Cx v. Hkc, The Sole Executor of the Estate of Hkm, Deceased

FCMP 9/2024

[2025] HKFC 115

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NO 9 OF 2024

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J U D G M E N T
( Leave to apply for Financial Provision Out of Time )

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This Application

1.By her Originating Summons dated 16 January 2024, the Applicant (“A”) applies for financial provision under the Inheritance (Provision for Family and Dependents) Ordinance Cap 481 (“IPFDO” / the “Ordinance”), and for leave to make this application out of time.

2.This is the hearing of the preliminary issue for the leave to apply out of time.

Background

3.The deceased passed away on XX January 2020.

4.A is the wife of the deceased. At the time of the hearing, W was 50 years of age.

5.The Respondent (“R”) is the brother of the deceased, and is also named as the sole executor of the deceased’s last Will dated 21 May 2019 (the “Will”).

6.The Applicant and the deceased met in 2010 and got married in May 2012. During the marriage, the deceased was a technician at the Department of Health and the Applicant was a housewife, with occasional domestic helper jobs which brought unstable income. She says at that time she held a two-way permit to travel back and forth from the Mainland.

7.The deceased was diagnosed with cancer in 2014. A says that she looked after the deceased full time since. After his surgery, the deceased was in remission, and he returned to work in 2015.

8.It was during the deceased’s illness that he reconnected with his estranged brother R.

9.The deceased passed away due to his heart condition and kidney failure at the age of 51.

Provisions of the Will

10.R produced an earlier Will made by the deceased on 5 January 2016, this Chinese Will appointed R as the sole executor and left the whole of the estate to him. This Will contained only four clauses on one page. It was specifically stated by the deceased therein that he did not intend to give anything to A:

“茲鄭重聲明，本人將不會作任何遺贈給予本人之妻子程XX 。”

11.The Will that was proved was dated 21 May 2019. It was also in Chinese, consisting again of four clauses on one page. This Will also appointed R as the sole executor and provided for 95% of the estate to R and 5% to A.

“ …

(三) 本人特此將本人名下在各處所有動產及不動產，在清付本人之債項、喪葬費、遺產承辦費、遺產稅（如有）及其它費用後，作以下之安排︰

(1) 95%遺贈予弟弟何XX(HO XX)承受及享用

(2) 5%遺贈予妻子程XX(CHENG XX)承受及享用”

12.The Grant of Probate was issued on 10 August 2020. The time limit for application under the Ordinance of 6 months from the date of representation expired on 9 February 2021. The current application filed on 16 January 2024 was 2 years, 11 months and 7 days late; and 4 years after the deceased died.

The Estate

13.The estate is made up of the following, most of which values are taken from the grant of probate:

Chai Wan Property	(1)  $3,000,000 / or (2)  $1,970,000 on the secondary market
Cash at bank	Around $2,300,000
Death gratuity, ex-gratia payment, arrears of salary and allowance	$984,183
Miscellaneous items in the safe deposit box	unknown
	(1)  $6,284,183 / or (2)  $5,254,183

14.The highest value asset in the deceased’s estate is the property in Chai Wan (“Chai Wan property”), which was acquired by the deceased in 2007 prior to the marriage. A says she lived there with the deceased, and it was their matrimonial home.

15.After the deceased’s passing, and well after the probate was granted, A has continued to live at the Chai Wan Property; up until the time of this hearing. Therefore, this asset from the estate has not been dealt with by R as executor of the estate.

The Legal Principles with regard to Applications Out of Time

16.Section 6 of the Inheritance (Provision for Family and Dependents) Ordinance (“IPFDO”) reads as follows:

“An application for an Order under section 4 shall not, except with the permission of the court, be made after the end of the period of 6 months from the date on which representation with respect to the estate of the deceased is first taken out.”

17.In LZX v WYL (provision: family and dependants) [2012] 5 HKLRD 29, PFCJ Bebe Chu (as she then was) summarized the guidelines on this point in §§ 30 – 32:

“30. I have been referred two cases by Mr. Lui, Counsel for Lan and the Father, where the English court had to consider whether leave should be granted. In the first case of In re Salmon, decd. [1], Sir Robert Megarry V.-C. listed out some guidelines:

“First, the discretion is unfettered. No restrictions or requirements of any kind are laid done in the Act. The discretion is thus plainly one that is to be exercised judicially, and in accordance with what is just and proper. Second, I think that the onus lies on the plaintiff to establish sufficient grounds for taking the case out of the general rule and depriving those who are protected by it of its benefits. Further, the time limit is a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules. The burden on the applicant is thus, I think, no triviality: the applicant must take out a substantial case for it being just and proper for the court to exercise its statutory discretion to extend the time…….. In my view, a third point is that it must be material to consider how promptly and in what circumstances the applicant has sought the permission of the court after the time limit has expired. … ... The whole of the circumstances must be looked at, and not least the reasons for the delay, and also the promptitude with which, by letter before action or otherwise, the claimant gave warning to the defendants of the proposed application….…. This leads to a fourth point. ..…. I think that is obviously material whether or not negotiations have been commenced with the time limit; for if they have, and time has run out while they are proceeding, this is likely to encourage the court to extend the time…… Fifth, I think that it is also relevant to consider whether or not the estate has been distributed before a claim under the Act has been made or notified. ……. Sixth, I think that it is relevant to consider whether a refusal to extend the time would leave the claimant without redress against anybody.. ”

The Vice Chancellor also made it clear that the six considerations he stated were not exhaustive.

31. The second case Re Dennis (Deceased) followed shortly after the above case. In this case, Browne-Wilkinson J. referred to the above guidelines laid down by the Vice Chancellor, but pointed out that an earlier decision of the Court of Appeal in Re Stone (deceased) was not drawn to the attention of the Vice Chancellor in Re Salmon (deceased). In Re Stone (deceased), the Court of Appeal allowed an appeal by a widow and enabled her to bring her application out of time. Lord Denning MR had said in the course of giving judgment that if the widow “has an arguable case or, as we say in the Ord. 14 cases, if there is a triable issue, then permission ought to be given’. Browne-Wilkinson J was thus of the view that in addition to the 6 guidelines laid down by the Vice Chancellor in In re Salmon, decd., the applicant would also need to demonstrate that he had an arguable case, a case fit to go to trial, and that in approaching that matter, the court’s approach would be rather the same as when considering whether a defendant ought to have leave to defend in proceedings for summary judgment.

32. It is clear that the Court has the unfettered discretion to grant the permission, and the discretion is to be in accordance with what is just and proper. The burden of proof is on W to establish there are sufficient grounds to grant the permission and the burden is not trivial.”

18.To distil this further, the following are the principles in considering an out of time application under the IPFDO:

a.  The court’s discretion is unfettered but must be exercised judicially in accordance with what is right and proper.

b.  The onus is on the applicant to show sufficient grounds for the granting of permission to apply out of time. This burden is no triviality.

c.  Consideration must be given to consider whether an applicant has acted promptly and the circumstances in which she applied for an extension of time after the expiry of the time limit.

d.  It is relevant whether or not any negotiations had been commenced within the time limit.

e.  It is relevant whether or not the estate had already been distributed.

f.  It is relevant whether, if permission to extend time is not granted, the applicant would have any form of redress against anyone else.

g.  Whether the applicant has shown an arguable case under the IPFDO.

The Applicant’s case

19.A says that during the marriage, the deceased was the sole breadwinner and she was the housewife. She did work as a part time domestic helper with unstable income but stopped working in 2014 when the deceased was diagnosed with cancer and she says she looked after him. She also says she had lived only in the Chai Wan Property during the marriage when she was in HK, she has no other accommodation and has now been asked to vacate the premises. She says during the deceased’s lifetime, she received $4,200 per month from him as home expenses (“家用”). The deceased also paid for number of other expenses, including government rent and rates, management fees, and utilities.

20.A says since the proceedings, she has been plagued with anxiety and sleeping issues, she had to borrow for a living; and she says she is unskilled to find any full-time job due to her low level of education. She also says she is not yet qualified for old age allowance as she is not yet 65 years of age.

21.The bases of the Applicant’s case are as follows:

a.  That she only knew about the Grant of Probate by a letter from the Respondent’s lawyer on 25 November 2022.

b.  She only became aware of her rights under the Ordinance after she made contact with her legal representation in May 2023.

c.  There was negotiation on a without prejudice basis between May to September 2023.

d.  She had to apply for legal aid.

e.  She was afraid of contracting Covid and was under the restrictions of the social distancing rules.

f.  She had limited resources in seeking legal advice.

The Respondent’s case

22.R says there had been serious delay in taking out this application, as it is almost three years after the timeline set by S.6 of the Ordinance. R says that A has shown no urgency in taking out this application.

23.R says that A knew about the probate before the date she said she did, and therefore she had been untruthful.

24.R also says the reasons A claims for the delay are unsubstantiated, and A has no merits in her application for financial provision.

25.R adds that until the time of the hearing, A has been living rent-free in the Chai Wan property for more than 4 years.

Issues

26.The issues before me are therefore:

a.  Whether A has acted promptly in taking out this application

b.  Whether there has been attempts at negotiation

c.  Whether the estate has been distributed

d.  Whether A has alternate redress if her application is turned down

e.  Whether A has a triable issue

Has A acted promptly in taking out this application

27.In considering whether A has acted promptly in taking out the application, I shall consider the evidence relating to the events from the date of the Grant of Probate to the taking out of her application, and the reasons A gives for her delay.

28.A says she only found out about the probate on 25 November 2022 by a letter from A’s solicitors. This was contested by R who produced WhatsApp messages in evidence dated 28 August 2020 (18 days after the Grant of Probate) that showed he had duly informed A of the grant of probate. In the same chain of messages, R informed A that he would be proceeding to deal with the bank and would let her know. A replied on the same day only to ask for the deceased’s ID card back but she asked no more questions.

“午安！大嫂！昨天我從林律師取了遺產執行令，如果你沒有問題，我將於下星期，開始到銀行做遺產承繼事直，完成後才知會你吧！謝！” 13:29

“阿叔你記得可翻啊X身份證到時俾返我。” 18:13

29.On 1 November 2020, R sent A the probate documents which contained the proved Will and the Schedule of Assets and Liabilities together with the message that there needed to be a discussion on the transfer of the legal title of the Chai Wan property.

“午安，大嫂，何XX的遺囑已辦理完七七八八啦，現在要商議柴灣個間屋的轉名手續和保險箱的物品，現付上遺囑文件。待覆”

30.A further reminder was sent on 10 November 2020, to which A acknowledged.

31.On the basis of these messages, it is not accepted that the A only became aware of the probate in November 2022, as she clearly responded to R’s message in August 2020.

32.As to the action taken by A with regard to her application, this can be looked at in terms of the following periods.

Between 28 August 2020 to 25 November 2022

33.This is from the date R informed A of having received the Grant of Probate to the date A claimed that she first knew about the probate through the R’s solicitors.

34.It is clear from the chronology that nothing was done by A during this time, and no evidence was given as to what happened during this period as it was her case that she was only aware of the probate in November 2022.

35.After these WhatsApp messages had been produced under the R’s Affirmation, A accepted in her second Affirmation dated 14 June 2024 that she did receive these messages, but says that with her limited education and English language skill, “I had no knowledge of the meaning and legal effect of the said “遺產執行令” and the attachments sent on 1 November 2020.”

36.It is also her evidence that R told her to find a lawyer, which she did online. A and R went up together to this law firm she found, but eventually R engaged the law firm which now represents him. I do not have the time at which this incident took place.

37.It is R’s contention that A could not explain why she never took any positive steps to clarify her legal position, he says this is so particularly considering the following :

a.  A admits that she found the Will of the deceased on the R’s request.

b.  The Will was a simple one page document in which the disposition of assets was written in simple uncomplicated wordings.

c.  A knew she needed to seek assistance for matters regarding the estate from a lawyer, and she knew how to find a law firm from the internet.

38.I make reference to the exhibited WhatsApp messages from R with regard to his exchange with A. Following the November 2020 exchanges regarding probate documents and the mention of the need to deal with the Chai Wan Property, their subsequent sparse exchanges up to November 2022 include only the topics of the contents of the safe deposit box, the deceased burial plot, the time when they arranged to place the ashes into the cremation niche in Chai Wan, and the fixing of window of the Chai Wan Property.

Between 25 November 2022 to May 2023

39.This is the time from the date when A alleged to have first been informed of the Grant of Probate to her seeking out her own legal representation whereupon she alleges was when she was informed of her rights under the Ordinance.

40.There appears to be no WhatsApp message between A and R from mid November 2022 to 1 May 2023.

41.R contends that it is “inexcusable” for A to wait 6 months during this period before she went about finding her lawyers. No explanation was given by A on this lapse of time as to why nothing took place, other than her saying that she was emotionally unstable and unable to gather her thoughts or express her wishes. There was nothing in evidence to support this latter contention other than her mere say so in her Affirmation.

Between May 2023 to September 2023

42.This is the period where A says there were negotiations conducted between the parties.

43.From the WhatsApp messages from 1 May 2023, R was sending messages requesting A to contact his solicitors.

44.A admits to having found her own legal representation on 11 May 2023.

45.R also says that having been informed of her rights in May 2023, there is no sense of urgency on her part to start this application. R also says that A has acted against the advice of her own lawyer in not making this application and negotiating with R in tandem.

46.During this period, A applied for Legal Aid on 18 May 2023 and received approval on 9 August 2023. A’s evidence indicated that her lawyers then wrote to DLA on 15 August 2023 to bring in counsel. Her application comes 5 months after she was granted legal aid.

47.There was mention of medical issues during this period, but the medical chits produced in evidence commenced only from May 2023 (the time when she consulted her lawyers) until December 2023. There is nothing in this evidence that shows what medical issues she had, or that she was so debilitated as to prevent her from giving instructions to her lawyers to proceed with her application.

Between September 2023 to 16 January 2024

48.This is the period when the negotiation ended until the date of the current application.

49.I have not been informed when counsel was appointed to this case; and if A’s case is that she was waiting for counsel, she did not provide any explanation as to why her application cannot be processed by her solicitors.

50.There is no other evidence as to what transpired during these 4 - 5 months.

What are the reasons for the delay

51.A argues that her delay is justified; and that she could not be blamed as she only received education up to primary school level in the Mainland. Her other arguments include:

a.  A does not know the implication of what was bequeathed, the importance of the date of the Grant of Probate, or that she would not be able to maintain herself from the distribution from the estate.

b.  R and his solicitors did not explain the effect of the probate and the Will to her and her rights under Cap 481, and how it would affect her financial provision in the future.

c.  A entrusted the management of the estate to R and she believed she was unable to do anything about the deceased’s estate.

d.  When R asked A to contact his solicitor, R and her solicitor should be aware that R’s solicitors are in a position of conflict, and the latter should have told A to seek independent legal advice.

e.  A argues that there is no delay after May 2023 as she diligently sought advice, got legal aid and counsel and got the OS out in 3 months after securing counsel.

52.I cannot agree with A’s case that it is R’s and his solicitors’ fault. Nor do I agree that R and his solicitors have a duty to explain the Will and the implication of the IPFDO application to A; when R told A to contact his solicitors, the latter was representing the estate and dealing with issues and propositions, there is no duty on R’s solicitors’ part to tell her to go seek legal advice.

53.Other than the reasons above, A also blames Covid, she says she was fearful of contracting Covid. To this, R says that law firms in Hong Kong remain operational, and online services including remote consultation were commonplace. I agree.

54.A further says she has limited resources to seek proper legal advice. This is not accepted. She knew how to find lawyers on the internet; and if she did, she would have been pointed to legal aid, and there was no good reason why it took her until May 2023 for this to happen. Her evidence also shows that she previously knew how to consult the district councillor on her immigration status, I therefore do not accept that she does not have the means and contacts to seek help or make enquiries.

55.Coming back to look at this issue of prompt action. A found the Will, which is in Chinese. Upon reading it, it must be clear to her what her entitlements are. It is not accepted she did not understand the messages regarding the probate documents; at the very least, she should understand by the November 2020 WhatsApp messages that R is seeking the transfer of the Chai Wan Property (at which she resides) to himself as the beneficiary of the estate. Even having given due consideration to the suggestion that A did not know that she could challenge her entitlement, I am unable to find that A is completely inculpable. I find it difficult to comprehend if she has limited funds, says the provision under the Will is inadequate, and was told she was about to be deprived of her residence, yet none of these triggered any reaction on her part.

56.Moving forward on the timeline, I also find that that she has failed to act promptly from November 2022 which, on her own case, was when she says she realized about the probate via a letter from R’s solicitors. This letter says that the Chai Wan Property may be sold, yet with the risk of going roofless (as her counsel puts it), there was 6 months of inertia after. The complete lack of explanation in her evidence left a lacuna in a situation where the onus is on her to explain her delay.

57.It appears from the WhatsApp messages that following a flurry of exchange between A and R in early May 2024, A did go find legal representation and also applied for legal aid. But it is also not clear, what it was that suddenly triggered A to eventually go seek legal advice. While it is understood that application for legal aid takes time, it is not accepted that once legal aid was granted in August 2023, she sat on her hands for 5 more months, and no application was taken out until January 2024. The explanation that DLA was contacted to find a counsel is not an acceptable reason for not initiating proceedings right away in August 2023.

58.The burden on the A is not trivial. I have found that she did not speak the truth as to when she actually knew about the Grant of Probate; and I also find she has not been able to satisfactorily discharge her burden in justifying her delay for her application.

Attempts at Negotiation

59.The guidance provided by the case of LZX above, states that the court should consider if negotiations have taken place during the 6 months after the Grant of Probate. It is the A’s evidence that negotiation only took place between May to September 2023, the statutory 6 months period has long since expired.

Has the estate been distributed

60.The only evidence before the Court on this issue is that A has been living in the Chai Wan Property from the time of the deceased’s passing up to the date of the hearing; therefore this part of the estate remains intact.

61.I have no evidence as to what has happened with the cash in the deceased’s estate.

Would the refusal of her leave left A without redress

62.On this point, it is argued for A that she has no money, no real property, no stable income, and no earning capacity. The Court has no evidence on this except for A’s two months’ bank statement for October and November 2023, which is hardly sufficient to substantiate the alleged state of A’s financial position.

Does the A have a triable case?

63.S.3(1)(i) of the Ordinance provides for a spouse to apply for financial provisions from a deceased spouse’s estate.

64.S.3(2)(a) deals specifically with the meaning of “reasonable financial provision” in case of an application by a wife and provides as follows:-

“(2) In this Ordinance, “reasonable financial provision” –

(a) in the case of any application made –

(i) by virtue of subsection (1)(i) by the … 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);

…..

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”

65.This section clearly provides for the so called “surviving spouse standard” which states that the surviving spouse may be entitled to a reasonable financial provision over and above that which is required for his or her maintenance.

66.S.5(2) of the IPFDO then sets out the so called “divorce standard” which requires the court to have regard to the financial provision that the applicant might reasonably have expected to receive if on the day the deceased died the marriage had been terminated by a decree of divorce instead of being terminated by death.

67.A asserts that she has a compelling case. She supports this by referring to the duration of her 8-year marriage, and that her entitlement is subject to a notional divorce cross-check. Consequently, it is said for her that she is likely to be entitled to an equal division of assets. She therefore says that her entitlement under the Will is insufficient as it gives her either:

$6,284,183 × 5% = $314,209, or

$5,254,183 × 5% = $262,709 (Wanchai property at secondary market value)

Note: A’s calculation of her entitlement in her submission was wrongly stated as $12,709 at §37 therein.

68.It is argued on her behalf that the following factors are important in considering the merits of her case:

a.  A was fully reliant on the deceased for hers and the household expenses.

b.  A resides at the Chai Wan Property, which is the matrimonial home.

c.  Her medical condition (anxiety and sleeping disorders) hinders her ability to work; she may lose her job resulting in further loss of income.

d.  W with her education level and at age 50 has also limited her capacity to work.

e.  There are factual disputes over her role at the matrimonial home but she argues that she is dependent on the deceased and that she did not “desert” him as alleged by R.

f.  A calculates her needs at $21,000 per month inclusive of rental at $15,000 per month if she can no longer live at the Chai Wan Property.

69.R quotes the case of Re Estate CNC [2011] 4 HKLR 544 §119, which in turned quoted Wall LJ in the case of Cunliffe v Felden [2006]2 WLR 481, and submits: “The courts have urged caution when considering the divorce cross check so as to recognize and respect the right of the deceased to bequeath his estate to whomsoever he pleases subject to his statutory obligation to make reasonable financial provision for his widow.”

70.R then cites the following factors that will affect a judge’s exercise of discretion of A’s application for financial provision:

a.  R contends that the marriage is shorter than 8 years as the deceased had contemplated divorce, and he had complained about the A to R. R observed that their relationship was not good, in that A was never around at home, and there were no photos of the deceased and A taken together.

b.  The deceased’s unmatched pre-marital contribution.

c.  A’s limited contribution to the welfare of the family.

d.  There is no evidence of A’s alleged maintenance of $4,600 (A’s case is $4,200) per month, and that the pattern of withdrawal from the deceased’s account did not support A’s case in this regard.

e.  A can earn enough for her personal living.

f.  The issue of A’s financial resources, as she did not ask for financial assistance from R until May 2023.

71.R therefore argues that A may not get an equal share of the deceased estate, or her needs would not be assessed generously.

72.On this point of whether there is a triable issue on A’s case, my finding is that there is. As the legal wife of the deceased of 8 years marriage, she has a right to claim under the Ordinance. She has lived with the deceased at the Chai Wan Property, and during the marriage, he had given her money for their living expenses; her reasonable needs will have to be assessed. It is to be noted that R’s claim of the not-so-good relationship between A and the deceased would not feature in a divorce ancillary relief argument; and that a claim under the Ordinance necessitates broader considerations including the needs of the named beneficiary. At the final reckoning, A’s ability to make enough for her own living will be considered, so would be the fact that she has resided at the Chai Wan Property since the death of the deceased rent free.

73.All that said, it is not possible to assess the prospects of her claim at this stage of the proceedings; the factors listed above from both A and R must be considered in accordance with the provisions under the Ordinance and will need to be properly argued at trial.

Conclusion

74.Despite my finding that A has been untruthful in her representation of the time when she found out about the Grant of Probate, and unexplained and quite unacceptable delay in her application; the fairness of this matter deserves a proper argument on the merits of A’s claim. In this decision, I have also given full consideration to the fact that the Chai Wan Property is still intact, and that after this length of time, there is no argument that allowing her out of time application would create a prejudice on R’s part. I shall therefore give leave for A’s application to be made out of time.

Costs

75.A comes to this Court to seek indulgence for her substantial delay, for the reasons cited above, and on the basis that A has not properly discharged her burden in justifying her delay, I shall make an order that she is to bear R’s Costs.

The Orders

76.The following Orders are made:

a.  A is granted leave to apply for financial provision under the Ordinance out of time.

b.  All costs arising from and incidental to this Summons, including all costs reserved, be to the R, to be taxed if not agreed, with certificate for counsel.

c.  A’s own costs be taxed in accordance with legal aid regulations, with certificate for counsel.

d.  A Directions hearing is to be fixed by the parties within 28 days hereof.

Ms Lily Yu instructed by Yu Sun Yau Mak & Lawyers for the Applicant

Mr Vincent Chen instructed by Carol Lam & Co. for the Respondent