Skip to content

Something urgent? Call us now! (852) 3416 1711

Minor issue causes major headache

Minor issue causes major headache

The wheels of justice can turn slowly, especially in complicated inheritance matters where family members may have conflicting interests and a minor is involved. Boase Cohen & Collins Partner Fiona Chan describes one such case.

Hong Kong, 17 January 2020: Protecting the rights of a minor involved in legal proceedings is usually a relatively simple matter that involves the appointment of a guardian ad litem (GAL) to act in that young person’s best interests. However, the procedure is not always so straightforward, as an ongoing case in which we are involved amply illustrates.

A GAL is required when a “person under a disability” – which, in law, means someone who is mentally incapacitated or a minor (under 18 years of age) – is involved in a civil action. The GAL is typically a relative who must not have an interest adverse to the person for whom they are acting or be connected to the other parties.

Our ongoing case involves a deceased man who left half his estate to his mother and half to his 14-year-old daughter. Boase Cohen & Collins is acting for the sole executrix of the estate, one of the deceased’s sisters.

The man did not leave anything to his wife (the Applicant), from whom he was separated. As a consequence, she started legal proceedings seeking financial provision and interim maintenance from the estate under Sections 3, 4 and 7 of the Inheritance (Provision for Family and Dependants) Ordinance Cap. 481. Complicating the issue is the fact that the Applicant is the daughter’s main carer.

The Court joined the deceased’s mother and daughter together as Respondents, meaning the daughter needed a GAL who was not connected to either her co-Respondent or the Applicant. Given her conflict of interest, the Applicant invited the Official Solicitor’s Office to fulfil the role.

The Official Solicitor (OS) is a public officer who, among his or her many duties, represents the interests of persons under a disability in legal proceedings. These duties are set out in Section 4 of the Official Solicitor Ordinance, Cap. 416 which came into operation in 1991.

However, the OS will only act as a GAL when there is no other suitable candidate available or willing to do so. In this particular case, the OS has been searching for a candidate for the past year, so far without success because all the relatives willing to act as the daughter’s GAL are closely connected with either the Applicant or co-Respondent.

The way to resolve this impasse, it would appear, is for all parties in the proceedings to jointly apply to the Court to invite the OS to act as GAL to the daughter. Until a GAL is properly appointed, the hearing cannot proceed.

It is important to have a Will properly and professionally drafted to avoid deadlock of administration of the estate for the ultimate benefits of the deceased’s family.

Fiona Chan specialises in dispute resolution and is experienced in a wide range of civil litigation. Her core practice areas include Will drafting, estate administration and probate matters, while she is an appointed member of the Panel Solicitors for the Official Administrator. She can be contacted at fionachan@boasecohencollins.com.

Guardian PHOTO

Finding a guardian ad litem for a child involved in civil proceedings is not always simple.

39+ years of legal experience is just a click away.

Friendly and approachable, we are ready to answer your questions and offer you sound advice.

Contact us now

BC&C-contact-us

News & Knowledge

Learn more about what we do and what we say. Subscribe to our newsletter to ensure you receive our updates.

  • This field is for validation purposes and should be left unchanged.

Bill brings choice to end-of-life care

By Alex Liu Hong Kong, 3 December 2024: A new law that formally recognises a terminally-ill patient’s right, under certain circumstances, to refuse life-sustaining treatments has been passed by the Legislative Council, thus giving Hong Kong a much-needed legal framework for end-of-life care. It is expected to be implemented in around 18 months’ time. The […]

Read more

HKU seminar examines career development

Hong Kong, 25 November 2024: Our Consultant John Zhou was pleased to be a panellist in a careers seminar for law students at the University of Hong Kong, offering his perspective as a lawyer qualified to practice in three jurisdictions. John joined legal professionals from Mainland and international law firms in speaking at the gathering, […]

Read more

Beauticians and their duty of care

By Teresa Leung Hong Kong, 20 November 2024: Can you sue a beautician if your treatment goes wrong? The answer – as you might expect, given that Hong Kong’s “medical beauty” industry remains largely unregulated – is hardly straightforward, but is worth exploring. After all, our city is seeing an increasing number of criminal prosecutions […]

Read more

Carrian saga provides a trip back in time

Hong Kong, 19 November 2024: The biggest corporate corruption case in Hong Kong’s history, the Carrian Scandal, was revisited when our Senior Partner Colin Cohen gave an entertaining talk to the Rotary Club of Wanchai. His presentation offered the audience a first-hand account of how Carrian, a rags-to-riches conglomerate, collapsed in 1983 amid revelations of […]

Read more

Old habits and an escalating problem

Hong Kong, 13 November 2024: In a fast-moving world, Akshinthala Seshu Babu has made his name by being anything but. The tenacious Indian holds the world record for remaining motionless, clocking a remarkable 35 hours without twitching a muscle, all while dressed up as his hero Mahatma Gandhi. “I want to spread Ghandi’s message about […]

Read more