A person has the right to decide how to distribute their assets after they die through a Will. If there is no Will, the estate Will be distributed according to the laws of intestacy. However, in certain situations, the court may intervene under the laws of intestacy if family members or dependents of the deceased feel they are not receiving a fair share of the estate, and they may request a larger share.
Ordinance(s) applicable:
- Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481)
- Intestates’ Estate Ordinance (Cap. 73)
Applicability
This only applies to a deceased who is domiciled in Hong Kong or has been ordinarily resident in Hong Kong at any time in the 3 years immediately preceding his or her death.
Who can inherit the assets?
The laws of Hong Kong follow the principle of “intestacy,” which means that if a person dies without leaving a Will, their estate will be distributed according to the rules of intestate succession. This means that the estate will be distributed among the deceased person’s closest relatives, including their spouse, children, and parents, in a specific order.
Under the Inheritance (Provision for Family and Dependants) Ordinance, the distribution of an estate is determined by the following order of priority:
- Spouse,
- The children or children of the deceased,
- The father and/or mother of the deceased,
- The brother and/or sister of the deceased.
It is important to note that this order of priority can be altered by a Will, which allows the testator or testatrix to distribute their estate as they see fit. However, if a person dies without leaving a Will, their estate will be distributed according to the rules of intestate succession.
In addition to the rules of intestate succession, the laws of Hong Kong also provide for certain exceptions and modifications. In certain circumstances, the court may intervene when the families or dependents of the deceased contend that they should be given a share (if not provided under the will or intestacy) or a larger share than the share they are now given under Will or intestacy.
What are the factors the court consider?
- The financial resources of the estate;
- The current and future financial resources and needs of the applicants and of the beneficiaries;
- Disability, if any, of the applicants and of the beneficiaries;
- Conducts of the applicant and other persons (e.g.: deceased and beneficiaries) that the court consider relevant; and
- If the applicant is the spouse, the court would consider the application more or less like an application for ancillary relief under divorce (i.e. maintenance)
The laws around inheritance in Hong Kong are governed by a combination of statutory and common law provisions. The laws aim to provide a fair and just system for distributing the assets of a deceased person among their beneficiaries, while also recognising certain types of property rights and providing for exceptions and modifications.