Who may apply?
s3 of the Ordinance provides that the following persons may apply for financial provision from the deceased’s estate:
- the wife or husband of the deceased;
- a tsip (where 妾 means “concubine” in Chinese) or male partner of the deceased by a union of concubinage;
- an infant child of the deceased or a child of the deceased who is, by reason of some mental or physical disability, incapable of maintaining himself.The above categories represent family members who would otherwise be entitled to share the estate under intestacy rules, hence a claim arises when they are deliberately excluded from inheritance by the Deceased’s Will.
The following categories of persons must have been maintained before the death of the deceased, either wholly or substantially:
- a former wife or husband of the deceased – though it is to note that such order ceases to have effect should he/she remarry;
- a parent of the deceased;
- an adult child of the deceased;
- any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage – i.e. a step-child;
- a brother or sister of the half-blood or the whole blood of the deceased; and
- any person who was maintained before the death of the deceased, either wholly or substantially.
Only an adult child of the deceased is entitled to share under intestacy rules, so he or she must be excluded by the Deceased’s Will, yet they have to show that they were financial dependants before they are entitled to relief under this Ordinance.
At the same time, any person who was maintained, wholly or substantially, by the deceased before the death of the deceased can make a claim, irrespective of the relationship that the claimant may have with the Deceased. However, for this category of the claimant, it would be necessary to explain his or her relationship with the Deceased, leading to the financial support made by the Deceased.
What is “reasonable financial provision”?
There are two standards for deciding whether there is reasonable financial provision for an applicant, provided by section 3(2) of the Ordinance:
- where an application is made by the surviving spouse of the deceased (or a tsip or male partner by union of concubinage), the question is whether it would be reasonable in all circumstances for them to receive such financial provision, regardless of whether the spouse needs such provision for his/her maintenance;
- in all other cases, the Court considers whether the financial provision would be reasonable in all circumstances of the case for the applicant to receive maintenance.
In other words, in order to assist the Court in considering a claim, it is almost inevitable for a narrative affirmation to be filed on behalf of an applicant detailing the relationship between the applicant and the deceased in order to assist the Court to consider all the circumstances of the case together with documentary evidence to show that he or she has been receiving financial support. It could be painful and embarrassing for the applicant to reveal the personal relationship in lengthy affirmation which will be disclosed to other parties to the proceedings, especially when such a relationship is often not accepted by the other family members during the deceased’s lifetime which often becomes the opposite parties to such claim.
Read the full article on: https://www.hugillandip.com/2021/06/hong-kong-lawyer-inheritance-claims-for-financial-provision-of-dependants/
