19 November 2020

The financial (in)security of a mistress on the death of her benefactor - a high profile case in Hong Kong


In a fascinating case before the Family Court, a former mistress of a very wealthy and successful Hong Kong businessman is doing battle against his estate for maintenance.

This case marks the first case where a disputed girlfriend managed to obtain legal funding from the deceased’s estate. She also obtained interim maintenance pending the outcome of the trial, and her legal costs.

Here the applicant had worked for the deceased for many years and it was her case that she was also his mistress for most of that time. He had bought her a flat and maintained her, providing a sum in excess of her monthly salary. The deceased had a wife and children as well as another mistress with whom he had children. The wife in this case recognised the relationship her husband had with the first mistress and her children, but not the second. It was accepted that he had had a number of long term relationships with other women throughout his marriage.

What is the position therefore for a mistress seeking maintenance, particularly where the wife and her daughter are the executrices of the estate and does not recognise the relationship? If the applicant’s financial support from the deceased has come to an end, and she does not have the ability to maintain herself, how will she be able to afford the legal fees to try her case?

In considering this matter, the family court allowed interim maintenance for the applicant and litigation funding pending the final settlement or judgement in the case. It found that both were justified to safeguard the applicant’s financial position and to enable her to bring her case to court, until the facts of the case could be established in evidence at trial.

In this case the deceased suffered two strokes which incapacitated him. A committee was set up to handle his affairs and between the deceased’s incapacity and his death a few years later, the applicant was terminated from her employment. She was then moved out of her flat which she rented and borrowed from family members to continue with her case.

The estate tried to strike out the applicant’s claim but it was unsuccessful, both in the Family Court and the Court of Appeal. Both courts found that this applicant had a triable case and therefore it was only right that she should be able to pay her legal team, in the same way that the estate was able to use estate funds to finance their case. The Judge did not think it fair in the circumstances that the applicant be forced to sell her home in order to fund her case or her daily living expenses. In effect, the Judge leveled the paying field.

Therefore there is hope for vulnerable applicants seeking their rights against a much wealthier adversary, and that financial dependents who have been supported by wealthy men are not ignored and discarded without any financial security when their benefactor passes away.

*This article is co-authored with Vivien Leung, barrister-at-law at Denis Chang’s Chambers

Authors

Category: Article