Sly v. Dl, The Executor of the Estate of Lfy, The Deceased

FCMP 89/2020

[2023] HKFC 44

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NO. 89 OF 2020

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J U D G M E N T
( Provision for Family and Dependents)

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1.This the trial of the proceedings commenced by the Applicant as the widow of the Deceased for financial provision from the Deceased’s net estate under the Inheritance (Provision for Family and Dependents) Ordinance (Cap. 481) (“the Ordinance”).

Background

2.The Deceased had the first marriage with a woman in the United Kingdom with a son (“David”) born in March 1976, the Respondent in these proceedings[1]. The Deceased divorced his first wife in March 1980 and David lived with his mother most of his life in England, under the care of his mother.

3.The Deceased was an indigenous villager of Po Sam Pai, Tai Po, New Territories.  David said that the Deceased strongly believed in continuing the traditional Chinese custom practiced by indigenous villagers on succession and that only male descendants can inherit land.

4.The Deceased got married with the Applicant in Hong Kong in 1980.  They have a daughter (“Carol”) born in August 1981 and used to live in a small house built on No. 83 Po Sam Pai, Lot No. 706, D.D. 23, Tai Po (“No. 83 Property”), consisting of a home with a vast walled garden. The original lot was gifted to the Deceased in November 1978 by his late father, who passed away in January 2020.

5.In September 1986, the Deceased and the Applicant purchased a unit in Luk Yeung Sun Cheun, Tsuen Wan (“Luk Yeung Property”).  They and Carol then resided in the Luk Yeung Property and occasionally spent weekend in the No. 83 Property.

6.In or around the end of 1988, David came to Hong Kong and lived in the No. 83 Property.

7.In 1992, the Deceased and the Applicant purchased as joint tenancy an office in Wealth Commercial Centre, Yau Ma Tei, Kowloon (“Wealth Commercial Property”), which was rented out throughout the years.  The Applicant kept all the rental.

8.In 1997, the Deceased was diagnosed with nasopharyngeal cancer.  On 4 May 1998, he made a will which named the Applicant as the sole beneficiary of his residuary estate (“1998 Will[2]”).

9.On 4 May 2006, he made another will which revoked the 1998 Will and named Carol as the sole executrix and sole beneficiary of his residuary estate (“2006 Will[3]”).

10.In around 2016, the Applicant ceased going to and living in the No. 83 Property and only resided in the Luk Yeung Property while the Deceased continued to live in both the Luk Yeung Property and the No. 83 Property, occasionally also staying overnight at the Luk Yeung Property.

11.The Deceased revoked the 2006 Will and made his final will on 20 October 2016 (“Final Will”) which named David the sole beneficiary and executor of his entire estate.  The Deceased passed away in March 2020. The probate of the Deceased was granted to David by the Court of First Instance on 16 October 2020. The size of the net estate of the Deceased are not in dispute, namely $36,887,447.91 (“Deceased’s Estate”).

12.The bulk of the Deceased’s Estate consists of properties, held in his sole name within Po Sam Pai village plus land inherited from the Deceased’s father, also located within Po Sam Pai village. The value of the No. 83 Property is agreed at $22.86 million.

13.The Deceased made no financial provision for the Applicant in the Final Will.

14.The Applicant is a retiree now 80 years old.  As at the date of death of the Deceased, the marriage is over 39 years.

15.The value of the Applicant’s own assets is revised from  $4,689,948.59[4] up to $4,898,895.59.  She offers in her opening to accept 40% of the total matrimonial pot of $41,786,343.50 (ie $36,887,447.91 + $4,898,895.59) for settlement purpose with no order to costs.

16.David did not make any open offer to the Applicant’s claim.

The Law

17.The Applicant’s application is made under section 3(1)(a)(i) or (b)(i) of the Ordinance which is as follows:-

“3. Application for financial provision from deceased's estate

(1) Where after the commencement of this Ordinance a person dies-

(a) domiciled in Hong Kong; or

(b) having been ordinarily resident in Hong Kong at any time in the 3 years immediately preceding his death, and is survived by any of the following persons-

(i) the wife or husband of the deceased;

(ii) ………..

that person may apply to the court for an order under section 4 on the ground that the disposition of the deceased's estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant.”

18.There is no dispute that the Applicant is domiciled in Hong Kong or has been ordinarily resident in Hong Kong at any time in the 3 years immediately preceding the Deceased’s death.

19.“Net estate” is defined in section 2 of the Ordinance. As said above, the size of the Deceased’s Estate is agreed by the parties at $36,887,447.91.

20.In my view, as the Applicant is the spouse of the Deceased, the meaning of "reasonable financial provision” is different from other applicants in the sense that her claim shall not be restricted to the extent of her maintenance. Section 3(2) states:

"reasonable financial provision”

(a)   in the case of any application made-

(i)   by virtue of subsection (1)(i) by the husband or wife of the deceased (except where the marriage with the deceased was the subject of a decree of judicial separation and at the date of death the decree was in force and the separation was continuing); or

(ii)  by virtue of subsection (1)(iii) by a tsip or male partner of the deceased by a union of concubinage, means such financial provision as it would be reasonable in all the circumstances of the case for such a person to receive, whether or not that provision is required for his or her maintenance;

(b)   in the case of any other application made by virtue of subsection (1), means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance. (emphasis added)

21.If the Court considers that reasonable financial provision should be ordered out of the Deceased’s Estate for the Applicant under sections 3(1) and (2) of the Ordinance, then

(i)    whether the Court should exercise the power to make the order or orders under section 4 of the Ordinance;

(ii)   if the Court should exercise its power, how to apply the matters as listed in section 5(1) of the Ordinance which are as follows:-

(a)  the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b)  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;

(c)  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;

(d)  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;

(e)  the size and nature of the net estate of the deceased;

(f)  any physical or mental disability of any applicant for an order under section 4 or any beneficiary of the estate of the deceased;

(g)  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.

22.Under sections 5(2)(a) and (b) of the Ordinance, as the Applicant is regarded as surviving spouse of the Deceased, the court shall take into account of the following additional considerations:

(a)  the age of the applicant and the duration of the marriage or union of concubinage;

(b)  the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family,

and, in the case of an application by the wife or husband of the deceased, the court shall also, unless at the date of death a decree of judicial separation was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a decree of divorce.

23.The court’s power to make order or orders as per section 4 is as follows:

4.      Powers of court to make orders

(1)   Where an application is made for an order under this section, the court may, if it is satisfied that the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant, make any one or more of the following orders—

(a)   an order for the making to the applicant out of the net estate of the deceased of such periodical payments and for such term as may be specified in the order;

(b)   an order for the payment to the applicant out of that estate of a lump sum of such amount as may be so specified;

(c)   an order for the transfer to the applicant of such property comprised in that estate as may be so specified;

(d)   an order for the settlement for the benefit of the applicant of such property comprised in that estate as may be so specified;

(e)   an order for the acquisition out of the property comprised in that estate of such property as may be so specified and for the transfer of the property so acquired to the applicant or for the settlement thereof for his benefit.

(2)   An order under subsection (1)(a) providing for the making out of the net estate of the deceased of periodical payments may provide for—

(a) payments of such amount as may be specified in the order;

(b) payments equal to the whole of the income of the net estate or of such portion thereof as may be so specified;

(c) payments equal to the whole of the income of such part of the net estate as the court may direct to be set aside or appropriated for the making out of the income thereof of payments under this section,

or may provide for the amount of the payments or any of them to be determined in any other way the court thinks fit.

(3)   Where an order under subsection (1)(a) provides for the making of payments of any amount specified in the order, the order may direct that such part of the net estate as may be so specified shall be set aside ……. to produce by the income thereof the amount required for the making of those payments.

(4)   An order under this section may contain such consequential and supplemental provisions as the court thinks necessary or expedient for the purpose of giving effect to the order or for the purpose of securing that the order operates fairly as between one beneficiary of the estate of the deceased and another and may, in particular, but without prejudice to……………………..

24.Mr Kung for the Applicant heavily relies on my judgment in TWH v CSK & Anor (Inheritance) [2011] HKFLR 449 in support of this application.  He quotes the following paras. of my judgment:

“84.  ...(12) The court should also have regard to the provision which the applicant might reasonably have expected to receive if the marriage had been terminated by divorce, rather than death (“the divorce standard”). Due to the different provisions of the two ordinances, the Matrimonial Proceedings and Property Ordinance (Cap 192) the IO, the guidelines laid down in the CFA case of LKW could be mechanically transplanted to the spouses’ claim under the IO. On the other hand, the principle against discrimination was equally applicable to each claim. With the aim of achieving a fair and non-discriminatory result, the court should treat the divorce standard as a cross-check so as to decide on what was reasonable financial provision for a spouse under the IO.

85. Bearing in mind that no provision is made for the Plaintiff (the Applicant) under the Will, I have no hesitation to exercise the power to order the reasonable financial provision out of the Estate. I am then bounded to consider all the matters as listed in section 5 of the IO. In usual parlance, the matters laid down in section 5(1) are said to be for the maintenance standard and those of section 5(2) the divorce standard. Indeed, it must be noted that the Court is bound to consider all the relevant circumstances and factors albeit the matters laid down in section 5(1) and (2) are mandatory considerations.” (Emphasis added)

25.In that case, I decided to apply the divorce standard (§118 to §121) and concluded that the net estate (around $11 million) was sufficiently large to satisfy the needs of both the surviving spouse and a beneficiary who suffered from mental illness (§92 and §123).  Finally, I ordered a lump sum of 1/3 of the remaining net estate (after reserving the needs for that particular beneficiary with special needs) be paid to the applicant.

26.Ms Allison for David submitted that TWH v CSK appears to be the only decision, which has applied LKW v DD [2011] HKFLR 449 when making an order under the Ordinance for a surviving spouse. Ms Allison agrees with this case insofar as the judgment held that the needs of the other beneficiaries had to be considered and that the principles of LKW v DD should not be mechanically transplanted to be applied to inheritance cases.

27.She further submitted that there are several distinguishing features in TWH v CSK, which justify why the case should not be applied to the present application.

David’s case

28.Ms Allison for David contended that the Court should abide by the Final Will and make no orders regarding the distribution of the Deceased’s Estate which deviate from the terms of the Final Will.  In exercising its discretion under section 4 of the Ordinance, and having regard to the factors listed under section 5 of the Ordinance, she submitted that the Court should have particular regard to the following:

(i)     The inter vivos financial provision made by the Deceased to the Applicant in 2014;

(ii)    The Applicant’s current age, financial resources and her needs;

(iii)   The parties’ separation in or around 2006 and post separation accrual of assets, particularly the Deceased’s inheritance from his late father just two months prior to the Deceased’s passing;

(iv)   The character and nature of the Deceased’s Estate insofar as it relates to real property situated in one of the 264 recognized villages under the New Territories Small House Policy scheme;

(v)    The Deceased exercised and sought to protect his indigenous villager rights and customs regarding male only succession through the making of the Final Will, such rights being protected under Article 40 of the Basic Law (“Article 40”)[5];

(vi)     David’s own financial resources and financial responsibilities as beneficiary of the Deceased’s Estate and the prejudice that he will suffer if the testamentary intent of the Deceased is not followed.

29.Ms Allison argued that the present facts require the Court to balance the Applicant’s claims as a surviving spouse against the traditional customs and rights protected under Article 40 and that the decision will have a long and lasting impact on traditional villager customs on male only succession.

Inter vivos financial provision made by the Deceased to the Applicant in 2014

30.In 2014, the Applicant transferred her ownership in the Luk Yeung Property and the Commercial Property to Carol and David threatened to take out applications to reverse the transfer and for determination of the beneficial ownership of both properties.  But no such application was issued eventually.

31.In the opening submission, Ms Allison for David cited the Court of Appeal case Sarah Sally Chan Kent (Executrix of the estate of Ruby Jim Sunyou alias Ruby Kang You Jim (nee) Wong, deceased) v Chim Sau Ching and ors [2021] HKCA 648 (unreported, CACV40/2020, 4 May 2021) for the proposition that the court cannot look at the will in isolation and should take into account any other financial provisions that the Deceased made to the Applicant.

32.In my view, this case is not directly relevant to the present application.  Indeed, Ms Allison had not further elaborated this issue in the closing submission.

33.I accept the submission of Mr Kung for the Applicant that from the conversations between Carol and the Deceased[6], it is very clear that the transfer of the Luk Yeung Property and the Wealth Commercial Property was for Carol’s sole benefit only. The Applicant explained her concern that if she predeceased the Deceased, he would pass everything to David and leave nothing to Carol.

34.In the circumstances, I do not think that this matter is relevant to the present application.

The Applicant’s current age, financial resources and her needs

35.The Applicant is 80 years old currently receiving a monthly income by way of pensions and government allowances totaling $30,406. Her assets value at $4,898,895.59. According to the Applicant’s affirmation, her expenses are $38,293.00 per month.

36.Ms Allison for David submitted that the Applicant’s expenses are inflated but should be listed as $18,900 less because the rent was paid by Carol.

37.In my view, Carol has no legal obligation to pay rent for the Applicant and she can stop payment anytime she likes.  In any event, I am satisfied that the Applicant’s own financial resources are sufficient to satisfy her needs.  Nevertheless, such finding would not prevent the Applicant from taking this application under the Ordinance.

38.As said earlier, I am of the view that the meaning of "reasonable financial provision” under section 3(2) of the Ordinance is different from applicants other than spouse in the sense that the Applicant’s claim shall not be restricted to the extent of her maintenance.

Issue of legacy

39.Ms Allison raised this issue that if the court awards more than the Applicant’s needs from the Deceased’s Estate, it would be windfall for Carol who has no locus standi to make an application under the Ordinance. This result will be contrary to the testamentary wishes for the Deceased and unfair to David.  She relied on the case of Whytte v Ticehurst [1986] 2 WLR 700, which is the authority that an applicant’s right to apply for financial provision from a deceased estate is not an accrued right can which survive the applicant’s death. The Hong Kong Court of Appeal in Re Estate of Lam Kam Wai [2014] 1 HKLRD 529 has applied the Whytte v Ticehurst principle in Hong Kong.  She thus submitted that there is a distinction to be drawn between a divorcing spouse and a surviving spouse providing a legacy.

40.With respect, I disagree.  In the present case, the Applicant is still alive.  I fail to see the relevancy of the Whytte v Ticehurst principle.

41.Besides, Carol admitted honestly, under cross examination, that she was told by the Applicant that she was the sole beneficiary of the Applicant’s current will.  However, she did not have any idea on whether the Applicant would change her mind or make another will, like the Deceased had, before the Applicant’s eventual passing.

42.Indeed, the similar issue had been dealt with by me in TWH v CSK.  In paras. 102 to 104 of my judgment, I said:

“102. Mr. Li for D1 submitted that the relevant conduct of the parties is that the present application is indeed instigated by Zhou and possibly C T F for their benefit. He further contended that whole exercise was manipulated by Zhou who confirmed under cross-examination that he found the lawyer, namely T&A for the Plaintiff for the divorce proceedings and he gave instructions to the lawyer. Accordingly, if the Court grants a substantial lump sum for the Plaintiff, that will result in a vast windfall for her children under intestate succession. That would tantamount to allowing the children’s application (especially that of Zhou) for financial provision through the backdoor.

…

104. I consider that the above legal statement is also applicable in this case since the net estate of the Deceased is about $11 million which exceeds all the relevant parties’ financial needs. I see nothing improper if the Court grants a lump sum for the Plaintiff, it will result in passing some money on to her children under intestate succession.”

43.I maintain my above view in the present case. Furthermore, even if the Applicant is awarded with a lump sum in this application, she is not bound to pass any part of it to Carol. Hence, I reject Ms Allison’s submission.

Parties’ separation

44.The issue is whether the Deceased and the Applicant has been separated in around 2006 or any other time as alleged by David.

45.The Applicant denies any alleged separation with the Deceased. The burden of proof of this issue squares on David.

46.Ms Allison for David submitted that based on the following evidence, on balance, it is more likely that the Deceased and the Applicant had separated and were no longer living as husband and wife:

(i) The various contemporaneous messages from the Deceased to Carol, wherein he describes himself as feeling abandoned and lonely when he was feeling frail and unwell. Carol’s repeated replies were that the Deceased “deserved it” and that he was the only one to blame for his predicament;

(ii) The various messages from Carol to the Deceased justifying why the Applicant had left the Deceased and that she was on her mother’s side;

(iii) The complete lack of evidence from the Applicant that she communicated with the Deceased by messages and on the telephone, but at the same time she was able to provide a single text message following the death of the Deceased’s father about her assistance. If the Applicant had a continuing relationship with the Deceased as that of a wife, there would have been further evidence of their communication;

(iv) The evidence provided by the Applicant on travels with the Deceased ends in 2008 because there was none to provide thereafter.

47.I accept that after knowing that the Deceased would execute the Final Will without any financial provision for the Applicant, their relationship undoubtedly turned sour. However, some photographs were provided by the Applicant and Carol showing that the whole family continued to gather for meals together from time to time. As can be read from the WhatsApp conversations between Carol and the Deceased, the Deceased insisted on having meals with the Applicant, Carol and her family every weekend. It shows that the Deceased had every intention of maintaining the family relationship with the Applicant. I also accept the Applicant’s evidence that she did visit the Deceased at the No. 83 Property on some occasions and that she did care for him, such as referring a doctor to the Deceased when he needed an esophagus operation. Occasionally the Deceased would stay overnight in the Luk Yeung Property. As no divorce petition has ever been commenced by any of them, Mr Kung for the Applicant fairly described the state of the parties’ marriage as being in a state “of a cold war”.

48.In my view, David fails to establish on balance of probability that the Deceased and the Applicant has been separated in around 2006 or any other time as alleged.

Nature of the Deceased’s Estate and Article 40 of the Basic Law

49.It is not disputed that the Deceased was an indigenous villager of Po Sam Pai and that David has been recognized as a male descendant of the Deceased and has also been granted the right to build a small house in the block adjacent to the No. 83 Property, in Po Sam Pai village.

50.David relies heavily on the Law Clan’s family tradition of male primogeniture, namely only men should inherit village land (“Law Clan issue”). He had said in his affirmation[7]:

“…It has been a long-standing tradition of the Law Clan, who are Indigenous Inhabitants in Hong Kong, that all of the properties of the Law Clan are passed on from generation to generation only through the line of male descendants. Madam Sin (the Applicant) will need to explain why the Court should go against this Hakka Chinese custom….”

51.Ms Allison for David submitted that the starting point must be the Court of Appeal’s dictum in Lau Wong Fat v Attorney General [1997] HKLRD 533 that “There is nothing to prevent an indigenous inhabitant of the New Territories from making a will in favour of his male descendants to the exclusion of his female descendants[8]” to preserve the custom. She contended that the Deceased’s traditional custom of permitting only males to inherit is also protected under Article 40 of the Basic Law which provides:

“Article 40

The lawful traditional rights and interests of the indigenous inhabitants of the ‘New Territories’ shall be protected by the Hong Kong Special Administrative Region.”

52.Ms Allison relied on the Court of Final Appeal case Kwok Cheuk Kin v Director of Lands (No.2) [2021] HKCFA 38 recently confirming that Article 40 to be lawful and to be the dominant provision against anti-discrimination provisions. Any potential arguments that the Deceased actions were discriminatory against the Applicant or his daughter would therefore fail. This is because the Deceased’s right to leave his estate to David is protected. She submitted that:

(i) Since Article 40 is a specific provision dealing with the special provision of the indigenous inhabitants of the New Territories, it should prevail over the application of ss. 4 and 5 of the Ordinance following “the principle of statutory construction that the specific prevails over the general” (see para. 44 (2) of Kwok Cheuk Kin’s case); and

(ii)Absent Article 40, “all the various advantages enjoyed by the indigenous inhabitants of the New Territories would be inherently discriminatory…” yet Article 40 “was plainly intended to have some effect” (see para. 44 (3) of Kwok Cheuk Kin’s case).

53.With due respect, I disagree with Ms Allison’s submission. In my view, the authorities cited which concern public law rather than private law, are irrelevant in this application. As said in Lau Wong Fat’s case, “…Where a person seeks to establish that the decision of a person or body infringes rights which are entitled to protection under public law, he must, as a general rule, proceed by way of a judicial review and not by way of an ordinary action,….[9]” The Court of Appeal therefore dismissed the plaintiff’s appeal.

54.Besides, I simply do not have to rule whether Article 40 should prevail over the application of sections 4 and 5 of the Ordinance or not as submitted. What I have to determine in this application is whether to exercise the jurisdiction to make order or orders for periodical payments under section 4(1)(a) of the Ordinance, lump sum under section 4(1)(b), transfer or settlement of property under sections 4(1)(c), (d) and/or (e) as the case may be.

55.Ms Allison for David submitted that the Applicant did not specify the orders she is seeking under section 4. However, it is clear in the Originating Summons that the Applicant never asks for periodical payments under section 4(1)(a). She did ask for “such reasonable financial provision” out of the Deceased’s Estate, including (but not limited to) a transfer order and/or settlement order of various properties, which the court has power to make under section 4(1)(c), (d) or (e). In her open offer, she only requests for 40% of the entire matrimonial pot, which I understand, must be a claim for lump sum out of the Deceased’s Estate which I have the power to make under section 4(1)(b). Hence, at the highest, Ms Allison’s submission may only be succeeded to the extent that Article 40 should prevail over the application under section 4(1)(c), (d) and (e) but not under section 4(1)(a) and (b) of the Ordinance. For the present purpose, it is sufficient for me to rule that the Applicant’s claim for lump sum does not contravene Article 40.

56.Ms Allison for David also submitted that the Deceased strongly believed in continuing the traditional indigenous villager custom on male only succession of village land and that the clearest sign of the Deceased’s wishes on his village was set out in the Final Will. She further argued that the 1998 Will and the 2006 Will are irrelevant.

57.With the greatest respect, I cannot agree. David simply produced no evidence as to why the Deceased made up his mind to give all his estate to the Applicant in the 1998 Will and suddenly changed his mind to give all his estate to Carol in the 2006 Will. At the end, he made the Final Will, which is entirely different from the previous 2 wills. I consider that if the Deceased really or strongly believed in continuing the traditional indigenous villager custom on male only succession of village land, there was no reason for his making of the 1998 Will and the 2006 Will in contradiction of his belief as alleged by David.

58.Ms Allison for David further argued that none of the Deceased’s three sisters had inherited from the Deceased’s father as per his will[10] and none of them have challenged the traditional custom or the wishes of the late Deceased’s father.

59.I cannot understand Ms Allison’s submission as to why and how any of the Deceased’s three sisters would have to challenge the alleged traditional custom. In my view, they all have no status as none of them is named as beneficiary under the will of the Deceased’s father.

60.Ms Allison also contended that even the Deceased’s mother inherited property outside of Po Sam Pai village, she did not even inherit the house that she lived in at No. 3 Po Sam Pai village as said by David in re-examination.

61.It is clearly stated in the Deceased’s father will that the Deceased’s father gave the First Floor of the No.15 Kwong Fuk Road, Tai Po to the Deceased’s mother. The relevant probate had been granted by the Court of First Instance. On the face of the Deceased’s father will, it contradicts the Law Clan. Further, since the Deceased’s mother did not file any affirmation nor give any evidence at the trial, I cannot accept that the bare assertion of David that the Deceased’s mother did not inherit the landed property in question.

62.As the burden of proof of the allegation that the Deceased strongly believed in continuing the traditional indigenous villager custom on male only succession of village land rests on David, I conclude that he fails to discharge such burden.

63.Ms Allison tried to argue that to order the sale of the No. 83 Property would be to utterly destroy the Deceased’s and his father’s dreams. My simple answer is that I fail to find any sub-section in section 4 of the Ordinance which empowers the court to make such order for sale, unlike section 6A of the Matrimonial Proceedings and Property Ordinance, Cap192. Even if the court has, I would not make such an order on my own motion as the Applicant never asks for order for sale in this application.

64.I also note that the Article 40 issue is not mentioned in the Agreed List of Issue in Dispute signed by both Mr Kung for the Applicant and Ms Allison for David on 9 September 2022 as per my order dated 13 May 2022. In my view, it is unfair for Ms Allison to first raise such important issue in her opening. In any event, I reject Ms Allison’s argument under this head based on the reasons above mentioned.

65.As to the question of adducing “expert evidence” for the Law Clan issue or strictly speaking “Hakka Chinese custom” as alleged in David’s affirmation, Ms Allison for David relied on the principles regarding when “expert evidence” should be produced as set out by the Court of Appeal in Shenzhen Futaihong Precision Industry Co Ltd v BYD Company Limited & Others [2018] HKCA 408 and submitted that no expert evidence for the Law Clan issue would be of “necessity or relevant”. The best evidence presented at the trial, came from the villagers themselves, being Lau Kwai On and Law Yuk Ying who lived in the village for most of their lives as to the village practice and beliefs. It appears Mr Kung for the Applicant did not challenge Ms Allison’s submission in this regard, I have no comment though I do have some reservations.

David’s own financial resources and financial responsibilities as beneficiary of the Deceased’s Estate and the prejudice that he will suffer

66.David currently works at the Royal Mail as a machine operator in the UK and is the sole breadwinner supporting his housewife and 5 children, four of whom are still in primary school. He earns £1,503 to £2,800 per month (equivalent to about HK$13,924 to HK$25,940) and his monthly outgoings are HK$45,202.09. He claims to suffer from long term poor health of asthma, high blood pressure, back pain and diabetes.

67.His assets as at 4 April 2022 composed of his bank account deposit, the monetary gifts, various pieces of land gifted by the Deceased and his father during the last few years before they passed away, are agreed at the value of HK$6,942,620.75 which is more than that of the Applicant by about HK$2 million.

68.I accept that David’s financial needs are greater than that of the Applicant, who is a retiree being cared for by Carol. Nonetheless, in view of the substantial value of the Deceased’s Estate together with David’s own assets, his and his family’s financial needs can be satisfied even the court makes order for lump sum payment (say 40% of the matrimonial pot as requested) out of the estate in favour of the Applicant. In other words, I fail to see any real prejudice suffered by David as submitted by Ms Allison.

The Applicant’s Case

69.I accept that the Applicant but not David bears the burden of establishing her claim under the Ordinance.

70.As the provision of the Final Will made no financial provision for the Applicant, the wife of the Deceased as defined under section 2 of the Ordinance, I am satisfied that reasonable financial provision should be ordered out of the Deceased’s Estate for the Applicant under section 3 and that I should exercise the power to make the order under section 4.

71.Next is how I shall apply the matters as listed in section 5(1) of the Ordinance.

72.In my view, the duration of the marriage is always a very important factor which I need to consider. In the present case, it is an almost 40-year marriage.

73.Needless to say, the Applicant had made obvious and great contributions to the family. For instance, she continued to work as a nurse in the hospital after marriage until the birth of Carol who was mainly taken care of by the Applicant.

74.The Applicant also made financial contributions to the Deceased to build a small house on the land ie Lot No. 706 in D.D.23 and other properties, such as down payment and mortgage instalments of Kim Po Building, the Wealth Commercial Property as well as the Luk Yueng Property. I consider that David is unable to challenge these evidence.

75.As said in paras. 118 to 124 of my judgment of TWH v CSK, divorce standard must be one of the very important considerations, to which the court should have due regard, in the case of the spouse’s claim. With the objective of achieving a fair and non-discriminatory result, the court shall treat the divorce standard as a statutory cross-check so as to decide what reasonable financial provision shall be ordered to the spouse under the Ordinance. I take the view that the award to the Applicant shall not be confined to her need only and that she shall be entitled to share part of the Deceased’s Estate.

76.I also accept that the court shall respect the testamentary freedom of the testator albeit the ambit and effect of the Ordinance obviously interferes a person’s right to make testamentary gifts under a will to whomever he pleases according to his wishes. The exercise under the Ordinance must be proportional to achieve the legitimate aim of attaining a fine balance between the testator’s private property right and his spouse’s entitlement for reasonable financial provision under the said legislation.

Conclusion

77.The Court has a broad discretion which must be exercised judiciously to ensure that the order to be made is fair and non-discriminatory for all parties concerned, in particular the spouse. In making the award I have had regard to all the matters discussed above and particularly, those listed in section 5(1) of the Ordinance.

78.After all, it is a value judgment. I am of the view that the Applicant has discharged the burden of proof and demonstrated her entitlement to share the Deceased’s Estate due to the long marriage and her significant contributions to the welfare of the family in terms of both household and finance. I also note that according to section 5(1)(g) of the Ordinance, I have to consider “any other matter, ….., which in the circumstances of the case the court may consider relevant.” Having carefully considered all relevant factors, I come to the conclusion that her open offer is reasonable in the circumstances and that she should receive a lump sum of HK$11,815,641.81 (ie HK$16,714,537.4 being 40% of the matrimonial pot of HK$41,786,343.50[11] - HK$4,898,895.59 being her own assets) out of the Deceased’s Estate. For convenient purpose, I round down to HK$11,800,000.

79.Given the value of the Deceased’s Estate being HK$36,887,447.91, the sum of HK$11,800,000 represents less than its one third whilst David will retain more than two third, which is sufficiently satisfied his and his family financial needs. If I have to step back, I am of the view that the testamentary freedom of the Deceased is also well respected. I now order the Respondent to pay the Applicant the sum of HK$11,800,000 within 28 days.

Costs

80.Mr Kung for the Applicant submitted that the Respondent should be penalized with indemnity costs on various reasons.

81.Although I determine the Clan Law and Article 40 issues in favour of the Applicant, I consider that these issues are very interesting to be discussed jurisprudentially. Hence, the appropriate basis shall be party and party rather than indemnity. I exercise my discretion to make an order nisi that the Respondent do pay the Applicant costs of these proceedings including all costs reserved, to be taxed if not agreed, with certificate for Counsel. Such cost order nisi shall become absolute unless any of the parties applies to vary it within 14 days.

82.Last but not least, I would thank counsel for assistance.

Mr Kung Kin Chung instructed by Michelle Hui & Co. for the Applicant

Ms Sasha Allison instructed by Payne Clermont Velasco for the Respondent