VI. Case illustration
Mr. A and Ms. B were a couple but Mr. A died recently. Since Mr. A has left a considerable amount of assets, his family members have to tackle the following problems in relation to the distribution of his estate.
Must the matrimonial home (the main residence of Mr. A and Ms. B) be sold and distributed as part of the estate in case Mr. A did not make a Will?Answer 1
Can Ms. B choose to keep the matrimonial home if Mr. A had made a Will?Answer 2
Suppose Mr. A's sons have also died, but he has a surviving mother and siblings in addition to his surviving wife (Ms. B), how much could each party take from the estate?Answer 3
Suddenly a man appears and proves that he is the "secret child" (illegitimate child) of Mr. A. Can he get a share from Mr. A's estate?Answer 4
Further to the question of illegitimate children, would the situation be different if the deceased has made a Will?Answer 5
Not necessarily. The surviving spouse (Ms. B) has a right to acquire the matrimonial home by law. She can choose to take the matrimonial home in satisfaction of her entitlement in the estate.
For example, the couple lived in a matrimonial home valued at $1,000,000, held solely in Mr. A's name. Mr. A died without making a Will and was survived by Ms. B and two sons. He leaves an estate valued at $1,450,000 (inclusive of the matrimonial home but excluding his personal chattels to be fully taken by his wife). Ignoring the funeral and administration expenses, Ms. B is entitled to a statutory legacy of $500,000 plus one-half of the residue estate [($1,450,000 – $500,000) ÷ 2] yielding a total of $975,000. Mr. A's two sons would equally share the other half of the residue estate, i.e. $475,000.
Ms. B can claim the matrimonial home by using her $975,000 (i.e. the flat is not sold and she does not take this $975,000) and paying the balance $25,000 to the estate by her own means. The estate to be taken by the two sons remains at the value of $475,000.
Note that in intestate cases (no Will is found or the Will has been revoked), any money or property given by the deceased by way of an advancement, or on the marriage of his children before his death, has to be taken into account and be deducted from that child’s entitlement under the law of intestacy, unless there is any contrary intention expressed or appearing from the circumstances of the case.
There must be a specific gift of the matrimonial home to the surviving spouse in the deceased's Will. There is no law enabling the surviving spouse to choose to keep the matrimonial home in satisfaction of her entitlement under the Will.
A further point to note is that there is no law in Hong Kong enabling the surviving spouse to take the matrimonial home without any payment or contribution to the deceased' estate (unless there is a Will which specifies that the surviving spouse can take it freely).
If Mr. A made no Will for his estate of $1,450,000, then his wife Ms. B could firstly obtain a statutory legacy of $1,000,000. Note that the amount of statutory legacy the surviving wife is entitled to in this situation is different from the case where the deceased has descendants (in which case the statutory legacy to the spouse is only $500,000).
Ignoring the funeral and administration expenses, the distribution of estate to all relevant parties is as follows:
- Ms. B is entitled to $1,000,000 + ($450,000 ÷ 2) = $1,225,000;
- Old Mrs. A is entitled to $225,000;
- Mr. A's siblings are entitled to nothing (they will only have a share if Mr. A leaves no descendant and no parent).
An illegitimate child means a child whose natural parents are not married in the manner which the laws of Hong Kong recognize. For details of legal marriage, please go to the topic of "Matrimonial Matters".
Under the Parent and Child Ordinance, illegitimate children enjoy the same succession rights as legitimate ones if their parents die after 19 th June 1993 .
Suppose Mr. A has one surviving wife (Ms. B), two legitimate sons and one "illegitimate son". His estate is valued at $1,450,000. Ignoring the funeral and administration expenses, the distribution of estate to all relevant parties would be as follows:
- Ms. B is entitled to $500,000 + [($1,450,000 – $500,000) ÷ 2] = $975,000;
- the two legitimate sons are entitled to ($1,450,000 - $975,000) ÷ 3 = $158,333 each;
- the illegitimate son is entitled to ($1,450,000 - $975,000) ÷ 3 = $158,333.
For situations with Wills in relation to illegitimate children, the position can be summarized as follows:
- In deciding whether or not an illegitimate child is entitled to the estate, the first requirement is that the Will must have been executed on or after 19 th June 1993 . If the Will was executed before 19 th June 1993 , illegitimate children are not automatically included. The cut off date is not determined by the date of death.
- Secondly, it will depend on the drafting of the Will. For Wills executed after 19 th June 1993 , if the words used are "to my children", illegitimate children will be included as well. If a person does not wish to benefit any illegitimate children, he should name his legitimate children by names specifically in his Will.