Alfred Ip and Azan Marwah talk about the difficult subject of death, giving real-life examples of same-sex couples who have struggled through the existing legal framework. They reflect on how those hurdles faced by same-sex couples can be just as significant as those facing heterosexual couples – if not more so.
They discuss related issues of mental capacity and guardianship, as well as Enduring Powers of Attorney (EPOA) and Advance Health Directives.
Azan addresses arrangements for the disposal of the bodies of loved ones. He recounts the example of a recent client’s struggles, which ended up in court. This case led to the recognition that same-sex couples must be treated equally with heterosexual couples. To understand more about this case, you can check our live seminar and webinar “Estate Planning Advice for Same-Sex Couples” that Alfred Ip and Henry Li previously conducted in Chinese for elements/Project Touch BGCA.
They go on highlighting changes related to inheritance rights for same-sex spouses whose counterparts die without a Will, commonly called ‘intestate’. Complications are many, often caused by incorrect assumptions such as that a spouse will always inherit the entirety of the estate or other issues like domicile, property rights, charitable gifts, the inexistence of a common law marriage, etc.
Azan and Alfred conclude the webinar by delving into the topic of inheritance provisions for financial dependants and how this also applies to same-sex partners. In many circumstances, these cases can get rather ugly as they often involve opposite camps of beneficiaries and complex family estate disputes. They explain how making a simple Will can for most people prevent such costly litigation.
SHOW NOTES:
00:14 Hurdles that same-sex couples face when a spouse is ill or passes away
03:53 Mental capacity and Enduring Powers of Attorney (EPOA)
07:00 Access to a spouse’s dead body and post-mortem arrangements
11:36 Inheritance rights when dying intestate
16:39 Inheritance provisions for financial dependants
TRANSCRIPT
Till Death Do Us Part
Alfred Ip 0:10
Welcome to our video. I’m Alfred Ip.
Azan Marwah 0:12
And I’m Azan Marwah.
Alfred Ip 0:14
Today we talk about death. Let’s start with a conversation with some very, very unfair subject. Two people they live together as husband and husband, or wife and wife, and one of them got sick. The first question that I come across very often is, can I look after my same sex spouse? And the answer sometimes can be a little bit controversial. Of course, if we’re talking about at home, you’re probably giving him tea, you’re cooking a meal you’re usually taking him to the bath, nobody is going to intervene. But in the hospital, do they have visitation rights? Do they have decision making process? In that respect, it seems to me that the answer is not definite.
Azan Marwah 1:06
No. And I would, my first question would be, are we talking about a government hospital, or we’re talking about a private hospital. Because if we’re talking about a government hospital, the government hospital has the same obligation that you and I have talked about now many times, to not discriminate between people on the grounds of their sexual orientation. So that means that a government hospital cannot deviate in their service because a person is gay or lesbian, they have to treat you the same. So that will include treating your spouse as though they are your spouse the way that they would have treated a heterosexual couple. So for visitation, making arrangements in the hospital, the government hospital are under an obligation to treat you the same.
Alfred Ip 1:57
But obviously, the concern a lot of people have is when there’s disagreement among family members over whether a person should, the patient should receive a certain treatment, medical treatment and in that respect, do you think that there will be any conflict or disadvantage if the spouse is the same sex spouse?
Azan Marwah 2:24
Well, there is the obvious disadvantage of that sometimes you encounter prejudice, not that there’s a general issue. And sometimes merely being in a same sex relationship can cause conflicts, that that is a reality. So it benefits couples to have pre-arranged, pre-arrangements in place so that those decisions that the other spouse is empowered to make those decisions. But in terms of the legal framework, it’s pretty arguable, and I would say strongly arguable now, that in terms of applying for things like mental health orders, guardianship boards, guardianship orders, that a same sex couple will likely be in the same position as an opposite sex couple.
Alfred Ip 3:16
But as a practioner, what I see most of the time in problem is when the patient himself or herself cannot speak anymore. And the family members, including the spouse and the other family members have disagreement over who to visit who to who to look after her, especially who to look after the financial affairs. In this respect, the only way to make sure that the patient’s view is heard is have it properly documented…
Azan Marwah 3:53
…in advance…
Alfred Ip 3:53
..in advance, yes. We’re talking about advanced health directives and enduring power of attorney. Enduring power of attorney is particularly important because in the absence of enduring power of attorney, if one person becomes incapacitated, they cannot make a decision themselves. Who is going to look after the financial affairs of this person, especially if he or she is the breadwinner. The family relying on the financial resources to continue providing for the family or to look after the medical bills. And in that respect, actually it’s a very practical question. Who is going to pay for the mortgage? Right? Um, I have to say the committee application is actually quite complicated. Well, it’s just applying to the court but in order to prepare for the application, you need to put down in details, what are the family to be involved? What are the assets to be involved? And whether the family will be involved before the court making the process of determining who to look after to financial affairs and the committee order being appointed.
Azan Marwah 3:57
And this kind of application is an all cards on the table applicant. And you can put yourself in a very difficult position. If you were not complete and thorough, upfront.
Alfred Ip 5:14
Yeah, not to mention that is a very costly application. An application like this can be hundreds of 1000s of dollars compared with the EPOA, that we’re talking about, like 10s of 1000s of dollars, is actually very cost effective to have an enduring power of attorney in place. Unfortunately, in Hong Kong, there’s no lasting power of attorney in place. What will be the difference?
Azan Marwah 5:37
Well, in terms of whether or not there’s a lasting power of attorney, or…
Alfred Ip 5:43
…advance health directives…
Azan Marwah 5:44
Well, honestly Alfred, you tell me!
Alfred Ip 5:48
Okay, lasting power of attorney authorises someone to empower you to make a decision for you. Advanced health directives only restricted to whether the person wants to receive a particular medical treatment, in the event of a life threatening situation. This is a bit different, because how to govern where it is, when is a life threatening situation? And there are decisions that the person may want to make without going down to the that level of life threatening. For example, whether they want to be resuscitated or whether they want to receive intrusive medical procedures, like operation, a lot of people don’t want to suffer. And actually, I think that this is the predominant tone of most people. They appreciate the quality of life, and they do not want to suffer without having the actual benefit of really sustaining the life.
Azan Marwah 6:50
But haven’t you had the experience that people are reluctant to talk about these things? Unless they’re, in a sense, already living through an aspect of that suffering?
Alfred Ip 7:00
Absolutely. Most people don’t want to talk about that. Most people won’t want to talk about pre-death or post-death arrangements. And that is the reason why there are a lot of situations when, we haven’t even talked, we did’t even come across fighting over the dead body. In that respect, who has the right over the dead body?
Azan Marwah 7:24
This is a fascinating question. Most people don’t know, but you can’t actually own a dead body.
Alfred Ip 7:31
Wow.
Azan Marwah 7:32
Yeah, it is not a piece of property, it’s not something that you can, you can claim that you have some ownership of. Even afterwards, you probably know that a lot of people keep ashes of their loved ones. That is not a piece of property, it’s not something that you can own. But instead, you can have the legal right to make decisions about what happens. That’s not quite the same thing as ownership. Now, in Hong Kong, typically the people who can apply for those things to be released, let’s say after, after a death has been declared, and a coroner has announced the cause of death, the body might be released from the government, or it might be released, whether it’s for burial, or for another disposal, like cremation. Really, you have to go and apply for that. Now, until a couple of years ago, it was up in the air, well what happens if you’re in a same sex marriage, same sex relationship? Some people die in Hong Kong without any family except their same sex partner. Now, in some ways, those cases are easier. And it’s a bit harder when there’s a competing person, someone else turning up and saying, I’m his brother, I’m, I’m her sister, I’m her father, or I’m her mother and saying that they would prefer to get the body. Now there’s a there’s a hierarchy a priority, spouse is at the top. Now, until two years ago, it was very uncertain who it was, until very sadly, and unfortunately, one of my clients died. And his spouse came forward and said that he wanted to, to go through all the after death arrangements. Now, when that happened, very unfortunately, the government staff who dealt with it said that they weren’t going to recognize the relationship, weren’t going to allow him to identify the body, weren’t going to allow him to make the application before the coroner, weren’t going to release the body to him. Now, it was only after he filed a case in the high court that the government said that that official was wrong. That is not government policy and the government accept that when dealing with after death arrangements a same sex spouse is in the same position as an opposite sex spouse.
Alfred Ip 9:47
Thanks to him, that same-sex partners recognition in that respect is now confirmed. Otherwise, they’ll be dealing with the grief of losing their loved one. And at the same time dealing with all this trouble.
Azan Marwah 10:05
It is an overwhelming trauma. To, just in that worst moment of your life, dealing with the death of your spouse, to have someone say, they’re not going to empower you, and they’re not going to recognise you. They’re going to treat you as though you have nothing to do with that person. And I really I give a lot of credit to Henry Li, who pushed forward that case to say this shouldn’t happen to anyone else.
Alfred Ip 10:33
Absolutely, he’s our hero.
Azan Marwah 10:36
Very much so.
Alfred Ip 10:38
Actually, we have personal contact with him knowing the pain that he suffers. Every time I think about it, I always remind ourselves the importance of planning. And that actually can be achieved with a will. A will confers the spouse, if he’s appointed as the executor, that can deal with all this.
Azan Marwah 11:01
Yes, it can empower them it can, it can effectively give permission and give an indication about what should happen to the body or who should be making the decisions.
Alfred Ip 11:10
But then, funnily enough, making the will, or the availability of it, was the government reason to object to same sex spouses from inherited inheritance!
Azan Marwah 11:22
That’s right.
Alfred Ip 11:23
Yeah, this is actually kind of incredible that basically the government says, Yeah, you can make a will so that the inheritance, the intestacy ordinance, does have to cover the same-sex spouse. Fortunately, that was rejected.
Azan Marwah 11:36
That’s right. So many people may not know that there is a very complex regime that deals with what happens if you die without a will in Hong Kong. And there are a series of, you know very well, there are a series of priorities about who gets what. And it’s fair to say that the top class priority is your spouse.
Alfred Ip 11:58
Yeah. In terms of intestacy rules, usually the spouse gets to 500,000 and half if they have children, in the absence of any children, the spouse will get first 1 million, and then half. The rest to be shared with the parents of the deceased, or if they pre-deceased, the brothers have the disease. But actually, that is a very controversial subject, because a lot of people thought that…
Azan Marwah 12:27
…the spouse gets everything…
Alfred Ip 12:28
…gets everything which is not the case. And in particular, when there is an argument over domicile, which actually Hong Kong as an international city, too many people came from other countries. They come here to work, they may consider Hong Kong as their permanent home, or they may not, even if they don’t, they may not want to return to their original countries and they want to go somewhere else.
Azan Marwah 12:54
Alfred, I would I would go further and say that a lot of people, they assume that certain things will happen to their property when they die. And that would I would take the very classic example of what happens to your apartment. Some people buy apartments with in the name of their parents or in a tenancy in common or joint tenancy with their parents or third parties, then they get married and they assume that their share of the apartment will automatically go to their spouse. But sometimes that’s not true.
Alfred Ip 13:26
Yes, especially when nowadays Hong Kong with the stamp duty policy it actually discourages people couples from joint owning a property because they always want to buy one property and then buy another one and rent it out for rental income as a part of their long term financial planning. And when things go south, be it a death or divorce, they will have argument over who pay what who should get what and these become very messy, especially in terms of the inheritance. If it is, for example, one person owns the property and that person passed away with the intestacy rules, thanks to Henry again, that same sex founders are recognised he would get 1 million plus half of the property but the other half will be co owning with the other family members. What if they cannot agree over when to sell the property? He may or may not want to sell the property because he has always been living there. And he may have already been paying for the mortgage most of the time.
Azan Marwah 14:42
What if? I’ll as a question. What if you own a property in a joint tenancy with your, let’s say your mother. And then you get married, and then you die. Who gets the property?
Alfred Ip 14:55
The mother because it’s part of the estate!
Azan Marwah 14:58
Exactly. And really what I would strongly advise anyone in a same sex relationship, as soon as you get married, take advice for estate planning, that’s the time to do it. Because what you assumed to be the case, it’s very often not the case.
Alfred Ip 15:15
Yeah. If you remember, that was one case when our client was to survivor, the widower, the husband passed away, but he made to will gifting all the properties to a charity. And even though after he passed away, and even though me he made the will before he got married, because same sex relationship was not recognised under Hong Kong law, actually the marriage doesn’t revoke that will and the widower become disinherited. What would be the right in that circumstances?
Azan Marwah 15:56
So that was, I do remember that case, that was a long time ago. And unfortunately, it was before Edgar and Henry’s case. Now, that’s exactly why you need to take advice. Now, you would say that that kind of will may be revoked by the by the marriage.
Alfred Ip 16:15
But it’s not definite. Yeah, because there had not been tested in court. Henry’s case doesn’t cover that part of the will.
Azan Marwah 16:22
That’s right. There are a still open questions. You can, you know, I can take a view and I would take a view that it’s likely that the court would treat it like that. But that’s altogether why planning and having in place a clear will is so important.
Alfred Ip 16:39
Okay. Let’s say that the circumstance is that the spouse is in any event disinherited, he or she gets nothing from the deceased spouses’s estate. Does he or she have any right to the estate?
Azan Marwah 16:56
Yep, there is something called the inheritance provision for family and dependants ordinance. And that provides a mechanism for people who have been disinherited, or even if they’re under, they have been inherited, but they haven’t been sufficiently inherited to apply to the court for discretionary order. This application used to be that it was only for opposite sex couples, or opposite sex couples. But Henrietta establishes that it applies equally for same sex couples.
Alfred Ip 17:31
Yes. And the difference between couples who are not married and married, is that for the unmarried couples like there’s no, first of all, there’s no de facto marriage in Hong Kong. No matter how long two people have been together, cohabitating together, if they’re not married, they’re not married.
Azan Marwah 17:47
There’s a there’s this persistent rumour that there’s something called common law marriage, that doesn’t exist.
Alfred Ip 17:54
It doesn’t exist in Hong Kong.
Azan Marwah 17:55
Straight or gay doesn’t matter.
Alfred Ip 17:58
And for the unmarried couple, if they want to make a claim against the estate of their deceased partner, they can go into the other categories rule under the void one. But that part requires that person to show that he or she has always been a financial dependent, before they are eligible to make a claim against the estate. And by way of financial dependency, it means that basically, they have been receiving financial resources from the deceased, paying for the house, paying for the… And in order to show that which effectively means the supporting affidavit will require them to detail their life that they had together. And that is so intrusive, after one spouse passed away, they need to basically open up everything to show that he or she has been a dependent. And the most embarrassing and humiliating part is that the other party, when there’s a dispute usually will be the other family members of the deceased.
Azan Marwah 19:10
And it can get ugly.
Alfred Ip 19:11
It gets very ugly. The cases that we have dealt with a lot of times, either the family denies that they have their relationship, or they deny having this financial dependency, or they claim that a lot of time that actually the two of them have already parted ways, they broke up before the deceased passed away.
Azan Marwah 19:12
There’s no financial dependence because of whatever’s happened now. I mean, you’ve highlighted two big differences. One of them is it can be the difference between having half, and having nothing, yes. Or having half and having merely enough to sustain you. You’re not really being treated equally with other other spouses. But the second problem which you’re highlighted, is this problem that it invites conflict. It invites expense Yes. Which is why planning ahead of time is so important.
Alfred Ip 20:03
Yes. And in that respect, we’re talking about just making a simple will, that can solve a lot of issues and cover together with what we’ve just discussed power of attorney or the advance health directives can definitely avoid a lot of dispute.
Azan Marwah 20:20
It’s the difference between a few $1,000 and few million dollars.
Alfred Ip 20:24
Yeah. And avoiding a very gruesome and highly contentious estate dispute, which we have come across a lot. That wraps up our discussion today. It is a very sad subject. But again, it is something that is very important that every couple in a same sex relationship should think about.
This video is for informational purposes only. Its contents do not constitute legal or professional advice.
