Where a deceased has by his Will, or by the effects of intestacy, failed to provide properly for his spouse, children, relatives or dependants, the court may order reasonable provision to be made out of the deceased's net estate for the maintenance of them.
Everyone enjoys a "testamentary freedom", i.e. freedom to leave your property to whomever you wish in your Will. However, after a loved one has passed away, very often we see disappointment among those who feel that they were unfairly disinherited by the Will, or that their inheritance is less than what were originally expected. This leaves considerable stress and distress within the family circle.
The Wills in high-money cases like Nina Wang Kung Yu-sum's are of course prone to challenge. Poor estate planning may also expose a Will to attack. Since people are now generally living longer and often decide to change their Wills later in life without the assistance of a solicitor, family members may be omitted in the Wills. In addition, it is not uncommon for a Hong Kong man to have a "second wife", who may lose dependency upon the death of the man in the absence of a Will in her favour. More often, a testator may fail to execute another Will upon remarriage, depriving the former spouse and children of reasonable provision. In these cases, the distressed family members or dependants may be left with no option but to challenge the Wills or make a claim in the estates.
Common Grounds for Challenging a Will
While being left out of a Will of a loved one is unfortunate, it is however not a plausible reason to contest the Will. Legally speaking, it is possible to challenge the Will on one or more of the following grounds:
- Want of due execution - where the Will has not been signed or properly witnessed;
- Incapacity of the testator - where the testator lacked the mental capacity to make a Will;
- Lack of knowledge and approval - where the testator had no knowledge of or had not approved the contents of the Will;
- Undue influence - where the Will was signed under coercion in which the testator's will was overborne;
- Fraud - Where the testator was induced to make the Will by lies;
- Forgery – where the Will was forged; and
- Revocation - where the Will had been revoked by marriage, divorce, subsequent Will or codicil, destruction, revival of an earlier Will or codicil, or by alteration or obliteration.
The Inheritance (Provision for Family and Dependants) Ordinance (the "Ordinance")
Where a Will has made no or insufficient provision for a member of the family or dependant, the Ordinance allows the court to order reasonable provision to be made out of a deceased's net asset for the maintenance of the applicant.
Who May Apply Under the Ordinance?
The following categories of family members and dependants are entitled to apply:
- the wife or husband of the deceased;
- a former wife or former husband of the deceased who has not remarried and was being maintained, either wholly or substantially, by the deceased immediately before his death;
- a tsip or male partner of a union of concubinage;
- a parent of the deceased who immediately before the death of the deceased was being maintained, either wholly or substantially, by the deceased;
- an infant child of the deceased (including a child not born in wedlock), or child of the deceased who is, by reason of mental or physical disability, unable to maintain himself;
- an adult child of the deceased who immediately before the death of the deceased was being maintained, either wholly or substantially, by the deceased;
- any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage and was being maintained, either wholly or substantially, by the deceased immediately before his death;
- a brother or sister of the half blood or the whole blood of the deceased who immediately before the death of the deceased was being maintained, either wholly or substantially, by the deceased;
- any other person who immediately before the death of the deceased was being maintained, either wholly or substantially, by the deceased.
Claims must be made within six months from the date on which a grant of representation is taken out, but the court has the discretion to permit late applications. An applicant is entitled to provision only if no reasonable financial provision has been made for the applicant in the deceased's will or the intestacy rules or a combination of the two.
Two Standards for Determining Reasonable Provision
The court has wide discretion to decide whether it is reasonable for no financial provision to have been made. Section 3(2) of the Ordinance provides two standards for deciding whether there is reasonable financial provision for an applicant. If the applicant is the surviving spouse of the deceased, the question is whether it would be reasonable in all the circumstances of the case for her to receive, regardless of whether the spouse needs the provision for her maintenance. In all other cases including a mistress's application, reasonable financial provision means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his or her maintenance.
Applicant May Apply for Interim Payments
Upon an application for financial provision from a deceased's estate, the Court has jurisdiction to order interim payments to be made out of the net estate of the deceased if it appears to the Court that the applicant is in immediate need of financial assistance; and property forming part of the net estate of the deceased is or can be made available to meet such immediate need.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.