Lzx v. Wyl
Read the full judgment text of FCMP 105/2011 on BabelCite. This FCMP judgment was delivered on 9 August 2012.
1. This is an application by a widow for leave to apply out of time for reasonable financial provision from the estate of her deceased husband.
Cited by 13 cases · Cites 4 cases
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FCMP 105 /2011 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NUMBER 105 OF 2011 ----------------------------
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----------------------------------------------- J U D G M E N T ----------------------------------------------- A. INTRODUCTION 1.This is an application by a widow for leave to apply out of time for reasonable financial provision from the estate of her deceased husband. 2.For easy reference, in this Judgment, I shall refer to the widow as “W”, her deceased husband “H”, H’s estate “The Estate”, and H’s father “the Father”. 3.H died on 17 December 2008. He left a will (“Will”) and probate was granted to one of his younger sisters on 28 April 2009. The beneficiaries of the Estate are children born out of H’s first marriage, and I shall refer to the eldest son as “WCS”, the 2nd son “WYK”, and the youngest daughter “WHY”. They will be collectively called “the Children” in this judgment. 4.H had 6 siblings, eldest sister Kiu, eldest brother Yau, 2nd elder brother Hon, 3rd elder brother Ping, and his two younger sisters respectively Lan and Bo. Lan is the executrix of the Estate, and is the 1st Respondent in these proceedings. 5.W issued proceedings under the Inheritance (Provision for Family and Dependants) Ordinance, Cap 481 (“ IPFDO”) on 9 June 2010, initially in the High Court[1], which was subsequently transferred by consent to the Family Court. 6.As there were issues concerning the beneficial interest of the major assets in the Estate, upon application by W, an order was made on 15 December 2011 for the father of her deceased husband (“Father”) to be joined as the 2nd Respondent. 7.W’s leave application and substantive application were then heard at the same time during the trial. B. BRIEF BACKGROUND 8.W was born in Guangdong Province in December 1960 and is now 51 years of age. She received education to lower secondary level. Her first marriage took place in 1985, and her first husband later passed away in October 2000. She has two sons from her first marriage, now about 25 and 23 years old. Her elder son is working in a pharmaceutical factory in Mainland China, and her younger son is unemployed at the moment. W now lives with her two sons and her 81 year old mother on the Mainland. 9.W and H met sometime in 2000 through the introduction of a friend. This was before her first husband had passed away. H was born in Hong Kong. He grew up here and was domiciled in Hong Kong immediately preceding his death. 10.H was the youngest of four brothers. Unfortunately in 1973, his eldest brother Yau in a traffic accident involving the bus he was driving. His 2nd brother Hon sadly committed suicide in 2005. H himself died of cancer in 2008. 3rd brother Ping is now the only surviving brother. 11.H’s parents were farmers in Sha Tau Kok/Fanling, and H and his siblings helped in their parents’ farm in early days. 12.After Yau died, the Father obtained letters of administration of his estate and received about HK$31,000 from employees’ compensation, and another HK$50,000 from the labour union of the bus company, arising out of Yau’s death. The Father then decided to give up farming and he bought a ‘village house’ in Fanling (“Fanling Property”) out of the monies received by him. The Fanling Property was purchased in the name of H’s 2nd elder brother Hon in 1975. 13.The Fanling Property consists of 3 levels, the ground floor, the 1st floor, which is also the mezzanine floor, and then there is the 2nd floor, which is the top floor. After purchase of the Fanling Property, the Father opened a grocery shop on the ground floor (“Grocery Shop”). H was then still at school studying Form 3, and was only about 16 years old. At the invitation of the Father, H stopped studying to help the Father to run the Grocery Shop, and moved to sleep in a room inside the Grocery Shop on the ground floor. The above two floors were then rented out. Later when H got married, he then moved upstairs. 14.The Father and the rest of the family were always living elsewhere in Fanling, but the Father said he would go to the Grocery Shop almost every day since its opening, and has continued to do so, although he is now about 86 years old. 15.When H was old enough, he obtained a driving licence and started to drive a van to help delivering goods for the Grocery Shop and for other customers. He also drove a taxi for a period of time. In fact, at one stage, the three brothers Hon, Ping and H were all taxi drivers, and each held his own taxi licence. Subsequently over the years, the licences held by Hon and Ping respectively were sold, and H remained the only one holding a taxi licence (“H’s Taxi Licence”), which he held until his death. Lan’s and the Father’s case is now that as H’s Taxi Licence was paid for by the Father, H held it on resulting trust for the Father. H’s Taxi Licence is one of the major disputed assets of the Estate. 16.The Children WCS and WYK are now respectively 23 and 22 and WHY also reached 18 the day of the hearing for oral submissions. Back in 1999, one day, H’s first wife apparently took the Children and left the Fanling Property. She then started divorce proceedings in August 1999. These proceedings dragged on for a long time, and according to Lan, H did not agree to the divorce initially and was contesting it. Then, in about 2001, H’s first wife decided to send the Children back to live with H at the Fanling Property. At that time, the youngest daughter WHY was only about 6 years old. 17.When the Children returned to the Fanling Property, W had already appeared on the scene. When W first met H, H was not yet divorced from his first wife and W’s first husband was still alive. Eventually, H’s first wife obtained a Decree Nisi which was only made absolute in October 2005. At the time of the divorce, custody of all the Children was granted to H. 18.Before the Decree Nisi was made absolute, on 3 May 2005, the Fanling Property was transferred from Hon to H at a consideration of HK$700,000. The evidence showed that a sum of HK$700,000 was paid by way of a cashier order from Kiu. It is, however, Lan’s and the Father’s case that the Fanling Property was held by H on trust for the Father. The Fanling Property is the other major disputed asset of the Estate. 19.According to W, she and H became close soon after their meeting, and she started to come regularly to Hong Kong on a two way travel permit. When she came, she would stay with H at the Fanling Property. However, according to Lan, and the Father, and the other members of H’s family, W was initially only employed as a helper by H to help him work in the Grocery Shop and to care for the Children. 20.Not long after H obtained the Decree Absolute of divorce from his first wife, he married W in April 2006 in Hong Kong, apparently without informing any one in his family or the Children. 21.The marital relationship between H and W appeared to be a harmonious one. In early 2008, H paid HK$200,000 for W to purchase a piece of land in her village in Mainland China for their retirement use, although there is now an issue as to whether this HK$200,000 was H’s own money or a loan to him from his eldest sister Kiu. 22.W said H was a hard working person, and that he had worked in the Grocery Shop throughout the years without receiving any proper salary. Lan, however, said H had a drinking problem. Anyway, the marriage did not last long, as H became ill some time in 2008, and he passed away in December 2008. The marriage between H and W was about 2 years and 9 months. There were no children out of their marriage. 23.H made the Will about 5 months before his death, on 23 July 2008. There has been no challenge to the validity of the Will. Lan obtained probate about end of April 2009 but W claimed that she was not told and had no knowledge of this at that time. 24.W complained that after H’s death, his family ‘bullied’ her, ‘falsely imprisoned/locked her up’ in the Fanling Property, ‘evicted her’ from the Fanling Property, and refused to give her a key to the Fanling Property. She was later paid HK$50,000 upon her agreeing to sign a confirmation agreement (“Confirmation”), which she said she had no alternative but to sign on 20 September 2009. It is now W’s case that the Confirmation should be set aside for being an unfair and unconscionable bargain. I will go into details of all her allegations later in this Judgment. 25.It is further W’s case that the first time she was advised of her right to apply for financial provision against the Estate was in May 2010 when she consulted her present solicitors, and by the time she issued an originating summons on 9 June 2010, her application was out of time. C. PARTIES’ EVIDENCE 26.W has filed 3 affirmations in support of her case and her solicitor filed one on her behalf for the joinder application. Lan has also filed 3 affirmations. The Father, Kiu, and WHY each filed one affirmation. All deponents attended the trial to give oral evidence, except W’s solicitor. 27.For the avoidance of doubt, insofar as the matters set out in this judgment differ from the evidence of H or W or the Father, or any other witnesses, this is because I have preferred the evidence of the other party, or that of another witness as I have had the chance of observing the demeanour of these parties and the witnesses, or because I consider that the documents produced confirm my finding of fact. D. MAIN ISSUES 28.There was no dispute that H died in Hong Kong or that H lawfully married W, who was his wife at the time of H’s death. Thus W falls within the category of persons set out in the IPFDO[2] who is entitled to make an application for financial provision[3], that is if she satisfies the court that the disposition of the Estate effected by the Will or the law relating to intestacy, or the combination of the Will and that law is not such as to make reasonable financial provision for her. 29.There is, however, a time limit for such an application, which is 6 months from the date on which representation with respect of the Estate was first taken out[4]. W was late in her application, and thus she first needs to apply for permission from the court before her application can be entertained. 30.I have been referred two cases by Mr. Lui, Counsel for Lan and the Father, where the English court had to consider whether leave should be granted. In the first case of In re Salmon, decd. [5], Sir Robert Megarry V.-C. listed out some guidelines:
31.The second case Re Dennis (Deceased)[7] followed shortly after the above case. In this case, Browne-Wilkinson J. referred to the above guidelines laid down by the Vice Chancellor, but pointed out that an earlier decision of the Court of Appeal in Re Stone (deceased) [8] was not drawn to the attention of the Vice Chancellor in Re Salmon (deceased). In Re Stone (deceased), the Court of Appeal allowed an appeal by a widow and enabled her to bring her application out of time. Lord Denning MR had said in the course of giving judgment that if the widow “has an arguable case or, as we say in the Ord. 14 cases, if there is a triable issue, then permission ought to be given’. Browne-Wilkinson J was thus of the view that in addition to the 6 guidelines laid down by the Vice Chancellor in In re Salmon, decd., the applicant would also need to demonstrate that he had an arguable case, a case fit to go to trial, and that in approaching that matter, the court’s approach would be rather the same as when considering whether a defendant ought to have leave to defend in proceedings for summary judgment. 32.It is clear that the Court has the unfettered discretion to grant the permission, and the discretion is to be in accordance with what is just and proper. The burden of proof is on W to establish there are sufficient grounds to grant the permission and the burden is not trivial. 33.In considering W’s application for leave, the whole circumstances of the case will have to be looked at. I will thus adopt the main issues in the sequence proposed and set out by Mr. Lui. Initially, Mr. Lui relied on the legal principles on estoppel, but at the hearing for oral submissions, he indicated that their case was that there was a binding contract between W and Lan, which was supported by consideration and the burden would be on W to set it aside. Thus the issues are now :-
I. Whether H at the time of his death beneficially owned the Fanling Property and H’s Taxi Licence 34.The Will stated, among other things, that:
35.Probate was granted to Lan on 28 April 2009 with a schedule of assets annexed dated 23 January 2009 (“1st Schedule”). In the 1st Schedule, both the Fanling Property and H’s Taxi Licence were included by Lan as part of the Estate. The rest of the assets included cash at bank, H’s taxi company, a taxi EW 1962, a light goods vehicle MY 5075, third party insurance policies, and licence fees due to H from various telecom companies which were licensees at the Fanling Property. There were liabilities listed, which consisted of licence deposits paid by these telecom companies. 36.On 29 January 2010, Lan filed an additional schedule of assets when a further bank account of H’s was discovered (“2nd Schedule”). Other than this, there were no other changes or amendments. 37.About 8 months after W issued the present proceedings, Lan suddenly filed a further additional schedule of assets and liabilities on 17 February 2011 (“3rd Schedule”). In the 3rd Schedule, the following assets in the Estate were suddenly claimed by Lan to be held by H as trustee for the Father:
38.Although in the 1st Schedule and the 3rd Schedule, there was no specific reference to H’s Taxi Licence, it was common ground that the valuable part of the asset described as “Taxi EW 1962” referred to in both those schedules was in fact H’s Taxi Licence. The cash at bank of HK$52,000 appeared to be the licence deposits from the licencees. 39.The agreed market value of the Fanling Property was HK$3.2million, and the agreed market value of the H’s Taxi Licence was HK $2 million. The total ‘Cash at Bank’ at H’s death was about HK$294,224. No value was stated for the other assets, which I understand was not of high value, save that under ‘Chose in Action’, the monthly amount of licence fees totaling HK$29,000 per month was set out. 40.As earlier mentioned, the present case of Lan and the Father is that the Fanling Property and H’s Taxi Licence do not form part of H’s ‘net estate’, and that H held these assets on resulting trust for the Father. W, however, disputes this. (a)The law on resulting trust and presumption of advancement/gift 41.The general principles of resulting trust and the presumption of advancement have been set out in detail in the case of Lee Tso Fong v. Kwok Wai Sun and Another [9]by the then Deputy Judge A. To: “.....where a person purchases property with his own money and directs that the property be transferred to the name of another, in the absence of evidence to the contrary, there is a presumption that the property is held by the person whom it is transferred under a resulting trust in favour of the person who provided the money for its purchase. The law imputes a common intention to the parties to hold the property under a resulting trust even in the absence of intention. This presumption may be rebutted by proof of the actual common intention. The classic authority for this proposition is Dyer v Dyer (1788) 2 Cox Eq Cas 92)............... “ Dyer v Dyer is also the classic authority for the proposition that where a person purchases property and transfers it to the name of his child, there is a presumption that a gift was intended.” [10] (b)The resulting trust 42.W’s Counsel, Mr. Koo, has said in his Final Submissions that Lan and the Father rely purely on the ‘presumption of resulting trust’[11]. Mr. Lui clarified at the submission hearing that this is not his case and that he is not resorting to any “presumption” and that his case is based on the evidence of intention of the Father and conduct of the parties, in that there is clear intention on the Father’s part to retain beneficial interest in the Fanling Property. Mr. Lui submits that a presumption would only kick in when there is only payment and no other evidence. Further, Mr. Lui has submitted that the presumption or resulting trust is easily rebutted, and that the “so-called” presumption of resulting trust is no more than a long stop to provide the answer when the relevant facts and circumstances fail to yield a solution.[12] As submitted by Mr. Lui in his Closing Submissions, the court will always strive to determine the real intention of the parties. (c) The Fanling Property 43.W did not challenge that the purchase price of the Fanling Property originally came from the monies received by the Father arising out of the death of his eldest son Yau. Yau had died intestate and the Father, as Yau’s father and one of the persons entitled to a share in Yau’s estate was granted Letters of Administration[13]. The Father would have received those monies on behalf of Yau’s estate, and as there was no evidence that Yau was married or had any children at the time of his death, the beneficiaries of his estate would be his parents. H’s mother later died in 1979. There was no evidence that H’s mother left any will, and if she died intestate, her husband and all their children would have been beneficiaries. Anyway, it seems that the Father received the monies on behalf of Yau’s estate, although all along it seems that H’s family members, including the Father himself, had regarded that these monies as belonging to the Father solely , which he then used to purchase the Fanling Property. 44.The Fanling Property was purchased on 30 April 1975 in the name of the 2nd son Hon at a consideration of HK$105,000. The down payment was HK$ 55,000, and the balance of HK$50,000 was obtained by way of a mortgage loan. 45.The Father had said in his affirmation that at the time of the purchase in 1975 he was already of old age and that he was concerned that he did not know how to handle all the documents[14]. According to the Father, after discussing with his wife, he decided to buy the Fanling Property in the name of Hon, the eldest of his three surviving sons, Ping being just about 18, and H was only about 16. The Father had said during the trial that the Fanling Property would go to his children. 46.After the purchase of the Fanling Property, the Father then carried out the business of the Grocery Shop on the ground floor. The business registration record showed that the date of commencement of business of 3 March 1975 and the Father was and has since been the sole registered proprietor. W did not challenge that the Grocery Shop was commenced by the Father. 47.The Father’s evidence was that after paying the monthly mortgage repayments and expenses, including H’s family expenses, the balance of the receipts from the Grocery Shop would be saved up (“Savings”). The Father had said that at that time of the commencement of the Grocery Shop, his wife already had liver disease and was not well. Thus, he would then hand the Savings to his eldest daughter Kiu from time to time for safekeeping, as he trusted her. 48.In the Father’s affirmation, he had said all the Savings belonged to him. During the trial, under cross-examination, he however said that he would not need to use the Savings (“自己都用唔到”), and that whichever of his children wanted to use could do so (“個個仔女想用都得” ), although in re-examination, he then said Savings were his but he would give to whoever among his children who asked to use the money. 49.As mentioned earlier, after H moved to the Fanling Property, he slept in a room inside the Grocery Shop on the ground floor and the upper two floors of the Fanling Property were rented out. During the trial, the Father said the upper two floors were rented out for about one and half years only, and thereafter no one was interested in renting[15]. 50.H later moved upstairs with his first wife after they married and it appears that he and his first wife and the Children then occupied parts of the upper floors. The Father had agreed with Mr. Koo during the trial that the tenancy matters of the upper two floors were handled by H (“雜貨鋪上面兩層由佢去負責, 去打理”). 51.It was not disputed that ever since H started working at the Grocery Shop, he received no fixed salary. After his marriage, his first wife also helped and worked in the Grocery Shop, and again no fixed salary was paid to her. The expenses of H, his first wife, and the Children were, however, all paid out of the receipts of the Grocery Shop, before the Savings were handed to Kiu for safekeeping. During the trial, the Father admitted that that the Grocery Shop was a “family style business”, and the family all had a share (“家庭式生意, 即係一家人都有份”). The Father confirmed that the business of the Grocery Shop did not belong to him solely, but H, his wife, all had a share [16]. In this case, the family, including H, would all have a share in the Savings generated from the business of the Grocery Shop. 52.At some stage, portions of the Fanling Property were rented / licensed to telecom companies. The Father’s evidence was rather confusing as to when this first took place. The Father had at first said in his affirmation that this was before 1999, and he had produced copies of a few notices for payment of rent from Hong Kong Telecom from April 1999 to April 2000. These notices were addressed to the Father at Ground Floor of the Fanling Property, namely the address of the Grocery Shop. During the trial, the Father, however, said it was only in 2002/ 2003 that a licence was first granted to a telecom company CSL (which was at that time a subsidiary of Hong Kong Telecom) for HK$6,000 per month. Anyway, according to the Father’s own evidence during the trial, CSL was the first telecom company which was granted a licence. 53.The Fanling Property was transferred to H’s sole name on 3 May 2005. It appears that after the Fanling Property was transferred to H’s name, licences were granted to more telecom companies. There were 4 telecom companies including CSL at H’s death. By the time of the trial, after one company PCCW terminated the licence, there were 3 telecom companies left, namely Smartone paying HK$7,000 per month, China Mobile HK $5,600 per month, and CSL paying HK$6,000 pr month, totaling HK$ 18,600 per month. 54.Since granting of the licence to CSL, it was not disputed the monthly licence fee of HK$6,000 per month from CSL had always been credited directly into the Father’s bank account every month, and this has continued to be the case after H’s death. However, in the licence agreement with CSL dated 10 May 2007[17] signed by H about 18 months before his death, H was described as the owner of the Fanling Property and further H warranted to the licensee that he had the entire right and authority to sign and to comply with all the terms of the agreement, and he did not need the consent of any third party[18]. In 2009, after H’s death, Lan signed a further licence agreement with CSL in 2009[19]. In this licence agreement, Lan was described therein as the executor and trustee, and the beneficiaries were stated to be the Children. H’s eldest son, WCS, also co-signed the licence agreement with Lan. 55.Apart from the HK$6,000 from CSL, the licence fees from all the other telecom companies were received by H. The Father had admitted during the trial that once these other amounts were credited into H’s bank account, then it would be up to H to deal with the monies. The Father had further said that the electricity bills for the Fanling Property were high, as the telecom companies had high electricity usage, and the Father had produced 2 bills for October and November 2008[20]. These bills were addressed to the Father at ground floor of the Fanling Property, but the Father himself admitted in his affirmation that the electricity bills were handed by the Father to H and they were paid by H. What the Father did not mention in his affirmation was that in fact the telecom companies would refund part of the electricity bills. It appears that these refunded amounts were also received by H. 56.According to the Father, in the beginning business of the Grocery Shop was good as they were able to repay the mortgage loan for the purchase of the Fanling Property from the receipts of the Grocery Shop in about 5 years’ time, on about 18 March 1980. 57.It is common ground that Hon never lived in the Fanling Property, and it seems that he did not have any involvement in managing the Grocery Shop or the Fanling Property, other than being the registered owner of the Fanling Property. 58.According to the Father’s affirmation, all along Hon, and his wife and their children were residing in a public housing unit, and Hon was always worried about the Fanling Property being in his name would bring him trouble, as Hon did not wish to deal with any tax matters. The Father had said in his affirmation that later Hon told him that he wanted to borrow HK$700,000 from the Father, to buy a property and that Hon told the Father that he did not wish to hold the Fanling Property any more. The Father further said in his affirmation that it was also at this time that he and the family found that Hon had some serious emotional problems. The Father then told Hon to transfer the Fanling Property to H, which Hon did. Several months after the transfer, Hon then committed suicide. 59.Kiu made an affirmation and also came to court to give evidence. She confirmed that Hon had been telling his family that he did not wish to hold the Fanling Property as he and his family were living in their own public housing unit and Hon had also said he did not wish to deal with all the tax matters concerning the Fanling Property. According to Kiu, Hon called her one day in 2005 to tell her that he wanted to buy a second hand ‘Home Ownership Scheme’ (HOS) flat, and he needed HK$700,000. Kiu said Hon told her that after buying his own HOS flat, he no longer wanted to hold the Fanling Property. According to Kiu, Hon told her that he had discussed with the Father who agreed to give him money to buy his own HOS flat, and he was to transfer the ownership of the Fanling Property to H. Kiu said during the trial that the Father then told her to pay HK$700,000 to Hon out of the Savings, and she claimed that Hon had to repay this sum one day. The payment of HK$700,000 was almost 7 years ago, and there was no evidence that Hon had repaid this sum before his death, nor was there any evidence that Kiu or the Father had launched any claim against Kiu’s estate for repayment. 60.Anyway, during the trial, the Father’s version changed somewhat. He said Hon needed HK$700,000 to renovate his HOS flat, and not for the purchase of a HOS flat. The Father agreed with Mr. Koo that Hon had lived in his public housing unit for 10-20 years before buying his own HOS flat. Lan, the Father, and Kiu were all very vague as to when Hon bought his own HOS flat or whether Hon had in fact bought one by the time of his death. Hon committed suicide at home, and one can see on Hon’s death certificate that in fact he was still living in a public housing estate unit at that time.[21] 61.When Mr. Koo asked the Father why the Fanling Property was not transferred to his other son Ping in 2005, the Father replied that Ping already had a public housing unit. The Father agreed with Mr. Koo that in 2006 H was the only son who did not have any public housing unit or any HOS flat and that the Fanling Property was transferred to H so that H could continue to live there. In fact by 2005, H had already been residing in the Fanling Property for almost 30 years. 62.Mr. Lui has submitted that the Father is the real beneficial owner of the Fanling Property and that this was not merely a declaration of intention but was corroborated by “contemporaneous records” and by “the conduct of every member in the family throughout the umpteen years”[22]. Mr. Lui listed a number of matters which supported his submissions. Most of the matters relied on by Mr. Lui occurred prior to the transfer of the Fanling Property by Hon to H. 63.It seems that the “contemporaneous records” referred to by Mr. Lui were mainly those documents which supported where the Father said the purchase price for the Fanling Property came from in 1975. There was, however, no ‘contemporaneous’ trust deed or written declarations or any other documents which would support the Father’s intention, or the common intention of the Father and Hon at the time of the purchase in 1975 that Hon was to hold the Fanling Property in trust for the Father. Again at the time of the transfer to H on 3 May 2005, there were no “contemporaneous” documents to indicate that H was to hold the Fanling Property in trust for the Father. 64.Mr. Lui has relied on an incident related by WHY when she gave evidence. WHY mentioned an occasion when some strangers requested H to let them stay at the Fanling Property but it did not materialize because the Father did not agree to that. According to WHY, these were strangers who were wandering on the street who knocked on the door to her home and asked H to give them shelter, and apparently H then telephoned the Father, and because the Father objected , H then got rid of those strangers. The Father could have objected for a number of reasons and WHY was then very young and still in primary 2 or 3. I do not find what WHY said sufficient to support that H had regarded the Father as being the beneficial owner, and even if WHY’s recollection were correct, this incident was almost 10 years ago, and at least a couple of years before the transfer to H. 65.WHY had also mentioned that some years ago her father had wanted to rent out the room WHY was occupying and she refused, but then her father said they needed to rely on the rental income. She confirmed that her father was responsible for these rental matters, and she said he had to ask her grandfather, but she then also said that she felt that her father asked her grandfather as her father would respect her grandfather’s wishes[23]. Again, I do not find that this would be sufficient to indicate that H had regarded the Father as the beneficial owner of the Fanling Property. 66.One of matters Mr. Lui relied on after the transfer was that H never objected to the Father’s arrangement for the Savings to be continued to be kept by Kiu, even after H became the ‘paper owner’ of the Fanling Property. The business of the Grocery Shop is, however, a separate matter from the Fanling Property, and in any event, as earlier mentioned, the Father himself had admitted that H had a share in the business, and thus H would have a share in the Savings. 67.Another matter Mr. Lui relied on was that throughout the years, the Father’s family members had treated the Father as beneficial owner of the Fanling Property, and that this was so even after 2005 when in casual chats in family gatherings it was mentioned that the Father was the owner of the Fanling Property, H never objected or disagreed. There were no details of these ‘casual chats’ and it is not quite clear who were present. 68.WHY was not yet 18 when she gave evidence. WHY had in fact said during the trial that when H died, she knew that her father had the property. She had further said that she had once asked her father to whom the Fanling Property belonged to, and H had said it was his[24]. 69.It seems clear from her evidence that WHY had all along regarded the Fanling Property as being her father’s until she said she saw some documents at the solicitors’ office and was told by Lan and her solicitor that the HK$700,000 came from her grandfather. Also, she said she was told by Lan and her solicitor that the Taxi Licence also belonged to her grandfather[25]. 70.Further, H himself had clearly regarded the Fanling Property as his own property. As mentioned earlier, H signed the CSL licence agreement as owner of the Fanling Property in 2007. He signed the Will in which he bequeathed the Fanling Property to the Children. In fact, Lan prepared the Will and she also had clearly regarded the Fanling Property as H’s. There were also two witnesses present at the time of H’s signing of the Will, Lan’s husband and Ping’s daughter, who did not object to the contents of the Will. In the 1st Schedule, Lan set out the Fanling Property as part of H’s assets. Further, as earlier mentioned, WCS had co-signed the 2009 licence agreement to CSL as a beneficiary of the Fanling Property. I thus find that after the Fanling Property was transferred to H, in fact H, the Children, and a number of his family members had regarded the property as belonging to H beneficially. 71.In Lan’s 1st affirmation, she had stated that the sum of HK $ 700,000 was the consideration for the assignment[26]. Lan said at the time that the sum of HK$700,000 belonged to the Father, and thus this sum was owing by H to the Father [27] as she was told by Kiu and the Father that H had not repaid the said sum or any part of it. In order to reflect this, Lan even indicated in her affirmation that she “….. shall apply to the court for re-amending the Grant in due course”, presumably to reflect this “loan”. Lan had also said that the consideration of HK$700,000 was in fact under the market value, and the full value was later assessed on 26 May 2006 to be HK $1,880,000, and this resulted in additional stamp duty of HK$14,050 being paid[28]. The letter from the Rating and Valuation Department was addressed to H, and there was no evidence that such sum was subsequently paid by Kiu out of the Savings or that this sum was paid by the Father direct. 72.Lan subsequently changed her evidence. She tried to clarify what she said in her 1st affirmation in her 3rd affirmation. She said she was explained by her solicitors that if the Fanling Property did not belong to H, then H would not be under any duty to repay the HK$700,000. She then claimed as she was very young at the time of the purchase of the Fanling Property and H’s Taxi Licence, she was not aware of the details of the purchase. What Lan was also trying to say was that HK$700,000 was in fact not a consideration for the transfer to H. 73.Lan was represented by solicitors soon after W commenced her application. Her solicitors must have prepared Lan’s 1st affirmation in accordance with instructions given to them by Lan. During the trial, Lan tried to explain again that she did not consider carefully the question of beneficial ownership at the time of filing the 1st Schedule, and since the Fanling Property was registered in the name of H, she simply put it down in the 1st Schedule as H’s property. She further said that she did not understand what was meant by beneficial interest, and it was only after W started these proceedings that she sought legal advice and that a barrister advised her she could amend the schedule of H’s assets. 74.I do not find what Lan said about not knowing the details of the purchase of the Fanling Property credible. As Lan had told this Court, she had looked after the Father when he was ill with throat cancer and in fact the Father moved to her home and lived with her for about three years from 1990-1993 so that she could care for him. Thereafter, Lan regularly took him to the hospital for follow up treatments. I find that her relationship with the Father was a close one. Even though Lan was still young when the Fanling Property was purchased in Hon’s name, I believe she would have found out about details of the purchase over the years. She should also know about the details of the transfer from Hon to H, otherwise she would not have included the property in the Will. 75.Since both Hon and H are now dead, and none of Hon’s family members came forward to give evidence, it is not easy to determine what the ‘real intention’ was at the time of the purchase of the Fanling Property. The Father had regarded himself as getting on in years, and that he wanted to retire from farming. He had just lost his oldest son, and further, his wife was not well. He had said that he put the Fanling Property in Hon’s name as his other two sons were still young. He further said he did so as he did not know how to handle documents, but yet he managed to apply for the business registration of the Grocery Shop and had it registered in his sole name. Having considered the evidence and all the circumstances, I do not find that there was sufficient evidence to support the Father’s present declared intention that he had intended to remain the sole beneficial owner of the Fanling Property after its purchase. I find that at the time of the purchase in 1975, the Father’s real intention was more likely than not that the Fanling Property was to be a gift to his then surviving sons, and that Hon had held it for himself and his two brothers. This could also be seen from W’s evidence below as to what H had told her. 76.I now come to the transfer to H, 30 years later, in 2005. 77.W’s evidence was that H had deposited with Kiu a lot of his personal savings as he was undergoing a divorce with his first wife and he did not wish to pay his first wife any maintenance. W had said in her 3rd affirmation that it was H who paid Hon $700,000 as consideration for the transfer of the Fanling Property into H’s name and that the HK$700,000 came from H’s own savings. 78.W’s evidence during the trial was that H had told her that the intention of the three brothers was that H was to buy out his two elder brothers’ interests in the Fanling Property. W further said during the trial that H had told her that out of the HK$700,000, HK$400,000 was for Hon and HK$300,000 was for Ping. W said H had told her that he had originally going to pay Ping only HK$250,000, but Ping’s wife later called him and requested for HK$300,000 instead, which W said H eventually agreed[29]. 79.I find Lan’s/the Father’s case that the sum of HK$700,000 was a loan to Hon and not a consideration for the transfer of the Fanling Property was simply not supported by any sufficient documentary evidence. When Hon transferred the Fanling Property to H, this was done legally by way of a sale and purchase. The formal assignment stated clearly that the vendor, Hon, as beneficial owner, assigned the Fanling Property to the purchaser H at a consideration of HK$700,000. The sum of HK$700,000 was paid by way of a cashier order, although applied by Kiu from the bank, was made in favour of Messrs. Leung Kin & Co, the solicitors acting for Hon in the assignment, and not to Hon direct. If this were indeed a loan to Hon, one would have thought the cashier order should have made to Hon direct. Having considered the evidence of Kiu and the Father, I am not satisfied that the HK$700,000 was a loan to Hon from the Father. 80.Kiu was vague about the total amount of the Savings held by her. So was the Father. The Father admitted during the trial that he did not ask Kiu which bank Kiu had deposited the Savings with and the Father did not seem to know whether there was any interest over the years. Although W’s evidence was not consistent at times, I did not get the impression that W was making up all those details about what H had told her about the payment of HK$700,000. In my view, it seems more likely than not, the HK$700,000 came out of H’s own personal savings which he deposited with Kiu. In any event, the Father had admitted that H had a share in the business, and thus H would have a share in the Savings and the HK$700,000 could have come out of his own share of the Savings. 81.In these proceedings, it was not the Father who took the initiative to issue an application to be declared the beneficial owner of the Fanling Property. It was W who applied for him to be joined. During the trial, the Father did not seem to understand that he was also a respondent in these proceedings. The Fanling Property was bought almost 35 years ago in 1975. By the time of the transfer to H, the Father was almost 80 years old having survived previously from cancer. If the Father had indeed regarded himself as the sole beneficial owner at the time of the transfer to H, the Father could have told the solicitors to prepare a transfer of the beneficial interest back to himself at that time or to prepare a transfer of trusteeship from Hon to H. If it indeed was only a transfer of trusteeship, one would expect the Father to transfer the trustee to Ping, who was older than H, and further the Father has always been living with Ping and Ping’s family, and is still living there. Also, the Father admitted that he knew since early 2009 Lan was dealing with the administration of the Estate and that Lan was paying the Children’s living and education expenses. He claimed that he did not know about the Will. In any event, after H’s death, the Father did not seem to have exerted any right over whom the ownership of the Fanling Property should pass on to. In fact, the Father seemed content for the H’s beneficial interest in the Fanling Property to be passed on the Children as he did not take any step to assert his own alleged beneficial ownership. 82.Having considered all the evidence, I find that either H had paid the HK$700,000 out of his own personal savings or his share of the Savings for the transfer of the Fanling Property. In any event, nowwithstanding what the Father now says, I find that the Father’s ‘real intention’ at the time of the transfer to H in 2005 was that the Father had not intended to retain any beneficial interest in the Fanling Property, and that H should become the sole beneficial owner of the Fanling Property. 83.I thus find that at the time of his death, H was the sole beneficial owner of the Fanling Property and he was not holding the Fanling Property in trust for the Father or any one else. 84.Mr. Lui said he was not relying on the “presumption” of a resulting trust. In any event, in the event of such a presumption arising as the purchase price came from the Father, there would have been a presumption of gift/advancement. In view of what was said above and all the circumstances in this case, I find that the Father has not rebutted the presumption of gift/advancement. (d) H’s Taxi Licence 85.The Father had said in his affirmation that as his then surviving three sons did not receive high education, in order to help them make a living, he used the receipts from the Grocery Shop, and the rental income from the Fanling Property to buy the taxi EW 1962 for his three sons to make a living. This was the taxi and the accompanying H’s Taxi Licence registered in name of H. The Father further said that as H was often drinking when his first marriage failed, the taxi was then driven by Hon and Ping, and after H’s death, the taxi was managed by Ping. The Father did not mention in his first affirmation that he in fact bought each of his then three sons a taxi licence, which he later admitted during the trial. 86.During the trial, the Father however said that as taxi licences were quite cheap in about 1982 or 1983, he bought 3 licences, almost one every year, when they were issued by the Government, so that each of his then three sons, Hon, H, and Ping could hold one taxi licence. Although at that time, H was already helping in the Grocery Shop, he was also driving a taxi. Before H had his own licence, he was renting a taxi from some one else. The Father said that the purchase monies for all three licences came from receipts from the Grocery Shop. Kiu said during the trial that she did not know who paid for the taxi licence held in Hon’s name or the one held in Ping’s name although the Father did tell her that he paid for H’s Taxi Licence. Kiu also confirmed that none of those taxi licences were paid out of the Savings. 87.Then according to the Father, as the taxi business was not so good thereafter, the taxi licence held in the name of Hon, and the one held in the name of Ping were subsequently sold. The Father later said during re-examination that the sale proceeds of the two taxi licences belonging to Hong and Ping were paid to him, but earlier on he had also said that he had forgotten when those two licenses were sold. 88.The taxi which H owned at the date of his death was manufactured in 2001. The Closed Road Permit [30] of H’s taxi produced by Kiu showed that the taxi had 3 registered drivers in October 2004, namely the 3 brothers, H, Hon, and Ping. 89.Lan said during the trial she did not hear of Hon and Ping paying H any rental for driving H’s taxi. There were two shifts, day and night. It seems that the arrangement before Hon’s death was that Hon would drive one shift, and Ping the other. After Hon’s death, W claimed H’s Taxi Licence and taxi was rented by H to Ping and another driver whom she did not know and there was rental income of HK$10,000 odd per month. Anyway, after H’s death, Ping has continued driving H’s taxi, and it seems that Lan did not demand any rental from Ping for using H’s Taxi Licence and H’s taxi. 90.There was no challenge to the Father’s evidence that the monies for the purchase of the 3 taxi licences came from the receipts of the Grocery Shop. 91.There was no evidence that the Father himself had ever driven a taxi. If the Father had meant the purchase of H’s Taxi Licence to be an investment, then he would have demanded rent for the use of the taxi. There was no evidence that he did, not even after Hon’s and H’s death, when the taxi could be rented out to third party for at least one shift. The Father’s own evidence was that he bought each of his then surviving sons a taxi licence so that they could make a living out of driving a taxi as none of them received any high education. I am of the view that the Father’s real intention at the time of the purchase was that each of his sons took the taxi licence as a beneficial owner as the Father was clearly making a provision for each of them. As with the Fanling Property, the taxi and H’s Taxi Licence was regarded by Lan as part of H’s assets at the time of his death in the 1st Schedule. After H’s death, the Father did not ask H’s Taxi Licence be transferred back to him or to Ping. 92.Having considered all the evidence before the Court, I find that H was the beneficial owner of H’s Taxi Licence, and I am satisfied that H did not hold it on a resulting trust for the Father or any one else. II. Whether the agreement between Lan and W as evidenced by the Confirmation should be set aside 93.As mentioned earlier, W had made various allegations of incidents which happened after H’s death. These will be dealt with later in this Judgment. I will simply say at this stage that after H’s death, it is clear from those incidents that W did not feel she was welcome in the Fanling Property or as part of H’s family, and payments were mentioned of HK$300,000 and HK$100,000 were mentioned. Lan said these were demands made by W. Eventually in September 2009 W received a sum of HK$50,000 after signing the Confirmation. 94.Mr. Lui had originally put forward a case based on the law of estoppel, in that W had agreed to accept HK$50,000 in full and final settlement of her against the Estate and promised not to assert any right or claim that she might have against the Estate, and relying on such promise Lan and the Children agreed to the payment of HK$50,000 to W. W’s case was that the Confirmation should be set aside as it was an unconscionable bargain. At the oral hearing for submissions, Mr. Lui no longer pursued on the estoppel point, and instead submitted that the Confirmation should be upheld as a binding agreement. 95.Mr. Koo has referred this court to the case of Sermana Bachicha and Poon Shiu Man[31], where a domestic helper from the Philippines had, at a conciliation meeting conducted at the Labour Department, signed a document which purported on its face to be a full and final settlement agreement of all claims against the employer, the Court of Appeal held that there was unconscionability in the case and that the court ought to set aside the bargain. Ribeiro JA (as he then was) referred to the doctrine of unconscionable bargains in the context of the principles of equity as explained by the Privy Council in Hart v O’Connor[32], as follows:
96.Ribeiro JA ( as he then was) went on to say :
97.Mr. Koo has also referred this Court to what Lord Brightman had said in Hart v O’Connor[33],
98.Waung J. had also summarized the relevant case law in the case of Lo Wo v. Cheung Chan Ka[34] and listed out the relevant factors [35], as follows :
99.It is only after the conditions for relief have been met, the burden will then shift to the “exploiter” or stronger party to show that the transaction is “fair, just and reasonable”. 100.Mr. Koo has further referred this Court to the case of Wong Yung and Hui Kwok Nam [36] where a widow signed a deed of family arrangement giving away all her share interest in a property in return for her son’s oral promise to take care of her for the rest of her life. The then Deputy High Court Judge A Cheung did an analysis of the law, and concluded that all the requisite elements for the grant of relief against an unconscionable bargain were present. He said in that case :
101.The then Deputy High Court Judge A. Cheung further went on to say that :-
102.Mr. Lui has submitted in the present case that Lan did not mislead W or make any misrepresentation to W, and that there was no exploitation of W by Lan. 103.In the present case, Lan, who was born in Hong Kong in 1963, is a senior government officer. Since she graduated from secondary school in about 1980, she has been working at various Government Departments. She has also joined the auxillary police force since 1988. On the contrary, W, is a mainlander having received limited education in Mainland China, worked as a farmer before her first marriage and thereafter a part time factory worker and a housewife. Mr. Koo has submitted that at the time of the signing of the Confirmation, W had significant economic and social disadvantage compared with Lan. 104.It is W’s case that H’s family members, including Lan, had threatened her to accept the offer of HK$50,000, otherwise W would get nothing from the Estate, and they would not allow her to return to the Fanling Property. In fact, W was quite frank about why she signed. She said during the trial: “if you offer water to me who is thirsty person, of course I will drink… I will drink first (“譬如話呢的水我飲落去就…即係我頸渴, 我食唔食? 梗係食喇, 食咗至算喇”)[37]. W had also said that she was ‘forced’ to sign the Confirmation (佢簡直就逼我喇, 仲唔係逼我? )[38] . 105.The Confirmation was prepared by Lan or her friend. Lan admitted that she consulted a friend who had legal knowledge. At the oral submission hearing, this Court was not able to recall clearly what Lan had said about whether Lan had any knowledge of any legal right W might have and I told Mr. Lui and Mr. Koo that I would check the transcript. Having checked the transcript, Lan’s evidence is set out as follows[39]:
106.Upon reading the above, it seems that Lan had been advised by her friend/s that W could still make a claim even if she received nothing under the Will. 107.There was no evidence that Lan had given a draft of the Confirmation for W earlier for W to consider the contents or to seek legal advice. Lan admitted that she gave the Confirmation to W shortly before she was to pay W HK$50,000. Lan said she then read out the contents of the Confirmation to W at the time of the signing. 108.Lan had also admitted during the trial that she did tell W at the time of her signing the Confirmation that paying W HK$50,000 was already paying W a lot, since under the Will, W would not received even one cent. [40] 109.Although W elected to give evidence in Cantonese, during the trial, I often found it difficult to understand her and I had to rely on an interpreter. She was educated to early secondary level, but told the court that her knowledge of Chinese was limited and could not really read or write much. I accept that W was lowly educated and had no knowledge about legal matters or her legal right at the time of her signing the Confirmation. Although W had one whole week to reflect on the matter before accepting the HK$50,000, there was no evidence that W knew in advance she had to sign a document containing those terms in the Confirmation. W was not advised to seek independent legal advice on the Confirmation, nor was she given any sufficient time or opportunity to do so. 110.There was no evidence that W had any friends or relatives in Hong Kong at the time of signing the Confirmation or any one who could have given her any legal advice. On the other hand, Lan had received some advice from a friend with legal knowledge and knew that notwithstanding what the Will had said, W would have a claim against the Estate, and yet Lan told W that if she did not sign the Confirmation, she would not have received a cent. This was incorrect and Lan knew this. Having considered all the circumstances, I am of the view that there was exploitation on the part of Lan of W. 111.The burden then falls on Lan to show that the transaction was “fair, just and reasonable”. I do not find that Lan had discharged this burden. I also find that the Confirmation cannot be said to have been “fair, just and reasonable” when W had an entitlement to claim under the IPFDO for financial provision of which she had no knowledge of and when she had received no legal advice before signing the Confirmation. 112.Having considered all the circumstances, I find that the Confirmation should be set aside for being unfair and unconscionable, and that that W should not be bound by the terms therein, or estopped from making a claim against the Estate under the IPFDO. III. Whether W should be given permission to apply for financial provision out of time 113.I have earlier set out those guidelines laid down In re Salmon, decd. The discretion of the Court is clearly unfettered and the onus is on W to establish sufficient grounds for her application. I now consider V-C’s 3rd point, which is how promptly and in what circumstances has the applicant sought the permission of the court after expiration of the time limit. Probate was granted to Lan on 28 April 2009, and the deadline of 6 months expired on about 28 October 2009. Thus, W’s application was about 7 months and 10 days out of time. The period between H’s death on 17 December 2008 and the expiry of the time-limit on 28 October 2009 was about 10 ½ months. What then caused the delay in W’s application? (a) Events from 17 December 2008, date of H’s death , to 20 September 2009 114.W had said in her 2nd affirmation that Lan never informed her about the Will, or how Lan would deal with the Estate [41]. She further said that no one had told her that probate was granted to Lan on 28 April 2009 but later during the trial, W admitted that she learnt of this when the Confirmation was read out to her by Lan. 115.After the death of H, W remained in Hong Kong staying in the Fanling Property under her 3 month two-way permit which had not yet expired. According to her 1st affirmation, Lan approached her and offered her HK$300,000 for her share in the Estate[42]. W said she did not give any definite answer to Lan, and then she returned to the Mainland for Chinese New Year. W’s evidence during the trial was rather confusing as to who offered her HK$300,000. She at first said the Father had offered to pay her HK$300,000 and asked her not to return after the Chinese New Year, as she had a home on the Mainland, and also the Children did not like to reside with her. W said H’s family was heartless[43]. But later on during the trial, she then seemed to say it was Lan who had offered to pay her HK$300,000. 116.Anyway, W said she did not respond to this offer. After Chinese New Year, she came back to Hong Kong to stay in the Fanling Property. W had claimed in her affirmation that after her return, Lan offered her HK$100,000 as her share in the Estate. Again, W said she did not reply to Lan as she really did not know what was the proper amount of her share in the Estate[44]. She had said in her 1st affirmation that there were a lot of disputes between H’s family members and her after H’s death, and in about June 2009, H’s family again asked her to move out of the Fanling Property and not to come back to Hong Kong. She said she was very upset, and the Father then provided HK$50,000 cash to her as compensation[45]. There was no mention by her in her 1st Affirmation that she signed any Confirmation or indeed any document at the time of her being paid the sum of HK$50,000. It was only later in answer to Lan’s 1st affirmation that W admitted in her 2nd affirmation that she signed the Confirmation at the time when she received the HK$50,000. 117.During the trial, W ‘s version of events changed somewhat, as she then said that after she returned to Hong Kong, it was the Father who offered her HK$100,000 for her to start a business. It was not clear as to when W said all this happened, since after she returned to Hong Kong after Chinese New Year, she had gone back to Mainland China a number of times. 118.On the other hand, Lan claimed that it was W who went to the Father to demand a sum of HK$300,000 from the family. Lan said one day in September 2009, she received a call from WCS, telling her that W was demanding money from the Father. Lan said she immediately went over and when she arrived, she saw W, WCS, and the Father inside the Grocery Shop. W was demanding HK$300,000. Lan said she refused to pay W this sum, and according to Lan, W then demanded HK$100,000. Lan said she again refused and she said she then told W that H had made the Will leaving the Estate to the Children, and there was nothing for W. Lan said in the end she offered W HK$50,000, which W eventually accepted. Lan said as she needed time to arrange for the money, she told W to collect the money at the Grocery Shop a week later. Thereafter, as mentioned earlier, the sum of HK$50,000 was paid to W upon her signing the Confirmation on 20 September 2009. 119.I find W’s evidence was confusing as to when and how the two amounts of HK$300,000 and HK$100,000 were brought up and by whom. However, it seems from Lan’s own evidence that these two amounts were indeed mentioned, although Lan’s evidence was that these sums were brought up and demanded by W from the Father, and further according to Lan, both these demands took place during one day in September 2009. The Father in his affirmation had also mentioned that W had asked him for HK$300,000, which he rejected, but again it was not quite clear as to when this took place. 120.W had maintained during the trial that after H’s death, H’s family members were bullying her and trying to evict her from the Fanling Property. She said that she was ‘falsely imprisoned/locked up’ by the Children inside the Fanling Property in darkness for several hours on one occasion, and she was unable to get out. She said she then asked the Father the following day why they were pressuring her, and it was at that time the Father had offered to pay her HK$100,000 for her to start a business. 121.According to W, the “false imprisonment/locking up” incident took place one evening in about April/May 2009 when she returned to the Fanling Property. WCS and WHY, who were living on the top floor, then went out after locking up. W was left locked up in total darkness. The main switch for electricity supply was outside. As W was not able to leave the house, there was no way she could check the main switch or to turn it on. WHY came to court to give evidence and explained the incident. She said there was an electricity cut that evening, and since it was dark, she could not do anything inside the house, she then decided to go out. She said her eldest brother WCS had gone out earlier. WHY said she did not realize that W was inside, as W’s room was on another floor. WHY said she was only told by WCS when she returned home that she had locked W inside. It appeared that there was electricity as soon as WCS returned. W rejected WHY’s evidence that there was a power cut. She said she had tried to call H’s family members when she found she had been locked up but no one answered her call. 122.After H’s death, Lan had said the 2nd son WYK and WHY disliked living with W under the same roof so much that they were determined to move out of the Fanling Property from February 2009 to September 2009 and resided separately elsewhere. W, however, said they in fact moved out due to the renovation. Whatever the reasons were, W’s relationship with the Children was clearly strained at that time. 123.W said the incident took place in May/June 2009, but that appeared to be during the time when the renovation was taking place. W then said it was before the renovation. W did not mention this incident specifically in her affirmations although she did say H’s family tried to evict her from the Fanling Property. Having heard WHY’s evidence, I accept what she said and I find that there was no sufficient evidence that WCS and WHY had deliberately locked W inside the Fanling Property. However, whether it was deliberate or not, there was clearly an incident when W was indeed locked inside the house without electricity for several hours. As this incident took place after H’s death and during a time when the relationship between her and the Children/ H’s family was strained, I could very well understand that it would be perceived by W as a “bullying” tactic to try and make her leave the Fanling Property and never to return. 124.W had also complained that H’s family tried to change the locks of the Fanling Property to cause inconvenience to her. According to Lan, the main door lock was always out of order, and the Children and W would use a U shape lock to lock the main door. Lan said WCS told her some time after Chinese New Year in 2009 that he had lost the U shaped lock, and he installed a new U shaped lock, and as W had gone back to the Mainland for Chinese New Year, he had not had a chance to tell her or give her a new key. When W returned and found she could not open the door, she was very upset. WCS told Lan that he then gave W the new key. Thereafter the Fanling Property underwent renovation for several months from April to about July 2009, and after renovation, Lan said the lock was changed again, but she said she did not hear of any dispute between W and WCS and the Father over the changing of the lock this time. 125.During the trial, W said that the main entrance to the 1st and 2nd floors of the Fanling Property was through a side door, which was usually kept open. When H was alive, only H had a key. H normally would not lock the entrance door, and he would only lock up when both he and W went out, and there was no one at home. W said when she came back from Mainland China, some one changed the lock, and no key was provided to her. When she asked WCS for the key, he asked her to ask the Father. 126.Lan did not deny what W had alleged, nor did the Father. According to Lan, she did not often go to the Grocery Shop after H’s death, and the evidence showed that there was not much communication between the Children and W, and two of them in fact moved out, which left W mainly with the Father after H’s death. Whilst I accept that there was no sufficient evidence that there were any actual quarrels or disputes, it seems to me that Lan, the Children, or the Father were certainly not making W feel welcome in the Fanling Property or as part of H’s family. The Children were ignoring W and Lan hardly had any contact with W. I accept W’s evidence that the Father was trying to convince W of not returning to the Fanling Property, although it could well be W herself who demanded sums from the Father, firstly HK$300,000, later HK$100,000. 127.I have dealt with the signing of the Confirmation earlier, and after W had signed and accepted the HK$50,000, W then apparently remained staying in the Fanling Property until her then permit was due to expire. (b) Events from date of Confirmation 20 September 2009 to the issue of proceedings on 7 June 2010 128.According to Lan, after receiving the HK$50,000, W continued to have access to the Fanling Property, and her room on the 2nd floor was kept locked up by her. Lan claimed she had told W she could continue to stay in the Fanling Property, but W had to tell Lan when she was staying there. Lan said she did not ask W to return all keys or to move anything out. 129.Lan had also said that after W received the HK$50,000, Lan would ask WCS and the Father from time to time as to whether W had returned to the Fanling Property. After a period of time, Lan said she was told that W had not been seen for awhile. She then told WCS to try to open the door to W’s room, but then WCS decided to break open the door. According to Lan, they only found H’s belongings there, and that W had by then already removed all her personal belongings. 130.Mr. Lui had submitted that W had lied when she said in her 2nd affirmation that after she received the HK$50,000, she had to leave the matrimonial home at once and she went back to the Mainland and it was impossible for her to seek any legal advice within the next 4 weeks, before the time limit expired, as she was still on the Mainland. 131.According to W’s movement record, she did leave Hong Kong on 24 September 2009, 4 days after she signed the Confirmation, but then she returned to Hong Kong about a week later on 30 September 2009, and remained here until 30 November 2009. Thus, W had been back in Hong Kong for about a month before the time limit for her application under the IPFDO expired. 132.W admitted that she did consult a firm of solicitors Messrs. Leung Kin & Co for legal advice after she returned to Hong Kong. According to W, Messrs. Leung Kin & Co advised her that if she were as wealthy as “Nina Wang” then she could bring an action, but like “Nina Wang”, she might not win. W said as she had no money, she decided not to proceed with any litigation. It was not quite clear initially as to what W meant by “litigate”. She was later asked during re-examination by her Counsel Mr. Koo to clarify what litigation she was referring to, and she then explained was to set aside the Will, i.e. to challenge the validity of the Will. It was W’s case that Messrs Leung Kin & Co did not advise her as to her rights under the IPFDO. 133.W claimed that it was only when she sought further legal advice from her present solicitors in about May 2010 that she found out about her right to claim for financial provision or maintenance from the Estate under the Ordinance. Upon finding out, she instructed her solicitors to issue the present proceedings. (c) Reasons for Delay 134.Lan had admitted that she had little communication with W after H’s death and that it was not until September 2009 that W knew the details of the Will and that she had obtained probate. It seems to me that the earliest W found out would be when the Confirmation was read out to her. Thus, this would not have given W much time before the expiration of the time limit, namely just over a month. I accept what W had said, that the first firm of solicitors she went to consult did not advise her on her rights under the IPFDO. Having considered the circumstances, I accept W’s explanation as to the reasons of her delay in launching the present application and I find that as soon as W found out her rights under the IPFDO in May 2010 from her present solicitors, she did act as promptly as she could. (d) Whether W had any remedy against any one 135.As mentioned earlier, W’s evidence was that the advice she received from the first firm of solicitors was only in relation to whether she could challenge the validity of the Will. W herself did not know that she had a claim under the IPFDO, and it was not clear what her instructions to that firm of solicitors were. I accept that there was no sufficient evidence that W could have a remedy against them, nor from any one else, if permission were to be refused. (e) Whether the Estate had been administered 136.As I have mentioned earlier, H’s Taxi Licence and the Fanling Property were the two major assets of the Estate. These two assets were at the time of the trial still intact and not administered or distributed. (f) Whether “Arguable Case” 137.The Will did not contain any financial provisions for W. Although the marriage was not a long one, W was H’s legal wife and on the face of it she would have a right to claim. 138.The evidence from WHY indicated that W helped cleaning the Fanling Property. W would cook and do housework. WHY agreed that when she was attending secondary school, H and W were often together. They would go out together to work and to deliver goods. WHY admitted that she and her brothers had little communication with not only W, but also with H. WHY had said she seldom saw her brothers chatting to their father, or their father to her brothers, whereas she did see H chatting to W and working together with W. It was W who took H first to hospital, and she looked after him when he was in the hospital. I am satisfied that W had a close relationship with H. 139.Mr. Koo had described W as an ignorant person, who had little resources to seek legal advice. I have been able to observe W’s demeanour during the trial. I accept what W said that she was kept out of the process of the grant and not told of the terms of the Will until September 2009. When she returned from the Mainland at end of September 2009, there was just under a month left before the deadline expired. Then, when she decided to consult solicitors, she was not advised of her rights under the IPFDO. Having considered all the circumstances, I find it just and proper to grant W leave to apply for financial provision from the Estate out of time. IV.(1) Whether disposition of the Estate effected by the Will has made any reasonable financial provision for W 140.It has been well established that s.4 of the IPFDO imposes a two-stage task upon the court when addressing a claim for financial provision where there is a will. The first question is whether the will has made reasonable financial provision for the claimant. The second question, which arises only if the first is answered in the negative, is whether and to what extent the court should exercise its wide powers in that respect. 141.Since the Will did not make any financial provision for W at all, the answer to the first question is clearly in the negative. I will therefore now consider the second question. IV.(2) Whether the discretion under s. 4 ought to be exercised to grant relief and if so, in what manner and on what terms 142.IPFDO sets out under s.5 thereof the matters which this court is to have regard in exercising its powers under section 4 of the Ordinance (“s.5 Factors”):
143.S.3(2)(a) deals specifically with the meaning of “reasonable financial provision” in case of an application by a wife and provides as follows:-
144.S.3(2)(a) of the IPFDO sets out the so called “surviving spouse standard”. It is clear from this section that the surviving spouse may be entitled to a reasonable financial provision over and above that which is required for his or her maintenance. 145.S.5(2) of the IPFDO then sets out the so called “divorce standard” which requires the court to have regard to the financial provision that the applicant mightreasonably have expected to receive if on the day the deceased died the marriage had been terminated by a decree of divorce instead of being terminated by death. (a) The Net Estate 146.Having set out the relevant principles above, and as Cheung J has pointed out in Ye Hong Ying and Chan Lup Ying (No. 2) [46]that as a starting point, it is essential to establish the value of the net estate at the time of the deceased, I now turn to consider the size and nature of the ‘net estate’ at the time of H’s death. 147.I have concluded earlier that both the Fanling Property and H’s Taxi Licence were beneficially owned by H prior to his death. 148.So far as the sum of HK$700,000 is concerned even on Lan’s case and the Father’s case, this was not a loan to H. In any event, I find that there was no sufficient evidence that the sum of HK$700,000 was a liability of the Estate. 149.I now turn to an alleged loan of HK$200,000 set out in the 3rd Schedule which now Lan claims was a sum H borrowed from Kiu to pay W. 150.According to Lan’s 1st affirmation, shortly after she applied to the court for grant of probate in January 2009, she was told by the Father that in early 2008, H had asked the Father for a loan of HK$200,000 as he intended to purchase a piece of land in Guangdong Province with W, but the Father refused. Thereafter, H told the Father that he had gone to the Mainland to buy the land with W and that he had borrowed the money from Kiu. Lan then produced an application from Kiu for a cashier order from DBS Bank dated 22 January 2008 for HK$200,000 Kiu to be paid to H[47]. 151.Kiu confirmed the loan in her own affirmation, and said the piece of land was in W’s home town and it was for an investment. Kiu further claimed that H said one day when he had money or when the land was sold, he would repay the amount to Kiu. Kiu said in her affirmation that the HK$200,000 came from her own money and denied that it was from the Savings. Kiu said that although that she was not very wealthy, she and husband did have their own fish farm, and also managed to save some money, and she owned a property jointly with her daughter. 152.W denied that the sum of HK$200,000 was a loan from Kiu. W had said in her 2nd affirmation that the sum was to build a house for the future retirement use of H and her, and that H had told her that the money was his own money. As mentioned earlier, W’s case was that H had told her that he had deposited a lot of his savings in Kiu’s bank account during the divorce and maintenance proceedings with his first wife. 153.When H died, Kiu failed to mention this loan to Lan. She claimed that this was because she did not understand anything about probate, and it was only when she came to court that she found out about the Will and the grant of probate to Lan. I find this hard to believe. Both the cashier order for HK$700,000 and the cashier order for HK$200,000 came from the same bank account of Kiu’s. Kiu failed to provide any record of what amounts in that bank account constituted the Savings, and what amounts would be her own money. There was no record from Kiu, or from the Father, as to the amount of the Savings and they were vague about the amount. There was no loan agreement signed between H and Kiu and no terms of repayment. There was no evidence that Kiu took any action to recover this alleged loan, whether before or after H’s death. 154.I further note from the 1st Schedule and the 2nd Schedule that at the time of H’s death, he had cash of almost HK$300,000 in his bank accounts. This was in December of the same year of the alleged loan. It does not seem to me that H would need to borrow any money from Kiu, or if he did, he had sufficient money to repay before his death. 155.Having considered all the evidence, I find more likely than not that the amount of HK$200,000 came from H’s own savings, as W said. In any event, I do not find there was sufficient evidence that this sum was a loan from Kiu, or the Estate would need to repay this sum to Kiu. H’s Insurance Policy 156.H also had an insurance policy, and Lan said WCS was the only named beneficiary. WCS received a sum of HK $284,370.19 from HSBC Insurance on 4 March 2009 (“R-2”). I accept that there was no sufficient evidence that this was part of the net estate or the Estate. Net Estate 157.‘Net Estate’ is defined in the IPFDO as the 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)[48]. In view of my findings above, at the time of H’s death, the Net Estate should consist of assets and liabilities set out in the 1st Schedule and the 2nd Schedule, namely as follows:
158.The above did not include the funeral, testamentary or administration expenses of about HK$134,703[49], and thus the Net Estate was about HK$5,322,521. During the trial, at this Court’s request, Lan produced a schedule setting out the current value of the Estate (R-3), which she stated to be HK $4,101,034.92 as at 31 March 2012. Later, under cross examination, Lan admitted that R-3 failed to take into account the rent of HK$6,000 per month received from CSL for about 39 months since H’s death. Thus, according to Mr. Koo’s calculations, the net estate should be in the region of HK$4,335,034.92 as at 31 March 2012. This does not include H’s share of the Savings and his own savings held with Kiu. (b) Other s.5 Factors Financial resources and financial eeeds which any beneficiary of the Estate has or is likely to have in the forseeable future , and any physical/mental Disability 159.I will first deal with the situation of the beneficiaries in the s.5 Factors. 160.Lan had said in her 1st affirmation that after the eldest of the Children ,WCS, finished his HKCEE in 2005, he only managed to find a part-time job as a shop assistant at 7 Eleven, earning about HK$3,000 per month. Lan had said that when H was alive, H had to subsidize WCS in his daily living, and also WCS had indicated to her from time to time that he intended to study further in the near future if the Estate could afford it. Lan said at that time, i.e. October 2010, WCS did not have any gainful employment at the time and was helping the Father operate the Grocery Shop, and Lan claimed she was at that time paying WCS HK$5,000 per month. 161.During the trial, the Father, however, said that WCS was still working at 7 Eleven in the mornings, and worked in the Grocery Shop in the afternoons. 162.H’s 2nd son WYK is now about 22or 23 years old. Lan said in her 1st affirmation that at that time she was paying WYK HK$6,000 per month for his educational and living expenses in Taiwan, where he was attending university. 163.WHY was attending Form 5 at the time of Lan’s 1st affirmation, and she was doing well academically. Lan said she was at that time paying WHY HK$4,000 per month. Lan had further said WHY would like to attend university. 164.Lan then prepared a list of the Children’s expenses, which was exhibited to her 3rd affirmation[50]. From the date of H’s death until 31 December 2011, she claimed she had paid HK$213,268 for WCS and WHY, which was later updated to HK$228,468 at 17 March 2012[51]. From the date of H’s death until 31 July 2010, Lan said she had paid HK$256,876 for WYK. The two sums totaled about HK$470,144 as at 31 December 2011, but updated to HK$485,344[52]. Lan further said initially she paid the Children in cash, but later she deposited the monies into their bank accounts except for WHY, as she was not yet 18, Lan deposited her share into WCS’s account. 165.Lan said before probate was granted to her, she had been paying the Children out of her own money, and later after she obtained probate, in July 2009, she transferred all the monies in H’s HSBC and BOC accounts, and later monies from H’s Hang Seng Bank account into her own personal account. 166.Later, during the trial, at this Court’s direction, Lan prepared and produced the accounts of the Estate, which set out all income and withdrawals of the Estate from the date of H’s death until 31 March 2012[53] . 167.So far as WCS and WHY were concerned, according to Mr. Koo’s calculations, for the period of about 39 months since H’s death, the average sum Lan paid them was about HK$6,000 per month, which Lan had agreed. As for WYK, Lan had not paid him any sums since 31 July 2010. Lan explained during the trial that after 31 July 2010, WYK had been working part-time in Taiwan to support himself, and therefore Lan had not been paying him any further sums. Lan said she was not sure whether WYK would continue further studies after graduating from Taiwan University. 168.Mr. Lui has accepted in his closing submissions that that WCS can now support himself. In any event, WCS had further received a sum of about HK$285,000 out of his father’s insurance policy. So far as WYK is concerned, Mr. Lui has said in his closing submissions that WYK needed HK$6,000 per month, but Lan’s own evidence was that there were no payments after 31 July 2010. There was very little evidence as to how WYK was doing at university, and that he would go on to any post-graduate studies. I do not find there was sufficient evidence that WYK would need further payments from the Estate. 169.I accept that WHY may attend university if she is accepted into one. Mr. Lui says she is living on a monthly sum of HK$2,600 per month. I accept that it is likely WHY’s expenses will increase if she goes to university. 170.There was no evidence that any of the Children suffered from any physical/mental disability. I, however, accept that the Children would need somewhere to live. Financial Resources and Financial Needs which any other applicant for an order under s.4 of IPFDO has or is likely to have in the foreseeable future, and Any Physical/Mental Disability of any applicant 171.There are no other applicants in the present proceedings apart from W. The Father himself is not a beneficiary under the Will, nor has he made an application under IPFDO. I note that he has always been receiving the licence fees of HK$6,000 per month from CSL, and the Grocery Shop has always been at rent free premises. In the past, he had had health problems, including cancer, and he admitted during the trial that he had health problems. Anyway, in my view, the effect of my order is unlikely to affect the present arrangements in relation to the Father. Financial resources which W has or is likely to have in the foreseeable future, and any physical or mental disability 172.W denied that she was employed by H or that H was paying her any salary. However, she said H used to pay her HK$10,000 per month as maintenance, but she had not produced any documentary evidence to support the alleged payment by H to her of HK$10,000 per month, nor could one see any such payments or savings in her bank accounts. WHY had, on the other hand, said that her father was careful with money and that it was impossible that he would have paid W HK$10,000 per month. 173.WHY and the Father, and also Lan, and Kiu maintained that W was employed by H as a worker. I find that there was no sufficient evidence that W was “employed” as a worker by H before their marriage, but whether employed or not, according to W’s own evidence, she voluntarily helped H and did work together with him. Further, W claimed H was paying her maintenance. Thus, even if W were not an “employee”, she would have received some payments from H, which W did not deny. The only question was how much. 174.The Father said H told him that he was paying W HK$100 a day when she was working in Hong Kong. WHY had said the same. Based on what they said, as W was not often here before the parties’ marriage, she would be receiving sums ranging from about HK$625 to about HK $1,400 per month. She was in Hong Kong more frequently in 2007 and 2008. For the year 2007, W would have received average of about HK$2,100 per month, and on the same basis, she would have received average of about HK$2,500 per month for 2008. 175.As the business of the Grocery Store was apparently not so good towards the latter years, it seems that H was relying mainly on the licence fees from the telecom companies before his death. WHY had said that H needed to licence out more space, including her room, to the telecom companies so that there would be more money. According to Lan, from 2005 to 30 September 2007, H was only receiving HK$7,000 per month as licence fees from the telecom company Smartone. He then granted a licence to PCCW and was receiving a total HK$17,000 per month from 1 October 2007 to 1 October 2008. In October 2008, he began to grant a licence to one more telecom company China Mobile, and the licence fees he was receiving from all three companies totaled about HK$23,000 per month[54] at the date of his death. From amounts H received, he would need to pay utilities, rates and property taxes and various expenses[55], which totaled roughly about HK$8,300 per month after he granted licences to 3 companies. 176.There was no evidence that the parties had led an extravagant lifestyle during the marriage and in fact W’s own evidence was that H had savings held by Kiu. 177.Having considered all the above, I find W had exaggerated what H was paying her. I find that the amount received by W from H before his death in 2008 was more likely to be not more than HK$2,500 per month. This would exclude food and other household expenses separately paid for by H. 178.During the trial, W said after she met H in 2000, she claimed she was helping him deliver gas, rice, and as a result now suffers from 腰椎骨刺及腰椎間盤骨凸出[56], and needs to take medication regularly. She said she could not see and was going blind. This could be because she needed glasses. In any event, I do not find that there was any sufficient evidence of her going blind. She had further complained of high blood pressure. 179.W said she did not try to find work, as she was not able to work due to all her physical problems. I am not able to find among the bundle of the records produced by W any medical report which would indicate that any of the above problems has resulted in W not being able to work at all. 180.Although W said she was a farmer before her first marriage, after her marriage, she said she had also worked for a glove factory occasionally while her mother helped her look after her sons. In fact, prior to her marriage, she was not often in Hong Kong, less than half of a year, and for some years, only about 20-25% of a year. It seems that W was able to support her sons from her own resources since there was no evidence that H was supporting her sons. Her sons are now both grown up. 181.On W’s own evidence, she was hard working, not only doing house work for the entire Fanling Property, but also helping H to deliver heavy items and looking after H when he was in hospital. In fact had H not passed away, it seems to me that W would have continued to help working with him for the Grocery Shop, and cooking and caring for the family. 182.Having considered all the circumstances of this case, although W is now 51 years old, I am not satisfied that W has no earning capacity or no financial resources of her own at all. Even if she is not able to do heavy work, there will be other work in a factory, or other type of work which does not require hard labour, which I do not see why W cannot undertake. I therefore find that W has financial resources or earning capacity to meet her own reasonable financial needs. W’s Financial Needs 183.There was no evidence that during the marriage W was required to pay any rent for the room she was occupying in the Fanling Property, and as I have mentioned earlier, all household and utilities expenses would have been separately paid for by H, as there was no evidence that she had to pay such expenses out of those sums received by her from H. W had said she had her meals with H. It seems that the amount of about HK$2,500 per month which W was receiving before H’s death would be mainly for her personal expenses only. 184.W stated in her 2nd affirmation that her then monthly expenses in Mainland China were a total of RMB 10,000 per month[57], which included a monthly sum of RMB 2,500 for rent for a unit in a block called Shek Wu Yuen. She had produced copies of rental receipts of RMB 2,500 per month, the earliest one being dated 3 January 2009 and the last one dated 5 October 2010. Those rental receipts did not bear her name. 185.In all W’s 3 affirmations, the address stated by W was an address in her home town in Nam Tong and not at Shek Wu Yuen. During the trial, W admitted that she was living in a house left to her younger son by the mother of her deceased first husband. 186.Anyway, it seems now that W does not need to pay any rent. There was no sufficient documentary evidence provided by W to support her alleged expenses of RMB 10,000 per month, which would be about HK$12,000 per month. Although she produced a bundle of medical consultation records, there was no indication thereon as to the amount spent by her on such medical consultations/treatment totalled about RMB 2,000 per month as alleged by her. 187.She had further said H used to give her mother RMB 1,500 per month for living expenses, and she did not dare tell her mother that H had died. W had said during the trial that she was the one supporting her 80 odd year old mother, and when asked where the money came from, she said she would borrow money to support her aged mother. She also claimed that since H died, she had to live on her savings and had to borrow money from friends and relatives to support herself. Again there was no documentary evidence relating to this alleged payment to her mother or any loans which W had incurred or the amount of her savings. 188.Having considered W’s evidence, I find that W had also exaggerated her expenses. I have found earlier that the amount she was receiving from H was in the region of HK$2,500 per month, or about RMB 2,000, which would be for her personal expenses. In addition, there will be her food and household expenses. I find W’s reasonable needs should be in the region of about RMB 4,000, or about HK$4,800 per month. Any Other Relevant Matter, including the conduct of W or any other person 189.The Will was made about 3 months after the purchase of the land. Mr. Lui has submitted under this factor as H had bought the piece of land in W’s name for the enjoyment and use of H and W for retirement, this Court should draw the inference from this purchase that this was why H had found it unnecessary to make further provision for W in the Will. I do not find that there was sufficient evidence for this Court to draw such an inference. 190.W had also mentioned that shortly before H died, she had asked him, what would happen to her, and apparently H then raised 4 of his fingers. W’s case was that this “4 Finger Incident” indicated that it was H’s intention that the Estate was to be divided into 4 shares, one for each of the Children and one for W. Lan and WHY admitted seeing H raising 4 of his fingers. WHY said she could not remember whether H uttered any words. It is thus not clear what H meant by raising his 4 fingers. Anyway, I find there was no sufficient evidence before this Court that H had intended the Estate to be divided into 4 shares, by raising his 4 fingers in answer to W’s questions. 191.Mr. Lui has also submitted that W’s conduct in reneging on the agreement as evidenced by the Confirmation is “seriously objectionable”. Mr. Lui also submitted that W had lied in Court. As to Mr. Lui’s first example about W’s credibility, W alleged in her 1st affirmation that she was kept in the dark about the Will and the grant of probate until when she instructed a lawyer, and later during the trial she admitted that the contents of the Confirmation was read out to her at the time of her signing. The second example Mr. Lui gave was the “4 Finger Incident” when the evidence showed W had her own agenda, and that she was not an ignorant or loving wife, like what her lawyers tried to paint a picture of her. The third example was that W lied when she said she could not seek legal advice within the 4 weeks after she received the HK$50,000, when the time limit for her application under the Ordinance expired. 192.So far as the “4 Finger Incident”, it seems that this took place very shortly before H died. I do not find it surprising that a wife in that situation becoming more anxious and concerned as to what is to happen to her when her husband leaves her. I find that had W been more scheming, or had her own agenda, one would have thought she would have not left it until almost the last minute to raise such issues. 193.I have earlier dealt with the inconsistency in W’s evidence as to when she found out about the contents of the Will and also her evidence as to when she went back to China and when she returned to Hong Kong after signing the Confirmation. I have found that W was not bound by the Confirmation and I have further accepted W’s explanation as to her reason in delaying in making this application. I do not find her conduct “seriously objectionable”. 194.I will add that I accept W’s evidence in the trial was on occasions inconsistent with or contradictory to what she had said in her affirmations. Her evidence was also confusing at times, and she had also exaggerated parts of her evidence. Notwithstanding all these, I do not find her evidence to be unreliable. W’s Age, Duration of the Marriage, and Contribution 195.W had said during the trial it was soon after she met H in 2000, they began dating (拍拖). W was about 39 years old at that time. She explained that the purpose of her friend introducing her to H was for W to be friends with H so that one day they could get married, since H’s wife and the Children had all left him, and her own husband was about to die. According to W, as she had no residence rights in Hong Kong, she was thus not able to seek employment in Hong Kong. As mentioned earlier, W said she voluntarily helped H with housework and in the Grocery Shop, and their relationship soon developed. 196.W produced her movement record from the Immigration Department[58] at this Court’s direction and the record showed that she was in Hong Kong for the following days since 1 January 2002:
197.There was no record available prior to 2002. 198.As W entered Hong Kong with a “double journey permit”, she would need to leave when her permit expired, and she then had to re-apply to come again. I note, however, that for 4 years from 2002 to 2005, before her marriage to H, she only spent a total of 449 days in Hong Kong, i.e. an average of only about 30% of those years. In 2006, she left Hong Kong on the day of her marriage to H, and did not return until September that year. W admitted that H did not go to the Mainland to visit her regularly. It seems H only went in early 2008, to buy the piece of land. 199.WHY’s evidence was that H only moved up to 2nd floor to share the big room with W sometime in 2007. Looking at W’s movement record, I find that there was no sufficient evidence that H and W had cohabited as man and wife prior to their marriage, although W had a room in the Fanling Property, and they were under the same roof. It seems that it was only in September 2006 after she returned in Hong Kong that W started spending considerably more time here with H. I am of the view that the duration of their marriage was not a long one, being only about 2 years 9 months. 200.Mr. Lui has submitted that W’s contribution “…could hardly be substantial as she only did the usual housework. She did not have independent financial contribution to the family.” It is, however, well established in matrimonial cases that the contribution of a spouse is not confined to only monetary contribution. Although there was no financial contribution from W, being a housewife, looking after the family is also contribution. Although her relationship with the Children was not a warm one, WHY had said that W did do the cooking for the whole family including the Father, and W also did the cleaning, and other house work. In addition, W also helped in delivering goods with H. When H was ill, she looked after him. Although the marriage was not a long one, I find that W had made as much contribution towards the marriage as H had and thus their contribution should be equal. Obligations and Responsibilities which H had towards W, or any of the Children 201.As W was H’s legal spouse, H would have an obligation and responsibility to maintain her. 202.H would also have an obligation to maintain the Children until each of them reached the age of 18 years of age. In matrimonial proceedings, the Court has power to extend any such order upon a child reaching the age of 18, if the child is still receiving education or undergoing training for a trade, profession or vocation, whether such child is in gainful employment or not[59]. The ‘Divorce Standard’ 203.I now come to consider the last paragraph of the s. 5 Factors, the ‘divorce standard’. When considering the ‘divorce standard’, one would need to consider the factors laid down in s.7 of the Matrimonial Proceedings and Property Ordinance (MPPO), the “S.7 Exercise”, and also the principles set out in the case of LKW v DD[60]. s. 7 Exercise 204.Most of the matters in s. 7 have been dealt with earlier in this Judgment. One matter which I would need to consider as part of the s.7 Exercise in a divorce would be the income, earning capacity, property and any financial resources which H had or likely to have in the foreseeable future. H was 49 when he died. H’s income would be the receipts from the Grocery Shop and the licence fees from the telecom companies, which I have mentioned earlier. His property and financial resourses would be those set out in the Estate. 205.As for H’s reasonable needs, there was very little evidence. I accept that he was providing for W and the Children before his death. LKW v DD 206.Ribeiro PJ has set out in LKW v DD the principles as to how the s. 7 Exercise should be approached[61] , namely :
207.Ribeiro PJ has further set out various steps in achieving the above principles[62], and briefly they are as follows:-
208.‘Step 1’ was to identify the assets. 209.There was very little information on the assets held in W’s name at the time of H’s death. In her affirmations, she disclosed only one bank account at the Agricultural Bank, and produced a copy of her pass book from 21 March 2009 to 24 June 2009, with a balance of RMB 91.77. Apart from this passbook, she did not disclose any other bank accounts. 210.Then there was the piece of land for which H paid HK$200,000 in early 2008 and was held in W’s name. W said in her affirmations that she had sold the land, and used up the funds. There was no documentary evidence produced by W to support what she said, or when she sold the land or the amount she received. Anyway, according to W, she sold the land after H’s death. Thus, at the time of H’s death, she should still have this asset which was worth at least HK$200,000. 211.H’s assets would have been those set out in the 1st Schedule and the 2nd Schedule and would be about HK$5,457,224 at the time of H’s death. This amount did not include H’s own savings, or his part of the Savings, which I have found earlier he had deposited with Kiu. 212.So far as the Fanling Property is concerned, I have found earlier that the HK$700,000 which H paid came from H’s own savings or his part of the Savings. Whichever, this sum of money came from H’s own money prior to his marriage with W. HK$700,000 was in fact an understated consideration of the Fanling Property at the time, as the Inland Revenue has assessed it to be HK$1.8 m. In any event, I am satisfied that the Fanling Property was acquired by H from resources outside his marriage with W. 213.Ribeiro PJ had said in LKW v DD : “So where it is a short marriage, the court may well be inclined to regard as excludable non-matrimonial property, assets acquired by one of the parties before the marriage or acquired in the course of the marriage from some wholly external source…..”[63] 214.However, in relation to a “matrimonial home”, different considerations may apply[64]. Was the Fanling Property the matrimonial home of H and W? 215.According to the evidence of WHY, after she and her brothers were sent back to live with their father in 2001, her father slept in one room on the 1st floor, her brother WYK slept in another room on the 1st floor, and WHY slept in the sitting room. Her eldest brother WCS slept in the sitting room of the 2nd floor, and W was occupying a small room on the 2nd floor. There was another large room which was used as storage by non family third parties. WHY’s evidence was a bit confusing where every one was sleeping and what parts of the Fanling Property was licenced out to telecom companies. The portions licensed to the companies can be seen in the plans attached to the licence agreements. Anyway, according to her, some time before 2007, W moved to the larger room on the 2nd floor to let WHY sleep in the small room. Then H moved to sleep together with W in her room on the 2nd floor, which WHY said took place in summer 2007. WHY had also said that she and her brothers had little communications with H or W. 216.In my view, only a part of the Fanling Property could be regarded as the ‘matrimonial home’ of the parties, since the ground floor was at all material times and still is occupied by the Grocery Shop and other parts on the 1st and 2nd floor licensed to the telecom companies for their exclusive use, and the Children occupied different parts of the Fanling Property. 217.So far as H’s Taxi Licence is concerned, this was acquired by H long before the marriage with W, and in fact during his first marriage. Further, there was no evidence that H’s Taxi Licence was used by H during the marriage. 218.In any event, in my view, had there been a divorce at the date of H’s death, this would have been a case where there should be departure from equality due to the shortness of the marriage and the source of the acquisition of the two major assets. However, as I have indicated, H had other savings or part of the Savings the amount of which is unknown. 219.So far as Step 2 in LKW v DD, namely W’s financial needs, I have already dealt with this earlier, and I am of the view that W can support herself out of her own financial resources or income. H’s financial needs were unknown, except he would still need to have to support at least WHY. (c)Discussion 220.Mr. Lui has referred to me what Deputy Judge S Lo has said in Re Estate of CNC [2011] 4 HKLRD 544 at para 121 as follows:
221.Mr. Lui has also referred me to the last sub-paragraph of paragraph 119 of Re Estate of CNC where Deputy Judge S. Lo referred to the judgment of Wall LJ in the English Court of Appeal’s decision in Cunliffe v Fielden [2006] 2 All ER 115:-
222.W initially sought only periodical payments in her originating summons [65], but in Mr. Koo’s reply submissions, he sought instead 1/3 of the current value of the net estate, being a sum of HK$1,440,000 which he said was the minimal amount which should be awarded to W. He relied on the cases of Ye Hong Ying v Chan Lup Ying[66]and Re Estate of CNC, and said taking W’s needs of HK$12,000 per month, the sum of HK$1,440,000 would produce HK$12,000 per month for W’s needs for about 10 years. There were no proper Duxbury calculations produced on behalf of W. I accept that this is a case where it is more appropriate for W to receive lump sum rather than ongoing periodical payments in view of the relationship between her and H’s family, the short duration of the marriage and there being no children. 223.In the case of Ye Hong Ying, the deceased husband had two wives. He married the plaintiff wife in 1938, and the defendant wife in 1945. They had one daughter. He came to Hong Kong in 1957, and the defendant wife joined him in 1962. The plaintiff wife remained in Shanghai, and later moved to England to join her daughter and eventually, they moved to Canada. The Court made a lump sum award to the plaintiff of about one-third of the then value of the net estate. 224.In Re Estate of CNC, there were again two wives. The deceased married the plaintiff who was his first wife in 1940, and they had 4 children. In 1951, the deceased left for Hong Kong and later in 1967, he married his second wife and they had 3 children. The Court ordered about one-third of the then net estate to the plaintiff. 225.In Ye Hong Ying, although the plaintiff had not been living with the deceased since 1957, up until 1957, the marriage appeared to have lasted 19 years before the plaintiff and the deceased lived apart and they had a daughter. In Re Estate of CNC, the marriage appeared to have lasted at least 11 years, if not longer since it seemed the deceased had no alternative but to leave the Mainland in 1951, and it was not until 16 years later in 1967 that he married his second wife, and it seemed, without his first marriage being dissolved or annulled. 226.In both the above cases, the duration of the marriage was much longer than that of H and W in the present case. Unlike those two cases, W and H had no children. 227.As mentioned earlier, I have found that W has financial resources or earning capacity to meet her reasonable financial needs. As for the Children, I am of the view that it is only WHY who may still have to be maintained but they will be receiving the licence fees and receipts from the Grocery Shop as income. As I have said the Children would need a roof over their head. 228.Under the IPFDO, W is entitled to reasonable financial provision even if such provision may not be required for her maintenance. I am of the view that although W was married for 2 years and 9 months to H, she had made contribution to the welfare of H’s family and to the marriage and it would be fair for W to receive a share of the net estate by way of a lump sum. 229.H was living in the Fanling Property and working for the Grocery Shop for about 33 ½ years from about April 1975 until about end of 2008. On a very rough calculation the marriage of H and W was about 33 months which was about 8% of H’s working life. 230.The Net Estate was $5,322,521 at the time of H’s death and $4,335,034 at 31 March 2012. Again this value does not include any unknown amount of H’s savings which I find were held by Kiu. 231.Having considered all the circumstances of this case, I think a reasonable order for W is for her to receive a share of the net estate by way of lump sum of HK$ 380,000 from the net estate, in addition to the $50,000 already received by her. 232.So far as costs are concerned, although W has not received the amount she was asking for, she has succeeded with her application. I therefore order that W should have her costs of and incidental of her application, with a certificate for counsel. . This is an order nisi. (c) ORDER 233.My order is thus as follows:
Mr. E. KOO instructed by Damien Shea & Co for the Applicant Mr. M. LUI instructed by Chan & Young for the 1st and 2nd Respondent [1] HCMP 1098 of 2010 [2] S. 3(1)(i) [3] S. 4 [4] S. 6 of the Ordinance [5] [1981] Ch 167 [6] at page 174 line H [7] [1981] 2 All ER 140 [8] (1969) 114 Sol Jo 36 [9][2008] 4 HKLRD 270 [10] Para 5, para 6 [11] Para 71 [12] Paras 20, 21 [13] B:255 [14] A:160, Paragraph 6 [15] Transcript 16.04.12, pg 384 , T-U [16] Trial on 26.04.12 [17] B:124 [18] Clauses 1, 16 [19] B:132 [20] B:164 [21] B:294 [22] Paragraph 24 of Mr. Lui’s Closing Submissions [23] Transcript 24.04.12, pg. 348, Line B [24] Transcript 24.04.12, p. 342, line L [25] Transcript 24.04.12, pg. 344 Lines M-V [26] Paragraph 66 of Lan’s 1st affirmation [27] Paragraph 68 of Lan’s 1st affirmation [28] B: 184,189 [29] Transcript 17.04.12, pages 26-29 [30] B:296 [31] [2000]2 HKLRD 833 [32] [1985] AC 1000 [33] P.1024 A/B-C [34] [2000]2 HKLRD 370 [35] P..381 B/C to 382F, Lo Wo [36] (HCA 3838/2001, 17 March 2003) [37] Trial : 18.04.12 [38] Trial :19.04.12 [39] Trial : 24.04.12 Transcript p. 299, Lines G- T [40] Trial. 24.04.12, transcript page 301,line p [41] At para 2, A:70 [42] At para 6 , A:60 [43] Transcript 17.04.12, line C, p.59 [44] At para 7, A:60 [45] para 8, A:60 [46][1999]2 HKLRD 601 [47] A:69 [48] s. 2, IPFDO [49] Attachment 3, R-3 [50] B: 229 [51] Attachment 4, R-3 [52] Attachment 4, R-3 [53] R-3 [54] A: 115, para 46 [55] R-3 , attachments 2 & 5 [56] 1st day, pg 47 line J [57] Paragraph 29 of W’s 2nd affirmation [58] R-1 [59] S. 10 , Matrimonial Proceedings and Property Ordinance, Cap. 192 [60] (2010) 13 HKCFAR 537 [61] Paras. 56-70, , LKW v DD [62] Paras 71-132, LKW v DD [63] Para 93, LKW v DD [64] Paras 97,98, LKW v DD [65] A: 2, 3, 12, 13 [66] [1999] 2HKLRD 601 [1] HCMP 1098 of 2010 [2] S. 3(1)(i) [3] S. 4 [4] S. 6 of the Ordinance [5] [1981] Ch 167 [6] at page 174 line H [7] [1981] 2 All ER 140 [8] (1969) 114 Sol Jo 36 [9][2008] 4 HKLRD 270 [10] Para 5, para 6 [11] Para 71 [12] Paras 20, 21 [13] B:255 [14] A:160, Paragraph 6 [15] Transcript 16.04.12, pg 384 , T-U [16] Trial on 26.04.12 [17] B:124 [18] Clauses 1, 16 [19] B:132 [20] B:164 [21] B:294 [22] Paragraph 24 of Mr. Lui’s Closing Submissions [23] Transcript 24.04.12, pg. 348, Line B [24] Transcript 24.04.12, p. 342, line L [25] Transcript 24.04.12, pg. 344 Lines M-V [26] Paragraph 66 of Lan’s 1st affirmation [27] Paragraph 68 of Lan’s 1st affirmation [28] B: 184,189 [29] Transcript 17.04.12, pages 26-29 [30] B:296 [31] [2000]2 HKLRD 833 [32] [1985] AC 1000 [33] P.1024 A/B-C [34] [2000]2 HKLRD 370 [35] P..381 B/C to 382F, Lo Wo [36] (HCA 3838/2001, 17 March 2003) [37] Trial : 18.04.12 [38] Trial :19.04.12 [39] Trial : 24.04.12 Transcript p. 299, Lines G- T [40] Trial. 24.04.12, transcript page 301,line p [41] At para 2, A:70 [42] At para 6 , A:60 [43] Transcript 17.04.12, line C, p.59 [44] At para 7, A:60 [45] para 8, A:60 [46][1999]2 HKLRD 601 [47] A:69 [48] s. 2, IPFDO [49] Attachment 3, R-3 [50] B: 229 [51] Attachment 4, R-3 [52] Attachment 4, R-3 [53] R-3 [54] A: 115, para 46 [55] R-3 , attachments 2 & 5 [56] 1st day, pg 47 line J [57] Paragraph 29 of W’s 2nd affirmation [58] R-1 [59] S. 10 , Matrimonial Proceedings and Property Ordinance, Cap. 192 [60] (2010) 13 HKCFAR 537 [61] Paras. 56-70, , LKW v DD [62] Paras 71-132, LKW v DD [63] Para 93, LKW v DD [64] Paras 97,98, LKW v DD [65] A: 2, 3, 12, 13 [66] [1999] 2HKLRD 601 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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