Inheritance in Hong Kong: How can a close family member receive provision from the estate if the will does not give an inheritance?
In Hong Kong inheritance, the general legal principle is that if the deceased has left a valid will, the principle of testamentary freedom should be followed, and the estate should be distributed in accordance with the will. However, if the deceased has left a valid will but the will does not make any bequests to the relevant next of kin, under such circumstances, can the relevant next of kin get a share of the inheritance from the estate for maintenance through legal channels?
I. Who can apply for maintenance from the estate?
According to Inheritance (Provision for Families and Dependants) Ordinance (Cap. 481), the following categories of close relatives of the deceased may apply for maintenance from the estate without the condition that they were actually maintained by the deceased during his/her lifetime: (1) lawful spouses, including concubines, etc.; and (2) minor children, or disabled children incapable of maintaining themselves.
Other categories of close relatives or related persons of the deceased, such as adult children of the deceased, divorced spouses, unmarried cohabitants, same-sex cohabitants, siblings, parents, etc., may apply for support from the estate provided that it can be proved that the deceased was providing financial support to these persons immediately prior to his/her death.
II. Application of maintenance under the Inheritance (Provision for Families and Dependants) Ordinance
Under section 3 of the Ordinance, the Ordinance is applicable to the settlement of the estate of a deceased person who was domiciled in Hong Kong at the time of his death or had ordinarily resided in Hong Kong for a continuous period of not less than 3 years immediately before his death.
III. Cases and Legal Principles: Applications for Maintenance from Estates by Different Categories of Related Persons
Legitimate spouse’s application for maintenance from the estate
In Re Lee Sai Wai (dec’d) [2002] 4 HKC 517, the deceased, who by his will left all his property to his siblings and nothing to his wife, applied for maintenance from the estate. The court took into account the factors for consideration under section 5 of the Inheritance (Provision for Families and Dependants) Ordinance (the financial position and financial needs of the spouse, the financial position and financial needs of the beneficiaries of the will, the size of the estate, the physical condition and financial capacity of the spouse, the age of the spouse and the length of duration of the marriage, the contribution of the spouse to the welfare of the family, the amount of the property to which the spouse would be entitled under the criteria for divorce, the deceased’s interest in the financial support of his (the financial support of the spouse, and the closeness of the relationship between the deceased and the spouse), it was decided that the spouse should receive a 40% share of the deceased’s estate as maintenance. The case was appealed to the Court of Appeal, which upheld the first instance judgement in CACV 301/2002.
On the issue of litigation costs, the Court also made a guiding judgement under HCMP 4859/2001 that the plaintiff’s spouse’s attorney’s fees are to be paid out of the residual estate (after deducting the plaintiff’s spouse’s share).
In CNC [2011] 4 HKLRD 544, the deceased was married to two women and had children during his lifetime, and neither marriage was divorced. In his will, the deceased gave all his property to the spouse and children of the second marriage. The spouse from the previous marriage applied to receive financial provision from the estate. The court held that although the previous marriage may have been a fossilized marriage (i.e. the parties were not divorced but had been separated for a long period of time) during the deceased’s lifetime, the parties to both marriages were spouses under the Ordinance and were entitled to receive provision from the estate. Having regard to the considerations under section 5 and the criteria for divorce, the Court awarded 30% of the residue of the estate to the spouses of both marriages for maintenance.
Application by adult children for maintenance from the estate
In Tang Tim Chue v Tang Ka Hung Robert & Anor [2012] HKCU 1221 (unreported, HCMP 2506/2009), the court held that in order for an adult child of a deceased person to obtain maintenance from the estate, the court firstly needed to prove that in the period immediately before the deceased’s death, the adult child was wholly or mainly dependent on the deceased for maintenance; secondly, the applicant needed to prove that the deceased’s will did not provide reasonable maintenance to the adult child; and lastly, the court needed to consider section 5(1) of the Ordinance. Secondly, the applicant had to prove that the deceased’s will did not provide reasonable provision for the adult child; and finally, the court had to consider the relevant factors under section 5(1) of the Ordinance in deciding whether or not to exercise its discretion in awarding maintenance from the estate to the adult child.
It is not necessary for the applicant to prove that he or she is in hardship, as ‘maintenance’ refers to the applicant’s life and welfare, health, financial security, etc., and does not refer to financial hardship. However, where the applicant is the adult child of the deceased and is not disabled, the court will need to ask: why does he still need support?
Application for Maintenance of Estate of a Cohabiting Relationship Partner (Lover)
In LYYC v. CHL and CSMS, Executrices of the Estate of CGSK (also known as CSKG), Deceased and CSCA [2023] HK CFI 1585, having regard to the relevant English case law, it was held that for a cohabiting partner to receive maintenance from an estate, it was necessary that the deceased had been under a duty to provide for the cohabiting partner immediately prior to his death.
In LPC v Estate of CHS (FCMP 61/2012), the court held that in the case of an application by such a cohabitee for financial support from the estate, the issues to be considered by the court include: (1) the closeness of the relationship between the deceased and the applicant immediately prior to the death of the deceased; (2) whether the deceased had been liable for the support of the cohabitee immediately prior to his death, and whether the responsibility for such support could be derived from the actual provision of financial support; and (3) whether the deceased had been responsible for the support of the cohabitee immediately prior to the death of the cohabitee. responsibility could be inferred from the fact that financial provision was actually made; and (3) whether, taking all the circumstances together, the court should exercise its discretion to award the applicant financial provision from the estate.
Please consult our team of Hong Kong succession lawyers for advice on Hong Kong succession litigation. For matters relating to wills and inheritance in Hong Kong, please consult the Hong Kong Inheritance Law team at Yan Lawyers. For Hong Kong inheritance disputes and litigation, please refer to Hong Kong Inheritance Disputes and Inheritance Litigation page; for undisputed inheritance in Hong Kong, please refer to Hong Kong Inheritance Application page. For making a will in Hong Kong to deal with Hong Kong and Mainland estates, please read the section on making a will in Hong Kong.
(Bob Yan, principal solicitor of Yan Lawyers, solicitors. Email: [email protected], Tel: +852 31881995, +86 15018939249, WhatsApp: +852 5103 9249)