Alfred Ip discusses avenues for disinherited individuals to claim an interest from an estate. According to the Inheritance (Provision for Family and Dependants) Ordinance, Cap. 481, family members left out of a Will or of intestacy rules can claim appropriate relief.
SHOW NOTES
00:41 Who can rely on this Ordinance?
01:42 Factors to be considered
02:36 Court orders that can be made
TRANSCRIPT
Inheritance (Provision for Family and Dependants) Ordinance, Cap. 481 provides an alternative avenue for those who is disinherited from the estate to claim an interest. There is no force heirship rules in Hong Kong or concept of community property. Common law marriage, de facto marriage and – to a large extent – same-sex marriage are not recognised. Family members can be disinherited from a Will or intestacy rules because their relationship with the Deceased is not recognised. This Ordinance allows them to claim appropriate relief.
Who can rely on this Ordinance?
Anyone who has been financially dependent on someone and that person passed away without leaving anything to that dependant can apply for financial provision.
In the past, we have come across a number of situations that give rise to a provision claim:
- A spouse who has been disinherited by a will made by the Deceased;
- An ex-spouse who has been financially provided for by the Deceased pursuant to a court order made in the divorce proceedings;
- A life partner of the deceased who is not married to him/her, who is not entitled to inheritance under Hong Kong intestacy rules;
- The surviving spouse of a same sex de-facto relationship; and
- The infant child of the deceased whose entitlement under the intestacy rules is insufficient for his or her future needs.
The Applicant is required to show that he or she was financially maintained by the Deceased unless they are in one of the following relationships with the deceased:
- Spouse
- Infant children
Factors to be considered
In general, the Court will consider the following factors:
(a) the applicant’s financial resources and financial needs;
(b) the financial resources and financial needs of any beneficiary in the estate;
(c) any obligations and responsibilities which the deceased had towards any applicant or other beneficiary of the estate
(d) the size and nature of the net estate of the deceased;
(e) any physical or mental disability of any applicant or any beneficiary of the estate; and
(f) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.
In addition, if the claim is brought by the spouse of the deceased, the Court shall also have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage had been terminated by divorce. Hence, the claim by the spouse of the Deceased can be very different from the claim by other family members or persons who are entitled.
Court Orders that can be made
The Court is empowered under s4 of the Ordinance to make the following order:
- periodical payments;
- lump sum payment;
- transfer of property order;
- settlement of property order; and
- acquisition of property
The Court is also empowered to make interim order if it is satisfied that the applicant is in immediate need of financial assistance.
The claim should be brought as soon as possible, and in any event within 6 months from the grant being issued.
This video is for informational purposes only. Its contents do not constitute legal or professional advice.
