Tlk v. Lasm, Lkdj and Lcks, The Executors of the Estate of Lwk, Deceased
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FCMP 182/2022 [2025] HKFC 206 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION FAMILY COURT MISCELLANEOUS PROCEEDINGS NO. 182 OF 2022 _______________________
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______________________ JUDGMENT _________________ _________________ Table of Contents _________________
A. INTRODUCTION 1.This is an application by the Applicant, Madam TLK, (“Madam T”) for reasonable financial provision from the net estate of LWK (the “Deceased”) under sections 3(1)(ix) and 4 of the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481) (the “Ordinance”). B. BRIEF BACKGROUND 2.Madam T was a former mistress of the Deceased. She says that she met the Deceased in 1975, and developed an intimate relationship with him, at the beginning of their relationship, the Deceased had provided cash maintenance to her. Madam T and the Deceased had a daughter, LPM (“PL”), born out of wedlock in June 1977. 3.She broke up with him in 1983 and developed a relationship with another man, Mr. TP (“TP”). However, because of PL, she re-connected with the Deceased in 1993, who had since provided financial support to her and PL. 4.It is Madam T’s case that since TP passed away in 2006, the Deceased assured her that he would take care of her financially. Between 2006 and 2016, the Deceased provided monthly maintenance in the range of HK$100,000 to HK$120,000 per month by cash or cheques. Since 2016, they started to have regular monthly lunch gatherings at DLS Restaurant (“DLS”), a Chinese restaurant in Tsim Sha Tsui, during which the Deceased would give Madam T cash in the range of HK$130,000 to HK$170,000 per month for maintenance. The last lunch gathering at DLS, and the last cash payment, took place in January 2020, on the brink of the COVID-pandemic sweeping over Hong Kong followed by the subsequent social restrictions. 5.The Deceased married his lawful wife, Madam L (“Madam L”), in the early 1950s, she passed away just the month before he did, in December 2021. The Deceased and Madam L had five children: AL, EL, JL, FL, and CL (the “Legitimate Children”). Three of the Legitimate Children, namely AL, JL and CL, are joint executors and trustees (the “Executors”) of the Deceased’s estate (the “Estate”) named in his last Will dated 7 January 2019 (the “Will”). They oppose Madam T’s application. 6.It is the Executors’ case that they do not accept that the Deceased had made payments to Madam T by cheques, nor are those cheque payments relevant to the question of locus. They further denied that the Deceased had made cash payments to Madam T from 2016 to January 2020. They submitted that, even on Madam T’s own case, the last payment took place in January 2020, two years prior to the Deceased’s passing. Madam T was not maintained “immediately before the death of the deceased”, and the last cash payment, even if it had taken place, could only be seen as a “parting gesture”. 7.It is not disputed that during his marriage, the Deceased had had affairs with at least three to four other women, and from those relationships, there were children born out of wedlock. These other children, including PL, shall be referred to as the “Other Children”. 8.Since the last meeting at DLS in January 2020, there was no payment by the Deceased to Madam T, the Deceased passed away at age 92 in January 2022 in Hong Kong in the midst of the COVID-pandemic. The Will provides for his estate to be divided among his five Legitimate Children. No provision was made for Madam T. 9.The Grant of Probate is dated 12 December 2022. C. RELEVANT LITIGATION HISTORY 10.On 25 October 2022, Madam T commenced the present proceedings. 11.On 5 December 2023, Madam T took out a summons for interim maintenance and litigation funding under section 7 of the Ordinance. On 27 September 2024, this Court granted leave to Madam T to amend the summons to seek additional litigation funding for trial. 12.The hearing took place on 22 November 2024, the Court made no provision for interim maintenance but ordered the Estate to pay a sum of HK$700,000 to Madam T’s solicitors as litigation funding for her costs for the trial. 13.This trial eventually took place over 6 days commencing 7 February 2025. D. THE ISSUES 14.There are 2 issues which the parties agree are in dispute:
15.Based on parties’ closing submissions, the following sub-issues could be identified under Issue 1:
E. THE WITNESSES 16.Madam T submitted a total of 9 affirmations in these proceedings. She had also submitted a Form E in April 2023. Her daughter, PL, had submitted a total of 3 affirmations. They gave oral evidence at the trial. 17.Madam T’s sister, TLC, had submitted an affirmation previously. As she was not called upon to give evidence at the trial, parties have agreed to expunge her affirmation from the trial bundles. I shall not take into account its contents. 18.The Executors submitted a total of 6 affidavits in these proceedings (one being from their solicitors). They had also submitted a Form E. Two of the Executors, namely JL and CL, gave oral evidence at the trial. 19.In evaluating the live evidence of each witness, I have regard to the well-established principles in Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513 at [53]. In brief, one needs to consider if the party’s case is inherently plausible or implausible; whether the party’s case is contradicted by evidence, whether a witness has been discredited over one or more matters to which he/she has given evidence, and his/her demeanour at trial. F. ISSUE 1: LOCUS OF MADAM T F1. Legal Principles 20.Section 3(1)(ix) of the Ordinance provides that: -
21.Ms Chow, together with Mr Cheung, counsels for the Executors, argue that Madam T does not even have locus to bring her claim as she is not a person “who immediately before the death of the deceased was being maintained, either wholly or substantially, by the deceased” under the Ordinance. 22.As could be gleaned from the issues, the entitlement of Madam T in this application rests weightily on how the terminology of “immediately before” is to be construed. While there is no statutory definition of the phrase “immediately before” in the Ordinance, it might be helpful to set out the relevant legal principles at this juncture. 23.In In re Beaumont, Deceased [1980] Ch 444, Sir Robert Megarry VC discussed at length the phrase “immediately before the death of the deceased was being maintained” in section 1(1)(e) of the Inheritance (Provision for Family and Dependants) Act 1975 (“1975 Act”), the English equivalent of section 3(1)(ix) of our Ordinance. The Vice Chancellor was concerned with whether this requires consideration to be given only to the state of affairs existing at the instant before the death of the deceased, or does it allow a wider approach – in particular, what if the state of affairs at that instant differs from the normal state of affairs? 24.After having contemplated some possible examples, the Vice Chancellor held at 452D-H that:
25.The Vice Chancellor’s exposition on this point was approved by the English Court of Appeal in Jelley v Iliffe & Ors [1981] Fam 128. Stephenson LJ held at 136D-F that:
26.Griffiths LJ also agreed with the construction of sections 1(1)(e) and (3) expounded by Sir Robert Megarry VC. His Lordship held at 141B-C that:
27.The principles set out above were cited and applied by the Hong Kong Courts: Tang Tim Chui v Tang Ka Hung Robert (unrep, HCMP 2506/2009, 7 June 2012) at [38] – [40] per DHCJ Au-Yeung (as she then was); LPC v CYC (unrep., FCMP 61/2012, 16 September 2014) at [8] – [9] per DDJ Grace Chan (as she then was); LYYC v CHL & CSMS [2023] HKFLR 265 at [58] – [65] per B Chu J. In LYYC, B Chu J held at [63]:
28.Ms Chow does not really dispute that the Court has to consider the general basis or arrangement then existing for the maintenance of the applicant by the deceased. However, she invites the Court to consider that the word “immediately” (緊接) cannot bear a meaning it is plainly incapable of bearing. She referred to Chan Ka Lam v Country and Marine Parks Authority (2020) 23 HKCFAR 414, where Ma CJ and Cheung PJ (as they then were) held that “a purposive and contextual interpretation does not mean that one can disregard the actual words in a statute. … One cannot give a provision a meaning which the language of the statute, understood in the light of its context and purpose, cannot bear”. She submits that it is unacceptable to put a gloss on the words of the statute, and to over-relax the meaning of “immediately” would mean that testamentary dispositions could be rewritten lightly. She says this is why locus has never been established if there is an intervening period between the death of the deceased and the last payment to the applicant which is quantified in “years” rather than “months”, citing LYYC (5.5 years), Baynes v Hedger [2008] 2 FLR 1805 (30 years), Layton v Marton [1986] 2 FLR 227 (2 years), and Re Dymott, Spooner v Carroll (unrep., 15 December 1980) (1 year) as supporting authorities. 29.Mr Kwan, counsel for Madam T, referred to Perfect v Northern Territory of Australia (1993) 107 FLR 428 and Edgars Consolidated Stores Ltd v South African Commercial and Catering and Allied Workers Union (unrep., Case No: J 1089/07, 18 May 2010), and submitted that the courts have shown a reluctance to construe the word “immediately” as importing a strict temporal dimension and emphasised the importance of context. However, since these cases only concern with the phrase “immediately” in cases other than financial provision claims, compared to the well-established authorities expounding on the meaning of the term “immediately before” under the Ordinance or its English equivalent, I find them of marginal relevance in the construction exercise. 30.Mr Kwan further submits that using a pure temporal approach must be plainly wrong because if the legislature intended a temporal limit, it would have given a hard deadline in the statute. He further drew my attention to the facts of cases cited by the Executors and that they do not support the proposition that an intervening period in terms of “years” will conclusively defeat an applicant’s locus, because in each and every case there was either an express finding of abandonment (LYYC, [189]) or termination of relationship (Layton v Martin, p. 234), or that it only involved one-off outright gift of a house made nearly 30 years earlier which cannot be said to amount to maintenance immediately before death (Baynes v Hedger, [154]), or that the only evidence in the case cannot support the conclusion that sums were paid in acknowledgment of a responsibility to maintain (Re Dymott, p. 3). 31.In my view, whilst counsels on both sides place different emphasis on different facets of the phrase “immediately before”, there is no fundamental dispute between them on the settled law that the Court has to consider whether there is a settled basis or general arrangement between Madam T and the Deceased for the maintenance of Madam T. What is actually in dispute is (i) whether such basis or arrangement could be discerned from the proven facts of the present case, and (ii) even if there was such basis or arrangement in place at a certain point in time, whether it has ended. In considering question (ii) of whether the basis or arrangement has ended, the Court considers whether there was sufficiently clear evidence showing that the assumption of responsibility for the claimant’s maintenance has ceased (Ross on Inheritance Act Claims (5th Ed), [2-086]) or whether there was a disclaimer of intention to maintain (LYYC, [62]). 32.In this regard, Ms Chow has also drawn my attention to DHCJ Au-Yeung’s (as she then was) judgment in Tang Tim Chue v Tang Ka Hung Robert (unreported, HCMP 2506/2009, 7 June 2012) at [38]-[39] that: -
33.Ms Chow further submitted that a one-off gift, be it accommodation or cash, cannot be relied on to find locus under section 3(1)(ix), relying on Baynes v Hedger [2008] 2 FLR 1805, LYYC v CHL [2019] HKCA 521, McIntosh v McIntosh [2013] WTLR 1565, and Miles v Shearer [2021] EWHC 1000 (Ch). In taking this point, Ms Chow is responding to Mr Kwan’s opening submission wherein he says that “… [Madam T]’s financial needs have been met from his past maintenance” and “More fundamentally, the correct question isn’t even about whether or not the Deceased paid [Madam T] on this or that date; if [Madam T] was living off the Deceased’s earlier contributions, that would suffice”. Although I do not see this point further taken in the parties’ closing submissions. 34.In Baynes v Hedger, Lewison J said the following:
35.Ms Chow drew my attention to the above passage and submitted that a one-off gift made many years ago by a deceased person cannot be relied upon as being maintenance “immediately before death” even if the donee continues to live on it. She also submitted that in LYYC v CHL [2019] HKCA 521 at [25], the Court of Appeal has regarded the contention that living off past gifts made years ago cannot be in the nature of maintenance “immediately before death” as “respectable”. 36.While acknowledging this is a point raised by the Applicant, this argument does not take the Executors’ case any further. 37.As has been made clear by Lewison J in the quoted passage, what the Court is required to have regard is the extent to which and the basis upon which the Deceased assumed responsibility for the claimant’s maintenance. Under most circumstances, it will be rather difficult for the applicant to prove, or for the Court to find, an existence of settled basis or arrangement of maintenance when only a one-off cash gift was made without more, because the gift does not carry with it any assumption of responsibility for future maintenance. However, it will be a rather different matter when regular payments were made (as alleged in this case), of which they may carry with them, and the Court is entitled to find, an assumption of responsibility on the part of the deceased person towards ongoing maintenance of the recipient. 38.In LYYC v CHL, the Court of Appeal also noted at [23] that in considering the locus question of the applicant, the history of the relationship between the applicant and the deceased, and the alleged provisions given to her, are also factors to be considered:
39.I am of the view that an argument over whether there is an “one-off” gift is not relevant to the questions before me. 40.Thus, in determining the locus issue, the Court will not focus too narrowly on the timing of payments or take a strict temporal approach. The question remains whether a settled basis or arrangement could be discerned from the proven facts of the case, and the Court shall take a holistic approach in considering such question. 41.With the above principles in mind, I turn to the evidence of Madam T and the Executors. F2. Evaluation of the Applicant’s evidence F2.1 Madam T 42.Madam T has made a total of 9 affirmations. She gave oral evidence on 7, 10 and 11 February 2025. 43.I will first set out Madam T’s evidence as to her relationship with the Deceased during various periods of time. The following is largely adopted from Madam T’s affirmations. 1975 to 1983: Meeting the Deceased and the birth of their daughter out of wedlock 44.Madam T was born in Hong Kong in January 1957, and was 68 years old at the time of trial. She met the Deceased at the beginning of 1975 when she was 18 years old and was working as a part time waitress. The Deceased was then a businessman. Soon after they met, they quickly formed an intimate relationship notwithstanding it was made known to Madam T that the Deceased was a married man with his family in Canada. Madam T has put into evidence photos taken in 1976 by the Deceased’s younger brother at his studio in Canada when the Deceased took her to Toronto. 45.According to Madam T, not long after the commencement of their relationship, the Deceased asked her to stop working as a part-time waitress and she since became financially maintained by him. Madam T recalled that there was no fixed pattern of when the Deceased would provide her with financial maintenance, but in general, the Deceased provided her with cash more than once each month, amounting to a total sum of around HK$20,000 to HK$30,000 per month. 46.Their relationship and the financial arrangement lasted until around mid-1976 when the Deceased had to flee to Canada as his business and affairs in Hong Kong was investigated by the local authorities. The financial support from the Deceased stopped while he was not in Hong Kong. At that time, Madam T was pregnant with their daughter, PL, who was later born in June 1977, but she did not inform the Deceased of her pregnancy then. 47.In or around 1978, the Deceased returned to Hong Kong. Madam T’s family took care of him. It was only after the Deceased returned to Hong Kong from Canada that Madam T informed him of the birth of their daughter PL. The Deceased accepted that PL is his daughter and his paternal responsibility to her. They therefore arranged to register PL’s birth with the Births and Deaths Registration on XX January 1979. This birth certificate was put into evidence by Madam T in her first Affirmation. During this period, Madam T continued to rely on the savings previously provided by the Deceased to support her living. Madam T has put into evidence photos taken of the Deceased, herself and PL, together with her family members taken during 1979. 48.In 1979, the Deceased left Hong Kong for Dominica to re-establish his career and gaming business there. Before he left Hong Kong, the Deceased provided Madam T with a sum of money and suggested that she should purchase property in Hong Kong so that she could have a more secured and better living environment. With the Deceased’s money, Madam T paid for the down payments of two properties, one located at MW Building (“MW Building”) purchased under her name at the purchase price of HK$410,000 in 1979, and CL Court (“CL Court”) purchased under her mother’s name at the price of HK$197,700 in 1981 respectively. Madam T’s family moved to MW Building until around 1987, when MW Building was sold and the family moved to CL Court. 49.When the Deceased was in Dominica, the Deceased continued to provide Madam T with financial maintenance in the sum of around HK$30,000 per month through his friend. 50.With the Deceased’s continuous financial support, Madam T further purchased a property at F Mansion in Shenzhen under her mother’s sole name at HK$90,000 in or around 1981. 51.In 1982, the Deceased returned to Hong Kong, and further took on the responsibility to fully repay the mortgages of both MW Building and CL Court. Whenever he visited Madam T’s family, the Deceased provided her family with some pocket money in the sum of around HK$10,000 to HK$20,000. 1983 to 1993: Madam T’s relationship with Mr. TP (“TP”) 52.In early 1983, Madam T had a quarrel with the Deceased which led to their breakup. Later that year, she met TP, who was then a famous actor and horse racing commentator. She developed a romantic relationship with TP. Out of this relationship, Madam T and TP had a son, BT, born in August 1985. 53.At the beginning Madam T’s relationship with TP, the latter provided cash in the sum of around HK$10,000 per month to Madam T for her living expenses. Occasionally he would suspend the maintenance if he lost money at horseracing or did not make a good earning in a particular month. 54.Following the birth of BT in 1985, Madam T decided to move out with PL and BT, and she purchased a property located at GV Court (“GV Court”) at HK$434,560 while the rest of her family moved to CL Court, as mentioned above. The deposit payment of GV Court was funded using Madam T’s own savings which mainly came from the Deceased. Madam T further obtained a mortgage with Hang Seng Bank to finance the property purchase. In 1987, Madam T sold MW Building and fully repaid the mortgage of GV Court with the sale proceeds of MW Building. 55.In 1988, upon TP’s advice to purchase a bigger property, Madam T sold GV Court for HK$673,000 and purchased a property located at B Court, New Territories (“B Court”) at HK$1,780,000 and carparks at HK$50,000 under her sole name; which is where she now lives. The sale proceeds of GV Court were used for the purchase of B Court, with the remaining purchase price being financed by a mortgage with Dao Heng Bank Limited under Madam T’s name. A further sum of around HK$500,000 was used for renovation. 56.Madam T moved into B Court with PL and BT. When TP was in Hong Kong, he would stay at B Court. By the time Madam T purchased B Court, TP increased Madam T’s monthly maintenance to around HK$20,000 per month, out of which around HK$10,000 was used to repay the mortgage of B Court while the remaining sum was used for paying their general living expenses. 57.In the autumn of 1991, Madam T underwent an emergency surgery. When she fully recovered, she realised the importance and need to increase her liquidity. In 1992, she obtained 2 mortgage overdraft facilities against B Court in the total sum of around HK$800,000 to keep some cash in hand, which the Deceased later repaid in 2007. 1993 to 2006: Reunion with the Deceased 58.In around 1993, PL was not performing well in her public examination, and TP made it clear that he would not offer any help to her. Madam T felt that she had no alternative but to resort to the Deceased for assistance as she was worried about PL’s future. 59.By that point of time, Madam T had not contacted the Deceased for around 10 years. Before she broke up with the Deceased in 1983, he was living at a property located at Kowloon (the “Deceased’s home”). Madam T went to the Deceased’s home with PL, and reconnected with the Deceased. After a long chat with the Deceased, who was very understanding of Madam T’s situation, the Deceased was more than willing to shoulder the responsibility to take care of PL. He also told Madam T that since TP took care of his daughter, he would take care of BT. 60.From that day onwards, the Deceased started to provide Madam T with monetary assistance without resuming any kind of romantic relationship. Out of respect to TP with whom she was still in a relationship, Madam T did not maintain regular contact with the Deceased. 61.The Deceased arranged father-daughter meet-ups with PL once or twice per month in which he would have lunch with her and he would provide maintenance to Madam T indirectly through PL. At their first meeting, the Deceased provided PL with cash of HK$ 1 million and told her to pass the money to Madam T as compensation for being absent in their lives in the past years. In their subsequent meetings, the Deceased provided “pocket money” in cash to PL in the sum of around HK$30,000 to HK$50,000 every time. The Deceased would tell PL to keep around HK$5,000 for herself, and to hand the rest of the money from the Deceased to Madam T each time after their meeting. 62.In addition, the Deceased financed PL’s school fees for her sixth-form education, her tertiary education in the UK and her Masters degree in Hong Kong. The Deceased also financed BT’s education in the UK as well. 63.In 1994, the Deceased financed PL’s studies in the UK. PL only stayed in the UK during term time and came back to Hong Kong 4 times each year. Each time before PL left for the UK, the Deceased provided her with a cashier order which was sufficient to cover her school fees and living expenses in the UK. The Deceased also provided her with cash of HK$ 100,000 to HK$ 150,000 which was intended for Madam T’s living expenses in the two to three months in Hong Kong while PL was away. 64.Since Madam T reunited with the Deceased in 1993, she received maintenance from both TP and the Deceased. By 1998, TP gradually increased the maintenance to around HK$45,000. However, the maintenance provided by TP was not regular, and at times Madam T had to rely on her own savings she accumulated from maintenance given to her by the Deceased to repay the mortgage of B Court and to keep up with expenses. 2006 to 2016: Death of TP and the Deceased’s financial maintenance by cash or cheque 65.In 2006, TP passed away. Apart from a car plate which used to belong to TP, Madam T and BT did not receive anything from his estate. 66.When the Deceased learnt of TP’s passing, he voluntarily assured Madam T that he would take care of her financially. 67.In 2007, the Deceased continued to fund BT’s tuition fees until he graduated from his Masters degree, and fully repaid the mortgage of B Court (including the overdraft facilities) by way of cash in several instalments in 2007. 68.After TP’s passing, the Deceased and Madam T were more comfortable in resuming contact and they started to meet up regularly for meals, often with the company of PL and BT when they were available and occasionally with Madam T’s mother and sister for festive gatherings. The Deceased also started to provide Madam T with financial maintenance directly, albeit they did not resume any romantic relationship. 69.In general, the Deceased called PL to arrange for their regular monthly meet up at various restaurants. During their monthly meeting, the Deceased would provide Madam T’s living expenses either by way of cheque or cash. In the beginning, the Deceased provided HK$100,000 per month for her living expenses, and always paid an extra sum of HK$100,000 for the month of Chinese New Year. It was the Deceased who decided the amount he gave to her. 70.When the Deceased paid the financial maintenance by way of cheques, Madam T had the habit of banking in most of the cheques at her current account maintained with Hang Seng Bank as she usually makes payments with this account. She would also deposit the cheques to her bank accounts with Bank of China and very occasionally with HSBC when there was an ATM machine nearby. After banking in the cheques, she would make several cash withdrawals as she preferred to pay most of her personal and household payments by way of cash and to keep cash in the safe at her home. 71.When the Deceased paid the financial maintenance by way of cash, Madam T would usually keep the cash in the safe at her home. Those were not reflected in her bank statements. 72.From 2011 onwards, the Deceased increased the monthly maintenance to HK$120,000. 73.Madam T has produced bank statements of her bank accounts from 2008 to 2016 and showed some relevant entries of cheque deposits. Counsel on both sides have agreed on an “Agreed List of Deposits from Bank Statements Disclosed by the Applicant” (“Agreed List of Deposits”), which records the following cheque deposits made over the years. 74.Cheque Deposits / Credit as advised to Madam T from 2008 to 2016:
75.There are months in which bank statements were provided but no cheque deposit could be seen; and then there would be some other months where statements are missing hence one cannot discern if cheque payments were given to Madam T. However, it is Madam T’s case that payments from the Deceased prior to the end of 2016 were both in terms of cheque or cash. 2016 to beginning of 2020: Meeting regularly at DLS, Cash payments only and last meet up in January 2020 76.Since 2016, the Deceased’s health started to deteriorate, and he was not fit to travel to different places for lunch. The Deceased and Madam T started to meet up regularly at DLS for lunch. Lunch was always arranged to be at the first half of each month because the Deceased wanted to ensure that Madam T would be financially in funds for the rest of the month. 77.In one of their lunch meetings in around the end of 2016, the Deceased told Madam T that he intended to pay the monthly financial support by way of cash from then on as he was physically unfit to sign cheques. Madam T had no issue with the suggestion as she had always had the habit of keeping cash at home and was accustomed to using cash. 78.Once the Deceased started to pay in cash, the Deceased increased the monthly financial support to the range of HK$130,000 to HK$170,000 per month, and she remembered that the Deceased joked around that he was giving her a pay raise. Together with the double amount the Deceased paid around Chinese New Year, Madam T began to receive a monthly average of around HK$150,000 since end of 2016. 79.Madam T says that it was their routine that whenever they were seated at the restaurant, the Deceased would give Madam T a stack of HK$1,000 notes being maintenance for the month. Out of prudence, Madam T was conscious not to draw attention of others in the restaurant to the cash she was given, so she always quickly put the money inside her purse. She would sometimes be assisted by one of the long-standing staff at the restaurant, known as MN, who gave her a tablecloth to cover the cash Madam T was given. 80.Madam T recalled that the Deceased had told her not to worry about her finances and reassured her that he would cover her medical and living expenses, and those reassurances were given not less than 5 times. 81.At the beginning of January 2020, the Deceased arranged 2 meetings at DLS, and provided Madam T with cash of HK$250,000 on each occasion, adding up to a total of HK$500,000 in that month. At that time, the Deceased did not give any specific explanation for the increased sum, and Madam T was unaware of the extra sum provided by the Deceased when they were at the restaurant as she did not count the amount given by the Deceased. Madam T also did not give much thought about the extra meeting with the Deceased as it was the month of Chinese New Year, so she thought it was normal for the Deceased to organise another lunch gathering. 82.In hindsight, Madam T believed that the Deceased was aware of his deteriorating health as well as the alarming public health situation, and foresaw that their regular meetings may be affected, so the Deceased provided her with extra maintenance as a buffer. That was the last time the Deceased, Madam T, PL and BT gathered together before the subsequent strict social distancing measures implemented across Hong Kong commencing in February 2020. 83.The sums provided by the Deceased in January 2020 were, according to Madam T’s case, the last sums provided by him. 2020 – 2022: The Deceased’s deteriorating health and passing away 84.In around June 2020, the Deceased was admitted to St. Teresa’s Hospital, then in April 2021, he was admitted to the Canossa Hospital. 85.Owing to her past relationship with the Deceased, Madam T did not find it appropriate to visit him at the hospital as she anticipated that his family and Madam L would be at the hospital. Hence, Madam T did not visit him on either hospitalisation. Instead, PL would visit the Deceased, and Madam T was able to speak to the Deceased by way of video calls via PL. 86.From April to November 2021, Madam T learnt from PL that the Deceased was generally becoming even weaker and often refused to eat as he did not like the food prepared by his domestic helpers at home. Madam T therefore prepared some home-cooked meals for the Deceased. PL would ask the Deceased’s daughter FL to arrange for the Deceased’s driver to deliver the food to the Deceased’s home. 87.In around mid-November 2021, the Deceased was admitted to the Baptist Hospital. While PL visited the Deceased everyday, Madam T had not seen the Deceased for almost 2 years at that point. But having heard of his deteriorating state, she felt obliged to visit him at the hospital notwithstanding the potential embarrassment she may encounter at the hospital with his family. She visited the Deceased 4 more times then; before the Deceased passed away on 5 January 2022. Analysis 88.In challenging Madam T’s case, Ms Chow submits that she is plainly an unreliable witness on the grounds elaborated below. 89.First, Ms Chow says Madam T blatantly lied on several occasions and even expressly acknowledged making evidence up in the box when the Executors challenged that she was anything but close with the Deceased in the last 2 years of his life. The Executors cited the following exchange as support:-
90.In my view, I do not agree that Madam T blatantly lied or purposefully made evidence up. Ms. Chow’s question contains two suggestions: firstly, suggestion that the brief contact was completely made up in the box, and secondly, the suggestion that it was not mentioned in Madam T’s affidavit. It is not possible to tell if Madam T was acknowledging the former or the latter suggestion. Based on this answer, I do not accept that Madam T had acknowledged making up evidence in the box. 91.Second, Ms Chow also suggests that Madam T tried to shy away from previous answers when she knew it was inconsistent with documentary evidence or was unfavorable to her case. She says, for example, Madam T claimed that the Deceased would pay her “every month before the 5th”, but when it occurred to her that most of the cheque deposits into her HSB Current Account were not deposited prior to the 5th, she “immediately retreated” from that position. Ms Chow relies on the following exchange:-
92.I do not consider Ms Chow’s criticism valid or persuasive. Madam T says “At the beginning of the month” and “every month before 5th”. In reading this exchange, I am not of the view that there is a retreat from a previous position. The Agreed Lists of Deposits (paragraph 73-74 above) shows that most cheques were either deposited on either the beginning of the month or the end of month, which is consistent with her evidence that they were made before the 5th day of the month. Furthermore, Ms Chow’s cross-examination seems more on the irregularity of the payments than on the timing. 93.Ms Chow also relies on the fact that in her affirmation and on day 1 of the cross-examination, Madam T accepted that it was the Deceased who would call PL up for lunch gatherings, yet she backtracked on this on day 2 saying that “sometimes it would be [PL] calling [the Deceased], usually that’s the case. In recent years, [the Deceased] did so less frequently” to make the point that Madam T would shy away from previous answers. 94.In my view, this criticism is a non-starter. Madam T had already stated in her affirmation that “in general, the Deceased called [PL] to arrange for our regular monthly meet up and we were flexible in accommodating his busy business schedule”. PL’s calling the Deceased to arrange for the lunch gatherings would not be inconsistent with Madam T’s evidence; and the Deceased calling less in “recent years” is very plausible in the light of his declining health. 95.Third, Ms Chow submits that Madam T’s answers were inherently incredible or outlandish for the following reasons. 96.Ms Chow says on Madam T’s case, she would have received at least HK$37,875,000 (i.e. around HK$37m) from the Deceased from 1993 to 2020 calculated as follows: -
97.Ms Chow says that since payments totaling HK$6.28m were made by way of cheques (as seen from the Agreed List of Deposits above), payments totaling HK$31m would have been made by way of cash. She further says Madam T “maintains” that from 1993, she had kept HK$31m at home, even though she held several bank accounts with HSBC, Hang Seng Bank, and the Bank of China, and this is therefore inherently incredible or outlandish. 98.Ms Chow also says Madam T’s answers were inherently incredible or outlandish because Madam T continued to doubt the Will on the basis that the “long-form signature” was not the Deceased’s, even though she was taken to it. 99.In my view, these criticisms are untenable:-
100.Fourth, Ms Chow says Madam T’s evidence was inherently contradictory. On the one hand, Madam T said that the Deceased told her he could not sign cheques from 2016 onwards, which conveniently explains why no further cheques were deposited into her HSB Current Account, but Madam T also claimed that (i) when stack of cash was given after 2016, it was bound by rubber band that came with the Deceased’s signature and a date, and (ii) the Deceased could just have given her a “cheque” if the Deceased wished to make a record and mark his decision to break up with her. Ms Chow submits that plainly, Madam T knew this was “nothing more than a front”, as confirmed by the Will and the “Forms for the New Authorised Persons” in November 2018 (which is a bank document granting power of attorney to some of the Deceased’s Legitimate Children to operate his bank account). 101.In my view, there is nothing inherently contradictory in Madam T’s evidence:-
102.Fifth, Ms Chow relies on one of Madam T’s visits to the Deceased at the Baptist Hospital in December 2021 which Madam T recounted during cross-examination. Ms Chow submits that, during this visit, the Deceased recognised Madam T, Madam T said she was “thirsty” (頸渴) (understood as the Cantonese metaphor for “no money” (無水)), PL emphasized to the Deceased that he had not given money for such a long time, and the Deceased acknowledged that Madam T would be “thirsty” (頸渴). 103.Ms Chow then says this exchange is significant, she opines that not only was the Deceased acutely aware of his own decision not to make any payments to Madam T for some years prior to his death (as per PL’s acceptance that his mental state was clearer in 2020 than in 2021), the Deceased maintained this decision in a lucid state of mind despite Madam T and PL making requests for money in the last few weeks of his life. Ms Chow submits that the Deceased’s decision to completely end any prior dependency arrangement (which was denied by the Executors) could not be clearer. The Deceased also did not suffer from any major illness (頑疾) till the end of his days, and his health was fine in 2020 and only started to deteriorate in early 2021. Ms Chow says the Deceased had simultaneously referred to the “thirsty” metaphor, thus acknowledging and confirming his decision to cease payments since January 2020. 104.During cross-examination, Madam T recounted the visit to the Deceased in December 2021 as follows: -
105.Ms Chow then asked some follow-up questions on the exchange: -
106.It appears to be Ms Chow’s submission that as the Deceased was lucid, recognized Madam T, and yet made no payment to her as “patently clear that he is not interested” in giving her money since January 2020. Having regard to the totality of the evidence above and the exchange between Madam T and Ms Chow, I am of the view that it is stretching the evidence too far to say that the Deceased had acknowledged and confirmed his decision to cease payments since January 2020 from this incident:-
107.In summary, I am of the view that Ms Chow has failed to challenge Madam T’s evidence and as a witness. I accept Madam T’s case having regard to her overall evidence and her demeanour in the witness stand. Calling of Witnesses 108.Ms Chow also argues in her closing submissions that adverse inference should be drawn against Madam T for failing to call the following suite of potential witnesses, even though there is no suggestion that any of them are unavailable or unable to testify in Court:
109.The legal principles for when it is permissible to draw adverse inference against a party for failing to call a particular witness is well-settled. In Wisniewski v Central Manchester Health Authority [1998] PIQR 324, 340, Lord Brooke LJ derived the following principles:
110.In Tjang Siu Thu v Profield Construction Engineering Ltd [2015] 5 HKC 22, the Court of Appeal held at [33] that:
111.In YWS v SJ [2025] HKFC 10 at [38], HHJ Elaine Liu reviewed the above line of authorities and summarised as follows:
112.In Phipson on Evidence (20th Ed), the learned editors noted at [45-35] the following:
113.Having regard to the above principles, I am unable to agree with Ms Chow to draw adverse inference against Madam T for the following reasons:
114.In the circumstances, I am not persuaded that it is appropriate to draw any adverse inference against Madam T on this argument. Additional Evidence at trial from the Applicant’s case 115.In the middle of the trial, Mr Kwan handed up certain screenshots of what appears to be the nurses ignoring messages from PL in around 2023. Mr Kwan relied on Lam Kong So v Air Conditioning Limited [2024] HKDC 1510, and submitted that those were made for voluntary disclosures, but not as evidence of the trial. He emphasised that the purpose of producing screenshots were so not to have the Court be misled. Ms Chow submitted that Mr Kwan was relying on this particular piece of document in response to points the Executors will make, and in that respect it was not a voluntary disclosure, and leave must be obtained from the Court for use of the document. 116.Having heard counsel’s submissions, I agree with Ms Chow and held that the screenshots were not admissible. I have not taken them into account in the analysis above. F2.2 PL 117.PL has made a total of 3 affirmations. She gave oral evidence on 11 and 12 February 2025. 118.PL was born out of wedlock in June 1977 and was brought up by Madam T solely after she parted ways with the Deceased in 1983. There are photos in evidence of the Deceased taken with PL when she was little. She reconnected with the Deceased in around 1993 when Madam T brought her to meet with him when she was around 16 years old. The Deceased had since played a consensual parental role in her life. Photos were produced by Madam T and PL taken over the years, and more specifically in 1994, 2007, 2011, and 2018-2019. Although her parents rarely maintained any direct contact from 1993 to 2006 owing to Madam T’s ongoing relationship with TP, they resumed regular contact after TP passed away in 2006, and started having meals together regularly. 119.According to PL, the Deceased had been providing Madam T with continuous financial support since they reunited in 1993. During their first father-daughter date back in 1993, the Deceased brought PL to J Kitchen in Central, and provided her with a stack of cash in the total sum of HK$1 million which the Deceased told her to pass to Madam T. The Deceased always provided PL with cash of HK$30,000 to HK$50,000, and reminded her to only keep HK$5,000 for herself and to give the remaining balance to Madam T. Since Madam T resumed regular contact with the Deceased, he paid her directly every time they had lunch together up until their last meet up in January 2020, which was shortly before the outbreak of COVID-pandemic in Hong Kong. That was the last occasion when the Deceased, Madam T and PL had lunch together as a family. 120.She further confirmed that she was present at the lunch gathering with her parents in around end of 2016 when the Deceased told Madam T that he would start paying Madam T financial maintenance in the form of cash as he was physically unfit to sign cheques, and she also witnessed the Deceased paying cash to Madam T in all subsequent lunch gatherings. 121.PL stated that CL informed her of the Deceased’s admissions to hospital in June 2020 and April 2021, and further provided details to facilitate her visits to the Deceased in April 2021. She had forged a tight sisterhood with FL from the beginning of 2021 up until the present claim. They supported each other during the toughest times when the Deceased’s health deteriorated. She had frequent contacts with CL, FL, and the Deceased’s nighttime and daytime caregivers with respect to the Deceased’s conditions when the Deceased was hospitalised, as evidenced by a vast number of WhatsApp messages put into evidence. 122.After the Deceased passed away, PL attended his funeral and participated in the closed ceremony of laying ashes to rest (上位儀式) (termed “embossment” in her evidence) in April 2022. 123.PL stated that the Deceased had never expressed to her and Madam T about any financial difficulties he was facing in their regular lunch gatherings when he provided Madam T with maintenance, and it never occurred to her that the Deceased had any financial concerns. In 2019, the Deceased still assured Madam T that he would have her medical and living expenses covered and told Madam T not to be worried about her finances. Neither CL nor FL mentioned that the Deceased had any concerns over finances in their conversations with PL as well. 124.PL also confirmed that save for their visits to the Deceased when he was hospitalised, neither she nor Madam T had requested to meet up with the Deceased since their lunch gatherings were suspended in January 2020 because of safety concerns and the strict social distancing measures implemented across Hong Kong as a result of COVID-pandemic. It also never occurred to PL and Madam T that they should visit the Deceased at his residence as they thought it would be inappropriate to do so with Madam L residing at the property. She says that Madam T did not request for financial support from the Deceased since the suspension of their lunch gatherings, and completely understood that the Deceased may not feel comfortable asking the Legitimate Children to pay maintenance to his former mistresses on his behalf, as such Madam T and she never requested the Deceased to do so. 125.PL set up “PT” (“PT Shop”), a small scale retail business in 2014 with a small shop in Sheung Wan. PT Shop operates under the company (“FSMGL”) of which PL was the sole director and sole shareholder. At the beginning, the business did not generate enough profit and she stayed at a full-time job in a jewellery company until around 2018 before she worked full time at PT Shop. Her business was struggling for a long period of time; first hit by the social unrest in 2019, and then the COVID-pandemic. She was forced to close down the shop in Sheung Wan as she was unable to afford rent due to low business turnover, however, she did open two retail shops at the Landmark and at Elements amidst the COVID-pandemic as she was offered attractive concessionary tenancy rates there. 126.According to FSMGL’s report and financial statements for the year ended 31 March 2022 signed by PL and its computation of liability to profits tax for year of assessment 2021/2022, FSMGL made a profit of HK$230,507 for the year ended March 2022 but recorded an accumulated loss in equity of HK$5,951,960. PL explained that the profit of HK$230,507 was attributed to various government measures during the COVID-pandemic and write-off in equity loss. 127.FSMGL’s report and financial statements for the year ended March 2022 also recorded an amount due to PL in the sum of HK$5,403,940, which PL explained was money injected into PT Shop, and more than HK$4 million was gifted by the Deceased as a gesture of support when PL founded PT Shop. During cross-examination, she elaborated that the Deceased gave her HK$1.5 million by the end of 2013, and another HK$1.5 million by the end of the first quarter of 2014. The Deceased also covered PT Shop’s rent in sums totalling HK$800,000, and sums of HK$100,000 in around late 2014 or early 2015 as gifts from the Deceased to support her. She confirmed under cross examination that the Deceased had funded her business. The amounts were given to her in form of cheques from the Deceased leaving the payee blank for her to fill in. PL stressed that these gifts to support her business were distinct from the maintenance given to Madam T. 128.In FSMGL’s unsigned report and financial statements for the year ended 31 March 2023, FSMGL made a profit of HK$32,536 for the year ended March 2023 and recorded an accumulated loss in equity of HK$5,919,424. PL explained that the profit had taken into account of government’s subsidy in the sum of HK$72,000. 129.BT was one of the founders of and worked at PT Shop. He used to be paid a monthly salary of HK$22,000. He stopped working at PT Shop since October 2023. Analysis 130.In their closing submissions, the Executors criticised PL as “unreliable, opportunistic, self-serving”, who “refused to answer straightforward questions put to her and gave baseless answers”: -
131.During cross-examination and in the Executors’ closing submissions, the Executors made a half-baked challenge of whether PL was actually of the Deceased’s blood, given that she was born in June 1977 and should have been conceived around September to October 1976, but the Deceased left Hong Kong for Canada in mid-1976. The Executors did not elaborate how this point could take their case any further. In any event, PL’s birth certificate dated XX January 1979 stated unequivocally that the Deceased was registered to be PL’s father, and it is clear from the evidence that the Deceased treated PL as his own; I do not see how their blood relationship would have any bearing on the outcome of Madam T’s application. 132.The Executors also submit that in answer to the suggestion that “given [the Deceased’s] good health and spirit, in the entirety of 2020, the fact that he did not continue payment to your mother, demonstrates a very conscious decision to cease financial support”, PL answered a resounding “Yes”. The Executors relied heavily on this answer in their closing submissions to make the point that the fact that the Deceased had not paid Madam T for the entirety of 2 years is unequivocal conduct that ended any prior relationship of dependency. 133.It is my view that the Executors have failed to look at PL’s evidence in the round in making this submission. According to the Court’s record, when Ms Chow first made such suggestion to PL, she disagreed:
134.When Ms Chow put forward the same suggestion again later in the course of her cross-examination, although PL did say she agree with the suggestion, it came with the following explanation that there was COVID-pandemic restrictions at that time:
135.Mr Kwan then interrupted and raised his concern that because the questions and answers were jumping in between English and translation, he was not sure if PL actually grasped the import and that represented the true evidence. He voiced his concern against any argument that “technically, she said agree” would form the basis of submissions. This Court then asked Mr Kwan to conduct re-examination if appropriate, and reminded the witness to wait for the translation of the question to be completed before answering the question to avoid any confusion. 136.Later, when the Executors put forward the same suggestion for a third time, PL disagreed:
137.From the above, considering PL’s evidence in its entirety, it is clear and unequivocal that her evidence was that she disagreed that the Deceased had made any intentional “decision” to cease contact with or payment to Madam T and/or PL. Ms Chow pointed out that the Court’s suggestion that the point be taken up in re-examination was not followed through. In my view, having regard to PL’s subsequent answers, it was not necessary for Mr Kwan, and he was right that he did not feel he needed to re-examine the witness on this aspect given the unequivocal stance and evidence of the witness. 138.I find PL to be a credible witness and accept her evidence and in her corroboration of Madam T’s case; I also disagree with Ms Chow’s criticism of her evidence. F3. Evaluation of the Respondent’s evidence 139.The Executors’ case rests heavily on inviting me to accept that the Deceased had made a “conscious decision to cut ties” with Madam T. The following is my evaluation of their evidence. F3.1 JL 140.JL has made a total of 4 affidavits. He gave oral evidence on 12, 13 and 14 February 2025. 141.JL’s evidence as contained in his affidavits, insofar as they are relevant or material to the issues in these proceedings, are summarised as follows. The following are largely adopted from his affidavits. 142.In the early 1950s, the Deceased married Madam L. As stated above, they had five children out of their marriage, including the Executors. Madam L passed away in December 2021, and the Deceased in January 2022. 143.All the Legitimate Children were close to the Deceased, they lived in close proximity to the Deceased’s home, saw the parents daily, maintained close relationships and regularly share meals. 144.Madam L and the Legitimate Children all along knew about the fact that the Deceased had a number of mistresses or girlfriends over the years, as well as the children he had out of wedlock with his mistresses. Some of the Legitimate Children were on friendly and cordial terms with them, and had also met one or more of the Deceased’s girlfriends over the years. 145.The Deceased remained mentally lucid and alert up until his death, but since around 2019, the Deceased’s dexterity deteriorated, and it became more difficult for him to sign cheques or documents. Therefore, since 2019, the Deceased handed over most of his finances and accounts to be handled by JL or his siblings, although he maintained certain control over his financial matters. JL in particular, would help the Deceased handle the payments on his instructions and according to his wishes; and as his eldest son, he had been more involved in the Deceased’s business dealings, financial and personal matters as his right-hand man, and therefore to a larger extent than the rest of his siblings. 146.Madam L was well aware of and tolerated the Deceased’s mistresses or girlfriends. Over the years, as was known to all of JL and his siblings, the Deceased went out for meals and shopping with his mistresses and girlfriends and his Other Children from time to time. 147.Generally, the Deceased’s long-term driver, SC Driver, would drive him to meet with his mistresses or Other Children (including the lunch meetings with Madam T and PL). 148.Nonetheless, the Deceased was much closer to his married family than any of his Other Children or mistresses. The Deceased was kind to his Other Children and did not favour any one of them in particular. 149.By around late 2018 to early 2019, the Deceased was almost 90 years old, and had become weaker physically, requiring higher levels of medical and healthcare expenses. However, the Deceased remained mentally alert and lucid, and was generally active. He would exercise, read, practise calligraphy at home, and have lunch appointments with his friends, staff, mistresses or girlfriends. 150.Given that the existence of the Deceased’s Other Children and mistresses was known to the family, JL says that the Deceased also wanted to settle his succession planning clearly, so as to avoid any disputes amongst the family or with his other mistresses or Other Children. 151.After discussion with Madam L and JL’s siblings, the Deceased decided to make his last Will in January 2019, setting out his wishes unequivocally as to the disposition of his assets. The Deceased appointed three of his children as Executors, with the Legitimate Children being the five beneficiaries of his estate in equal shares. According to JL, the Deceased also made a “conscious decision” (as elaborated below) to cease any spending on extra-marital associations before he passed away. The Deceased’s handing over finances and affairs to JL and his siblings 152.In November 2018, the Deceased signed forms for new authorized person with Hang Seng Bank (“Forms for New Authorized Person”), authorising AL, CL and JL to operate the Deceased’s main bank account at Hang Seng Bank (Account No.: 286-233XXX-XXX) (“the Deceased’s Main Bank Account”). 153.JL says it was only by around the end of 2019, when the Deceased’s hands were unstable, it became difficult for him to sign formal documents or cheques. 154.The Deceased also gave JL the key to his safe at home (where the Deceased kept his cash and valuables), so that JL could handle his financial affairs going forward. 155.In February 2021, the Deceased further asked AL, CL and JL to open joint accounts in the name of the three of them with Hang Seng Bank, into which the Deceased would transfer funds from the his Main Bank Account as gifts or maintenance for their families and for their family’s household expenses to ensure that they would be provided for. The Deceased’s increasing expenditure and decreasing income 156.JL says that even before the COVID-pandemic, the Deceased would tell him from time to time that he was worried that there would be insufficient funds to look after the family. 157.Since around 2019 up until the Deceased’s passing in January 2022, his need for medical nursing care spending increased substantially, as well as the expenditure required for Madam L’s medical and healthcare. 158.The Deceased was also responsible for management fees for the Deceased’s home and where the Legitimate Children reside, as well as other household expenses and salaries for staff. According to JL, the annual household expenditure incurred by the Deceased increased from around HK$4.52 million in 2019 to HK$9.78 million in 2021. 159.The substantial rise in the Deceased’s medical and household expenditure coincided with the COVID-pandemic, which seriously affected and caused huge losses to the Deceased’s casino business in Macau, and as a result he had to close down in March 2021 after months of losses. The Deceased’s “conscious decision to cut ties” 160.During cross-examination, Mr Kwan questioned JL extensively on the Deceased’s “conscious decision” to cut ties. The following are some relevant paragraphs taken from his affidavits. 161.In his 1st Affidavit, JL deposed that:
162.In his 2nd Affidavit, he deposed that:
163.Under cross examination, when he was asked when such “conscious decision” was made, JL related the timing of visits made by two of his Other Children:
164.When asked a second time, he added that the timing also related to visits made by one ChL:
165.When he was asked to clarify if the Deceased had made the “conscious decision” at a particular moment, or if the Deceased had made an express communication to him on the “conscious decision”, JL kept stressing that the Deceased had felt that he was running out of money based on his own observations:
166.He said that when he stated in his affidavit that the Deceased made a “conscious decision to cut ties”, he meant breaking off of relationship:
167.JL agreed that if he were to cut ties with people, he would ignore, not to contact, or try best not to see or meet up with people who he had cut ties with. 168.When asked a third time about the timing of the “conscious decision”, JL referred again to the financial stress of the Deceased:
169.Further, it is also JL’s evidence that prior to these proceedings, he did not know about the existence of Madam T:
170.It is also his evidence that he did not even know PL was Madam T’s daughter prior to these proceedings:
171.When questioned by Mr Kwan that how the Deceased would cut ties with Madam T, JL responded in English, “My dad has no money and dying soon. You think he cares?” and said that the Deceased would just ignore her. 172.A few questions and answers later, Mr Kwan asked if JL knew when or how the Deceased and Madam T broke up, or if anyone told him how Madam T and PL reacted when there was such a break-up, to which JL responded “no”:
173.JL said there was no need for him to know about the Deceased’s relationship with Madam T, because Madam T was not his mother and the most important thing was his mother:
174.During the cross-examination of JL, Mr Kwan also played some voice messages sent by PL to FL on WhatsApp when the Deceased was hospitalized, asking FL to pass along to the Deceased. In one of the voice messages recorded on 22 March 2021, PL expressed hope that the Deceased would get better so that they could have meals again at DLS:
175.FL agreed to pass on the message. Mr Kwan asked if this message would make sense if the Deceased had already cut ties, JL suggested that the Deceased might be still considering whether to cut ties or not. When Mr Kwan suggested to him that all of these was JL’s guesswork, JL responded that “everyone is making a guess”:
Analysis 176.Based on his affidavits and his answers during cross-examination, it appears that the Executors’ theory that the Deceased made a “conscious decision” to cut ties with Madam T rested on two limbs:
177.As regards the first limb, I am not satisfied that the evidence of JL supports such case theory:
178.As regards the second limb, the Alleged Conversation first came about in the course of Mr Kwan’s cross-examination of JL:
179.Immediately after JL gave his answer, I enquired if it was in the affidavits. Ms Chow drew my attention to paragraph 36 of JL’s 1st Affidavit, where he stated that “[a]fter discussion with Mother and my siblings, Father decided to make his last Will in January 2019”, and she says that the Alleged Conversation was JL’s giving elaboration on the “discussion” in his oral evidence. However, the fact remains that the details and particulars of the Alleged Conversation only arose in the course of JL’s cross examination. Ms Chow also accepted that details of the Alleged Conversation about moving to Paxton etc were not in the affidavits. 180.Referencing CL’s Affidavit, it was mentioned that the Deceased moved to Paxton in May 2018. At the end of Ms Chow’s re-examination, I asked JL to clarify when did the Alleged Conversation take place, whether he was present or did Madam L told him afterwards. JL first said he was there, and added a detail that the Alleged Conversation came about because someone claiming to be the Deceased’s daughter-in-law came to visit the Deceased:
181.When I clarified with JL again if Madam L, the Deceased and himself were present when the Alleged Conversation took place, he then said he could not remember clearly, and added a further detail that the Alleged Conversation triggered the making of the Will.
182.It was only when I asked JL for a third time if he was present when the Alleged Conversation, he gave an affirmative answer:
183.I am not satisfied that the Alleged Conversation is able to support the Executors’ theory that the Deceased had made a “conscious decision to cut ties” with Madam T:
184.In the circumstances, I am not satisfied that the second limb has been made out. F3.2 CL 185.CL has made one affidavit. He gave oral evidence in English on 14 February 2025. As one of the Executors, CL was inside the Courtroom observing and listening into JL’s oral testimony when the latter was giving evidence. 186.CL’s evidence contained in his affidavit, insofar as they are material and relevant to the issues in these proceedings, may be summarised as follows. The following is largely adopted from his affidavit. 187.CL confirmed that JL was the Deceased’s right-hand man and had a good understanding of the Deceased’s daily life and financial affairs. JL and his wife EY were frequently asked by the Deceased to accompany or represent him to attend business events, meetings and dinner functions. 188.The Deceased would call CL up to his room and discuss his concerns about his finances on a semi-regular basis. The Deceased was always worried that he did not have enough money left after he had closed down his casino business, and his main concern always revolved around supporting the finances of the core family. He had never mentioned any financial concerns outside the core family. The Deceased was particularly worried about CL because he still had 3 children to take care of who are still at school. 189.CL recalled that PL was never introduced by the Deceased to their family, despite the Deceased had introduced his Other Children in the early 2000s. He recalled that PL had called his office in early 2000s, trying to speak to him. CL was not in office at that time. When he asked the Deceased about her, he says that the Deceased seemed very dismissive of her in his curt response. It was over 20 years before PL contacted him again. He viewed their exchanges only as between two persons who were concerned for the Deceased. He would discuss the Deceased’s conditions with PL like with a friend or even a distant relative. 190.Under cross-examination, CL admitted that he did not access the contents of the USB exhibited in PL’s 2nd Affirmation containing the WhatsApp messages between, amongst others, PL and himself, and those between PL and FL. He gave the explanation that given the incredible amount of evidence introduced, he felt that the rest of the evidence was more important than the WhatsApp messages put into evidence. 191.As to the issue of the Deceased’s “conscious decision to cut ties”, CL confirmed that he agreed with JL’s statements in his affidavits that the Deceased had made a conscious decision to cut ties with Madam T. However, he introduced a distinction between cutting off ties with Madam T only but not with PL: -
192.Further, CL also made a distinction between cutting off ties “financially” and “emotionally”:
193.CL also testified that he’s sceptical of PL’s intention of approaching and contacting himself: -
Analysis 194.Based on the following observations of his evidence, I do not find CL to be a truthful nor reliable witness. 195.His distinction of the Deceased cutting off ties with Madam T only but not with PL, as well as his distinction of cutting off ties “financially” but not “emotionally”, appeared nowhere in his own affidavit, nor anywhere in the evidence filed on behalf of the Executors. These distinctions only appeared for the first time in CL’s oral evidence under cross-examination after having observed and listened to the main theme of the cross-examination of JL, whereby the Deceased “conscious decision” to cutting off ties with Madam T surfaced as a crucial issue in these proceedings. 196.In any event, CL’s evidence also did not sit well with and was even contradicted by JL’s evidence. While CL maintained a distinction of the Deceased cutting off ties with Madam T but not with PL, it was JL’s evidence in his 1st Affidavit that the Deceased’s “conscious decision” to cease any spending on extra-martial associations include the children born out of the wedlock as well, i.e. including PL. During the cross-examination of JL, he also took the view that the cutting of ties extended to PL:-
197.As to CL’s distinction of “financial” and “emotional” ties, JL made it clear during his cross-examination that when he said the Deceased made a conscious decision to cut ties he meant “to break off the relationship” (see paragraph 166 above). His own understanding of cutting ties with people include ignoring or not contacting the other person whom he had cut ties with, or trying his best not to see or meet up with the people who he had cut ties with. Clearly, there’s no distinction of “financial” and “emotional” ties when JL was giving evidence on behalf of the Executors. 198.Furthermore, CL’s answers also fly in the face of the contemporaneous WhatsApp records – and, indeed, his own exchanges with PL. 199.For example, on 1 February 2020, around the time of Chinese New Year, PL sent a WhatsApp audio message to CL asking about the Deceased’s conditions:-
200.When the audio clip was played in Court to CL, he suggested that the Deceased was not answering PL’s call. Mr Kwan then played a second WhatsApp audio message sent by CL to PL on 12 February 2020 when CL proffered an explanation as to why the Deceased was not answering her calls:-
201.CL suggested that when the Deceased did not want to answer anybody’s phone call from the caller recognition, he had a habit of just not answering his phone and letting it ring:-
202.When Mr Kwan suggested to CL that the reading from his own WhatsApp audio message sent on 12 February 2020 showed that the Deceased was just being very taciturn, and that he would like to be left alone and was a grumpy old man, CL disagreed: -
203.The above answers clearly did not sit well with the contemporaneous records.
204.Reviewing CL’s oral testimony, I have a strong sense that CL was making up some of his testimony as he goes along and adjusting his answers along his new course; I am left with the impression that he conjured the above distinctions when it was his turn to give evidence after JL’s evidence in this respect underwent the Applicant’s serious challenge during cross-examination. F4. Findings on Issue 1 205.Based on my assessment of the evidence of each of the witnesses above, I now turn to the analyses of each of the sub-issues under Issue 1. F4.1. Issue 1A: Whether there was a settled basis or arrangement of maintenance 206.Madam T has set out her case of maintenance by the Deceased over a big part of her life, which was only suspended during the COVID-pandemic; and there was no evidence that the Deceased had ever intended for the maintenance to cease. 207.Ms Chow submits that there was no settled basis or arrangement of maintenance. Her submissions could be briefly summarised on the following six grounds: -
208.Having considered the evidence of the witnesses and the parties’ submissions, I reject Ms Chow’s submissions, my reasons are as follows.
209.In the circumstances, I find 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. E4.2. Issue 1B: 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? 210.As I find that there was a settled basis or arrangement of maintenance between the Deceased and Madam T, the next issue was whether the Deceased abandoned his responsibility or disclaimed the intention to maintain for Madam T. 211.Ms Chow submits that (i) the existence of good reasons to cease provision, coupled with (ii) the Deceased’s refusal to pay despite multiple options, suggests that there was an upend to the settled basis. 212.As to the good reasons to cease provision, Ms Chow submits that:-
213.As to the Deceased’s refusal to pay despite multiple options, Ms Chow contends that the Deceased had plenty of options to pass money to Madam T had he wished to despite the absence of lunch gatherings during the COVID-pandemic:-
214.For the following reasons, I am not convinced that the Deceased had abandoned his responsibility or disclaimed the intention to maintain for Madam T. 215.I agree with Mr Kwan’s submissions that reasons for the Deceased’s financial conservatism were not the same as proving the Deceased’s abandonment of his responsibility or disclaiming the intention to maintain for Madam T. Given that I have found there was a settled basis of maintenance and cash payments were made up until January 2020; the decline of the Deceased’s casino business from 2015, his limiting of his own expenses from 2018, and the increase of the Deceased’s household and medical expenses starting from 2019 would not necessarily mean that the Deceased had decided to abandon responsibility towards Madam T. 216.I also find it a bit of a stretch to interpret the Deceased’s refusal to meet two of his Other Children in March 2019 or his non-attendance at BT’s wedding at the height of the COVID-pandemic as an indication that the Deceased had decided to stop making provision to Madam T:-
217.As mentioned above, in my evaluation of the Executors’ evidence and witnesses above, I have already explained why I do not find the Executors’ case of the Deceased making a “conscious decision to cut ties” with Madam T and the Alleged Conversation to be credible. 218.Further, as to the submissions that abandonment had been evidenced by the Deceased’s refusal to pay despite multiple options, they must be viewed against the background of (i) the impact of the COVID- pandemic, coupled with (ii) the Deceased’s deteriorating health condition. The COVID-pandemic 219.As aptly described by Mr Kwan in his closing submissions, the COVID-pandemic was the worst pandemic in living memory. Madam T’s evidence in her 6th Affirmation shows a timeline of events of the Covid-pandemic saga from January 2020 to December 2020, which is not disputed or undisputable, and were highlighted to JL during cross-examination. 220.In brief, the evidence speaks to what happened with the outbreak of the first local case, border closures, quarantine measures, outbreaks in residential areas, and the introduction of public health restrictions such as mask mandates and dining bans. It also highlights the fear and uncertainty before vaccines were available especially among vulnerable groups like the elderly. 221.During cross-examination, JL also agreed and confirmed the wide spread public anxiety, and the reduced social contact. 222.The Deceased was reluctant to get vaccinated due to concerns about its side effects, and therefore the Deceased was severely restricted in his ability to go anywhere even if he had wanted to. The Deceased’s family also had safety concerns and the Legitimate Children asked the parents not to go out. 223.The Deceased was also experiencing declining health throughout the pandemic. He suffered from multiple chronic conditions – chronic bronchitis, aortic aneurysm, and chronic renal failure, arthritis and haematuria set in during the latter half of 2020. The Deceased required mobility aids, oxygen support even in early 2020, as recorded in Madam T’s evidence of their last meeting. The Deceased was hospitalized two more times in June 2020 and April 2021, and finally went into hospital for the last time in December 2021 and passed away in January 2022. Other Proxies 224.Turning back to Ms Chow’s submission that the Deceased had decided to put an end to the settled basis by his refusal to pay despite the multiple options, the first-order question is whether these “multiple options” were viable, feasible or reasonable against the backdrop of the COVID-pandemic, the Deceased’s deteriorating health, or the background of the family dynamics. 225.As mentioned above, it needs to be borne in mind that while the Deceased’s family was aware of his extra-marital affairs, it was not a subject that was generally broached at home, nor overtly shared with non-family members. JL confirmed that visits by other mistresses or girlfriends or his Other Children never happened (except for one occasion from ChL), because the Deceased would not talk about these other women at home, and JL thought that the Deceased was trying to keep the harmony at home to prevent argument. I also remind myself also of Madam T’s evidence in that she was very sensitive to her own status, and would not have approached the Deceased at his home had it not been for PL’s performance at school and needed help back in 1993. Furthermore, she had refrained for a long time to visit the Deceased at the hospital for fear of embarrassment when coming across the Deceased’s wife and family members, until when the Deceased was terminally ill. 226.Ms Chow queried whether the Deceased could have arrange for bank transfer after January 2020. It is JL’s evidence that he and some of his siblings have taken over management of the Deceased accounts and finances; a bank transfer which leaves a paper trail and the name of the recipient would no doubt reveal the Deceased’s arrangement with Madam T. 227.Ms Chow’s suggestion that the Deceased could have invited PL or Madam T to collect cash or meet him near his residence was also a non-starter. This suggestion plainly ignores the family dynamics and the Deceased’s unspoken and nuanced extra-marital relationships. 228.The suggestion that Deceased could have asked his driver or staff or his other children (CL or FL), and even the nurse to pass money onto Madam T also makes no sense. The Deceased did not appear to a person who would share this task with his Children, as his wife might find out; and it is even more nonsensical to suggest that he would ask members of his staff to do it for him as maintaining a relationship with his former mistress is clearly a matter that is personal to the Deceased. 229.Ms Chow’s argument that the Deceased was mentally lucid and not terminally ill also does not take her argument any further. I have found that with the Covid-pandemic outbreak in Hong Kong, the Deceased was clearly conscious of his own vulnerability in his ill health, particularly his conditions at the relevant time appeared to be affecting his respiratory system (bronchitis and need for oxygen tool). 230.I find that the Deceased could not have left home even if he had wanted to, I also find that the suggestion that proxies could be used is not at all practicable, it does not sit with the modus operandi of the Deceased. 231.In considering Ms Chow’s submission, I am unable to find any persuasive evidence of an abandonment of responsibility or a disclaimer of intention to maintain Madam T on the part of the Deceased. I find that the COVID-pandemic coupled with the Deceased’s deteriorating health constituted an inadvertent interruption before the Deceased’s ill-timed death; and balancing all the evidence before me, it is my finding that the settled basis or general arrangement was not intended to have ended. F4.3. Issue 1C: Whether the disposition of the Deceased’s estate effected by his Will is not such as to make reasonable financial provision for Madam T 232.Aside from making the point here that it is inconceivable for the Deceased to put Madam T as a beneficiary of his Will; the Will clearly made no reference to Madam T. E4.4. “Wholly and Substantially” 233.At this juncture, it is appropriate to discuss the “either wholly or substantially” requirement under section 3(1)(ix). 234.There was hardly any submission on this point from either counsel, but clearly a point that needs to be canvassed here. 235.Consideration must also be given to section 3(3) of the Ordinance, which provides that:-
236.In determining whether or not the deceased was making a substantial contribution, one must look at the problem in the round; apply a common sense approach, avoiding fine balancing computations involving the value of normal exchanges of support in the domestic sense: Bishop v Plumley [1991] 1 WLR 582 at 587F. Whether the deceased made a substantial contribution to another’s reasonable needs depends on the circumstances of the parties and their relationship. All the contributions made, whether in kind or otherwise, are taken into account: A Practitioner’s Guide to Inheritance Act Claims (4th Ed), [4.9.2]. 237.In the present case, it is clear from Madam T’s case that she had not worked for most part of her life, and that her expenses had been supported by the Deceased’s payment to her over the years. Not only had there been cheque and cash payments over the years, her case is that the real properties that she or her family had owned or own came from payments from the Deceased, and he had also paid off her mortgages and overdraft facilities on various properties in the past. 238.I have also taken into consideration the financial positions of PL and BT, this having considered the evidence of PL’s PT Shop accounts, the information provided by Madam T as to BT’s employment, and their respective contributions to the household expenses. 239.I have no evidence that indicates Madam T has any financial support other than from the Deceased, and I am not of the view that the Estate had challenged this aspect of Madam T’s case in any way. I therefore find that that the Madam T had been wholly or substantially maintained by the Deceased for the purpose of this application. F4.5 Conclusion on Issue 1 240.For the foregoing reasons, I find that Madam T is a person who, immediately before the death of the Deceased, was being maintained, either wholly or substantially, by the Deceased. She has locus under section 3(1)(ix) and 3(3) of the Ordinance to make the present application. G. ISSUE 2: THE DISCRETION ISSUE G1 Applying of Section 5 factors 241.I now turn to consider the matters set out in section 5(1) of the Ordinance. As the present application is made by virtue of section 3(1)(ix) of the Ordinance, I shall also consider the matters set out in sections 5(5) and 5(6) as well. Section 5(1)(a): the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future Madam T’s financial resources 242.Madam T is the only applicant in the present application. She has not been engaged in any form of employment since 1975. 243.According to Madam T’s Form E filed on 17 April 2023, the total value of her interest in all bank accounts was HK$237,246.09. In her 5th Affirmation filed on 4 March 2024, she exhibited her bank statements and deposed that her savings had depleted, and she only had HK$18,799.98 left in her bank accounts as of February 2024. Her current living and medical expenses are supported by PL. 244.Madam T owns an unencumbered property at B Court (where she resides with PL, BT, and his wife) with car parking spaces, and has inherited a 1/5 interest in a property at CL Court from her mother. On 15 September 2023, parties informed the Court that they had agreed on the valuations of B Court and CL Court to be HK$22,180,000 and HK$3,970,000 (i.e. Madam T’s 1/5 interest to be valued at HK$794,000) respectively. 245.Ms Chow submits that Madam T has numerous resources such that her financial needs are more than catered for: -
246.I agree that Madam T’s interest in B Court and her 1/5 interest in CL Court should be taken into account. Madam T says that CL Court is now inhabited by her brother. But at the very least, Madam T’s accommodation is fully taken care of. I also take into account the fact that both PL and BT are adults with earning capacity which could support Madam T’s living to a certain extent. 247.Ms Chow further submits that Madam T also has unexplained sources of income:-
248.As to the deposits from 2017 to 2019: -
249.As to the deposits from 2020 to 2022, upon a closer examination of the significant deposits under Part B of the Agreed List of Deposits, most of them consisted of “notification deposits” which were transfers from Madam T’s other bank accounts to her HSB Current Account, showing her name as the transferor. In particular, the electronic cheque deposits and most of the “notification” deposits into her HSB Current Account during this period were interbank transfers from her BOCHK savings account or current account, as reflected in her BOCHK consolidated monthly statements. 250.As to other deposits in her HSB Current Account from 2020 to 2022, they are either from family members, which I accept are of one-off nature, or cash deposits, which I accept Madam T’s explanation that they are left-over monies from the Deceased’s previous financial support provided to her in cash. 251.None of the above supports Ms Chow’s contention that Madam T had other financial resources. Madam T’s financial needs 252.In Mr Kwan’s opening submissions, he contended that Madam T’s financial needs were estimated to be around HK$144,274 per month. Thus, Mr Kwan initially claimed for a lumpsum of HK$48,476,064 (HK$144,247 × 12 months × 28 years), plus another sum of HK$3,000,000 to cope with potential medical expenses and inflation. 253.I agree with Ms Chow’s submissions that the purported financial needs of HK$144,274 per month are, on any metric, greatly exaggerated and extraordinary. Some of the items, like chauffeurs (which Madam T had never had before) or expenses for home entertainment and bonsai, extend to “payments to support an extravagant life”. Mr Kwan did concede that the Court has a discretion to cut the quantum down. 254.In my view, the appropriate starting point for assessing Madam T’s financial needs would be her monthly expenses as reflected in her Form E filed on 17 April 2023. In her Form E and in her 3rd Affirmation filed on 4 December 2023, she deposed that due to lack of maintenance from the Deceased, she had been living under a tight budget, and her monthly expenses have decreased to around HK$54,400. 255.The table below shows both sets of expenses numbers:
256.A number of observations could be made on the monthly expenses above:-
257.In exercising my discretion, I shall have regard to the above observations accordingly. Section 5(1)(b): the financial resources and financial needs of any other applicant 258.Apart from Madam T, there is no other applicant. Section 5(1)(c): the financial resources and financial needs which any beneficiary of the estate has or is likely to have in the foreseeable future 259.In JL’s 1st Affidavit, he stated that the Deceased had always generously provided financial support to his Legitimate Children, i.e. the named beneficiaries of his Will, and paid for their living, household and other expenses. JL’s siblings and himself have always been dependent on the Deceased’s provision throughout the years and up until his passing to meet the financial needs of themselves and their respective families. 260.AL, EL, and FL have all retired with no income, while JL and CL are still working. It is not clear what is JL’s occupation, the evidence is that he was the Deceased’s right hand man, and CL is an painter / artist. Further, JL and CL have children who are still pursuing studies at various stages of education and requiring continuous financial support. 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 the estate of the deceased 261.Mr. Kwan submits that there had been multiple assurances by the Deceased, during both the earlier and the later years of his relationship with Madam T, that he would assume responsibility for maintaining her and assisting her with PL and BT’s education. 262.Ms Chow submits that the testamentary intentions of the Deceased was clear, that his estate would be divided equally among the Legitimate Children and excluded extra-marital associations. The Will is the “point of departure” and should not be rewritten or deviated from significantly, citing Williams on Wills (11th Ed), [101.15], Ross on Inheritance Act Claims (4th Ed), [6-005], and Lettice v Lettice [2022] EWHC 3013 (Ch), [67] – [69], [116]. Any promises made by the Deceased to the effect that he would “care for Madam T” in around 2019 must be viewed against the Will and Madam T’s admission that the Deceased would admonish her to spend any sum within a month. Ms. Chow says, evidently, the Deceased’s promises, if any, were limited to making payment for the short-term as he pleased. On the other hand, the obligations expressed in the Will to the beneficiaries (i.e. the Legitimate Children) are worthy of particular consideration, citing Francis on Inheritance Act Claims: Law Practice and Procedure (March 2024), [7[12](4)]. 263.Although much emphasis was placed on the Deceased’s wishes as expressed in the Will, this is only one of the many factors the Court takes into account in exercising its discretion. In Ilott v Mitson (No 2) [2018] AC 545 (which was referred to in both Williams, [101.15] and Ross, [6-005]), Lord Hughes JSC of the UK Supreme Court noted that it is not the case that once there is a qualified claimant and a demonstrated need for maintenance, the testator’s wishes cease to be of any weight. They may of course be overridden, but they are part of the circumstances of the case and fall to be assessed in the round together with all other relevant factors. 264.I agree that this is the correct approach. The Deceased’s wishes to provide for his Legitimate Children under the Will should certainly not be disregarded. On the other hand, the responsibilities of maintenance assumed by the Deceased towards Madam T are also factors to be considered. In Francis, [7[12](4)], it has also been noted that obligations in the case of persons being maintained by the deceased, in addition to the expressions of obligations in the deceased’s will, is also “worthy of particular consideration”. 265.In exercising my discretion, I shall have regard to the obligations and responsibilities the Deceased had towards Madam T, as well as those he had towards the Legitimate Children. Section 5(1)(e): the size and nature of the net estate of the deceased 266.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 of the Ordinance. 267.According to the Respondent’s Form E filed on 13 April 2023 and parties’ agreed valuation contained in the letter from Madam T’s solicitors dated 15 September 2023, the net estate of the Deceased comprises of the following:-
268.Near the end of the 6-day trial, Ms Chow confirmed with me that (i) the Executors of the Deceased’s estate are also the executors of Madam L’s estate, (ii) the last will and testament of Madam L left her estate to the Deceased, thus Madam L’s estate would form part of the Deceased’s estate, and (iii) Madam L’s estate is still pending distribution. 269.According to the Respondent’s Form E filed on 13 April 2023 and parties’ agreed valuation contained in the letter from Madam T’s solicitors dated 15 September 2023, Madam L’s estate consists of the following, pending distribution:-
270.Thus, a sum of HK$55,312,619 should be added to the Deceased’s estate pending distribution. The total size of the Deceased’s net estate is therefore around HK$146.6 million (HK$91,309,417.73 + HK$55,312,619). 271.Ms Chow urges the Court to have regard to the realisability of the net estate, and submits that only around HK$4,200,000 in cash is readily available, namely the sums of HK$2,372,941.73 and HK$1,822,749 at the Deceased’s and Madam L’s respective bank accounts while other assets concern landed properties, shareholdings in private companies, and cash in a bank account maintained in Macau where probate has yet to be granted. 272.Mr Kwan complains that the Deceased’s estate in Macau remains unaccounted for even after Madam T’s multiple requests for disclosure, and that during trial, CL simply shrugged off the question. Further, as to the valuation of the BVI company, although there was the agreed valuation of HK$39,636,000.00, there were doubts as to its real value since to PL’s knowledge it was the Deceased’s secret vault of assets, but Madam T lacked the financial resources to seek specific discovery. However, despite these complaints, Mr Kwan by and large adopts the figures in the Respondent’s Form E in calculating the size of the net estate. 273.In assessing the size of the net estate of the Deceased, I shall adopt the figure of HK$146.6 million from above. 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 274.The mere fact of old age, which may or may not bring with it varying degrees of “ill health”, is not of itself a factor under section 5(1)(f): Francis, Inheritance Act Claims: Law, Practice and Procedure, §7[14]. 275.Madam T claimed that she had suffered from depressive and anxiety symptoms. She had also been diagnosed with rheumatic heart disease, hypertension, hyperlipidaemia, high uric acids, glucose intolerance, mixed anxiety-depressive disorder and left humeral head sclerotic cervical spondylosis with left radiculopathy. She had adduced referral letters and medical certificates in support. 276.Ms. Chow made the point that conditions such as hypertension, rheumatic heart disease or mixed anxiety-depressive disorders are common in old-age. However, solely on the basis of the evidence before me, the Court is unable to rule if these are symptoms common in or related to old-age for Madam T. 277.JL claims that he was suffering from ongoing asthmatic condition, FL was suffering from brain aneurysm, thyroid, liver and psychiatric conditions, CL was suffering from mental stress arising from the present litigation, thus requiring medical expenses or affecting their income. As for EL, she used to work until 1994, when she was unfortunately diagnosed with fibromyalgia whereupon she had to stop working, and throughout the years had relied on the Deceased’s provision. 278.Hospital bills of JL in August 2022 and December 2023 only were exhibited. Other than that, no other medical bills or records of the beneficiaries were included. During cross-examination, when Mr. Kwan put this to CL, he simply stated that they had not realised that they had to submit all their medical bills for evidence. Section 5(1)(g) — any other matters, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant 279.The Executors did not make submissions on this particular factor either during opening or closing. Madam T asks the Court to consider the factors under section 5(5) and section 5(6) of the Ordinance. I do not consider that there is any other matter which requires consideration under this heading. Section 5(5) — The extent to which and the basis upon which the deceased assumed responsibility for the maintenance of the applicant, and to the length of time for which the deceased discharged that responsibility 280.Mr Kwan submits that the Deceased had provided enduring maintenance to Madam T, as demonstrated by the Deceased’s assumption of responsibility to maintain Madam T. He submits that the Deceased and Madam T were life partners, and the length of their relationship spanned almost 50 years since they first met in 1975. 281.Ms Chow relies on her submissions on the locus issue and submits that Madam T falls short of demonstrating that there was a settled basis of maintenance spanning a 30-year period of regular maintenance from 1993 to 2020, and in any event, any past assumption of responsibility ceased 2 years prior to death. 282.Based on my findings above, I find that there was a settled basis of maintenance since 1993. Although the nature of their relationship was a non-romantic one, but their background and history formed the basis upon which the Deceased assumed responsibility towards Madam T. Section 5(6) — The closeness of the relationship between the applicant and the deceased immediately before the death of the deceased 283.Mr Kwan submits that there is no sign of estrangement. He relies on the fact that during the COVID-pandemic years, Madam T had connected with the Deceased via video while PL was visiting the Deceased, and prepared food for him which was delivered to his home, and she had visited the Deceased 4 times in his final days. 284.Ms Chow submits that Madam T and the Deceased were not close immediately before his death. Ms Chow supports this by highlighting the lack of contact between them for over a year, minimal efforts by Madam T to reach out, and her limited number of visits only towards the end of the Deceased’s life. Ms Chow further submits that the closeness of the relationship between PL and the Deceased is irrelevant to the assessment of the closeness of the relationship between Madam T and the Deceased. 285.I agree that the closeness between Madam T and the Deceased is the sole factor that falls under consideration pursuant to section 5(6). Although the relationship between the Deceased and PL per se does not affect the analysis, given that she is the Deceased’s and Madam T’s daughter and her participation in the Deceased’s and Madam T’s relationship and gatherings, the evidence regarding her relationship with the Deceased does shed some light on the closeness between Madam T and the Deceased. 286.Based on my findings above, I find that the lack of direct physical contact between Madam T and the Deceased was largely caused by the COVID-pandemic and the Deceased’s ill health. It was further complicated by the family dynamics and Madam T’s status as a former mistress which made it inconvenient for Madam T to visit or contact the Deceased in the presence of Madam L or their family. 287.Hence, I do not find the absence of contact between Madam T and the Deceased immediately before the death of the Deceased would necessarily mean that they were not close, albeit they saw lesser of each other than before when they were able to have regular lunch gatherings prior to the COVID-pandemic. G2 The Maintenance Award 288.In Madam T’s Opening Submissions, she originally claimed a lump sum of HK$48,476,064 and another sum of HK$3,000,000 to cope with potential medical expenses and inflation, i.e. a total sum of HK$51,476,064. The Executors criticise that this amounts to 54% of the Estate’s net value, which is more than the 50-50 spousal dependency claim under sections 3(1)(i) and 5(2) of the Ordinance. This is plainly unreasonable and deeply unfair to the beneficiaries under the Will. I have to agree. 289.During his oral opening submissions and as mentioned above, Mr Kwan has sensibly conceded that the Court has a discretion to cut the quantum down from Madam T’s ask of more than 50% of the Estate’s net value. 290.Section 3(2)(b) of the Ordinance provides that reasonable financial provision, in the case of an application made by virtue of inter alia section 3(1)(ix), means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance. 291.In the case of LKYI v GJS [2024] HKFC 145, [2024] 5 HKC 758, at [30] and [37], HHJ Elaine Liu discussed the English and Hong Kong authorities and derived the following principles and guidance on what is or what is not “maintenance”:
292.I would further make reference to the case of ACLS v HSBTL HCMP 1937/2011, quoting from paragraph 26 of the Judgement as to guidance on the meaning of “maintenance”:
293.With these principles in mind, I shall proceed to assess Madam T’s needs. Hereunder is my assessment of her monthly needs:
294.In the consideration of General Expense, I am conscious that this is a household of 4 persons made up of Madam T, PL, BT and his wife. Having accepted that the Deceased had made provision for Madam T who has then been predominantly supporting the household payments; I have adopted Madam T’s (unchallenged) Answer in that PL and BT together contribute to 45% of the household expenses, thus her contribution is 55%. 295.For her personal expenses, I have applied a broad-brush approach. To the extent that her expenses are in excess of my assessment, I take the view that she should and could be supported by her own children. 296.Having given thoughts to her ask of $3 million for medical, my approach on this is to ask myself, giving my findings above, and if she were to become ill, would the Deceased have given her monetary assistance. My answer to that question is Yes. However, given that she has medical insurance, and having taken into regard the allowance I give above for medical / dental expenses, I will only award $500,000 under this heading. H. CONCLUSION AND DISPOSITION 297.On the above calculation, her monthly expenses should be $45,900. I have also decided to give Madam T a lump sum award; I am adopting the approach put forward by Mr Kwan in his opening submission. using the Hong Kong Life Tables 2014 – 2069 which states that a woman age 67 in 2024 were expected to live a further 24 years. I will adopt a adopt a straight-line approach. 298.My calculation of the multiple is to backdate the maintenance award to the date of her application, October 2022 to the month she attains the age of 91 in January 2048, which comes to a total of 304 months. 299.The lump sum is therefore :
300.Adding this amount to my assessment of HK$500,000 for medical expenses, the total lump sum I intend to award to Madam T for her claim shall be HK$14,453,600. This will leave the Estate with approximately HK$132.15 million to be distributed between the beneficiaries under the Will. 301.I also have due regard to the nature and liquidity of these assets, and I am mindful that a substantial majority of the assets are landed properties or shareholdings in a private company. I will make an Order allowing time for the Estate to arrange for the lump sum payment. Costs 302.There is no reason why Costs should not follow the event. I will therefore award Costs to Madam T. 303.The Order shall be as follows:
304.Last but not least, I would like to thank the able assistance of all counsels in this matter.
Mr Kwan Ping Kan, instructed by Hom & Associates, for the Applicant Ms Theresa Chow and Mr Alvin Cheung, instructed by Tang and So, for the Respondent | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Tlk v. Lasm, Lkdj and Lcks, The Executors of the Estate of Lwk, Deceased
Lau Tat Wing v. Lo Oi Ming and Another
Lau Ting Keung v. Chan Wai Ying t/a Wai Shun Engineering Co and Another
Tai Tony Chak Leung v. Ke Junxiang
陳淑仁 對 賴俊光及另一人
Lyyc v. Chl and Csms, The Executrices of the Estate of Cgsk also known as Cskg, Deceased and Another
柯開榮 對 明泰建築工程有限公司
Sandhu Harpreet Singh (Formerly Known As Harpreet-singh) v. Lou Sai Tong
Everbond Engineering Ltd v. Aer Block Building Material Company Ltd
Ng Wai Tao v. Siu Patrick Chun Wai and Another
劉 對 陳及另一人
Keiron Peter Arch Rochester v. Glory Sky Precious Metals Ltd
Koo Ming Kown v. The Baptist Convention of Hong Kong and Others
Wu Hucheng v. Tian Jiong and Another
Fong Yee Yan v. Secretary for Justice
Further hearings and rulings under FCMP 182/2022