Hong Kong Ordinances

INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ORDINANCE - SECT 5

Matters to which court is to have regard in exercising powers under section 4

(1) Where an application is made for an order under section 4, the court
shall, in determining whether the disposition of the deceased's estate
effected by his will or the law relating to intestacy, or the combination of
his will and that law, is such as to make reasonable  financial provision for
the applicant and, if the court considers that reasonable financial provision
has not been made, in determining whether and in what manner it shall exercise
its powers under that section, have regard to the following matters-

   (a)  the financial resources and financial needs which the applicant has or
        is likely to have in the foreseeable future;

   (b)  the financial resources and financial needs which any other applicant
        for an order under section 4 has or is likely to have in the
        foreseeable future;

   (c)  the financial resources and financial needs which any beneficiary of
        the estate of the deceased has or is likely to have in the foreseeable
        future;

   (d)  any obligations and responsibilities which the deceased had towards
        any applicant for an order under section 4 or towards any beneficiary
        of the estate of the deceased;

   (e)  the size and nature of the net estate of the deceased;

   (f)  any physical or mental disability of any applicant for an order under
        section 4 or any beneficiary of the estate of the deceased;

   (g)  any other matter, including the conduct of the applicant or any other
        person, which in the circumstances of the case the court may consider
        relevant.

(2) Without prejudice to the generality of paragraph (g) of subsection (1),
where an application for an order under section 4 is made by virtue of
section 3(1)(i), (ii) or (iii), the court shall, in addition to the matters
specifically mentioned in paragraphs (a) to (f) of that subsection, have
regard to-

   (a)  the age of the applicant and the duration of the marriage or
        union of concubinage;

   (b)  the contribution made by the applicant to the welfare of the family of
        the deceased, including any contribution made by looking after the
        home or caring for the family, and, in the case of an application by
        the wife or husband of the deceased, the court shall also, unless at
        the date of death a decree of judicial separation was in force and the
        separation was continuing, have regard to the provision which the
        applicant might reasonably have expected to receive if on the day on
        which the deceased died the marriage, instead of being terminated by
        death, had been terminated by a decree of divorce.

(3) Without prejudice to the generality of paragraph (g) of subsection (1),
where an application for an order under section 4 is made by virtue of
section 3(1)(iv), the court shall, in addition to the matters specifically
mentioned in paragraphs (a) to (f) of that subsection, have regard to the age
of the applicant and the contribution (if any) in money or money's worth made
by the deceased towards the needs of the applicant immediately before the
death of the deceased.

(4) Without prejudice to the generality of paragraph (g) of subsection (1),
where an application for an order under section 4 is made by virtue of
section 3(1)(v), (vi) or (vii), the court shall, in addition to the matters
specifically mentioned in paragraphs (a) to (f) of that subsection, have
regard to the manner in which the applicant was being or in which he might
expect to be educated or trained, and where the application is made by virtue
of section 3(1)(vii) the court shall also have regard-

   (a)  to whether the deceased had assumed any responsibility for the
        applicant's maintenance and, if so, to the extent to which and the
        basis upon which the deceased assumed that responsibility and to the
        length of time for which the deceased discharged that responsibility;

   (b)  to whether in assuming and discharging that responsibility the
        deceased did so knowing that the applicant was not his own child;

   (c)  to the liability of any other person to maintain the applicant.

(5) Without prejudice to the generality of paragraph (g) of subsection (1),
where an application for an order under section 4 is made by virtue of
section 3(1)(viii) or (ix), the court shall, in addition to the matters
specifically mentioned in paragraphs (a) to (f) of that subsection, have
regard to the extent to which and the basis upon which the deceased assumed
responsibility for the maintenance of the applicant, and to the length of time
for which the deceased discharged that responsibility.

(6) Without prejudice to the generality of paragraph (g) of subsection (1),
where an application for an order under section 4 is made by virtue of
section 3(1)(ix), the court shall, in addition to the matters specifically
mentioned in paragraphs (a) to (f) of that subsection and subsection (5), have
regard to the closeness of the relationship between the applicant and the
deceased immediately before the death of the deceased.

(7) In considering the matters to which the court is required to have regard
under this section, the court shall take into account the facts as known to
the court at the date of the hearing.

(8) In considering the financial resources of any person for the purposes of
this section the court shall take into account his earning capacity and in
considering the financial needs of any person for the purposes of this section
the court shall take into account his financial obligations and
responsibilities. (Enacted 1995) [cf. 1975 c. 63 s. 3 U.K.]