On 16 April 2024, most of Hugill & Ip’s staff joined the premiere of 從今以後 All Shall Be Well organized by Grey & Pride. Our colleagues had a great time at the cinema. With a painful yet beautiful storyline, sincere and sophisticated performance of the cast and spectacular cinematography, everyone knew instantly that this movie was going to be a great hit in Hong Kong and overseas. Some time has passed, and we can only say that the positive reception was even beyond our expectation.
However, as lawyers, we have this bad habit of overanalysing a story put before us, especially if it has some legal elements in it. The movie left a bittersweet aftertaste, not only because of the artistic execution of it, but also because of the legal issues it touched upon.
Married vs unmarried couples in IPFDO claims
This movie surrounds Angie’s fight for her rightful entitlement to Pat’s estate after her sudden passing. It did not specifically name what kind of claim it was, but an experienced Estate / Family practitioner will be able to tell right away that it was a claim under the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481) (“IPFDO”).
Pursuant to section 3 of the IPFDO, several classes of people connected to the deceased will be able to make claims against the deceased’s estate in the event that the financial provision given to them, whether by the deceased’s Will or by the law of intestacy, is not reasonable provision. Amongst those classes are the spouse and different family members of the deceased, and also a class usually referred to as class (ix), being “any other person who immediately before the death of the deceased was being maintained, either wholly or substantially, by the deceased”.
When we mention “spouse” in the context of LGBT couples, issues arise. Luckily, after the Judgment of Ng Hon Lam Edgar v Secretary for Justice [2020] 4 HKLRD 908, surviving married same-sex partners are now given the same protection as surviving opposite-sex spouse under the IPFDO, meaning that they can claim as the “spouse” of the deceased if needs arise. However, unmarried same-sex couples, like any other unmarried heterosexual couples, can only claim under class (ix).
The implications are huge!
Firstly, under the IPFDO, a spouse will be entitled to claim for “reasonable provision”, whether or not that provision is required for maintenance, meaning that the spouse’s claim will be assessed as if he / she were getting a divorce with the deceased. Their claim is hence not limited to reasonable needs, but extends to a claim for the potentially 50% of the matrimonial pot which can exceed what the claimant will need to maintain their life.
For unmarried couples, however, their claim is only limited to “reasonable needs”, such that even though they might have been together with the deceased for decades and made significant contributions to the family (whether financially or not), their claim is only limited to what they reasonably need to continue with their life, but not a portion of the estate. For a big money estate, this can potentially make a huge difference on the size of the claim.
Secondly, a spouse under the IPFDO does not have to show financial provision by the deceased before they passed away. To qualify for a claim, they will only need to show that they were married to the deceased, and that they have not received reasonable provision from the estate.
The bar for unmarried couples is much higher. They will have to show that they were maintained, either wholly or substantially, by the deceased immediately before the deceased passed away. The extent of provision is of the essence, but so is the timing of the provision. This means that if there had been any difficult circumstances before the deceased passed away, e.g. a fight between the couple or any major financial changes in the family, the surviving partner may potentially lose their claim as they cannot show maintenance immediately before the deceased died.
In the movie, Angie, who was not married to Pat, was claiming as a class (ix) applicant, and hence only received maintenance but not a portion of the estate. Having been together with Pat for decades, one starts to question if this is indeed a fair outcome, as they apparently treated each other as their lifelong partner to the exclusion of anyone else. This question is particularly valid in the context of same-sex couples, as many of them, whilst treating each other as their spouse, have not obtained a marriage certificate because Hong Kong provides no regime for the same.
Is it fair to put both unmarried same-sex and heterosexual couples under the same class, if one is unable to get married in Hong Kong whilst the other can? Is it fair to, by law, demand same-sex couples to fly somewhere and get married before they can be entitled to their protection as spouses?
This is a difficult question, in particular, given how easy it is for people to travel nowadays. Nonetheless, this question might become significant again in the event we encounter another global pandemic. We only hope that shortly, we will not be facing this question anymore, given the Judgment of the Court of Final Appeal in SHAM TSZ KIT (岑子杰) v Secretary for Justice [2023] HKCFA 28 released last year.
Part 5(2) claims
One interesting point in the movie is that Angie’s legal representative, Yvonne, possesses a draft Will of Pat which she prepared according to Pat’s instructions. In the movie, Yvonne showed Angie the draft Will, and warned Angie that Angie could get her into trouble if she told anyone of it.
As lawyers, we can only say this is a textbook example of breach of the Solicitors’ Guide to Professional Conduct, which states, at Chapter 10.13, that “a solicitor should not accept instructions to act for a client as an advocate if it is clear that he or a member of his firm will be called as a witness, unless the evidence is purely formal.”
What makes Yvonne a potential witness is, of course, the draft Will. As the lawyer who prepared the draft will for Pat, she might be called as a witness in Angie’s IPFDO claim to give evidence on Pat’s testamentary wishes, which may be one the factors that the Court will consider when it comes to deciding Angie’s claim.
However, more importantly, given the draft will, Angie could also have gone for a claim under section 5(2) of the Wills Ordinance (Cap. 30) (i.e. a “Part 5(2) claim”), which states that:
“A document purporting to embody the testamentary intentions of a deceased person shall, notwithstanding that it has not been executed in accordance with the requirements under subsection (1), be deemed to be duly executed if, upon application, the court is satisfied that there can be no reasonable doubt that the document embodies the testamentary intentions of the deceased person.”
This claim is specifically tailored for people who have had their last Wills prepared, yet are unable to complete all the necessary steps to execute the same before they pass away. The standard of proof for this claim is beyond reasonable doubt, meaning, in simple terms, that one has to be sure that the unexecuted Will reflects the last testamentary intention of the deceased. If a claim is successful, the unexecuted Will shall be treated as if it is properly executed and given full effect.
Whether one will be able to pursue a Part 5(2) claim will depend on the evidence available, especially that surrounding the circumstances of the preparation of the Will. If the deceased’s intention is clear, the claimant should be advised to consider pursuing a Part 5(2) claim instead of an IPFDO claim.
It is unclear why Angie and Yvonne went for an IPFDO claim in the movie instead of a Part 5(2) claim. It could be due to the high burden of proof on Angie’s side. It is a pity that the real answer will only be known to the scriptwriter.
Final thoughts
The moral of the story, as the director rightly pointed out at the end of the Premier, is to always make a Will if you want to protect your partner.
We cannot agree more, and we cannot emphasize more the importance of having a Will as long as you have some assets to leave to your loved ones upon your passing.
Some may say that the intestacy distributions by law work perfectly for them, so why spend the money on a Will? Yet, a will is more than that. A Will allows you to choose your own executor, specify the gifts each beneficiary will receive, and make back-up plans in case any executor or beneficiary is unable to perform their duties / receive their gifts under the Will. This will greatly reduce the chances of your descendants arguing over who should manage the estate, how distributions should be made, and who should be getting what.
The future cannot be predicted. Having a Will ready is arguably the greatest gift you can leave to your loved ones – as you are not only leaving them your assets, but also trying your best to ensure that they do not spend your hard-earned money (on lawyers like us!) in any future estate litigation.
Our Private Client, Probate & Trust and Contentious Trusts & Estates teams have extensive experience in dealing with Hong Kong’s complicated testamentary, probate and inheritance laws – so if you need further advice on these subject, get in touch with us to find out how our law firm can help.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.
