Division of estate of a deceased is determined either in accordance with: (1) a valid will made by the deceased; or (2) Cap. 73 Intestates’ Estates Ordinance in the absence of a valid will. However, we should be aware of several exceptions, one of them being Cap. 481 Inheritance (Provision for Family and Dependants) Ordinance (“the Ordinance”).
In this article, we would discuss a recent Court decision that a surviving spouse in separation was able to claim entitlement to an estate under the Ordinance in light of a valid will stating otherwise.
The law
According to the Ordinance, any person who was financial dependent on the deceased financial provision can claim reasonable financial provision from the estate, even if the deceased’s will says otherwise.
Reasonable financial provision means provision that would be reasonable in all the circumstances of the case for the applicant to receive for his/her maintenance (or, if the claim is made by surviving spouse, whether or not that provision is required for his or her maintenance).
Hong Kong District Court discussed the situation that a wife’s entitlement under the Ordinance whilst the deceased died when they were separated in LWH v YMY (Executrix of the last Will of YSK, deceased) AND OTHERS [2023] HKCU 514.
Died during separation
In LWH v YMY, the claimant (the wife) separated with the deceased (the husband) for 11 years. Before the deceased passed away, he made a will leaving his entire estate to his mother and daughter.
The Court applied section 5 of the Ordinance and give weights to the following factors:-
- the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;
- 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;
- 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;
- 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;
- the size and nature of the net estate of the deceased;
- any physical or mental disability of any applicant for an order under section 4 or any beneficiary of the estate of the deceased;
- 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.
It was found by the Court that the marriage was essentially an equal partnership.
Nevertheless, the Ordinance requires the Court to cross check with the principle of “notional divorce” that it shall consider the proportion the surviving spouse can obtain if the marriage is dissolved because of divorce instead of death. Although the legal principle is designed to ensure that on death, a surviving spouse would be in no worse position than would have been the case if the spouse had been divorced, it shall neither be treated as floor or ceiling, as the duration of marriage may not be as significant as in the event of divorce whilst the marriage is forced to be dissolved.
The Court further examined the relationship between the husband and wife after their separation. From their respective courses of conduct, the Court concluded that they did not love each other anymore and the marriage had come to an end since their separation, which means the duration of marriage was 11 years.
The Court found that the division of Property shall be at portion of 45:55 on the basis on notional divorce and taking in account of other factors.
Take Away
Even if a deceased died leaving a valid will, any person who was financial dependent on the deceased before his/her death shall be entitled to claim his/her estate under the Ordinance. As illustrated by the above, a claim can even be made by a surviving spouse who is in separation with the deceased for more than a decade.
