PRC	5,889.20
Total:	6,508,831.31

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

86.  In December 2023, the Applicant received operation over her knee at the Buddhist Hospital since she had suffered pain after prolonged walking and standing[30].

87.  Since January 2024, the Applicant started visiting Chinese medical practitioner for her eczema and other illness associated with aging[31].

88.  Given her medical condition, her expenses for treatment/follow up and related travelling expenses to receive treatment/follow up are likely and expected to be higher.

Section 5(1)(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.

89.  Applicant’s Counsel in her Closing Submissions invited this Court to consider costs against the Respondent personally as opposed to the usual form of order in this type of cases that costs be paid out of the Deceased’s estate.  The basis for such submission was that a personal representative who is a beneficiary need to distinguish clearly their activities in their representative and personal capacities, in respect of which the Respondent had not done so.

90.  By challenging the Applicant’s needs and other related expenses, as opposed to simply putting the Applicant to strict proof, it was said that the Respondent was resisting Applicant’s claim in her personal capacity as a beneficiary under the Will.

91.  With respect, I disagree with Applicant’s Counsel.  Looking the case in a round, I do not think the Respondent or her Counsel’s opposition went beyond the band of reasonableness so much so that the Respondent’s conduct of defending the case could be categorized as done in her personal capacity and not in her representative capacity of the Deceased’s estate.

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

92.  The Applicant was aged 80 at the time of trial.  As at the time when the Deceased passed away in 2021, the marriage lasted for 31 years, let alone the preceding 2 years of marital relationship before registration of the marriage.  This is a long marriage from any perspective.

93.  As to the Applicant’s contribution to the welfare of the family, I accepted the Applicant’s case that she supported the Deceased at the time when his retail business of home appliances collapsed in 1990.  There was no evidence from the Respondent to rebut that this had not happened.  Viewing the matter objectively, it might even be the case that the Deceased’s success in the “New Venture” had, to a certain extent, came about with the support of the Applicant in his career although I noticed that there was no evidence for me to make such a finding.  Such observation came along noting that in 1990, the Deceased was at the age of 52 (he was born in 1938)  and, objectively speaking, required courage and family support to start “afresh” in one’s career or business. 

94.  As a matter of fact, there was no sufficient evidence to challenge the Applicant’s contribution on caring for the home and looking after the Respondent and the Younger daughter.  No reason or explanation was offered by the Respondent as to why Madam Wong (i.e. Respondent’s biological mother)  departed the Deceased leaving behind the Respondent and the Younger daughter with the Deceased for him to look after over the years.  What then happened was that the Applicant came along and the Respondent, the Younger daughter and the Deceased, were being taken care of and looked after by the Applicant as a housewife.  The 4 of them stayed as a family for years until the Respondent moved out from the family home on her marriage around 2014.   

Conclusion

95.  Giving full and careful consideration to the evidence, the law, the factual background and all the circumstances of this case; in particular, the contents of the Will, I am satisfied that Applicant has discharged the burden of proof and demonstrated her entitlement to share the Deceased’s Estate due to the long marriage and her significant contributions to the welfare of the family.  Nonetheless, insufficient financial provisions were made for her maintenance by the Deceased under his Will.  The Court was empowered under the Ordinance to grant such necessary and appropriate reliefs to the surviving spouse, that is, the Applicant.

96.  I accepted the Applicant’s evidence on her items of claim, including but not limited to, (a)  accommodation needs; (b)  hiring a domestic helper; (c)  need of medical expenses and (d)  household expenses to include a domestic helper; all of which would be generously considered in line with established provisions under the Ordinance aforementioned.

97.  The “one-off” expenses of HK$29,872[32] for hiring domestic helper would also be allowed in full.   

98.  I would now set out below my assessment on the amount of each of the items of the Applicant’s financial needs, using the table under paragraph 23 above.  

1. Rent	HK$15,000
2. Utilities (electricity, gas, rates, telephone & water)	HK$ 1,000
3. Domestic helper	HK$ 4,870
4. Medical/ dental	HK$ 4,000
5. Household expenses	HK$ 1,500
6. Transport	HK$ 1,000
7. Food (including domestic   helper)	HK$ 4,000
8. Meals out of home	HK$ 700

  Sub-total :   HK$32,070

99.  The Court has a wide discretion on claims brought under the Ordinance.  The discretion must be exercised judiciously to ensure that the order to be made is fair, reasonable and non-discriminatory to all the parties concerned.  I have given full consideration to all the matters discussed above and; in particular, those matters listed in Sections 5(1)  and (2)  of the Ordinance.  I gave particular attention to the fact that there was no other competing beneficiaries in this case.  None of the other beneficiaries, including the Respondent in her own capacity as a beneficiary under the Estate, made any claim under the Ordinance.

100.  After all, this is a valued judgment.

101.  There was dispute between the parties as to the approach for quantifying the award under the Ordinance.  As shown in the Table under paragraph 23 of this Judgment, the Applicant sought a multiplier of 13.08 years on her claimed monthly expenses of HK$43,670 and came up with the total sum of HK$6,854,443.20. Such amount far exceeded the amount of the agreed net estate value of HK$6,508,831.31 shown in the Table of Agreed Amount of the Estate under paragraph 85 of this Judgment.

102.  On the other hand, Respondent’s Counsel in her Closing Submissions contended that the so-called “needs-based approach”, even when interpreted generously and called “reasonable requirement” were not to be treated as determinative (citing Inheritance Claims, 5^th Edn at 6-062)[33].  The novel approach sought by the Applicant by using the monthly financial needs times the life expectancy was not supported by case authority, practitioner’s texts or academic articles in Hong Kong or other jurisdictions to prove correctness or propriety[34].

103.  In my view, the answer depends on what is fair and reasonable on the facts of the case.  There is no arithmetic equation or mechanical calculation to work upon for achieving justice in a case; in particular, in family related litigation.  Inheritance and dependency claims are one of those cases which called for good sense of reality and practicality in order to arrive at an outcome best serving justice to all parties.

104.  That said, I would quantify the amount to be paid in this case by multiplying the Applicant’s financial needs of HK$32,070 found by me under paragraph 98 of this Judgment by a multiplier of 8 years (that is, 96 months).  This would arrive at the figure of HK$3,078,720 (that is HK$32,070 x 12 x 8)  (“Award”)  which represents around 47.3% of the agreed amount of the estate of HK$6,508,831.32.   

105.  This Award should include all the interim payment(s)  made to the Applicant totaling HK$685,000 set out in paragraph 57 of this Judgment and other interim payment(s), if any, made to the Applicant up until the date of trial.  The balance of the Award to be paid to the Applicant out of the net Estate by the Respondent within 28 days from the date of this Judgment.

106.  Given the Award being dependency sums on maintenance by nature, as opposed to sharing of matrimonial assets in a divorce suit, I decided that the financial resources and assets of the Applicant be retained by the Applicant without any deduction or set-off from the net balance of the Award.

Costs

107.     With my decision on the Award and the parties’ respective Open proposals, and also taking into account of my observation under paragraph 91 of this Judgment, I decided that the usual form of order that costs to be paid out of the Deceased’s estate to be a fair and reasonable decision on costs. 

108.  Accordingly, I will so order.

109.  This is a costs order nisi which would become absolute if no application to vary the same was filed within 14 days from the date of this Judgment.

110.  Last but not least, I wish to express my gratitude to both Counsel and the legal teams for their valuable assistance to this Court.