When the deceased may not have final say

Inheritance or financial disputes can add to the pain of a spouse or close relative’s passing. Boase Cohen & Collins Partner Fiona Chan outlines the legal options available to anyone who wishes to challenge a Will or the rules of intestacy.

Hong Kong, 5 February 2020: Bereavement brings considerable grief and stress, but imagine how these feelings are exacerbated if there are complications over inheritance of the deceased’s estate.

The general rule is that everyone has “testamentary freedom”, meaning they have the right to leave their assets to whomever they wish. But what if your recently-passed loved one has not included you as a beneficiary in their Will, or has not left you what you were expecting? What if they have died without leaving a Will and the rules of intestacy mean you are not among the beneficiaries?

In such circumstances, an aggrieved person can apply to the Court for reasonable financial provision from the deceased’s estate under section 4 of the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481). Those who can apply are the deceased’s wife or husband, female or male civil partner, or anyone who was being maintained, either wholly or substantially, by the deceased immediately before their death.

What is reasonable financial provision? The Court has wide discretion but is guided by section 3(2) of the Ordinance which states that if the applicant is the deceased’s spouse or civil partner, the Court does not have to consider whether the provision is needed for maintenance. For other applicants, however, the Court needs to be convinced that the provision is for maintenance.

If the Court is satisfied there should be reasonable financial provision for the applicant, it can order periodical payments from the estate, or a lump sum, or for the transfer or settlement of certain property of the estate.

However, before making any order, the Court has to consider the financial resources and needs not only of the applicant, but also those of any other applicants or beneficiaries, whether the deceased had any obligations or responsibilities to any applicants or beneficiaries, and the size and nature of the estate. The Court can also take into account any other factors, including the conduct of the applicant or other individuals, which it feels is relevant.

It should also be noted that the Court has discretion to order interim maintenance. It can do so if the applicant is in immediate need of financial assistance but it is not yet possible to determine what order (if any) should be made. In such circumstances, the Court also needs to see that property forming part of estate is, or can be, made available to meet the applicant’s needs.

The Judge in ACLS v HSB(T)L [2013] 2 HKLRD 444 referred to Barnsley v Ward (unrep., Eng CA, 8 January 1980) where the Judge set out the three hurdles the applicant has to overcome for interim maintenance:-

• the applicant must show that he/she is in immediate need;
• there is property forming part of the estate which is or can be made available to meet that need; and
• the applicant must satisfy the Court that it is right in the circumstances to exercise the Court’s discretion and make an order in the manner sought.

Finally, is there a time limit for such matters? Under section 6 of the Ordinance, the applicant must apply to the Court within six months from the date on which a grant of representation is first taken out. However, it has discretion to accept late applications.

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.

The principle of “testamentary freedom” is central to the drafting and enforcement of a Will.