Editor's Note January 2020

A Happy 2020 to all our readers!

It has been said that on average, a majority of disputes referred to mediation are generally resolved or rather settled subject to having an effective mediator to facilitate such resolution or settlement and also the right mindset of the parties to the dispute. Furthermore, mediation can be labelled as a cost- effective solution and can also provide a win-win outcome, given that the focus is generally on the parties’ underlying interests rather than position. The classic example is where two parties quarrel over an orange. Merely suggesting that the parties split the orange in half may not work when one party wants the peel for baking and the other is interested in the pulp for juice. When it comes to child custody disputes, given that a child’s welfare is paramount, the Family Law feature explains how using mediation as a platform to resolve such disputes “can only be good news for children.”

Next, Hong Kong was recently ranked the most expensive city in the world to live in. Accordingly, one might be inclined to make a will in order to remove the uncertainty vis-a-vis one’s estate and dependants. A will can be defined as a declaration containing a person’s wishes which is intended to become effective upon that person’s death. If a person has not made a will (which is common in Hong Kong due to superstitious or morbid reasons) or has made an invalid will, upon the person’s death, the person will have died intestate. The laws of intestacy, which is the Intestates’ Estates Ordinance (Cap. 73) (“IEO”), applies to all persons who have died intestate and provides for the estate to be held for the intestate’s family otherwise relatives (the list is specified in the IEO). The reason for this is that the Law Reform Commission put itself “in the shoes of a reasonable testator living in Hong Kong in the 1980s” and assumed the wishes of a hypothetical testator. The Law Reform Commission acknowledged that there can be no law suitable for every family situation and that injustice may strike from time to time. Thus, at first glance, without a valid will, same sex partners, concubines (after 1971 or the ones who have not been accepted by the wife) or other dependants might not receive any inheritance from the estate. The Wills, Trusts & Probate feature discusses the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481) which allows for family members and dependants to claim from the estate where the deceased died intestate. Furthermore, family members and dependants can claim where the testator did not dispose of any or arrange for adequate maintenance for them.

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Lead Legal Editor, Hong Kong Lawyer