Wmf v. Ty Aks Tly, The Executrix To the Estate of the Deceased
|
FCMP 24/2023 [2025] HKFC 77 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION FAMILY COURT MISCELLANEOUS PROCEEDINGS NO. 24 OF 2023 ________________________
________________________ BETWEEN
________________________
________________________ JUDGMENT ________________________ Introduction 1.This was the trial of the Applicant’s claim as the widow of the Deceased for financial provision from the Deceased’s estate under the Inheritance (Provision for Family and Dependents) Ordinance, Cap. 481 (“the Ordinance”)[1]. 2.The Respondent is the sole executrix of the Deceased’s estate. Background 3.The Deceased was born in Mainland China in October 1938. He had 2 marriages in his lifetime. Within his first marriage, there was a daughter born in 1963 (“1st Child”) who was at the age of 61 at the time of this trial. The Deceased divorced with his first wife and came to Hong Kong in 1964. 4.The Deceased later developed a relation with one Madam Wong who gave birth to 2 children, namely the Respondent in 1970 (“Elder daughter”) and a younger child in 1976 (“Younger daughter”). At the time of this trial, both the Elder and Younger daughters are working. They are respectively at the age of 54 and 48. 5.The Applicant was born in Mainland China in 1943. She came to Hong Kong in 1977 and had her first marriage where she gave birth to a daughter (“Madam N”) who was at the age of 60 at the time of this trial. Madam N is a citizen of the United States and was residing there. 6.There was no dispute that the Applicant is also a citizen of the United States. From time to time during the marriage with the Deceased, the Applicant had travelled to visit Madam N in the United States though she claimed to have no intention to relocate there. 7.In November 1988, a wedding banquet was held between the Deceased and the Applicant without formal registration of their marital relationship. Since then, the Applicant started to live with the Deceased, the Elder and Younger daughters. The Applicant was a housewife. 8.In September 1990, the Applicant and the Deceased registered their marriage in Hong King. 9.In October 2021, the Deceased passed away due to pneumonia. He died testate having made a Will in Chinese in January 2019 (“the Will”) with the assistance of lawyers[2]. 10.In July 2023, Probate was granted to the Respondent[3]. Estate of the Deceased 11.As per the Form E filed by the Respondent on behalf of the Estate[4] and the Schedule of Assets and Liabilities, the net value of the Estate are as follows :-
12.Besides, there was a private limited company by the name “UT” Holdings Limited of which the Deceased held 3,333 shares with unknown value. The other shareholders of the “UT” Holdings Limited are the Applicant and the Younger daughter. It was undisputed that the company had no active business activities operation for over 10 years and had no assets, no financial statement was produced in these proceedings. 13.It was the Respondent’s case that after she obtained the grant of Probate, she had paid administrative fees to ascertain values of the PRC Property and the latest amount of the estate was as follows :-
Beneficiaries under the Will and their respective shares of the Estate 14.Apart from the Applicant spouse who was at the age of 80, the Deceased was survived by the following issues at the time of his death in 2021 :-
15.In respect of the PRC property and a car park, it was devised, given and bequeathed as follows :-
16.In respect of all interests in the CCB Account to be devised, given and bequeathed as follows :-
17.In respect of all interests in the Bank of Communication Account, the Respondent was to hold the same as a Trustee and to set up a fund to pay all funeral expenses. The remaining part of the fund to be invested at the sole discretion of the Respondent in her capacity as the trustee. The profits arising therefrom are to be devised, given and bequeathed as follows :-
18.The residuary estates are to be divided by the Respondent, the Younger child and the 1st Child in equal shares. (As per Clause 5 of the Will). 19.Hence, the Applicant’s share of the Deceased’s estate under the Will was around HK$242,091 (that is HK$228,800 + HK$13,291) breakdown as follows :-
The Applicant’s case 20.The Applicant was running a “needs” case in the way and in context akin to a “notional divorce” scenario. 21.The Applicant first filed her Form E on 16 August 2023[11] setting out her then monthly expenses. In her 3rd Affirmation dated 2 April 2024[12], she came up with her monthly expenses at the time at HK$23,980 which she anticipated would increase to HK$50,670 a month[13]. The breakdown of which are as follows :-
Total: HK$23,980 HK$50,670 Applicant’s expenses proposed and agreed by the Respondent 22.At trial, the Applicant revised the amount of monthly expenses in terms of her financial needs of which the Respondent made her proposals in response as per the following table, signed by the parties and submitted under Part B of Exhibit “A”. 23.Besides, parties’ positions on calculation, interim payments and types of orders to be granted are also contained under Parts C, D and E of Exhibit “A” respectively.
24.By way of background, the Applicant said in 1993 the Deceased purchased a residential property under the Home Ownership Scheme (“HOS”) at Fullview Garden, Chai Wan, at the price around HK$610,000. Initially it was intended to be registered under the joint names of the Deceased and herself. However, given that the Deceased at that time had to travel frequently between Mainland China and Hong Kong, it would be more convenient for the Applicant to be the sole legal owner. Hence, the Applicant became the sole owner. 25.After the purchase, the entire family, that is, the Deceased, the Applicant and the 2 daughters, moved to live in the HOS flat for about 6 years until it was sold in 1999. According to the Applicant, the Respondent has always been a capable woman with strong determination. The reason for selling the HOS flat was due to the Respondent’s persistent and forceful efforts on the Deceased to sell the HOS flat. At the time, the Respondent came up with the idea that both the Deceased and the Applicant to live with her under her care and arrangement. 26.In order to keep the family together and to avoid any argument, the Applicant reluctantly sold the HOS flat in 1999 at the price of HK$1,600,000. After deducing the land premium, outstanding mortgage, all costs and expenses related to the sale, the net proceeds was around HK$80,000 to HK$100,000 which the Deceased allowed the Applicant to take the entire sum. Ever since the sale of the HOS flat in 1999, for the following 17 years, the family moved around different rented properties as their accommodation and it was the Respondent who arranged and paid for all the rental. 27.In 2013, the Deceased started to pay the costs of accommodation. At first, they rented a property in Hoi To Court, Causeway Bay which was about 900 square feet in terms of size. Later, they rented Kwong Chiu Terrace in North Point which was the last home that the Applicant resided. Shortly after the death of the Deceased, the Applicant was told by the Respondent that she would not renew the tenancy. With no other option, the Applicant left Kwong Chiu Terrace which she described in her evidence as being “kicked out” by the Respondent. Given her old age and lack of income, she sought assistance from her sis-in-law who helped her financially and rented the property at Wing Hing Street. According to the Applicant, this was all done in a haste and that she even had not viewed the Wing Hing Street property before it was rented. 28.With respect to her case of dependency, the Applicant said the Deceased had been paying her and the family expenses by himself. The Deceased paid the rent, the domestic helper, food, utilities and other household expenses, including the costs of keeping his own car. In addition, the Deceased would give her a monthly sum of HK$10,000 as her pocket money. In Lunar New Year, the Deceased would further give her HK$30,000 to HK$50,000. Before the Covid-19 pandemic, the Deceased would travel on at least 2 short trips in a year with her and also travelled with her to Canada, United States and Europe for long trips. The Applicant described that it was a very comfortable lifestyle. 29.To support her needs of accommodation in these proceedings, the Applicant produced 2 comparable listings in the same area as Kwong Chiu Terrace where she last resided prior to her being “kicked out”. One of which was Full Wealth Garden of 451 square feet (net) in terms of size at HK$17,500 rental per month[14]. The other one was Fortress Metro Town of 410 square feet (net) in terms of size at HK$19,000 rental per month[15]. 30.The Applicant gave evidence that the Wing Hing Street property was in a terrible condition. There were no security guards. The whole building was so old that it was in the condition of awaiting redevelopment. 31.With respect to her case on the need to hire a domestic helper, the Applicant gave evidence that she had replaced both of her knees and after that she now suffered less pain. However, she was suffering from serious eczema to both of her hands which had caused pain to her even when performing simple tasks. Thus, the Applicant asked for medical expenses and also the need to hire a domestic helper. Apart from such need at her advanced age at present, this was actually her standard of living which she enjoyed during the marriage. 32.For hiring a domestic helper, the Applicant also claimed a one-off expenses of HK$38,372 to cover related expenses for the hiring such as agency fees, visa fees, airfare and insurance[16], let alone the minimum wage of HK$4,870 a month. 33.With a domestic helper on board, the monthly food and utilities expenses would also be considerably higher. This followed by the need to rent a 2-bedroom property to cater for the helper. Accordingly, a higher costs on rental was inevitable. The Respondent’s case 34.Emphasis was placed by the Respondent on the Applicant’s needs so alleged and claimed are not necessarily required; or even if so required, the amount of which was exaggerated. Further, there was no sufficient evidence to support the amount claimed. 35.The Applicant’s citizenship with the United States was also a factor to be noted as there would not be any accommodation costs in Hong Kong as and when the Applicant relocate to the United States, which she could do so anytime if she so wishes. Being a citizen of the United States, the Applicant in principle would be entitled to benefits including medical benefits there. More importantly, according to the Respondent, there was also the common understanding that the Applicant would reside in the United States with Madam N after the Deceased passed away. 36.In 1990, the Deceased’s retail business in home appliances collapsed. This was soon after the Deceased registered his marriage with the Applicant. The Deceased then decided to sell the property in Mei Foo Sun Chuen where they were living at the time. The family then rented a place at Belvedere Garden to live in[17]. 37.The Deceased later started a business which was described as “New Venture” which involved land development projects in the Mainland China, requiring the Deceased to spend around 20 days a month in the Mainland China. The Deceased only spent a few days with the Applicant in Hong Kong. From the Respondent’s observation, during the time when the Deceased stayed in Hong Kong, they always quarrelled with each over money. The Applicant always wanted the Deceased to give her more money[18]. 38.In 1990, the Respondent carried on the business of investing in different financial investments, publication and retail business in books with bookstores, and investing in various projects in the Mainland China such as coal mining, rice milling etc and she managed to make a fortune out of it. Given the success of her business venture, the Respondent said she was able to and did provide maintenance to the Deceased around HK$20,000 to HK$30,000 a month in cash since 1994[19]. In her oral evidence at trial, the Respondent said she started to pay maintenance to the Deceased as early as 1989 since she started to work. 39.As a result of the success of the “New Venture” and with her maintenance, the Respondent said the Deceased became financially healthy around 1993. The Deceased then decided to buy the HOS flat which the Applicant referred to in her evidence. 40.In 1996, the Respondent suggested to the Deceased and the Applicant to move to one of her flats in Ying Piu Mansion for a better living environment. Her suggestion was accepted. The Deceased and the Applicant then moved to Ying Piu Mansion and the HOS flat, given that it could not be rented, was then used as a warehouse. 41.In 1997, the Respondent suffered a financial downturn. She then suggested that the Deceased and the Applicant to move out the Ying Piu Mansion and live with her so that she could rent out the Ying Piu Mansion to relieve her financial stress. The Respondent denied that she urged the Applicant to sell the HOS flat now alleged by the Applicant. The sale of the HOS flat was entirely the Applicant’s own decision[20]. 42.The Respondent denied the Deceased had provided accommodation since 2013 as the Applicant so alleged. Throughout the years, she used her corporate vehicle (which she used for her own business/investment) to arrange for renting, and also payment, of accommodation for the Deceased and the Applicant. 43.However, the Respondent was only able to produce the last tenancy agreement of the Kwong Chiu Terrace[21] where her corporate vehicle signed as the tenant could be seen. The Respondent also produced some bank statements of her personal accounts[22] and the corporate vehicle bank accounts[23] in an attempt to prove that it was her who paid the costs of accommodation and not the Deceased. 44.The Respondent further explained that from time to time she would transfer sums of money from her personal bank account to her corporate vehicle bank accounts for debiting the monthly rental but she was unable to trace back every single dollar and cents of such payment. 45.At paragraphs 21 to 23 of her Affirmation[24], the Respondent said she and the Younger daughter had paid maintenance to the Deceased and also the costs of travelling overseas. 46.At paragraphs 24 to 27 of her Affirmation[25], the Respondent sets out the financial needs of the 1st Child and the Younger daughter, both of them are beneficiaries under the Will. >47.At paragraph 34 of her Affirmation[26], the Respondent considered the caretaking of the Applicant should vest in the Applicant’s biological daughter in the United States. Further, the Respondent knew the Applicant had earned as much as HK$1 million from the stock market few years ago when she followed the investment advice of the Deceased. Such earning had never been disclosed by the Applicant. It was thus believed that the Applicant had sufficient financial resources in the foreseeable future. Any Third party beneficiary? 48.On 29 May 2024 (that is, 7 days before the trial commenced on 6 June 2024), there was a Notification issued by the Legal Aid Department that the Younger daughter had applied for legal aid wished to be joined as a party to these proceedings. Nonetheless, the trial proceeded as scheduled and such application by the Younger daughter was later refused by the Legal Aid Department on 8 August 2024. 49.There was no third party beneficiary in these proceedings nor was there any such application by the 1st Child, the Respondent (as the Elder daughter in her personal capacity) or the Younger daughter. Witnesses’ credentials 50.The only factual witnesses are the Applicant and the Respondent. Neither the 1st Child nor the Younger daughter participated in the trial as witnesses or any of them had filed any witness statement, Form E or affirmation. 51.The Applicant gave solid evidence on her items of claims and was able to answer questions in a clear and non-evasive manner. Although there are momentary pause and hesitation when she appeared puzzled in the witness box, I believe those are mere hiccups which came about given her advanced age of 80 and having to give live evidence in a court of law. I do not see how this would affect her credentials and truthfulness of the evidence that she provided. 52.The Respondent also gave evidence in an orderly and profuse manner. From my observation, there are occasions when the Respondent tempted to bring matters to the court’s attention whenever there are no or insufficient documentary evidence to support those matters. To a certain extent, this had resulted in her testimonies somehow less than forthcoming. 53.Overall speaking, however, I find the Respondent’s evidence reliable though may not entirely be the truth bearing in mind that some of the episodes that had happened between the Deceased and the Applicant took place many years ago (when the Respondent was in her early or mid-twenties, say for instance, the Deceased’s “New Venture” business around 1993) and further that she might not know the full background leading to those episodes. Interim Payments made to the Applicant 54.Around 1 November 2021, the Respondent had paid to the Applicant a sum of HK$10,000 on behalf of the Deceased’s estate. 55.Since 15 July 2023, the Respondent had been making interim payment of HK$25,000 a month on behalf of the Deceased’s estate to the Respondent which, counting up to the month of May 2024 before the trial commenced on 6 June 2024, was 11 months in the total sum of HK$275,000 (that is HK$25,000 x 11 months). 56.On 22 September 2023, the Respondent further, on behalf of the Deceased’s estate, paid to the Applicant a sum of HK$400,000 for her to satisfy the immigration department requirements on financially capability to hire a domestic helper. 57.Thus, the total sum advanced by the Respondent to the Applicant added up to HK$685,000 which was undisputed. Parties’ Open Proposals 58.Applicant’s latest revised open proposals as at 6 June 2024 are :-
59.At paragraph 26 of the Respondent’s Closing Submissions, reference was made to Section C3 of her Opening Submissions in terms of the Hong Kong courts approach in assessing the Applicant’s claims. 60.At paragraph 38 of the Respondent’s Opening Submissions, the open proposals are :-
The Law (a) statutory provisions 61.There is not much dispute between the parties as to the law. 62.For the sake of completeness, I now set out the relevant provisions in the Ordinance which are, namely, sections 3, 4, and 5 as follows :-
63.From reading the above statutory provisions, it is abundantly clear that the standard of “reasonable financial provision” varies between an applicant who is the surviving spouse of the deceased from other categories of applicants. 64.For surviving spousal applicant, the standard was “such financial provision as it would be reasonable in all the circumstances of the case for such a person to receive, whether or not the provision is required for his or her maintenance.” (Section 3(2)(a) supra) 65.For applicants other than the surviving spouse, the standard was less generous (my emphasis) to mean “such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.” (Section 3(2)(b) supra) 66.Further, for applicants other than the surviving spouse, he or she would have to satisfy the court that the deceased, otherwise than for full valuable consideration, was making a substantial contribution in money or money’s worth towards the reasonable needs of that applicant. (Section 3(3) supra) 67.In the present case, given that the Applicant was the surviving spouse of the Deceased, a more liberal and generous approach would be applied when considering her “reasonable financial provision” under the Ordinance. That said, I am minded to say the different standard for surviving spousal applicant entitles the Applicant to receive more than what was required for her maintenance; that is to say, the provisions could be above and beyond her needs. (b) case law 68.In the case of Re Coventry [1980] 1 Ch 461 at 469G, Oliver J sets out a two-stage test in considering an application for “reasonable financial provision” under the Ordinance as follows :-
69.In the later case of Ilott v Mitson (No 2) [2018] AC 545 at [23], Lord Hughes JSC said the two-stage test set out in Re Coventry,the first one is of value judgment and the second one is of discretion and in most cases a very large degree of overlap between the two stages. 70.In the case of Lilleyman v Lilleyman[2013] Ch 225 at [37] - [38], Briggs J observed that there is no limit to the matters set out in sub-sections 5(1)(a) to (f) in the Ordinance to which, in any particular case, the Court may have regard them as evident in sub-section 5(1)(g) followed thereafter. There is also no hierarchy among the matters to which the court must have regard and each of them may be of infinitely variable weight, depending on the particular facts of any given case. The “Notional Divorce” enquiry 71.When an application was made by a surviving spouse, there are additional matters set out in Section 5(2) of the Ordinance that the court should have regard to. This is the so-called “notional divorce” enquiry, an approach not commonly accepted in our jurisprudence and, had been considered by our Court of Appeal in the case of Tam Mei Kam v HSBC International Trustee Ltd and Others (CACV No.181/2016) as a mere “cross-check” to ensure that on death, the surviving spouse would be in no worse position than would have been the case if the spouse had been divorced. 72.Pausing here, I have in mind the case of Re Besterman [1984] Ch 458 on the correct approach of “notional divorce”. In Re Besterman, Oliver LJ held that the consideration of the equivalent of our section 7 of the Matrimonial Proceedings and Property Ordinance, Cap. 192, is merely one of the factors to which the court is to have regard and the overriding consideration is what is reasonable in all the circumstances. 73.In divorce cases, there are two spouses who need provision, whereas in cases under the Ordinance there is only one. (see Williams, Mortimer and Sunnucks on Executors, Administrators and Probate(Sweet & Maxwell, 21st Edn) at [54-10]). Moreover, the needs of any other beneficiaries should also be taken into account in an application under the Ordinance. 74.In the case of P v G (Family Provision: Relevance of Divorce Provision) [2006] 1 FLR 431, Black J considered what the Ordinance contemplated to achieve and said :-
75.Going back to the case of Lilleyman v Lilleyman (supra), Briggs J also agreed with Black J’s approach and held that the “notional divorce” enquiry is just a “cross-check”. At para.60 of the Judgment, it was said that the divorce “cross-check” :-
76.Finally and lately, in the recent case of LWH v YMY (Financial Provision for Family and Dependents [2023] 1 HKLRD1004 where our learned brother Judge I Wong, faced with debates over the interplay between “notional divorce” enquiry and the wife’s claims under the Ordinance, said :-
77.So much has been said on the case law, I would now move on to consider each of those matters set out in Sections 5(1) and (2) of the Ordinance. Section 5(1)(a) : the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future 78.The Applicant has been a housewife since she “married” the Deceased back in 1988 or registered their marriage 2 years later in 1990. 79.According to her Form E dated 14 August 2023, the total value of her assets was HK$233,801.67[27] and Old Age Allowance of HK$4,060[28], making a total sum of HK$237,861.67 as her financial resources. 80.In terms of increased financial needs per month, even though not immediate required at present, but would be required in the foreseeable future includes :-
81.Given the Applicant’s old age of 80, her limited financial resources, her need for accommodation, domestic helper and medical expenses, all of which I agree with, my concluding views on this head is that the Applicant would require more financial resources to cover her monthly expenses and anticipated expenses. Section 5(1)(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 82.Apart from the Applicant herself, there is no other applicant in these proceedings. Section 5(1)(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 83.None of the beneficiaries under the Will, namely, the 1stChild, the Respondent (in her own capacity) or the Younger daughter had filed any Form E on their respective financial resources or financial needs or come up with any application for their needs. Section 5(1)(d) : any obligations and responsibilities which the deceased had towards any applicant for an order under section 4 or towards any beneficiary of he estate of the deceased 84.On the facts and evidence, the only obligations and responsibilities that the Deceased had or owed to was towards the Applicant, his 31-year wife whom he had been supporting during the marriage until his death in 2021. Section 5(1)(e) : the size and nature of the net estate of the deceased 85.Parties are able to jointly agree on the size and nature of the net estate at trial as follows[29] :-
Section 5(1)(f) : any physical or mental disability of any applicant for an order under section 4 or any beneficiary of the estate of the deceased 86.In December 2023, the Applicant received operation over her knee at the Buddhist Hospital since she had suffered pain after prolonged walking and standing[30]. 87.Since January 2024, the Applicant started visiting Chinese medical practitioner for her eczema and other illness associated with aging[31]. 88.Given her medical condition, her expenses for treatment/follow up and related travelling expenses to receive treatment/follow up are likely and expected to be higher. Section 5(1)(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. 89.Applicant’s Counsel in her Closing Submissions invited this Court to consider costs against the Respondent personally as opposed to the usual form of order in this type of cases that costs be paid out of the Deceased’s estate. The basis for such submission was that a personal representative who is a beneficiary need to distinguish clearly their activities in their representative and personal capacities, in respect of which the Respondent had not done so. 90.By challenging the Applicant’s needs and other related expenses, as opposed to simply putting the Applicant to strict proof, it was said that the Respondent was resisting Applicant’s claim in her personal capacity as a beneficiary under the Will. 91.With respect, I disagree with Applicant’s Counsel. Looking the case in a round, I do not think the Respondent or her Counsel’s opposition went beyond the band of reasonableness so much so that the Respondent’s conduct of defending the case could be categorized as done in her personal capacity and not in her representative capacity of the Deceased’s estate. Section 5(2)(a): the age of the Applicant and the duration of the marriage and section 5(2)(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. 92.The Applicant was aged 80 at the time of trial. As at the time when the Deceased passed away in 2021, the marriage lasted for 31 years, let alone the preceding 2 years of marital relationship before registration of the marriage. This is a long marriage from any perspective. 93.As to the Applicant’s contribution to the welfare of the family, I accepted the Applicant’s case that she supported the Deceased at the time when his retail business of home appliances collapsed in 1990. There was no evidence from the Respondent to rebut that this had not happened. Viewing the matter objectively, it might even be the case that the Deceased’s success in the “New Venture” had, to a certain extent, came about with the support of the Applicant in his career although I noticed that there was no evidence for me to make such a finding. Such observation came along noting that in 1990, the Deceased was at the age of 52 (he was born in 1938) and, objectively speaking, required courage and family support to start “afresh” in one’s career or business. 94.As a matter of fact, there was no sufficient evidence to challenge the Applicant’s contribution on caring for the home and looking after the Respondent and the Younger daughter. No reason or explanation was offered by the Respondent as to why Madam Wong (i.e. Respondent’s biological mother) departed the Deceased leaving behind the Respondent and the Younger daughter with the Deceased for him to look after over the years. What then happened was that the Applicant came along and the Respondent, the Younger daughter and the Deceased, were being taken care of and looked after by the Applicant as a housewife. The 4 of them stayed as a family for years until the Respondent moved out from the family home on her marriage around 2014. Conclusion 95.Giving full and careful consideration to the evidence, the law, the factual background and all the circumstances of this case; in particular, the contents of the Will, I am satisfied that 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. Nonetheless, insufficient financial provisions were made for her maintenance by the Deceased under his Will. The Court was empowered under the Ordinance to grant such necessary and appropriate reliefs to the surviving spouse, that is, the Applicant. 96.I accepted the Applicant’s evidence on her items of claim, including but not limited to, (a) accommodation needs; (b) hiring a domestic helper; (c) need of medical expenses and (d) household expenses to include a domestic helper; all of which would be generously considered in line with established provisions under the Ordinance aforementioned. 97.The “one-off” expenses of HK$29,872[32] for hiring domestic helper would also be allowed in full. 98.I would now set out below my assessment on the amount of each of the items of the Applicant’s financial needs, using the table under paragraph 23 above.
99.The Court has a wide discretion on claims brought under the Ordinance. The discretion must be exercised judiciously to ensure that the order to be made is fair, reasonable and non-discriminatory to all the parties concerned. I have given full consideration to all the matters discussed above and; in particular, those matters listed in Sections 5(1) and (2) of the Ordinance. I gave particular attention to the fact that there was no other competing beneficiaries in this case. None of the other beneficiaries, including the Respondent in her own capacity as a beneficiary under the Estate, made any claim under the Ordinance. 100.After all, this is a valued judgment. 101.There was dispute between the parties as to the approach for quantifying the award under the Ordinance. As shown in the Table under paragraph 23 of this Judgment, the Applicant sought a multiplier of 13.08 years on her claimed monthly expenses of HK$43,670 and came up with the total sum of HK$6,854,443.20. Such amount far exceeded the amount of the agreed net estate value of HK$6,508,831.31 shown in the Table of Agreed Amount of the Estate under paragraph 85 of this Judgment. 102.On the other hand, Respondent’s Counsel in her Closing Submissions contended that the so-called “needs-based approach”, even when interpreted generously and called “reasonable requirement” were not to be treated as determinative (citing Inheritance Claims, 5th Edn at 6-062)[33]. The novel approach sought by the Applicant by using the monthly financial needs times the life expectancy was not supported by case authority, practitioner’s texts or academic articles in Hong Kong or other jurisdictions to prove correctness or propriety[34]. 103.In my view, the answer depends on what is fair and reasonable on the facts of the case. There is no arithmetic equation or mechanical calculation to work upon for achieving justice in a case; in particular, in family related litigation. Inheritance and dependency claims are one of those cases which called for good sense of reality and practicality in order to arrive at an outcome best serving justice to all parties. 104.That said, I would quantify the amount to be paid in this case by multiplying the Applicant’s financial needs of HK$32,070 found by me under paragraph 98 of this Judgment by a multiplier of 8 years (that is, 96 months). This would arrive at the figure of HK$3,078,720 (that is HK$32,070 x 12 x 8) (“Award”) which represents around 47.3% of the agreed amount of the estate of HK$6,508,831.32. 105.This Award should include all the interim payment(s) made to the Applicant totaling HK$685,000 set out in paragraph 57 of this Judgment and other interim payment(s), if any, made to the Applicant up until the date of trial. The balance of the Award to be paid to the Applicant out of the net Estate by the Respondent within 28 days from the date of this Judgment. 106.Given the Award being dependency sums on maintenance by nature, as opposed to sharing of matrimonial assets in a divorce suit, I decided that the financial resources and assets of the Applicant be retained by the Applicant without any deduction or set-off from the net balance of the Award. Costs 107. With my decision on the Award and the parties’ respective Open proposals, and also taking into account of my observation under paragraph 91 of this Judgment, I decided that the usual form of order that costs to be paid out of the Deceased’s estate to be a fair and reasonable decision on costs. 108.Accordingly, I will so order. 109.This is a costs order nisi which would become absolute if no application to vary the same was filed within 14 days from the date of this Judgment. 110.Last but not least, I wish to express my gratitude to both Counsel and the legal teams for their valuable assistance to this Court.
Miss Vivien Leung instructed by Messrs. Freda Lim & Co., Solicitors for the Applicant Miss Chantel Lin instructed by Messrs. Kenneth C.C. Man & Co., Solicitors for the Respondent [1] TB:A/1 to 4 [2] TB:A/124 to 129 [3] TB:A/229 to 238 [4] TB:A/30 to 53 [5] TB:A/36 at §2.3 [6] TB:A/36 at §2.3 [7] TB:B/269 [8] TB:A/72 at §3(5) [9] TB:A/72 at §3(6) [10] See §15 of Respondent Counsel’s Opening Submissions [11] TB:A/5 to 29 [12] TB:A/86 to 91 [13] TB:A/89 [14] TB:A/138 [15] TB:A/139 [16] See §17 of Applicant Counsel’s Closing Submissions [17] TB:A/74 (at §10 of Respondent’s Affirmation) [18] TB:A/74 (at §12 of Respondent’s Affirmation) [19] TB:A/74 (at §11 of Respondent’s Affirmation) [20] TB:A/75 (at §15 of Respondent’s Affirmation) [21] TB:B/409 to 415 [22] TB:B/304 to 350 [23] TB:B/351 to 408 [24] TB:A/76 [25] TB:A/76 to 77 [26] TB:A/78 [27] TB:A/12 [28] TB:A/21 [29] See Exhibit “A” [30] TB:A/87 (at §3 of Applicant’s 3rd Affirmation) [31] TB:A/87 (at §4 of Applicant’s 3rd Affirmation) [32] Item 9 of the table in §23 of this Judgment [33] See §10 of Respondent Counsel’s Closing Submissions [34] See §11 of Respondent Counsel’s Closing Submissions | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMP 24/2023