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Family Law: Succession and Probate Practice Case Study

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Updated: Apr 6th, 2022

Winnie and Harry’s Estate

Members Entitled to Harry’s Estate

Determination of those entitled to Harry’s estate is not a straightforward issue in this case. The reason is that there are no additional claims made over this estate through other wills arising from Harry. The case is also made more complicated given that Winnie is not in possession of the original copy of the will written by her late husband. In addition, Winnie admits that Harry destroyed the original copy after they had a misunderstanding.

Winnie bears the burden of proving that Harry’s affection for her did not change after their separation. She should show that her estranged husband had no reason to revoke the will.1 Her admission of Harry’s declaration that he will leave his property to others makes this burden even heavier for this client. However, the fact that Harry did not divorce her or legalise his marriage to Stella may be an indication that he still had affection for her. The development may also be an illustration of the fact that he had not changed his earlier intentions even after their separation.

According to the Will Act, Section 13, there are various modes of revoking a will. One of them involves tearing and burning the document. The will may also be destroyed by the testator.2 It is apparent that Harry fulfilled this requirement with regards to Winnie and the original document. However, in spite of this, it is obvious that he did not take any further action to revoke the will. In addition, the Will Ordinance recognises revocation by marriage.3 However, since Harry refused to divorce Winnie and marry Stella, the intended revocation is disputable.

As a result, the copy held by Winnie can be executed under the various considerations made in the Will Ordinance. For instance, the ordinance indicates that the disposition of the will should proceed regardless of Harry’s relationship with Stella. It is also obvious that in spite of his accidental death, the deceased had sufficient time to revoke the Will that had been made in favour of Winnie. However, he did not do this. As a result, an assumption can be made to the effect that Harry intended the will’s disposition to proceed in spite of his relationship with Stella.

In light of the facts presented above, the members entitled to Harry’s estate include those mentioned in the copy of the will submitted by Winnie. They include Winnie, who is recognised as the wife to the testator. Others are her two sons, Robin and Christopher. The two descendants will have a claim over their father’s estate once they attain the age of 18 as stated in the document. In addition, Harry’s relations and friends would benefit from the estate as indicated in the original will.

The determination of the authenticity of the will submitted by Winnie is the responsibility of the court. However, under the Will Ordinance, Winnie is expected to prove to the court that she is the legal beneficiary. Stella, on the other hand, is regarded as a concubine. She was in a state of cohabitation with Harry, something that is not recognised in Hong Kong.4

Consequently, Stella is not entitled to Harry’s estate. In addition, the child she had with Harry is not recognised by the law of the land. In Hong Kong, concubinage is only legally recognised if the union had been entered into before October 7, 1971.5 Given that Stella entered into this arrangement with Harry after this date, she is not recognised by the law. The same case applies to her child, who is regarded as an illegitimate offspring.

Member(s) Entitled to a Grant of Representation in Harry’s Estate and the Form of Grant

The term ‘grant of representation’ can be used collectively to refer to two situations. It can be used to illustrate a grant of probate or, in other cases, grant of letters of administration.6 Grant of probate occurs where the testator dies testate. What this means is that the deceased had left behind a will. The grant is offered either to the executor or executrix named in the final will by the testator. On the other hand, the grant of letters of administration is undertaken where the testator died intestate. The person had not written a will before their death.

Winnie satisfactorily bears the burden of proof with regards to the will left by Harry. As such, she has the right to grant of probate. An indication of attempted revocation of the will, for instance, through burning, tearing, or otherwise, should be satisfactorily accounted for before the registrar.7 The act is initially presumed to be an indication that the testator had intentions of revoking the will.

The order of priority in grant of representation is outlined in the non-contentious probate rules, rule 19.8 Considering that the testator dies testate, the executor in this case is entitled to the first priority in the issuance of probate. In this case, Winnie is entitled to grant of representation (probate) upon her proving the testamentary intentions of Harry.

Harry’s case should be treated as partially testate until Winnie proves to the registrars beyond reasonable doubt that he probably acted out of anger and tore the will in the process. The fact that he never legalised his marriage with Stella, in spite of acknowledging Rebecca as her daughter, can provide further support to this argument. Ultimately, the will featuring Winnie can be proved further since it was executed by Smith, Chan & Lo, one of the leading solicitor firms in Hong Kong.

As the member entitled to the grant of representation, Winnie is obliged to execute the will as per the provisions made by Harry. As such, she is expected to ensure that the legacies bequeathed to relatives and friends go to them. In addition, Winnie should make sure that the two children she had with Harry get their share of the estate upon attaining the age of 18.

Winnie may pass on before the children reach this age. As such, she can write down another will provide directions on the distribution of her estate and that of Harry. By so doing, she would be fulfilling her legal obligations to the children based on the will of her spouse. In addition, she will be communicating intentions on her estate.

Form L1.2a

For Winnie to earn her entitled grant of representation, it is mandatory to complete the following form:

Affirmation to Affidavit by Administratrix

(Wife’s Application)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

IN THE ESTATE of (Winnie Hung) late of (Hong Kong),

Married Man, deceased (“Harry Hung”)

I, Winnie Hung (Wife), do hereby solemnly and sincerely affirm and say as follows:

  1. The deceased died intestate at Central General Hospital on 10th February, 2013, at the age of 39 years, and domiciled in 16B High Rise, 233 Kings Road, North Point.
  2. The following persons are the only ones entitled to share in his estate:
Name Relation Age Years
Winnie Hung His lawful widow and relict 35
Christopher Hung Lawful and natural son 13
Robin Hung Lawful and natural son 12
Anna Chang Lawful and natural sister 29
Yuan Chang Lawful and natural brother 32
Alfred Li Friend 37
John Chen Friend 39
  1. The deceased had the following other child(ren):
Name Relation Age Years
Rebecca Hung Lawful daughter from a concubine 3
  1. The deceased had no issue who died before him
  2. The deceased had no issue who died after him
  1. The deceased was never lawfully married to any other person other than me, although he had a concubine.
  2. I was never married to any person other than the Deceased, my lawful husband.
  3. Since the death of the Deceased, I have caused to be made a diligent search among his papers and effects for any other Will made by him, but I have been informed that no such Will has been found.
  4. I will well and truly administer and faithfully dispose of all such property and estate, rights, and credits, as the Deceased at the time of his death was entitled to within Hong Kong, and I will pay whatever debts the Deceased did owe, so far as such property and estate, rights and credits, shall extend, and I will exhibit a true and perfect inventory of all and singular the estate and effects and render a just and true account thereof whenever required by law so to do.
  5. I am applying as the lawful widow and relict of the Deceased and one of the persons entitled to share in the estate of the Deceased for letters of administration of the estate.

I, Liu Chen, (Legal Executive) of (Sol & Sol Advocates), do solemnly and sincerely affirm and say that I well understand the Chinese dialect of the Affirmant’s language and the English language and that I have truly, distinctly, and audibly interpreted the contents of this document to the affirmant/deponent Winnie Hung, and that I will truly and faithfully interpret the affirmation about to be administered to her.

AffirMED at: Sol & Sol Advocates,

On: April 2, 2013.

Before me: Bright Man Sol.

Solicitor, Sol & Sol Advocates,

Hong Kong.

Differences in the Members Entitled to Harry’s Estate if he had Divorced Winnie in 2011 and Married Stella

If Harry had divorced Winnie in 2011 and married Stella, the proceedings with regards to the members entitled to his estate will differ significantly. In line with the previous facts, Harry will still have died without leaving any valid will. As such, he will still be partially intestate. The aspect of partial intestate will arise since the only will bearing his name will be the one featuring Winnie.

However, if Harry had revoked the original will, then court settlements would have been established automatically. The aim of such a move is to ensure that Winnie and her children get their fair share of Harry’s estate. However, if no settlements had been settled upon during the divorce process, probate procedures and administration would proceed.

In such a case, Stella will be the current legal wife to Harry. As such, she and her daughter will be the prioritised beneficiary of the estate. Stella would be entitled to execution of this estate as the immediate next of kin.9 However, she and her daughter would not be the sole beneficiaries regardless of the fact that she has being granted representation.

Stella’s affidavit registering for grant representation would feature other children and issues. As a result, Winnie’s children can benefit from this dimension10. The marriage between Winnie would be regarded void, annulled, or validly dissolved. Consequently, the will would be executed by omitting the former executor or trustee (Winnie). As such, the bequest on Winnie would be regarded as non-existent or lapsed. She can only benefit if any devise in the will indicated contrary intentions or appeared to include her as a beneficiary.

Bibliography

Atkinson, Harriet, and Kanani Zahra, “Satisfying Banks v Goodfellow,” Trusts and Estates Law & Tax Journal 26, no.1 (2013): 26.

Liu, Athena Nga, Family Law for the Hong Kong SAR: Theory and Practice with Chinese Families (Hong Kong: Hong Kong University Press, 1999).

Poon, Jeremy, “Guide to Non-Contentious Probate Practice”, Web.

Wesley-Smith, Peter, An Introduction to the Hong Kong Legal System (Hong Kong: Oxford University Press, 3rd Edition, 1998).

Footnotes

  1. Poon, Jeremy, “Guide to Non-Contentious Probate Practice”, Web.
  2. Liu, Athena Nga, Family Law for the Hong Kong SAR: Theory and Practice with Chinese Families (Hong Kong: Hong Kong University Press, 1999): 253.
  3. Ibid. 256.
  4. Poon, Probate Practice, 69.
  5. Atkinson Harriet, and Kanani Zahra, “Satisfying Banks v Goodfellow,” Trusts and Estates Law & Tax Journal 26, no.1 (2013): 26.
  6. Ibid. 29.
  7. Poon, Probate Practice, 53.
  8. Wesley-Smith, Peter, An Introduction to the Hong Kong Legal System (Hong Kong: Oxford University Press, 3rd Edition, 1998).
  9. Liu, Family Law, 289.
  10. Ibid. 290.
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