Tlk v. Lasm, Lkdj and Lcks, The Executors of the Estate of Lwk, Deceased

FCMP 182/2022

[2026] HKFC 138

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NO. 182 OF 2022

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BETWEEN

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JUDGMENT
(Leave to appeal)

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A. INTRODUCTION

1.By Summons filed on 16 January 2026 (“Leave Summons”), the Respondent seeks leave to appeal against my judgment dated 19 December 2025 (the “Judgment”). Unless otherwise specified, I adopt the abbreviations and nomenclature used in the Judgment, and all references to section numbers are references to the relevant sections under the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481) (the “Ordinance”).

2.By the Judgment, I held that Madam T had locus to make her application for reasonable financial provision from the net estate of the Deceased under sections 3(1)(ix) and 4. I found her in favour on, inter alia, the following issues: -

a. Whether there was a settled basis or arrangement of maintenance, i.e. Issue 1A; and

b. If there was, whether the Deceased decided to cease the financial provision to Madam T, ending such settled basis or arrangement? In other words, had the Deceased abandoned his responsibility or disclaimed the intention to maintain for Madam T, i.e. Issue 1B.

3.I made an order that a lump sum award of HK$14,453,600 (the “Lump Sum”) shall be paid to Madam T from the net estate within three months from the date of the Judgment.

4.A draft Notice of Appeal was annexed to the Leave Summons. On 16 January 2026 and on 24 February 2026, the Executors and Madam T lodged their skeleton submissions respectively.

5.By summons filed on 26 February 2026 (the “Amendment Summons”) and after their change of legal representation, the Executors seek leave to amend the Leave Summons and the draft Notice of Appeal pursuant to the Amended draft Notice of Appeal (“Draft ANOA”) annexed to the Amendment Summons.

6.On 31 March 2026, the Amendment Summons was returned before me. Having heard counsels’ argument, I allowed the Amendment Summons, with costs to Madam T. I also directed parties to file supplemental skeleton submissions based on the Draft ANOA.

7.On 14 April 2026 and on 28 April 2026, the Executors and Madam T lodged their supplemental skeleton submissions respectively.

B. BACKGROUND

8.The background to this case has been set out in the Judgment and will not be repeated here.

C. LEGAL PRINCIPLES ON LEAVE TO APPEAL

9.Under section 63A(2) of the District Court Ordinance (Cap. 336), leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard.

10.The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful”, but which do not need to be shown to be “probable”: SMSE v KL [2009] 4 HKLRD 125 at [17] per Le Pichon JA; KNM v HTF (unrep., HCMP 288/2011, 7 September 2011) at [9] per Fok JA (as he then was). Even if this threshold requirement is met, the Court still has a discretion to refuse leave: Hong Kong Civil Procedure 2026 at [59/2A/4].

11.The Executors have reminded me that leave to appeal may be granted, if the appeal would present the Court of Appeal with an opportunity to provide much needed clarification on an area of the law: Xu Ying v Xu Weihong [2020] HKCFI 2826 at [5] per DHCJ MK Liu. I have taken that factor into account in considering whether leave to appeal should be granted in the present case.

D. THE DRAFT GROUNDS OF APPEAL

12.In the Draft ANOA, the Executors list out 2 intended grounds of appeal. Each will be examined in detail below.

D1. Ground 1: The Applicant had no locus

D1.1 The Executors’ submissions on Ground 1

13.The Executors argue in their Skeleton Submissions that I have erred in two aspects in the Judgment. Their arguments may be summarised as follows.

14.First, it is Madam T’s unitary burden to prove locus, in particular the requirement that she “was being maintained” by the Deceased “immediately before his death”. Where there was a substantial period of non-maintenance before his death, prima facie this limb could not be made out. The Executors submit that I have misplaced and shifted the burden on them to prove that the Deceased intended to cease financial provision to Madam T (when it was Madam T’s burden all along to prove locus). I shall refer to this argument as the “Burden Argument”.

15.Second, it is for Madam T to establish reasons why the absence of maintenance immediately before the Deceased’s death should be ignored. The Executors argue that, for those reasons to be sufficient, English and Hong Kong Courts have reiterated that unless the deceased suffered from what counsel for the Executors coined as “wholesale incapacitating events” (“WIE”), such as an emergency, terminal illness or circumstances where the deceased “could not wish or will payment”, such period of non-maintenance cannot be discounted, citing Jelley v Iliffe [1981] Fam 128, Kourgky v Lusher (1983) 4 FLR 65, LYYC v CHL [2023] HKFLR 265, and Baynes v Hedger [2008] 2 FLR 1805. The Executors submit that I have misconstrued section 3(1)(ix) in finding Madam T has established locus even though she fell short of proving WIE where the Deceased “could not wish or will payment” during the period of non-payment from January 2020 to January 2022 (the “Period of No Payment”). Critically, the matters identified in the Judgment fall short of showing that the Deceased was disabled, or “could not wish or will payment”. I shall refer to this argument as the “WIE Argument”.

16.In their Supplemental Skeleton Submissions, the Executors made supplemental arguments in support of Ground 1, which may be summarised as follows: -

a. Section 3(1)(ix) requires proof of “two separate and distinct matters”, namely (1) there was some settled or general basis or arrangement between the deceased and the applicant as regards maintenance of the latter (labelled “Requirement (1)” by the Executors), and (2) the deceased has assumed responsibility for the maintenance of the applicant (labelled “Requirement (2)” by the Executors), both in existence immediately before the deceased’s death.

b. Requirement (1) concerns the “fact of maintenance”, i.e. “whether the deceased has in fact and actually been making a substantial contribution (in money or money’s worth) towards the reasonable needs of the applicant”, and the Court will consider whether the settled basis or arrangement “was subsisting and still in force at or immediately before death”. While Requirement (2) focuses on “deceased’s responsibility”, which may involve “undertaking / obligation to maintain and continue the maintenance”. The Executors have acknowledged that the courts have held that Requirement (2) would be presumed if Requitment (1) is proved, but such presumption can be rebutted.

c. The Executors went on to say that proof of Requirement (2) does not necessarily entail, and is not equivalent to, the existence of Requirement (1).

d. In finding locus by answering Issue 1A in the positive and Issue 1B in the negative, I have erred in the following ways.

e. First, a negative answer to Issue 1B does not necessarily entail, and is not equivalent to, the continuing subsistence of the settled basis or arrangement as regards maintenance in fact immediately before death (i.e. proof of Requirement (1)).

f. Second, the matters identified in the Judgment as to why Madam T was not receiving maintenance during the Period of No Payment are irrelevant to the question of whether the settled basis or arrangement was in actual fact subsisting immediately before the Deceased’s death.

g. Third, I have wrongly conflated the two Requirements or misconstrued section 3(1)(ix). Madam T bears the burden to satisfy both Requirements to prove locus.

h. Fourth, I have failed to consider or deal with, adequately or at all, the issue of whether the settled basis or arrangement was in fact still subsisting at the moment before death, or that I have failed to take relevant matters into account.

i. Fifth, given my finding of interruption during the Period of No Payment, any finding that Requirement (1) was satisfied would be perverse.

17.The gist of the Executors’ supplemental arguments is that I have failed to consider or have taken into account irrelevant matters in considering whether the settled basis or arrangement for maintenance was in fact subsisting immediately before the death of the Deceased. I shall refer to it as the “Subsistence Argument”. As to the fourth and fifth supplemental points, they are a challenge to my findings of fact. I shall refer to them as the “Findings of Fact Argument”.

D1.2 WIE Argument

18.I shall first consider the WIE Argument. The key question is whether, in order for the Court to be satisfied that an applicant has brought herself within section 3(1)(ix) despite a period of non-payment prior to death of the deceased, that period must be caused by WIE on the part of the deceased. The Executors say the answer is “yes”. In my view, the answer must be “no” in view of the authorities.

19.At the outset, I note that none of the authorities cited by the Executors support their contention that unless the deceased suffered from WIE, period of non-maintenance cannot be discounted (See footnote 4 of the Executors’ Skeleton Submissions): -

a. At [20] – [41] of the Judgment, I have considered and discussed the leading authorities on the construction of section 3(1)(ix) at length, including In re Beaumont, Deceased [1980] Ch 444, Jelley (supra), LYYC (supra), and Baynes (supra), the latter three being cited by the Executors in support of their WIEs Argument. Repeating here the quotations from Jelley (supra), Stephenson LJ held at 136D-F that (see also [25] of the Judgment): -

“(2) In considering whether a person is being maintained ‘immediately before the death of the deceased’ it is the settled basis or general arrangement between the parties as regards maintenance during the lifetime of the deceased which has to be looked at, not the actual, perhaps fluctuating, variation of it which exists immediately before his or her death. It is, I think, not disputed that a relationship of dependence which has persisted for years will not be defeated by its termination during a few weeks of mortal sickness. …”

b. Griffiths LJ held at 141B-C that (see also [26] of the Judgment):-

“The words ‘immediately before the death of the deceased’ in section 1 (1) (e) cannot be construed literally as applying to the de facto situation at death but refer to the general arrangements for maintenance subsisting at the time of death. So that if for example the deceased had been making regular payments to the support of an old friend the claim would not be defeated if those payments ceased during a terminal illness because the deceased was too ill to make them.”

c. Both B Chu J in LYYC (supra) at [61] and Lewison J (as he then was) in Baynes (supra) at [131] – [132] recited and applied the principles in Jelley (supra).

d. Pausing here, it should be noted that while Stephenson LJ held that “actual, perhaps fluctuating, variation” which exists immediately before the deceased’s death will not affect the settled basis or general arrangement, the English Court of Appeal did not lay down a general rule of what will (or will not) constitute those variations. While “a few weeks of mortal sickness” and “terminal illness” were given as non-exhaustive illustrations and examples, the English Court of Appeal did not go so far to state that the variation must be a WIE, nor did the English Court of Appeal impose a temporal limit (weeks, months, or years) on the variation.

e. In my view, the English Court of Appeal has rightly not laid down any such general rule, as it will not be feasible to lay down a guideline, because facts vary from case to case, with a very wide range of personal dynamics and circumstances. Actual or fluctuating variations at the de facto situation at death may come in different forms and for various reasons.

f. To lay down a rigid rule of what counts as actual or fluctuating variation will also defeat the object of the 1975 Act (or our Ordinance) which, as stated by Stephenson LJ in Jelley (supra) at 137H, is “to remedy, wherever reasonably possible, the injustice of one, who has been put by a deceased person in a position of dependency upon him, being deprived of any financial support, either by accident or by design of the deceased, after his death”.

g. Kourgky (supra) also did not lay down any such rigid rule. In that case, Wood J also considered at pp. 73 – 75 the authorities of In re Beaumont (supra) and Jelley (supra). On the facts of that case, Wood J found that the deceased had in fact ceased to assume responsibility of the plaintiff mistress’ maintenance, after the deceased’s return from his holiday with the defendant wife. His Lordship noted that the facts of that case were different from the examples given in In re Beaumont (supra),

“There is no question of illness or terminal illness; there is no question here of some emergency arising and of the general pattern of maintenance being interrupted because of that emergency.”

Despite finding against the plaintiff on her application, Wood J did not hold as a rule that only these situations may be counted as interruption to the settled basis or arrangement.

20.The English Court of Appeal’s judgment in In re Dix, deceased [2004] 1 WLR 1399 is a case on point. In that case, the claimant, one Mrs Gully, and the deceased had lived together for some 27 years before his death in 2001. The deceased was an alcoholic. Mrs Gully left the deceased after an abusive episode and lived apart from him for the last three months of his life. The deceased was mortified by the departure, telephoned her daughter and asked Mrs Gully to come back. The daughter did not relay those messages to the claimant.

21.The defendant, the deceased’s brother, was granted letters of administration and inherited the majority of the deceased’s estate by virtue of partial intestacy. Mrs Gully claimed reasonable provision both as a dependant under section 1(1)(e) of the 1975 Act (the English equivalent of our section 3(1)(ix)), and as a cohabitant under section 1(1)(ba) and section 1(1A) of the 1975 Act (where our Ordinance contains no local equivalent).[1]

22.The issue in that case was whether the claimant’s leaving the deceased and living apart from him for the last three months of his life had the consequence that she could not show their living in the same household during the whole of the period of two years immediately before the date on which the deceased died for the purposes of section 1(1A) of the 1975 Act, nor that she was, immediately before the death of the deceased, being maintained by him within section 1(1)(e) of the 1975 Act.

23.Judge Weeks QC, the trial judge on the preliminary issue, recited the authorities of In re Beaumont (supra) and Jelley (supra), and directed himself that he had to look at “the settled state of affairs during the relationship between these parties and not the immediate de facto situation prevailing before the deceased’s death”. In particular, he noted that the deceased was “making then no contribution to Mrs Gully’s welfare or needs”.

24.Judge Weeks QC held in favour of the claimant on the issue of locus under section 1(1)(e) of the 1975 Act. On appeal, counsel for the defendant contended that the trial judge fell into error and was looking through the wrong end of the telescope. Ward LJ (with which Mummery LJ and Rix LJ agreed) disagreed and upheld the trial judge’s finding: -

“16. Mr Goodall, on the defendant’s behalf, submits that the judge fell into error and was looking through the wrong end of the telescope. I disagree. I can see no possible criticism of that direction which correctly applied the law in the authorities which bound him and bind us. Accordingly, he looked at ‘the settled situation’ and not at the ‘abnormal situation in the last three months of Mr Dix’s life’ when, because of Mr Dix’s abuse of alcohol, Mrs Gully found herself unable ‘to cope with the consequences of living with him and moved out’. He held that their having lived together for some 27 years was ‘the norm of their relationship’, and that was the settled situation. Her three-month absence was not the established or settled pattern of life, but was an abnormal situation. He was, therefore, satisfied that Mrs Gully brought herself within section (1)(1)(e) of the Act. In my judgment, he was right to do so.” (emphasis added)

25.Ward LJ also held that the same test should apply for section 1(1A) and section 1(1)(e) of the 1975 Act. His Lordship at [19] rejected the defendant’s counsel’s submission that the proper test for section 1(1A) is to look at the moment of death to see if at that very moment the claimant was living with the deceased or being maintained by him, criticising the approach as stating the law too narrowly and giving to the words “immediately” a literal construction in a way disavowed by the authorities.

26.In In re Dix (supra), the claimant chose to leave the deceased, and the deceased was making no contribution to the claimant’s welfare or needs for the last three months of his life. The situation was caused by the deceased’s abuse of alcohol (not a WIE), which the claimant found herself unable to cope with the consequences of living with him and moved out.

27.If one applies the Executors’ argument in the present case to those facts, Mrs Gully would certainly not be able to bring herself within section 1(1)(e) of the 1975 Act. Mr Dix in that case was not disabled, nor unable to wish or will payment, using the argument from the Executors’ submission. However, Judge Weeks QC did not consider the cause of the situation to be a bar to locus, which was confirmed by the English Court of Appeal. The trial judge (which the English Court of Appeal agreed with) focused on the “norm of the relationship”, and found that the claimant’s three-month absence was not the established or settled pattern of life but an “abnormal situation”.

28.The authorities illustrate that “actual, perhaps fluctuating, variation” or “abnormal situation” prevailing before death may come in different forms, depending on the factual matrix. They are not necessarily WIE, as the Executors contend.

29.For the above reasons, I do not find the WIE Argument has any reasonable prospect of success.

D1.3 Subsistence Argument and Burden Argument

30.The Subsistence Argument and the Burden Argument can be dealt with together.

31.By the Subsistence Argument, and to recap, the Executors emphasised that Requirement (1) concerns the fact of maintenance, i.e. whether the deceased has in fact and actually been making a substantial contribution, and that I have taken irrelevant matters in considering the question of whether the settled basis or arrangement for maintenance was in actual fact subsisting immediately before such death.

32.In the supplemental submissions, the Executors went on to quote from the authorities of Jelley (supra) and Baynes v Hedger [2009] 2 FLR 767 (the Court of Appeal decision):

“a man may say he is going to support another and not do it, promise to pay school fees but not pay” Jelley (supra) at 137D

“Unimplemented promises are irrelevant to maintenance in fact” Baynes (the Court of Appeal decision) at [45]

33.And then went on to say:

“A fortiori, maintenance in fact could, as a matter of actual fact and objectively speaking, cease to subsist before death (e.g. for extraneous reasons beyond the deceased’s control), notwithstanding (i) positive intent / desire on the deceased’s part that it should be continuing, (ii) that such maintenance was not intended by the deceased to cease or (iii) an absence of a decision on the deceased’s part to abandon his responsibility or disclaim the intention to maintain the applicant.”

(all emphasis from the supplemental submissions)

34.The Executors appear to argue that once the maintenance has de facto ceased, then the settled basis or arrangement must have ended. I cannot agree with this argument because if this approach is correct, there is no need to consider the line of cases which examines the cessation of financial provision prior to the death of a deceased.

35.This is a wrong approach because it conflates (A) the de facto situation at death, and (B) the settled basis or arrangement between parties, which the above authorities have expressly distinguished. The Executors’ submissions have fallen foul of precisely what Ward LJ described in In re Dix (supra) at [19] as stating the law too narrowly and giving to the words ‘immediately’ a literal construction in a way disavowed by the authorities. Very much like the counsel for the defendant in In re Dix, decd (supra), the Subsistence Argument errs in asking the Court to only look at the moment of death of the Deceased to see if at that very moment Madam T was being maintained by him.

36.Further, and briefly on the two cases quoted by the Executors:

a. From Jelley (supra), the quotation was from Stephenson LJ in the context of examining the concept of assuming and discharging responsibility. The context reads, at 137D: “But how better or more clearly can one take on or discharge responsibility for maintenance than by actually maintaining? A man may say he is going to support another and not do it, promise to pay school fees but not pay; but if he does pay them, has he not both assumed and discharged responsibility for them whether or not he covenants to pay them”. In the present case, I found that the Deceased had actually been making provision for Madam T for almost three decades, it follows that the Deceased had assumed this responsibility and discharged it as well.

b. From Baynes (the Court of Appeal decision), the reference to “unimplemented promises” had to do with the deceased having had discussion in that case on settling some of the claimant’s finances, which was not proceeded with. The Court in Baynes found that despite past financial support given to the claimant, the Court did not conclude that the deceased in that case had assumed responsibility for the applicant. The present case is not about promises made and not implemented.

37.I am not of the view that these two cases take the Executor’s Subsistence Argument any further.

38.As in each and every application under the Ordinance, it is regretful that the most pertinent witness, namely the deceased himself or herself, is never available; and on some occasions, people representing the estate is not often privy to the deceased’s life before the latter’s passing. In determining such applications, the Court can only rely on and evaluate the contemporaneous documents, affidavits and the oral evidence of each witness. Such was the approach I took in this case.

39.Returning to this appeal.

40.On Issue 1A, I have found that there was a settled basis or arrangement between the Deceased and Madam T in which the Deceased had assumed the responsibility of providing maintenance to her. In reaching such finding, I did not look only at the de facto situation prevailing at the Deceased’s death (where, as it is undisputed, no payment to Madam T was made), but based my finding on the history and nature of Madam T’s relationship with the Deceased, the plausibility of Madam T’s case which was corroborated by PL, and all the evidence before me (including affidavit and oral evidence), as well as the cheque deposits (Judgment [208] – [209]).

41.On Issue 1B, i.e. whether the settled basis has ended (or, to put it in another way, whether it was subsisting), the Executors’ case was of the Deceased having made a “conscious decision to cut ties” with Madam T, which I rejected with full reasoning (Judgment [160] – [184], [217]). In considering whether the Period of No Payment need to be taken into consideration / should or should not be ignored, I remain of the view that it is important to consider what had happened during this gap; which was precisely why I found that the maintenance was merely interrupted, and as submitted by Madam T’s counsel, interruption is not termination. The Executors say that I took into regard irrelevant considerations, but failed to submit how the factors I considered are irrelevant, or to submit what other consideration I should have taken into account (see paragraphs 46 and 47 below). I have not “ignored the fact” that the Deceased did not maintain Madam T during the Period of No Payment, I made my finding as to why there was no maintenance during the relevant period.

42.In doing so, I did not lose sight of the requirement that Madam T bore the unitary burden of proving her locus all along. Even if the Executors’ case was rejected, that did not mean Madam T automatically succeeded in proving locus. That aspect of the case was assessed based on Madam T’s and PL’s affidavit and oral evidence, in particular with regard to what happened between January 2020 to the Deceased’s point of death, when PL continued to see the Deceased, and linking Madam T by video. I had further considered the impact of the Period of No Payment, and found that it was only caused by an inadvertent interruption (or “variation” to use the words of Stephenson LJ; or “abnormal situation” , to use the words of Ward LJ), having regard to the evidence of the COVID-19 pandemic and the evidence of the Deceased’s deteriorating health (Judgment [218] – [231]), his usual modus operandi and lack of alternative mechanism of payment. Thus, I am satisfied that Madam T has discharged her burden to prove locus.

43.For the above reasons, I do not find the Subsistence Argument or the Burden Argument have any reasonable prospect of success.

D1.4 Findings of Fact Argument

44.As to the Findings of Fact Argument, I remind myself of the well-established principles governing an appeal against a trial judge’s findings of fact. The threshold faced by an appellant is high. The appellate court will only intervene when it is satisfied that the trial judge’s findings are “plainly wrong”. The court has to be satisfied that the trial judge had fallen into palpable error in his finding of fact, such as where the finding was one (a) which there was no evidence to support; (b) which was based on a misunderstanding of the evidence; or (c) which no reasonable judge could have reached: Tamang Shushma v Pizza Express (Hong Kong) Ltd [2025] 5 HKLRD 849 at [15] per G Lam JA.

45.By the Findings of Fact Argument (see [16(h) - (i)] above), the real complaint by the Executors is that I have failed to take into account whether there were cash payments at the moment before death. Given the non-existence of cash payments at the moment before death or interruption, the Executors submit that the settled basis must have ended, and any contrary findings must be perverse.

46.The Executors also say that the reasons why the Applicant was in fact not receiving any contribution for two years are (quoting from my Judgement at [231] that it was due to “COVID”, “inadvertent” interruption, “not intended to have ended”) irrelevant considerations to whether the maintenance is subsisting . Under this argument, the Executors referenced paragraph 8B of the Draft ANOA , and in particular said I have “failed to evaluate the relevant evidence including those mentioned at [J§§ 212-213 and 215] by reference to such issue whether adequately or at all”.

47.The following is where I have dealt with each and every submission made by the Executors on “good reasons to cease provisions” and the “Deceased’s refusal to pay despite multiple options” as recorded in paragraphs [212] – [213] of the Judgment: [212a] at [215]; [212b] at [215] – [216]; [212c] was dealt with extensively at [176] – [184]; [213a] at [226]; [213b] at [228] – [230]; [213c] at [227]; and [213d] at [229] – [230]. I disagree with the Executors’ complaints that I have not dealt with or dealt with these issues adequately.

48.As noted above, the Executors’ approach has conflated the two (settled basis and de facto situation at death), which is disavowed by authorities. Based on the matters on which I relied in reaching my conclusions on Issues 1A and 1B, I consider that the finding of a subsisting settled basis was supported by evidence and one that a reasonable judge could have reached. The Executors have failed in overcoming the high threshold in an appeal against findings of fact.

49.For all these reasons, I am not of the view that there are reasonable prospects of success in the proposed Ground 1.

50.The Executors also submit that it is in the interests of justice to grant leave on Ground 1 for a clarification from the Court of Appeal on the proper construction of the phrase “immediately before the death of the deceased was being maintained” under section 3(1)(ix). This is in relation to whether an applicant still has locus notwithstanding a “substantial period of non-payment where the deceased was able to formulate, express and communicate his intention to pay”.

51.I disagree. As noted above, the construction of the phrase “immediately before” has been considered and settled by a wide range of English and Hong Kong authorities. In particular, a literal construction has been disavowed. As noted by the Court of Appeal in LYYC v CHS & CSMS [2019] HKCA 521 at [23], the determination of the question whether the applicant comes within section 3(1)(ix) is not a pure question of law that can be resolved in the abstract. That being the principle, and I repeat my view that each case turns on its own merits and assessment, I therefore do not find this to be a necessary case for leave to appeal to be granted for clarification of the law in this regard. For this reason, I refuse to grant leave on Ground 1 on this basis as well.

D2. Ground 2: Failure to properly consider material and relevant factors under section 5 of the Ordinance, therefore wrongly awarding the Applicant the Lump Sum reflecting her full life-expectancy

D2.1 The Executors’ submissions on Ground 2

52.The Executors’ arguments in support of Ground 2 may be summarised as follows: -

a. First, I erred in giving Madam T a Lump Sum on a full-life expectancy and adopting a straight-line approach, i.e. making a Duxbury calculation, as Duxbury calculation is only used in meeting a wife’s future needs.

b. Second, I erred in allowing Madam T to share in Madam L’s estate, which should not have been available for distribution.

c. Third, I erred in making the findings that the Deceased was close with Madam T, and that she had suffered the relevant “ill-health” under the section 5(1) factors in awarding the sum of HK$500,000 for medical expenses.

d. Fourth, I erred in failing to apply the principle that the Will should be the point of departure and that there should be minimum deviation from the distributions in the Will.

e. Fifth, I erred in failing to take into account the benefit of accelerated receipt of future income, Madam T’s making of reasonable investment, whether discount should be made, and whether the multiplier should be fixed at roughly half of the number of years for which the income need exists.

D2.2 Analyses

53.Deciding what financial provision to order for an applicant (and at what quantum) is essentially an exercise of judicial discretion. It is only where the exercise of a discretion exceeded the generous ambit within which reasonable disagreement was possible, and was in fact plainly wrong, that the appellant court was entitled to interfere: Duxbury v Duxbury [1992] Fam 62 at 69C per Stephen Brown LJ.

54.The award in this case came about, after assessing the relevant factors herein mentioned, with a fair amount of adjustment to Madam T’s monthly maintenance request, taking into account the size of the estate and the named beneficiaries under the Will.

55.I see no merit in the first point. Whether and what reasonable financial provision ought to be made for the applicant is a question of discretion, which must be exercised after having regard to the factors listed in section 5. The Court’s discretion under section 4 is wide, and is not bound to use a specific method for calculating capitalised maintenance: LKYI v GJS [2024] 5 HKC 758 at [21], [24], and [144] per HHJ Elaine Liu. The Ordinance only mandates the Court to have regard to matters under section 5. There is no bar to awarding lump sum award on a straight-line approach to an applicant. In LZX v WYL [2012] 5 HKLRD 29 cited by the Executors at [222], PFCJ B Chu (as she then was) having considered that no proper Duxbury calculations were produced on behalf of the applicant wife, accepted that the case before her was one where it was more appropriate for the applicant to receive a lump sum rather than ongoing periodical payments in view of the factual circumstances of the case, namely relationship between her and the deceased husband’s family, the short duration of the marriage and there being no children. However, I do not see the authority as posing a limit to awarding a lump sum award on a needs-based, straight-line approach to a non-spousal applicant.

56.I see no merit in the second point. I refer to [266] - [273] of the Judgment. As noted in [266] of the Judgment, the net estate of the Deceased includes “all property of which the deceased had power to dispose by his will (otherwise than by virtue of a special power of appointment) less the amount of his funeral, testamentary and administration expenses, debts and liabilities, including estate duty (if any)” under section 2. As also noted in [268] of the Judgment, counsel for the Executors expressly confirmed at trial that Madam L’s estate would form part of the Deceased’s estate.

57.I see no merit in the third point. On the issue of closeness, at [283] – [287] of the Judgment, I was addressing the issue of the closeness of the relationship between Madam T and the Deceased, which was a factor required to be considered by the Court under section 5(6). In the context of considering the Executors’ submission that Madam T and the Deceased were not close by highlighting the lack of contact between them, I did find that the absence of contact between Madam T and the Deceased immediately before the death would not necessarily mean that they were not close. However, the Court never make a finding that they were close.

58.On the issue of Madam T’s health and my awarding HK$500,000 additional medical expenses at [296] of the Judgment, at [274] – [276] of the Judgment, I have taken into account that the mere fact of old age is not in and of itself a factor under section 5(1)(f). I noted that Madam T had adduced referral letters and medical certificates in support of the various symptoms she was suffering from. Although counsel for the Executors had made the point that some conditions were common in old-age, I also noted that on the basis of the evidence before me, I was unable to rule if these symptoms were common in or related to old-age for Madam T. As such, the Court was entitled to take those symptoms into account under section 5(1)(f). In exercising my discretion to award Madam T an additional HK$500,000 at [296], I have also taken into account her medical insurance and the allowance for her monthly needs.

59.I see no merit in the fourth point. The same argument has also been made during trial: See Judgment at [262]. I have explained in the Judgment at [262] – [265] why the Deceased’s wishes as expressed in the Will is only one of the many factors that the Court takes into account in exercising its discretion.

60.As to the fifth point, I see force in Mr Kwan’s Flywin objection that the point was not raised during trial. In Secretary for Justice v Timothy Wynn Owen KC (2022) 25 HKCFAR 288, the Appeal Committee explained the Flywin principle as follows: -

“21. The first aspect has been referred to as the ‘state of the evidence’ bar. As the Court explained:

… where a party has omitted to take a point at the trial and then seeks to raise that point on appeal, the position is as follows. He will be barred from doing so unless there is no reasonable possibility that the state of the evidence relevant to the point would have been materially more favourable to the other side if the point had been taken at the trial.

…

23. Such issues of fairness are not confined to the absence of relevant evidence. They also arise where failure to take the point may affect the way the case was conducted, the arguments advanced and the course taken by the proceedings in the courts below. As was explained in Lehmanbrown Ltd v Union Trade Holdings Inc :

… it is … clearly and firmly established that new points which are fact sensitive or otherwise affect the course of evidence or conduct of the case at the hearing below should not be allowed. Though this principle is usually applied in situations where the new points necessitate further evidence to be adduced, it is not confined to such scenarios. Very often, the raising of new point by one party may lead to the other party raising counter arguments and the consideration of such counter arguments may involve factual assessment in a different light from that undertaken by the court below. Sometimes, it may involve a different weighing of factors in the exercise of discretion. Alternatively, the other party may embark on a different course of forensic conduct if the new point were taken earlier. The appellate court, in considering whether the new point would be entertained, is entitled to take these matters into account in order to avoid unfairness to the other party.”

61.As pointed out by Mr Kwan, the Executors’ case on quantum was simply that Madam T’s claim was excessive, that she had sufficient resources and family support, and that no award should be made. No point was taken by the Executors at trial as to whether, if an award were made, it should be discounted to reflect accelerated receipt of future income, reasonable investment, or the assessment of a fair multiplier. In my view, this deprived Madam T of the opportunity to adduce appropriate evidence or make submissions to address those matters. The Executors should be barred from running this point.

62.For all these reasons, I do not think there are reasonable prospects of success in the proposed Ground 2.

E. CONCLUSION

63.In the premises, I do not think there are reasonable prospects of success in any of the proposed grounds of appeal, nor do I think it is in the interest of justice to grant leave to appeal.

64.The Executors’ application for leave to appeal is therefore dismissed.

F. COSTS

65.Costs should follow the event. Mr Kwan asks for costs on an indemnity basis. While I have dismissed the Executors’ application, I do not consider that an indemnity basis is justified.

66.Accordingly, I make an order that costs of and occasioned by the Executors’ application for leave to appeal be paid by the Executors to Madam T forthwith, with certificate for one counsel, to be taxed if not agreed. This to be a Costs order nisi to be made absolute from 14 days hereof.

Mr Kwan Ping Kan, instructed by Hom & Associates, for the Applicant

Mr Johnny Ma SC leading Ms Connie Lee and Mr Paul Law (for the Supplemental Submissions); Mr Bernard Man SC leading Ms Theresa Chow and Mr Alvin Cheung (for the Skeleton Submissions), instructed by CLKW Lawyers LLP, for the Respondent