Hong Kong, 5 February 2020:<\/strong> Bereavement brings considerable grief and stress, but imagine how these feelings are exacerbated if there are complications over inheritance of the deceased\u2019s estate.<\/p>\n The general rule is that everyone has \u201ctestamentary freedom\u201d, meaning they have the right to leave their assets to whomever they wish. But what if your recently-passed loved one has not included you as a beneficiary in their Will, or has not left you what you were expecting? What if they have died without leaving a Will and the rules of intestacy mean you are not among the beneficiaries?<\/p>\n In such circumstances, an aggrieved person can apply to the Court for reasonable financial provision from the deceased\u2019s estate under section 4 of the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481). Those who can apply are the deceased\u2019s wife or husband, female or male civil partner, or anyone who was being maintained, either wholly or substantially, by the deceased immediately before their death.<\/p>\n What is reasonable financial provision? The Court has wide discretion but is guided by section 3(2) of the Ordinance which states that if the applicant is the deceased\u2019s spouse or civil partner, the Court does not have to consider whether the provision is needed for maintenance. For other applicants, however, the Court needs to be convinced that the provision is for maintenance.<\/p>\n If the Court is satisfied there should be reasonable financial provision for the applicant, it can order periodical payments from the estate, or a lump sum, or for the transfer or settlement of certain property of the estate.<\/p>\n However, before making any order, the Court has to consider the financial resources and needs not only of the applicant, but also those of any other applicants or beneficiaries, whether the deceased had any obligations or responsibilities to any applicants or beneficiaries, and the size and nature of the estate. The Court can also take into account any other factors, including the conduct of the applicant or other individuals, which it feels is relevant.<\/p>\n It should also be noted that the Court has discretion to order interim maintenance. It can do so if the applicant is in immediate need of financial assistance but it is not yet possible to determine what order (if any) should be made. In such circumstances, the Court also needs to see that property forming part of estate is, or can be, made available to meet the applicant\u2019s needs.<\/p>\n The Judge in ACLS v HSB(T)L [2013] 2 HKLRD 444 referred to Barnsley v Ward (unrep., Eng CA, 8 January 1980) where the Judge set out the three hurdles the applicant has to overcome for interim maintenance:-<\/p>\n
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