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Testamentary Freedom — Is it absolute?

Testamentary Freedom — Is it absolute?

Testamentary Freedom — Is it absolute?

Friday, 12 September 2014 17:59

By Alfred Ip, Partner

Knowing that you are excluded from your spouse’s or parent’s will can be most traumatic, especially when there was a good relationship when he was alive and you were still in grief for his death.

Unlike some European countries, there are no forced heirship rules in Hong Kong. Theoretically, anyone can make a Will leaving his estate to whomsoever he wishes, even to someone unrelated or to a charitable cause. However, those who are disinherited would, naturally, not be very pleased, and may want to go to a lawyer in order to see whether they can do something about it.

To challenge the Will is often the first option to consider, but it may not be easy, especially when the Will is prepared and attested by solicitors.

When a Will is challenged on the mental capacity of the testator, Bank v Goodfellow, a case determined in the 19th century, still provides very good guidance:

‘It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.’

Otherwise, a will can be contested on the ground of fraud or undue influence on the testator, but such person bears the persuasive burden of establishing such fraud or undue influence: NINA KUNG v. WANG DIN SHIN [2005] HKCFA 54, and that person usually has little knowledge about the circumstances surrounding which the Will was made.

An alternative to challenging the Will is to claim under the Inheritance (Provision for Family and Dependents) Ordinance (Cap. 481) (“IPFDO”).

Under IPFDO, the following persons are eligible to claim:-

(i) the wife or husband of the deceased;
(ii) a former wife or former husband of the deceased who has not remarried and was being maintained, either wholly or substantially, by the deceased immediately before his death;
(iii) a tsip or male partner of the deceased by a union of concubinage;
(iv) a parent of the deceased who immediately before the death of the deceased was being maintained, either wholly or substantially, by the deceased;
(v) 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;
(vi) an adult child of the deceased who immediately before the death of the deceased was being
maintained, either wholly or substantially, by the deceased;
(vii) 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 and was being maintained, either wholly or substantially, by the deceased immediately before his death;
(viii) a brother or sister of the half blood or the whole blood of the deceased who immediately before the death of the deceased was being maintained, either wholly or substantially, by the deceased;
(ix) any person (not being a person included in the foregoing paragraphs of this subsection) who
immediately before the death of the deceased was being maintained, either wholly or substantially, by the deceased,

In other words, the scope of eligible persons under IPFDO is very wide.

Those eligible to claim under IPFDO can seek “reasonable financial provision”, which is further defined in s3(2) of IPFDO:

(a) in the case of any application made-
(i) by virtue of subsection (1)(i) by the husband or wife of the deceased (except where the marriage with the deceased was the subject of a decree of judicial separation and at the date of death the decree was in force and the separation was continuing); or
(ii) by virtue of subsection (1)(iii) by a tsip or male partner of the deceased by a union of
concubinage, means such financial provision as it would be reasonable in all the circumstances of the case for such a person to receive, whether or not that provision is required for his or her maintenance;
(b) in the case of any other application made by virtue of subsection (1), means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.


There are indeed two different standards of provision, which the spouse of the deceased (legal marriage or union of concubinage) can claim such provision as in reasonable in ALL circumstances whether or not that provision is required for his or her maintenance, higher than the other classes of claimants which are only entitled to such provision as is necessary for his or her maintenance.

In other words, the court would likely to apply a “deemed divorce test” in assessing a claim by surviving spouse under IPFDO.

Unless leave is obtained from Court, claim under the IPFDO must be made within 6 months of the grant of probate or letters of administration.

Conclusion

The above is just an overview on the claims that may be available to you if you are being shut out from the will of your deceased family member. The above claims involve complex legal proceedings with specific rules and procedures that only a lawyer specialised in probate and estate planning can protect your interest adequately. Legal advice should be sought without delay.

OLN Estate Planning Team

Alfred Ip

Scherzade Burden