In the late 1940s, Mr Tsang Kei Hung ("Mr Tsang Senior") married Madam Leung according to Chinese customs and she gave birth to 3 children, one of them was Dr Tsang. Later, in the early 1950s, Mr Tsang Senior took Madam Ho as his concubine also according to Chinese customs. Mr Tsang Senior and Madam Leung agreed to a divorce in 1958 under the Chinese customary laws and Madam Leung waived maintenance and custody of her children but retained reasonable access to them. At the Mid-Autumn Festival of the same year, Mr Tsang Senior held a "fuzheng" (扶正) ceremony whereby Madam Ho became Mr Tsang Senior's principal wife and the legal mother of Madam Leung's children and it was announced that Madam Leung was no longer a member of the family or the mother of her children. Mr Tsang Senior and Madam Ho then had their customary marriage registered in January 1997.
Dr Tsang got married in 1996 and his wife passed away in 1998. By the time Dr Tsang passed away in 2001, leaving no will and no children, Mr Tsang Senior had already passed away but Madam Leung and Madam Ho were still alive.
Since Dr Tsang died intestate, his residuary estate should be governed by the Intestates' Estates Ordinance ("IEO"). According to section 4(7) of the IEO, if an intestate leaves no husband or wife and no issue but one parent, then his residuary estate shall be held in trust for his surviving father or mother absolutely. Furthermore, under rule 21(1) of the Non-Contentious Probate Rules ("NCPR"), where a person dies wholly intestate, persons having a beneficial interest in the estate shall be entitled to a grant of letters of administration in the order of priority set out in the rules, which was the mother of Dr Tsang in the above case.
In the Hong Kong Court of Final Appeal case of Leung Lai Fong v Ho Sin Ying  2 HKC 216, both Madam Leung and Madam Ho claimed to be Dr Tsang's surviving mother as provided in section 4(7) of the IEO and therefore, entitled to his residuary estate and to a grant of letters of administration to the exclusion of the other. Madam Leung alleged that "mother" means the natural mother while Madam Ho claimed that "mother" must be construed to mean the legal mother since she had become the new principal wife of Mr Tsang Senior and the only legal mother of Madam Leung's children under Chinese laws and customs in accordance with the "fuzheng" ceremony held in 1958. The dispute thus turned on the true meaning of the word "mother" in section 4(7) of the IEO.
It was decided that if the intention of the present legislation is to cover a broad class of persons in the word "mother", ie. natural mother, legal mother and step mother, it would have been easy to spell this out by a simple definition in the IEO but this was not done. Section 4 of the IEO proceeded on the premise that the deceased had only one father and one mother. Apparently, the significance of this is that it supports a construction of the IEO which favours the most easily ascertainable and the least problematic candidate – the natural mother. Starting with the natural mother also accords with the common law rule of statutory construction that an ordinary word should be given its ordinary and natural meaning unless the context otherwise requires.
Under section 4 of the IEO, the persons who are entitled to inherit are listed in the order of priority. Apart from the husband and wife of the intestate, entitlement under the IEO is based on blood relationship with the intestate, except where it is expressly provided otherwise. These exceptions are adopted children and the children of the principal wife or concubines in the case of a Chinese customary marriage or unions of concubinage. There is no such provision for either legal mother or step mother. If Madam Ho's construction was accepted, it would give rise to a lot of uncertainties in the operation of the laws. It must always be borne in mind that Dr Tsang was free to make a will disposing of his estate to such person or persons as he wished.
Further, in construing the word "mother" in section 4(7) of the IEO to mean natural mother, who is entitled to inherit the residuary estate of her natural child upon intestacy, such construction cannot be regarded as being inconsistent with the protection for family unity or family life under article 19 of the Hong Kong Bill of Rights nor can it be said to be destructive of family ties. A natural mother who has divorced the father is not an outsider in relation to her natural child. Although she may have severed her ties with the father and the father's family, she certainly retains a relationship vis-à-vis her natural child.
Last but not least, the new statutory regime under the IEO does not permit the importation of the Chinese customary law concepts of succession, which is based on the concept that the properties of a member of the family are the properties of the family and should be kept within the family in perpetuity. The succession reform legislation including the Wills Ordinance and the IEO provides for the freedom of testimony disposition by will and, in the absence of any will, for intestate distribution under the IEO. There is thus no room for the argument that the concept of succession under the Chinese customary law also plays a part in intestate succession after the reform in 1971.
Therefore, the word "mother" in section 4(7) of IEO and rule 21(1) of the NCPR shall mean the natural mother. Accordingly, the Court of Final Appeal unanimously dismissed Madam Ho's appeal.
Following the above judgment, it is clearly advisable that a will be made to ensure proper distribution of assets according to the testator's wishes.
If you have any queries regarding the above judgment or on any probate or succession matters in Hong Kong, experienced lawyers in our Probate Department will be happy to assist you.
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