Inheritance (Provision for Families and Dependants) Ordinance

VII. Inheritance (Provision for Families and Dependants) Ordinance

In general, a person has the testamentary freedom to decide by his/her will as to how to distribute his/her assets after he/she dies. Absent will, the estate will be distributed by the laws of intestacy as discussed. In certain circumstances, however, the Court may intervene under the captioned ordinance when families or dependents of the deceased contend that they should be given a share (if not provided under the will or intestacy) or a larger share than the share that they are now given under will or intestacy.

Applicability

It applies only to a deceased who is domiciled in Hong Kong or has been ordinarily resident in Hong Kong at any time in the 3 years immediately preceding his death.

In other words, even if the deceased leaves behind substantial assets in Hong Kong, the captioned ordinance remains inapplicable if the above domicile/residence requirement is not satisfied.

Who may apply?

Most typically, applicants are either the spouse of the deceased or infant or disabled child of the deceased where the deceased (1) did not want to pay maintenance to divorce his/her spouse and decided to disinherit the spouse by will instead; or (2) tried to disinherit his/her children born out of his/her previous marriage for the benefit of his/her later marriage.

The possible scope of applicants is much wider though. Any person who, immediately before the death of the deceased, was being maintained either wholly or substantially by the deceased may apply. This includes ex-spouse, lover, adult child, godchild or even parents and siblings who were so maintained before the deceased’s demise.

What does the Court consider?

1. The financial resources of the estate;
2. The current and future financial resources and needs of the applicant(s) and of the beneficiaries;
3. The obligations and responsibility that the deceased had toward the applicant(s) and the beneficiaries;
4. Disability, if any, of the applicant(s) and of the beneficiaries;
5. Conducts of the applicant and other persons (e.g. deceased and beneficiaries) that the Court consider relevant; and
6. If the applicant is the spouse, the Court would consider the application more or less like an application for ancillary relief under divorce (i.e. maintenance).

What order that the Court may make?

It may be order for periodic payment, lump sum or order for transfer of property.

When to apply?

Within 6 months after grant of representation. This is a very rigid deadline. Late application will not be entertained at all unless with exceptional reasons.