Skip to content

Something urgent? Call us now! (852) 3416 1711

Minor issue causes major headache

Minor issue causes major headache

The wheels of justice can turn slowly, especially in complicated inheritance matters where family members may have conflicting interests and a minor is involved. Boase Cohen & Collins Partner Fiona Chan describes one such case.

Hong Kong, 17 January 2020: Protecting the rights of a minor involved in legal proceedings is usually a relatively simple matter that involves the appointment of a guardian ad litem (GAL) to act in that young person’s best interests. However, the procedure is not always so straightforward, as an ongoing case in which we are involved amply illustrates.

A GAL is required when a “person under a disability” – which, in law, means someone who is mentally incapacitated or a minor (under 18 years of age) – is involved in a civil action. The GAL is typically a relative who must not have an interest adverse to the person for whom they are acting or be connected to the other parties.

Our ongoing case involves a deceased man who left half his estate to his mother and half to his 14-year-old daughter. Boase Cohen & Collins is acting for the sole executrix of the estate, one of the deceased’s sisters.

The man did not leave anything to his wife (the Applicant), from whom he was separated. As a consequence, she started legal proceedings seeking financial provision and interim maintenance from the estate under Sections 3, 4 and 7 of the Inheritance (Provision for Family and Dependants) Ordinance Cap. 481. Complicating the issue is the fact that the Applicant is the daughter’s main carer.

The Court joined the deceased’s mother and daughter together as Respondents, meaning the daughter needed a GAL who was not connected to either her co-Respondent or the Applicant. Given her conflict of interest, the Applicant invited the Official Solicitor’s Office to fulfil the role.

The Official Solicitor (OS) is a public officer who, among his or her many duties, represents the interests of persons under a disability in legal proceedings. These duties are set out in Section 4 of the Official Solicitor Ordinance, Cap. 416 which came into operation in 1991.

However, the OS will only act as a GAL when there is no other suitable candidate available or willing to do so. In this particular case, the OS has been searching for a candidate for the past year, so far without success because all the relatives willing to act as the daughter’s GAL are closely connected with either the Applicant or co-Respondent.

The way to resolve this impasse, it would appear, is for all parties in the proceedings to jointly apply to the Court to invite the OS to act as GAL to the daughter. Until a GAL is properly appointed, the hearing cannot proceed.

It is important to have a Will properly and professionally drafted to avoid deadlock of administration of the estate for the ultimate benefits of the deceased’s family.

Fiona Chan specialises in dispute resolution and is experienced in a wide range of civil litigation. Her core practice areas include Will drafting, estate administration and probate matters, while she is an appointed member of the Panel Solicitors for the Official Administrator. She can be contacted at fionachan@boasecohencollins.com.

Guardian PHOTO

Finding a guardian ad litem for a child involved in civil proceedings is not always simple.

35+ years of legal experience is just a click away.

Friendly and approachable, we are ready to answer your questions and offer you sound advice.

Contact us now

BC&C-contact-us

News & Knowledge

Learn more about what we do and what we say. Subscribe to our newsletter to ensure you receive our updates.

  • This field is for validation purposes and should be left unchanged.

A rather unpalatable legal process

Hong Kong, 3 March 2021: Fatty foods are off the menu in the Cohen household as my fitness drive gathers pace. In addition to gym sessions, stretching routines and regular hikes, healthy eating is a key component of my newly sensible lifestyle. Goodbye pizzas, pies and puddings, hello fruit and vegetables. My usual lunch is […]

Read more

All revved up with no place to go

Hong Kong, 24 February 2021: During lunch with a fellow Formula One enthusiast yesterday, we speculated about when we might next attend a grand prix. My last one was almost a year ago, in Melbourne, when the race was corona-cancelled at a few hours’ notice. The 2021 season stretches out in front of us enticingly. […]

Read more

Fighting an outbreak of dishonesty

By Erica Chong Hong Kong, 22 February 2021: Coronavirus fraud is spreading almost as fast as the virus itself. The prevalence, range and complexity of scams arising from the pandemic is truly astonishing. Fraudsters have been nothing if not ingenious and resourceful in cashing in on the global crisis. The media is awash with alarming […]

Read more

Two steps forward, one step back

Hong Kong, 17 February 2021: My new-found passion for hiking has resulted in the formation of the Stumblers, a loose group of friends who meet regularly to trek through the great outdoors and explore forgotten parts of this fascinating city. Sometimes, we advance more in hope than expectation, there are occasions when we become lost, […]

Read more

A bay window of opportunity for lawyers

By Alex Liu Hong Kong, 10 February 2021: Hong Kong lawyers have been lobbying for almost two decades for a unique entry mechanism that would allow them to practice in mainland China. Now, thanks to the impending legal requirements of the Greater Bay Area, a pilot scheme is in place. Legal professionals in Hong Kong […]

Read more