OLN

Elder Law

The Impact of Marriage and Divorce on Wills and Inheritance in Hong Kong

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Both marriage and divorce are important events in a person’s life and often, in the excitement of making wedding arrangements or the chaos of going through a divorce, people often forget that the law views any Wills previously made or not made differently as a result of such events.

Dying without a Will

If you die in Hong Kong without a Will, your estate will be distributed in accordance with intestacy laws.   In other words, your assets will be distributed to your relatives by the order of husband/wife and children, parents, whole blood siblings, half-blood siblings, grandparents, uncles and aunts and finally the government.  The manner and ratio of distribution varies by personal circumstances.

If you have a spouse and children, the first HK$500,000 of your residuary estate plus all of your personal belongings would be given to your spouse.  The remaining residuary estate would be distributed 50% to your spouse and 25% to each of your surviving children.

Marriage and Impact on Estate Distribution

Marriage automatically revokes all previous Wills made, unless the Will is made in contemplation of your marriage.  If you do not make a Will in comtemplation of your marriage or after you sign the marriage papers, estate distribution would follow the intestate regime above.

Divorce and Impact on Estate Distribution

Divorces especially those involving children or one or both of the spouses having a significant amount of assets can last for years before the final divorce decree is granted. 

In the unfortunate event that you die before divorce proceedings conclude and you do not have a Will, your intestate estate will be distributed in accordance with the intestacy laws which gives a substantial portion of your estate to your spouse. 

If you die before the final divorce decree is granted and you made a Will before commencing divorce proceedings, your estate would be distributed in accordance with your Will which probably means that your spouse will share in your estate.

The importance of making a Will or remaking one at the time of marriage or prior to the commencement of divorce proceedings cannot be ignored. 

Third Parties and Impact on Estate Distribution

Partners outside of marriage and children born out of wedlock are normally not entitled to take from the estate in the case where a spouse dies with or without a Will.  However, they have a right to apply to the court under the Inheritance (Provision for Family and Dependents) Ordinance (Cap 481) to share in the estate especially if they have been financially provided for in the lifetime of the deceased spouse.  Such persons can also challenge the Will directly if one has been made.  There are ways to prevent this as long as the spouse is still alive.

If you would like to have a confidential discussion about how you can apply your hard-earned money in accordance with your wishes, or if your parents are in the midst of a divorce, are contemplating divorce or there is a third party in the marriage, please contact our Disputes Partner and Head of Elder Law, Eunice Chiu at eunice.chiu@oln-law.com or +852 2182 1885 (WhatsApp and Wechat +852 9169 4356).

Beyond Superstition: The Real Impact of Dying Without a Will in Hong Kong

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In many parts of Asia, discussing death and preparing a Will is still considered a taboo subject, with some even believing that writing a Will invites bad luck or misfortune. This reluctance to plan for the inevitable means that many individuals never fully consider what will happen to their assets when they pass away without a Will. In such cases, their estate is subject to the ‘laws of intestacy’ (Intestates’ Estates Ordinance (Cap. 73) and the Non-contentious Probate Rules (Cap. 10A)), which may not align with their personal wishes.

Before a person is able to handle the deceased’s estate, a Grant of Letters of Administration must be obtained from the Probate Court. The individuals eligible to apply for this grant are ranked by priority, as follows:

1. A surviving spouse

2. Children

3. Parents

4. Siblings

5. Grandparents

6. Uncles and aunts

Those granted Letters of Administration by the Court become the administrators, responsible for handling the estate in compliance with the law. Administrators must identify and gather the deceased’s assets, settle outstanding debts and expenses, and then distribute the estate in accordance with the law. Generally speaking, in intestacy, the law only allows your spouse to take half and your children to take the other half.

Besides the ability to ensure that your wishes are followed, there are two additional major reasons for having a Will:

(1) The process of obtaining probate or letters of administration from the Court is much faster (by months or even years) when there is a Will.

(2) Avoid estate litigation amongst your family members or close partners after you pass away. A good Wills/Probate lawyer will be able to draft the Will such that those who feel they have ever been financially supported by you have a much smaller chance of applying to the Court for sharing in your estate based on their once-close relations with you. Hong Kong law allows for those who have been financially supported by you to apply to Court to share in your estate.

If you would like to explore your options in this regard, please contact our Partner, Eunice Chiu (+852 2186 1885 / +852 9169 4356).

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

Entering Senior Citizens’ Homes in Hong Kong: Legal and Contractual Considerations You Can’t Overlook

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On the 15th of April 2024, the Consumer Council published a critical report examining the standards, costs, and transparency of care homes in Hong Kong. While the findings highlighted several concerns such as hidden fees and inconsistent care standards, they also brought to light one of the issues underlying such concerns: vague contractual terms and families’ lack of awareness of the legal and financial complexities tied to choosing a residential care home.

Entering an care home, whether government-subsidized or private, is a significant decision that involves more than just evaluating sufficiency of facilities, staffing and services. The contractual terms of the agreement signed with the care home dictate everything from fees to care provisions and a resident’s rights. This is especially true for private care homes, where families often take on greater financial responsibility and need to be extra vigilant about what they’re agreeing to.

In this article, we will explore the key legal and contractual considerations that everyone should be aware of when selecting an care home in Hong Kong.

Licensing and Accreditation

Whether you’re considering a private or subsidized care home, the first step is to ensure that the facility is properly licensed. In Hong Kong, all Residential Care Homes for the Elderly (RCHEs) are regulated under the Residential Care Homes (Elderly Persons) Ordinance (Cap. 459), which establishes minimum standards for accommodation, staffing, and care.

Beyond licensing, consider whether the home is accredited by recognized bodies like the Hong Kong Accreditation Service (HKAS). Accreditation signifies adherence to stricter standards, which may translate to better care and safer environments.  As the Consumer Council noted, homes with accreditation are more likely to invest in continuous improvements.

Fees: Transparency Is Key

The report revealed that fees in private care homes could range dramatically, from $6,000 to over $80,000 per month. Yet, these figures often exclude additional costs for consumables, medical care, or even basics like air-conditioning.  It’s vital to scrutinize the contract for clarity on:

  • Base fees: Understand exactly what is covered in the monthly charges.
  • Additional charges: Common extras include medical escorts, special dietary needs, or incontinence supplies like diapers. These costs can add up quickly, so be sure to ask for a detailed list.
  • Refund and deposit policies: If a resident is hospitalized or chooses to leave the home early, will unused fees be refunded? Many contracts have strict rules—or none at all—around refunds, so this deserves close attention.
  • Fee increases: Look for clauses that permit fee adjustments. While cost of living increases are common, contracts should specify the notice period and the percentage increase allowed.

In private homes, families shoulder the full financial burden, making transparency on fees even more critical.

Care Services: Will the Home Meet Evolving Needs?

One of the Consumer Council’s key concerns was the limited flexibility in care homes to accommodate changes in residents’ health. Whether the home provides basic care, nursing care, or specialized dementia care, the contract should clearly outline the services available and what happens if care needs change over time.

For example:

  • Does the facility provide 24/7 nursing care?
  • What happens if the resident develops mobility issues or requires end-of-life care?
  • Will the home help arrange transfers to a higher-care facility if needed?

Private homes may offer more personalized care packages, but they often come at a significant cost. It’s essential to know in advance whether the care home can continue to meet your loved one’s needs or if they may require relocation later.

Termination Policies

Termination clauses vary widely between care homes, and the Council’s findings revealed a lack of consistency in how homes handle contract cancellations. Look for specifics on:

  • Voluntary termination: If you decide to leave the facility, how much notice is required? What are the refund policies?
  • Facility-initiated termination: Under what conditions can the home discharge a resident (e.g., inability to pay or health issues they can’t manage)?
  • Eviction procedures: These should align with consumer protection laws to prevent unfair or abrupt evictions.

Private homes, in particular, may have stricter terms that favor the facility, making it critical to review these clauses with care.

Dispute Resolution: What Are Your Options?

Many contracts include clauses that require disputes to be settled through arbitration or mediation rather than court proceedings. While these processes can be faster, they are also more expensive and may limit your ability to pursue legal action if necessary. Ensure the contract outlines a clear, fair, and transparent resolution process, and familiarize yourself with resources like the Hong Kong Consumer Council, which can mediate disputes and offer advice.

Resident Rights: Legal Protections to Look For

Under the Residential Care Homes (Elderly Persons) Ordinance, residents are entitled to basic rights such as privacy, dignity, and involvement in care decisions. Private care homes often market themselves as offering “premium” services, but these rights should never be compromised. When reviewing a contract, ensure it reflects commitments to:

  • Healthcare provision: The availability of on-site medical staff and emergency response systems.
  • Safety and hygiene: Policies for infection control, cleanliness, and regular health checks.

The Consumer Council also encouraged families to inquire about staff-to-resident ratios, as lower ratios often result in better care.

Data Privacy and Legal Guardianship

The Consumer Council emphasized the importance of safeguarding residents’ personal and medical information, particularly in private facilities where external services may be involved. Ensure the contract complies with the Personal Data (Privacy) Ordinance (Cap. 486) and includes clear guidelines on how data will be shared or used.

If the resident has a legal guardian or power of attorney, verify that the care home recognizes these arrangements and respects the decision-making authority of the appointed representative.

Conclusion: Be Informed, Be Protected

The Consumer Council’s report serves as a powerful reminder that entering an care home in Hong Kong is a decision with significant legal and financial implications.

If you would like to explore your options in this regard, please contact our Partner, Eunice Chiu （+852 2186 1885 / +852 9169 4356）.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

What to do if there is issue regarding Testamentary Capacity?

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BACKGROUND

In our last article, ENSURING TESTAMENTARY CAPACITY FOR AGED AND INFIRM TESTATORS, we have discussed the importance of ensuring testamentary capacity for aged and infirm testators in the will-making process. The next issue then becomes: if we consider that there is issue regarding testamentary capacity, what should we do?

WHAT TO DO IF THERE IS ISSUE REGARDING TESTAMENTARY CAPACITY?

If your solicitor has concerns or doubts about your testamentary capacity, it is always advisable to instruct a medical practitioner to assess testamentary capacity. Whilst it is not necessary for the doctor tasked to be a specialist doctor with experience in diagnosing or treating of mental disorder or mental handicap or to be an Approved Doctor under s. 2(2) of the Mental Health Ordinance (Cap. 136), nevertheless, engaging a mental health expert, especially a psychiatrist, is always preferred and advised.

Usually, the psychiatrist will consider:[1]

1. Understand

Whether you are able to understand the information relevant to decision concerned:

  • Nature and purpose of the will
  • Risks and benefits of executing the will
  • Risks of not signing the will
  • Alternative and their risks and benefits

2. Retain

Whether you are able to retain the information long enough to make an effective decision;

3. Believe

Whether you are able to believe the information and to apply information realistically to own situation;

4. Weigh

Whether you are able to weigh the information in the balance to arrive at a choice – i.e. making a decision based on all the relevant factors (risks, benefits, short term outcomes, and long-term outcomes)

5. Express

Whether you are able to express the choice, through verbal or non-verbal means

If the psychiatrist considers there is testamentary capacity on the testator’s part, it is advisable to adhere to the “Golden Rule”, i.e. to have the psychiatrist to serve as a witness to your will.

HOW CAN OLN ASSIST?

At OLN, we provide initial consultation service regarding wills drafting. Our solicitors are experienced in assessing if the testator has the requisite testamentary capacity. In case of any issue, OLN can arrange mental health specialist doctor to assist in conducting an assessment for client to ascertain his/her testamentary capacity. If you have any questions on the above, please contact our Partner Mr Jonathan Lam or our Associate Mr Dexter Yuen.

[1] Dr. Gabriel B K Hung, “Framework for clinical assessment of mental capacity in older adults” (The Hong Kong Mortgage Corporation Limited, presentation material for HKMC Seminar dated 28th July 2013), available at https://www.hkmc.com.hk/files/page/82/2.%20Framework%20for%20clinical%
20assessment%20of%20mental%20capacity%20in%20older%20adults%20%20Dr.%20Gabriel%20Hung.pdf accessed at 3rd January 2025.


Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

Ensuring Testamentary Capacity for Aged and Infirm Testators

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BACKGROUND

Population ageing has become a challenge to most metropolitans in the world. Similar to other developed economies such as the United Kingdom and Japan, Hong Kong is also facing a serious problem of aging population. The phenomenon of population ageing is expected to continue, with the median age of Hong Kong’s population estimated to reach 55.5 in 2046[1]. 

As a result, many people have become more open-minded about the discussion of those end-of-life issues, including will preparation and estate planning.

That said, before you rush to instruct solicitor to prepare a will, you must understand that you can only make a valid will when you have testamentary capacity.

But what does it mean to have testamentary capacity? How far does the assessment exercise go?

TEST ON TESTAMENTARY CAPACITY

The principles set out in the UK landmark authority of Banks v Goodfellow[2] remains the standard for determining testamentary capacity in Hong Kong. When being assessed on testamentary capacity, as a testator you must:

  • understand the nature of the act of making the Will and its effects;
  • understand the extent of the property being disposed of
  • comprehend and appreciate the claims to which you ought to give effect.

In Re Estate of Au Kong Tim (Wills: Validity),[3] the Court of Appeal of Hong Kong emphasised the importance of solicitors following this three-limb test, as well as referring to the checklist in the “Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers” (the “Checklist”) for assessing testamentary capacity.

THE CHECKLIST

According to the Checklist, the three-limb test is particularised as follows:

1. Understand the nature of the act of making the Will and its effects:

You should understand:

  • you will die
  • your Will shall come into operation on your death, but not before
  • you can change or revoke the Will at any time before your death, provided you have the capacity to do so

2. Understand the extent of the property being disposed of:

You should understand and make choices:

  • who should be appointed as executor(s) (and perhaps why they should be appointed)
  • who gets what under the Will
  • whether a beneficiary’s gift is outright or conditional (for example, where the beneficiary is only entitled to the income from a lump sum during his or her lifetime, or is allowed to occupy residential property for the rest of the beneficiary’s life)
  • that if you spend your money or give away or sell your property during your lifetime, the beneficiaries might lose out
  • that a beneficiary might die before you
  • whether you have already made a Will and, if so, how and why the new Will differs from the old one

3. Comprehend and appreciate the claims to which the testator ought to give effect:

Crucially, the judge in Banks v Goodfellow used the word extent, rather than value. There could also be practical difficulties when investments are managed by somebody else, and there are no recent statements or valuations.

In these cases, a reasonableness test should be applied by your solicitors to any estimate you give about the extent of your wealth.

You should understand:

  • the extent of all the properties owned solely by you
  • the fact that certain types of jointly owned properties might automatically pass to the other joint owner, regardless of anything that is said in the will
  • whether there are benefits payable on your death which might be unaffected by the terms of their will (insurance policies, pension rights, etc)
  • that the extent of your properties could change during their lifetime

4. Potential claim of others:

You should be able to comprehend and appreciate the claims to which you ought to give effect. As a testator, you have the right to ignore these claims, despite being up to the extent of being prejudiced or capricious. You must be able to give reasons for preferring some beneficiaries and, perhaps, excluding others. For example possible beneficiaries:

  • may already have received adequate provision from you
  • may be financially better off than others
  • may have been more attentive or caring than others
  • may be in greater need of assistance because of their age, or physical or mental disabilities

HOW CAN OLN ASSIST?

At OLN, we provide initial consultation service regarding wills drafting, as well as advisory work regarding testamentary capacity. Our solicitors are experienced in assessing if the testator has the requisite testamentary capacity. In case of any issue, OLN can arrange mental health specialist doctor to assist in conducting an assessment for client to ascertain his/her testamentary capacity. If you have any questions on the above, please contact our Partner Mr Jonathan Lam or our Associate Mr Dexter Yuen.

[1] Yiu, William and Ng, Kang-Chung, “Hong Kong going grey faster than expected, sparking fears over healthcare, calls for new retirement policies” (South China Morning Post, 17 August 2023), available at https://www.scmp.com/news/hong-kong/society/article/3231335/hong-kong-going-grey-faster-expected-sparking-fears-over-healthcare-calls-new-retirement-policies, accessed on 8 January 2025.

[2] (1870) LR 5 QB 549.

[3] [2018] 2 HKLRD 864.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

Eggs on Ice: The Legal Landscape of Oocyte Cryopreservation on Jurisdictions Around the World

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(This article was published in the November 2024 Issue of the Hong Kong Lawyer)

Egg freezing has become more mainstream in the post-pandemic era. Weddings were postponed along with pregnancies during the pandemic years and this has been significant for millions of women in their prime childbearing years. A report in the US National Library of Medicine stated that females are born with a finite, lifetime supply of approximately 1-2 million oocytes (immature eggs); by the time a woman reaches the age of 51 (the average age for menopause), her eggs have decreased in both quality and quantity, with approximately one thousand eggs left. Freezing high quality eggs during the prime childbearing years for later use is now considered practical when one is not quite ready for pregnancy and childbirth.

Some US companies have offered egg freezing as an employee benefit for over a decade now. The Guardian reported as early as 2014 that Silicon Valley companies were covering egg freezing costs for their employees, in a push to attract and retain top female talent. A Yale University study published in 2018 on egg freezing found that 85 percent of the women were single, with many of them reporting not having suitable partners. There are a myriad of reasons why women may not be ready for pregnancy or childbirth, including career aspirations, family situations, financial considerations, personal circumstances and health conditions.

Egg freezing for reasons other than purely health conditions is known as egg freezing for generic ”social reasons”

Jurisdictional Variations and Legal Considerations

Not every jurisdiction allows oocyte cryopreservation (egg freezing) to be done for social reasons (i.e., non health conditions) without restrictions. Here is a review of the legal landscape in a number of jurisdictions:

Australia offers a liberal legal regime for egg freezing, allowing the procedure for social reasons. In fact it was the first country to produce a live birth from frozen eggs, in 1984. There are no specific age restrictions, but women are encouraged to freeze their eggs before the age of 35 to optimise success for later live birth(s). The storage limit depends upon state legislation and is generally 10 years in states like New South Wales and Victoria. The Assisted Reproductive Treatment Act 2008 (Section 31A) in Victoria allows its Patient Review Panel to extend the 10 year storage period for eggs and sperm if reasonable grounds are given or if the
panel considers there are exceptional circumstances. The Human Reproductive Technology Act 1991 also provides for a storage period of 10 years in Western Australia, with extensions allowed for “special reasons”. Costs also vary by state, but some health insurance plans may provide coverage for a portion of the expenses.

In Canada, the Assisted Human Reproduction Act governs assisted human reproduction technologies, which encompasses egg freezing. Health Canada’s Guidance Document on the Safety of Sperm and Ova Regulations allows eggs to be stored for up to 10 years. There are no restrictions on age or marital status, although some clinics do not provide services
to non-Canadian citizens. Social egg freezing (termed elective egg freezing) is not covered by
governmental healthcare.

France only recently legalized social egg freezing for all women between the ages of 29 and 37 regardless of marital status or sexual orientation, via the French Public Health Code Article L2141. Although this liberalisation allowed women more autonomy over their reproductive choices, critics decry the reality of the situation since egg freezing is prohibited in the private sector and there could be a wait in the public health system of over two years just for the initial doctor’s appointment. This effectively denies women over the age of 35 the right to egg freezing and is despite the fact that Le Monde reported in 2022 that one in every four couples of childbearing age in France suffers from infertility issues

In the Hong Kong SAR, there are no age restrictions on egg freezing; however, a woman must be legally married to have the eggs fertilised using IVF pursuant to the Code of Practice on Reproductive Technology & Embryo Research. Since same sex marriage is not yet legally recognised in Hong Kong, women in same sex marriages and single women are unable to access post egg freezing services leading to live pregnancies. The Human Reproductive Technology Ordinance established the Council on Human Reproductive Technology, which
oversees the now outdated 2002 code of practice. Frozen eggs can be stored for up to 10 years, and since women are advised to freeze their eggs before the age of 35 due to declining egg quality, this storage limit tries to cap potential pregnancies at age 45. This legal framework illustrates the complex intersection between restrictive marriage laws and reproductive rights in Hong Kong.

Ireland’s Health (Assisted Human Reproduction) Act 2024 was signed by its President on 2 July 2024. There are no restrictions on social egg freezing although it must be privately funded. Where medical treatments have affected fertility, public healthcare may cover egg freezing costs. Eggs may be stored for a maximum of 10 years, following which new consent must be obtained for any extension. The Assisted Human Reproduction Regulatory Authority has the authority to consider and determine applications for extensions of storage.

In 2023, Singapore’s Healthcare Services Act 2020 which governs assisted reproductive services liberalised egg freezing for social reasons pursuant to the Healthcare Services (Assisted Reproductive Service) Regulation 2023, but only for women from the ages of 21 to below 38 years. However, where egg freezing is not done for social reasons, a woman must be
legally married and her husband must consent to the procedure, again representing very conservative societal values. Social egg freezing is not covered under the country’s Medisave, the mandatory medical savings account that all working citizens and permanent residents contribute to, although other reproductive services may be covered.

Spain has had a progressive approach to reproductive technologies since 2006. Assisted Reproductive Technology Law 14/2006 allows egg freezing for social reasons without age restrictions and without time limits. The legal framework supports women’s rights to make
reproductive choices, making Spain one of Europe’s most popular destinations for egg freezing. However, social egg freezing is not covered for citizens under the government healthcare system and must be privately funded.

In the United Kingdom, women are able to freeze their eggs for social reasons. The Human Fertilisation and Embryology Act 1990 regulates the practice, and women can store their eggs for up to 10 years and renew consent for each successive period of 10 years up to a maximum of 55 years. While there are no specific age restrictions, the Human Fertilisation and Embryology Authority in the UK advises that women under 38 years of age are generally able to freeze 7-14 eggs. However, access to public funding for egg freezing is reserved for those facing medical treatment that could affect fertility, with the criteria varying between England, Northern Ireland, Scotland and Wales. Social freezing must be privately funded and it is not subject to any price regulations.

Each state regulates egg freezing in the US. In New York state, liberal laws allow egg freezing for social reasons without age restrictions and regardless of marital status. Pursuant to the colloquial “IVF law”, Insurers are required by law to cover egg freezing if deemed medically
necessary (and three cycles of IVF following egg freezing)

Other Considerations

Cost may be a significant factor in the decision to freeze eggs. The entire process – from initial consultation to pre-treatment testing, ovarian stimulation, trigger injection, monitoring, oocyte retrieval, oocyte assessment to cryopreservation plus subsequent storage fees can often be costly. The financial burden can be considerable, and in many if not most jurisdictions, social egg freezing is not covered under public healthcare or reimbursable under private insurance plans. “Venue shopping” is becoming more and more popular in order to undergo the procedure in jurisdictions with lower costs, high safety standards and ultimately, high success rates in oocyte thawing.

Conclusion

The legal aspects of egg freezing vary significantly across jurisdictions, which should guide women’s decisions about when and where to undergo the procedure. It is crucial to understand these differences alongside other important factors such as costs, clinical success rates, available support systems and the accessibility of ongoing assisted reproductive technology services (e.g., in-vitro fertilisation, surrogacy) including the specific laws governing them. This comprehensive understanding is important for those considering egg
freezing as part of their reproductive plans.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.