Free Will or Fair Share? The Court’s Discretion in Making Provisions for a Surviving Spouse

The recent ruling in the case of WLK by MYW her next friend v. CCIW & Others [2024] HKFC 157 underscores the necessity of making reasonable provisions for a surviving spouse when drafting a will. It also affirms the Court’s discretion to award the spouse 50% of the deceased’s estate, similar to what would be granted in divorce proceedings.

Brief Background 

The deceased Husband and the Wife were married in 1953 and had 10 children during their marriage. The Husband was the family’s sole breadwinner and the wife a homemaker. 

The Husband died in around 2016, with a will bequeathing all his assets to the 10 children, leaving nothing to the Wife. The Wife was suffering from dementia at the time of the application, and was therefore acted through the grand-daughter.

The Application and the Court’s Findings

The Wife applied for financial provisions from her deceased Husband’s estate, arguing that he was financially supporting her at the time of his death. However, the executrix for the Husband’s estate opposed this request, claiming that their marriage was essentially over (“fossil marriage”), they had arranged their lives if they were no longer married, and the Wife was not financially dependent on the Husband when he passed away.

However, the Court rejected the executrix’s arguments and found that:-

(1) The marriage has not broken down / ‘fossilised’ and that there was evidence the parties lived together and even went on holidays together in the 1980’s; 

(2) Although the Wife spent a substantial portion of her time in the United States, she stayed with the Deceased whenever she was in Hong Kong;

(3) There was no evidence that the parties had completely severed their financial ties despite the executrix’s argument that there was a ‘clean break’ settlement of HK$1million.

(4) The Husband bought a plot of burial ground in anticipation to be buried together with the Wife; and

(5) The Court found that the Husband intended for the children to use their shares of the Estate to support the Wife.

The Ruling and Key Takeaways

The Court emphasised that it retains the discretion to make reasonable financial provisions for the Wife, notwithstanding that no financial provision was made under the Husband’s Will.

In particular, the Court reiterated that it must consider all relevant matters and that ‘there is no hierarchy among the matters to which the court must have regard and each of them may be of infinitely variable weight.’  Further, the Court accepts that the “notional divorce’ enquiry should be made to cross check against the surviving spouse’s reasonable financial needs. Further, the needs of the other beneficiaries should also be taken into consideration when deciding the outcome.  

In the end, the Court awarded 50% of the Estate in favour of the surviving Wife, in a similar manner as Wife would have received as if the parties had divorced prior to the Husband’s passing.

Key Takeaways from the decisions are as follows:

• Regardless of the disposition under the Will, the surviving spouse is entitled to make a claim for financial provision from the deceased’s estate pursuant to the Inheritance (Provision for Family and Dependants) Ordinance.

• The Court will have to consider a basket of factors when making a determination, none of these factors are determinative and necessarily carry more weight than the other factors;

• A ‘Fossil Marriage’ is one which cohabitation ended some time before the death of the deceased, and the parties to the marriage had arranged their lives on the footing that the marriage had ended.  In that case, the Court would likely treat the surviving spouse (albeit still legally married) similar to that of a former spouse for the purposes of an IPFDO application.

• When determining the financial provisions for the surviving spouse, the ‘notional divorce’ enquiry was conducted to cross check the reasonable financial needs of the surviving spouse.

• If a will was in place to either include the spouse as a beneficiary or deliberately excluding the spouse for specified reasons, then the parties may have averted expensive litigation that could give an uncertain result.”  Generally, if we have more explicit statements about “excluding” any beneficiary, that would help mitigate the risk of litigation.

Adrian Au

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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication. This article was last reviewed on 12 February 2025.