ACLS v HSB(T)L
Court of Appeal
Civil Appeal No 136 of 2012
Cheung, Fok and Lam JJA
Probate
1, 19 February 2013

Family inheritance —whether applicant “in immediate need of financial assistance”

The plaintiff (“P”) sought interim maintenance from the substantial estate of her late grandfather (“X”) under the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481) (the “Ordinance”) on the basis that she was being maintained by him immediately before his death in 2009. P claimed that she enrolled on a university degree course in England that year, expecting X to continue paying her overseas living and education expenses. The judge in the lower court refused P’s application, holding that she had failed to establish she was in “immediate need of financial assistance” as required under the Ordinance, as she was about to complete her studies and had financed her education, albeit by loans from her brother. P appealed, arguing that inter alia the word “immediate” meant “current” as opposed to “urgent”.

Held, dismissing the appeal, that, inter alia:

Interim maintenance should only be granted (at a stage where a claimant’s actual entitlement had yet to be established) in a very clear case where the immediate need of financial assistance was shown. Since a claimant had no obligation to repay the estate (subject to conditions to such effect being imposed and claimant resources to meet such conditions), there was a real risk that the beneficiaries of the estate might suffer a detriment if the court ultimately held after trial the claimant was not entitled to any relief. Of the many factors at play, an important one was fairness amongst all the beneficiaries.

The requirement for “immediate need” meant something which called for immediate attention. It would not be right to equate “immediate” with “urgent” and it might be too simplistic to equate it with “current”. Further, this was not satisfied by P showing a current liability to repay a substantial debt. First, the immediate need was that for financial assistance and if an applicant’s current financial need had been met by other sources, there was no immediate need. Second, depending on one’s usage of the expression, something could be current but not requiring immediate attention.

 

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