Chapter 12:24 - Family and Dependents Provisions

Link to law: http://legalaffairs.gov.gy/information/laws-of-guyana/494-chapter-1224-deeds-of-arrangement/file

L.R.O. 1/2012
LAWS OF GUYANA
FAMILY AND DEPENDANTS PROVISION ACT
CHAPTER 12:24
Act
22 of 1990
Amended by
10 of 2012
1 – 31 ... 1/2012 (inclusive) by L.R.O.
Pages Authorised
Current Authorised Pages
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Note
on
Subsidiary Legislation
This Chapter contains no subsidiary legislation.
Note
on
Revision
This Act is has been revised up to December 31st, 2012


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CHAPTER 12:24
FAMILY AND DEPENDANTS PROVISION ACT
ARRANGEMENT OF SECTIONS
SECTION
1. Short title.
2. Interpretation.
3. Application for financial provision from deceased’s estate.
4. Powers of Court to make orders.
5. Matters to which the Court is to have regard.
6. Time-limit for applications.
7. Interim orders.
8. Variation, discharge etc. of orders for periodical payments.
9. Payment of lump sums by instalments.
10. Property treated as part of “net estate”.
11. Property held on a joint tenancy.
12. Anti-avoidance provisions.
13. Contracts to leave property by will.
14. Supplementary provisions.
15. Provisions as to trustees.
16. Effect, duration and form of orders.
17. Provisions as to personal representatives.
_______________________
22 of 1990 An Act empowering the Court to make provision out of the
estate of a deceased person for the spouse, child, child
of the family or dependant of that person; and for
matters connected therewith.
[15TH FEBRUARY, 1991]
Short title.
Interpretation.
[10 of 2012]
1. This Act may be cited as the Family and
Dependants Provision Act.
2. (1) In this Act—
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“beneficiary”, in relation to the estate of a deceased person,
means—
(a) a person who under the will of
the deceased or under the law
relating to intestacy is
beneficially interested in the
estate or would be so interested
if an order had not been made
under this Act; and
(b) a person who has received any
sum of money or other
property which by virtue of
section 10 is treated as part of
the net estate of the deceased or
would have received that sum
or other property if an order
had not been made under this
Act;
“Court” means the High Court;
“net estate”, in relation to a deceased person means—
(a) all property of which the
deceased had power to dispose
of by his will (otherwise than
by virtue of a special power of
appointment) less the amount
of his funeral, testamentary and
administration expenses, debts
and liabilities including any
estate duty payable out of his
estate on his death;
(b) any property in respect of
which the deceased held a
general power of appointment
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(not being a power exercisable
by will) which has not been
exercised;
(c) any sum of money or other
property which is treated for
the purposes of this Act as part
of the net estate of the deceased
by virtue of section 10;
(d) any property which is treated
for the purposes of this Act as
part of the net estate of the
deceased by virtue of an order
made under section 11;
(e) any sum of money or other
property which is, by reason of
a disposition or contract made
by the deceased, ordered under
section 12 or 13 to be provided
for the purpose of the making
of financial provision under
this Act;
“property” includes any chose in action;
“reasonable financial provision” has the meaning assigned to
it by section 3(2);
“valuable consideration” does not include marriage or a
promise of marriage.
(2) Any reference in this Act to provision out of the
net estate of a deceased person shall include a reference to
provision extending to the whole of that estate.
(3) For the purposes of this Act, any reference to a
wife or husband shall be treated as including a reference to a
person who in good faith entered into a void marriage with
the deceased unless either—
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c. 46:04
(a) the marriage of the deceased and that
person was dissolved or annulled
during the lifetime of the deceased
and the dissolution or annulment is
recognised by the law; or
(b) that person has during the lifetime of
the deceased entered into a later
marriage.
(4) Any reference in this Act to remarriage or to a
person who has remarried shall include a reference to a
marriage which is by law void or voidable or to a person who
has entered into such a marriage, as the case may be, and a
marriage shall be treated for the purposes of this Act as a
remarriage, in relation to any party thereto, notwithstanding
that the previous marriage of that party was void or voidable.
(5) For the purposes of this Act, any reference to a
“child” shall include a child in respect of whom an adoption
order has been made under the Adoption of Children Act,
and a child born out of wedlock.
(6) (a) For the purposes of this Act, any reference
to—
(i) a wife shall include a reference
to a single woman living
together with a single man in a
common law union for five
years immediately preceding
the date of his death;
(ii) a husband shall include a
reference to a single man living
together with a single woman
in a common law union for five
years immediately preceding
the date of her death:
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Application for
financial
provision from
deceased’s
estate.
Provided that only one such union shall be considered
for any benefit under this Act.
(b) For the purposes of paragraph (a),
any reference to a single woman or a
single man shall include a reference to
a widow or widower or to a woman
or man who is divorced as the case
may be.
3. (1) Where a person dies domiciled in Guyana and is
survived by any of the following persons—
(a) the wife or husband of the deceased;
(b) a child of the deceased;
(c) any person (not being a child of the
deceased) who, in the case of any
marriage to which the deceased was
at any time a party, was treated by the
deceased as a child of the family in
relation to that marriage;
(d) any person (not being a person
included in the foregoing paragraphs
of this subsection) who immediately
before the death of the deceased was
being maintained, either wholly or
partly, by the deceased,
that person may apply to the Court for an order under section
4 on the ground that 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 not such as to make
reasonable financial provision for the applicant.
(2) In this Act “reasonable financial provision”—
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Powers of
Court to make
orders.

(a) in the case of an application made by
virtue of subsection (1)(a) by the
husband or wife of the deceased
(except where the marriage with the
deceased was the subject of a decree
of judicial separation and at the date
of death the decree was in force and
the separation was continuing),
means such financial provision as it
would be reasonable in all the
circumstances of the case for a
husband or wife to receive, whether
or not that provision is required for
his or her maintenance;
(b) in the case of any other application
made by virtue of subsection (1),
means such financial provision as it
would be reasonable in all the
circumstances of the case for the
applicant to receive for his
maintenance.
(3) For the purposes of subsection (1)(d) a person
shall be treated as being maintained by the deceased, either
wholly or partly, as the case may be, if the deceased,
otherwise than for full valuable consideration was making a
substantial contribution in money or money’s worth towards
the reasonable needs of that person.
4. (1) Subject to the provisions of this Act, where an
application is made for an order under this section, the Court
may, if it is satisfied that 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 not such as to
make reasonable financial provision for the applicant, make
any one or more of the following orders—

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(a) an order for the making to the
applicant out of the net estate of the
deceased of such periodical payments
and for such term as may be specified
in the order;
(b) an order for the payment to the
applicant out of that estate of a lump
sum of such amount as may be so
specified;
(c) an order for the transfer to the
applicant of such property comprised
in that estate as may be so specified;
(d) an order for the settlement for the
benefit of the applicant of such
property comprised in that estate as
may be so specified;
(e) an order for the acquisition out of
property comprised in that estate of
such property as may be so specified
and for the transfer of the property so
acquired to the applicant or for the
settlement thereof for his benefit;
(f) an order varying any ante-nuptial or
post-nuptial settlement (including
such a settlement made by will) made
on the parties to a marriage to which
the deceased was one of the parties,
the variation being for the benefit of
the surviving party to that marriage,
or any child of that marriage, or any
person who was treated by the
deceased as a child of the family in
relation to that marriage.
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(2) An order under subsection (1) (a) providing for
the making out of the net estate of the deceased of periodical
payments may provide for—
(a) payments of such amount as may be
specified in the order;
(b) payments equal to the whole of the
income of the net estate or of such
portion thereof as may be so specified;
(c) payments equal to the whole of the
income of such part of the net estate
as the Court may direct to be set aside
or appropriated for the making out of
the income thereof of payments under
this section;
or may provide for the amount of the payments or any of
them to be determined in any other way the Court thinks fit.
(3) Where an order under subsection (1)(a)
provides for the making of payments of an amount specified
in the order, the order may direct that such part of the net
estate as may be so specified shall be set aside or
appropriated for the making out of the income thereof of
those payments; but no larger part of the net estate shall be so
set aside or appropriated than is sufficient, at the date of the
order, to produce by the income thereof the amount required
for the making of those payments.
(4) An order under this section may contain such
consequential and supplemental provisions as the Court
thinks necessary or expedient for the purpose of giving effect
to the order or for the purpose of securing that the order
operates fairly as between one beneficiary of the estate of the
deceased and another and may, in particular, but without
prejudice to the generality of this subsection—
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Matters to
which the
Court is to have
regard.


(a) order any person who holds any
property which forms part of the net
estate of the deceased to make such
payment or transfer such property as
may be specified in the order;
(b) vary the disposition of the deceased’s
estate effected by the will or the law
relating to intestacy, or by both the
will and the law relating to intestacy,
in such manner as the Court thinks
fair and reasonable having regard to
the provisions of the order and all the
circumstances of the case;
(c) confer on the trustees of any property
which is the subject of an order under
this section such powers as appear to
the Court to be necessary or
expedient.
5. (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, that
is to say—
(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
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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)(a) 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;
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(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 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)(b) or
3(1)(c) 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)(c), the Court
shall also have regard to—
(a) 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) whether in assuming and discharging
that responsibility the deceased did so
knowing that the applicant was not
his own child;

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Time-limit for
applications.

Interim orders.
(c) the liability of any other person to
maintain the applicant.
(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)(d), 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.
(5) 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.
(6) 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.
6. An application for an order under section 4 shall
not, except with the permission of the Court, be made after
the end of the period of one year from the date on which
representation with respect to the estate of the deceased is
first taken out.
7. (1) Where on an application for an order under
section 4 it appears to the Court—
(a) that the applicant is in immediate
need of financial assistance, but it is
not yet possible to determine what
order (if any) should be made under
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Variation,
discharge etc.
of orders for
periodical
payments.
that section; and
(b) that property forming part of the net
estate of the deceased is or can be
made available to meet the need of
the applicant,
the Court may order that, subject to such conditions or
restrictions, if any, as the Court may impose and to any
further order of the Court, there shall be paid to the applicant
out of the net estate of the deceased such sum or sums and (if
more than one) at such intervals as the Court thinks
reasonable; and the Court may order that, subject to the
provisions of this Act, such payments are to be made until
such date as the Court may specify, not being later than the
date on which the Court either makes an order under the said
section 4 or decides not to exercise its power under that
section.
(2) Subsections (2), (3) and (4) of section 4 shall
apply in relation to an order under this section as they apply
in relation to an order under that section.
(3) In determining what order, if any, should be
made under this section the Court shall, so far as the urgency
of the case admits, have regard to the same matters as those to
which the court is required to have regard under section 5.
(4) An order made under section 4 may provide
that any sum paid to the applicant by virtue of this section
shall be treated to such an extent and in such manner as may
be provided by that order as having been paid on account of
any payment provided for by that order.
8. (1) Subject to the provisions of this Act, where the
Court has made an order under section 4(1)(a) (in this section
referred to as “the original order”) for the making of
periodical payments to any person (in this section referred to
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as “the original recipient”), the Court, on an application
under this section, shall have power by order to vary or
discharge the original order or to suspend any provision of it
temporarily and to revive the operation of any provision so
suspended.
(2) Without prejudice to the generality of
subsection (1), an order made on an application for the
variation of the original order may—
(a) provide for the making out of any
relevant property of such periodical
payments and for such term as may
be specified in the order to any person
who has applied, or would but for
section 6 be entitled to apply, for an
order under section 4 (whether or not,
in the case of any application, an
order was made in favour of the
applicant);
(b) provide for the payment out of any
relevant property of a lump sum of
such amount as may be so specified to
the original recipient or to any such
person as is mentioned in paragraph
(a);
(c) provide for the transfer of the relevant
property, or such part thereof as may
be so specified, to the original
recipient or to any such person as is
so mentioned.
(3) Where the original order provides that any
periodical payments payable thereunder to the original
recipient are to cease on the occurrence of an event specified
in the order or on the expiration of a period so specified, then,
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if, before the end of the period of six months from the date of
the occurrence of that event or of the expiration of that period,
an application is made for an order under this section, the
Court shall have power to make any order which it would
have had power to make if the application had been made
before that date (whether in favour of the original recipient or
any such person as is mentioned in subsection (2) (a) and
whether having effect from that date or from such later date
as the Court may specify).
(4) Any reference in this section to the original
order shall include a reference to an order made under this
section and any reference in this section to the original
recipient shall include a reference to any person to whom
periodical payments are required to be made by virtue of an
order under this section.
(5) An application under this section may be made
by any of the following persons, that is to say—
(a) any person who by virtue of section
3(1) has applied, or would but for
section 6 be entitled to apply, for an
order under section 4;
(b) the personal representatives of the
deceased;
(c) the trustees of any relevant property;
and
(d) any beneficiary of the estate of the
deceased.
(6) An order under this section may only affect—
(a) property the income of which is at the
date of the order applicable wholly or
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in part for the making of periodical
payments to any person who has
applied for an order under this Act; or
(b) in the case of an application under
subsection (3) in respect of payments
which have ceased to be payable on
the occurrence of an event or the
expiration of a period, property the
income of which was so applicable
immediately before the occurrence of
that event or the expiration of that
period, as the case may be,
and any such property as is mentioned in paragraph (a) or (b)
is in subsections (2) and (5) referred to as “relevant property”.
(7) In exercising the powers conferred by this
section the Court shall have regard to all the circumstances of
the case, including any change in any of the matters to which
the Court was required to have regard when making the
order to which the application relates.
(8) Where the Court makes an order under this
section, it may give such consequential directions as it thinks
necessary or expedient having regard to the provisions of the
order.
(9) No such order as is mentioned in section 4(1)
(d), (e) or (f); 11, 12 or 13 shall be made on an application
under this section.
(10) For the avoidance of doubt it is hereby
declared that, in relation to an order which provides for the
making of periodical payments which are to cease on the
occurrence of an event specified in the order or on the
expiration of a period so specified, the power to vary an order
includes power to provide for the making of periodical
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Payment of
lump sums by
instalments.


Property
treated as part
of “net estate”.

Property held
on a joint
tenancy.

payments after the expiration of that period or the occurrence
of that event.
9. (1) An order under section 4(1) (b) or 8(2) (b) for the
payment of a lump sum may provide for the payment of that
sum by instalments of such amount as may be specified in the
order.
(2) Where an order is made by virtue of subsection
(1) the Court shall have power, on an application made by the
person to whom the lump sum is payable, by the personal
representatives of the deceased or by the trustees of the
property out of which the lump sum is payable, to vary that
order by varying the number of instalments payable, the
amount of any instalment and the date on which any
instalment becomes payable.
10. Where any sum of money or other property is
received by any person as a donatio mortis causa made by a
deceased person, that sum of money, after deducting
therefrom any estate duty paid thereon by the donee, or that
other property to the extent of the value thereof at the date of
the death of the deceased after deducting therefrom any
estate duty so paid, shall be treated for the purpose of this Act
as part of the net estate of the deceased; but this section shall
not render any person liable for having paid that sum or
transferred that other property in order to give effect to that
donatio mortis causa.
11. (1) Where a deceased person was immediately
before his death beneficially entitled to a joint tenancy of any
property, then, if, before the end of the period of one year
from the date on which representation with respect to the
estate of the deceased was first taken out, an application is
made for an order under section 4, the Court for the purpose
of facilitating the making of financial provision for the
applicant under this Act may order that the deceased’s
severable share of that property, at the value thereof
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Anti-avoidance
provisions.
immediately before his death, shall, to such extent as appears
to the Court to be just in all the circumstances of the case, be
treated for the purposes of this Act as part of the net estate of
the deceased.
(2) Where an order is made under subsection (1)
the provisions of this section shall not render any person
liable for anything done by him before the order was made.
(3) For the avoidance of doubt it is hereby declared
that for the purposes of this section there may be a joint
tenancy of a chose in action.
12. (1) Where an application is made to the Court for
an order under section 4 the applicant may, in the
proceedings on that application, apply to the Court for an
order under subsection (2).
(2) Where on application under subsection (1) the
Court is satisfied—
(a) that, less than five years before the
date of the death of the deceased, the
deceased with the intention of
defeating an application for financial
provision under this Act made a
disposition; and
(b) that full valuable consideration for
that disposition was not given by the
person to whom or for the benefit of
whom the disposition was made (in
this section referred to as “the donee”)
or by any other person; and
(c) that the exercise of the powers
conferred by this section would
facilitate the making of financial
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provision for the applicant under this
Act,
then, subject to the provisions of this section and of sections
14 and 15 the Court may order the donee (whether or not at
the date of the order he holds any interest in the property
disposed of to him or for his benefit by the deceased) to
provide, for the purpose of the making of that financial
provision, such sum of money or other property as may be
specified in the order.
(3) Where an order is made under subsection (2) as
respects any disposition made by the deceased which
consisted of the payment of money to or for the benefit of the
donee, the amount of any sum of money or the value of any
property ordered to be provided under that subsection shall
not exceed the amount of the payment made by the deceased
after deducting therefrom any estate duty borne by the donee
in respect of that payment.
(4) Where an order is made under subsection (2) as
respects any disposition made by the deceased which
consisted of the transfer of property (other than a sum of
money) to or for the benefit of the donee, the amount of any
sum of money or the value of any property ordered to be
provided under that subsection shall not exceed the value at
the date of the death of the deceased of the property disposed
of by him to or for the benefit of the donee (or, if that property
has been disposed of by the person to whom it was
transferred by the deceased, the value at the date of that
disposal thereof) after deducting therefrom any estate duty
borne by the donee in respect of the transfer of that property
by the deceased.
(5) Where an application (in this subsection
referred to as “the original application”) is made for an order
under subsection (2) in relation to any disposition, then if on
an application under this subsection by the donee or by any
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applicant for an order under section 4 the Court is satisfied—
(a) that, less than five years before the
date of the death of the deceased, the
deceased with the intention of
defeating an application for financial
provision under this Act made a
disposition other than the disposition
which is the subject of the original
application; and
(b) that full valuable consideration for
that other disposition was not given
by the person to whom or for the
benefit of whom that other
disposition was made or by any other
person,
the Court may exercise in relation to the person to whom or
for the benefit of whom that other disposition was made the
powers which the Court would have had under subsection (2)
if the original application had been made in respect of that
other disposition and the Court had been satisfied as to the
matters set out in paragraphs (a), (b) and (c) of that
subsection; and where any application is made under this
subsection, any reference in this section (except in subsection
(2)(b)) to the donee shall include a reference to the person to
whom or for the benefit of whom that other disposition was
made.
(6) In determining whether and in what manner to
exercise its powers under this section, the Court shall have
regard to the circumstances in which any disposition was
made and any valuable consideration which was given
therefor, the relationship, if any, of the donee to the deceased,
the conduct and financial resources of the donee and all the
other circumstances of the case.

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Contracts to
leave property
by will.

(7) In this section “disposition” does not include—
(a) any provision in a will or any donatio
mortis causa under section 10; or
(b) any appointment of property made,
otherwise than by will, in the exercise
of a special power of appointment,
but, subject to these exceptions, includes any payment of
money, (including the payment of a premium under a policy
of assurance) and any conveyance, assurance, appointment or
gift of property of any description, whether made by an
instrument or otherwise.
(8) The provisions of this section do not apply to
any disposition made before the commencement of this Act.
13. (1) Where an application is made to the Court for
an order under section 4 the applicant may, in the
proceedings on that application, apply to the court for an
order under this section.
(2) Where on an application under subsection (1)
the Court is satisfied—
(a) that the deceased made a contract by
which he agreed to leave by his will a
sum of money or other property to
any person or by which he agreed
that a sum of money or other property
would be paid or transferred to any
person out of his estate; and
(b) that the deceased made that contract
with the intention of defeating an
application for financial provision
under this Act; and
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(c) that when the contract was made full
valuable consideration for that
contract was not given or promised
by the person with whom or for the
benefit of whom the contract was
made (in this section referred to as
“the donee”) or by any other person;
and
(d) that the exercise of the powers
conferred by this section would
facilitate the making of financial
provision for the applicant under this
Act;
then, subject to the provisions of this section and of sections
14 and 15 the Court may make any one or more of the
following orders, that is to say—
(i) if any money has been paid or
any other property has been
transferred to or for the benefit
of the donee in accordance with
the contract, an order directing
the donee to provide, for the
purpose of the making of that
financial provision, such sum of
money or other property as
may be specified in the order;
(ii) if the money or all the money
has not been paid or the
property or all the property has
not been transferred in
accordance with the contract,
an order directing the personal
representatives not to make any
payment or transfer any
property, or not to make any
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further payment or transfer any
further property, as the case
may be, in accordance
therewith or directing the
personal representatives only to
make such payment or transfer
such property as may be
specified in the order.
(3) Notwithstanding anything in subsection (2), the
court may exercise its powers thereunder in relation to any
contract made by the deceased only to the extent that the
Court considers that the amount of any sum of money paid or
to be paid or the value of any property transferred or to be
transferred in accordance with the contract exceeds the value
of any valuable consideration given or to be given for that
contract, and for this purpose the Court shall have regard to
the value of the property at the date of the hearing.
(4) In determining whether and in what manner to
exercise its powers under this section, the Court shall have
regard to the circumstances in which the contract was made,
the relationship, if any, of the donee to the deceased, the
conduct and financial resources of the donee and all the other
circumstances of the case.
(5) Where an order has been made under
subsection (2) in relation to any contract, the rights of any
person to enforce that contract or to recover damages or to
obtain other relief for the breach thereof shall be subject to
any adjustment made by the Court under section 14(3) and
shall survive to such extent only as is consistent with giving
effect to the terms of that order.
(6) The provisions of this section do not apply to a
contract made before the commencement of this Act.

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Supplementary
provisions.

14. (1) Where the exercise of any of the powers
conferred by section 12 or 13 is conditional on the Court
being satisfied that a disposition or contract was made by a
deceased person with the intention of defeating an
application for financial provision under this Act, that
condition shall be fulfilled if the Court is of the opinion that,
on a balance of probabilities, the intention of the deceased
(though not necessarily his sole intention) in making the
disposition or contract was to prevent an order for financial
provision being made under this Act or to reduce the amount
of the provision which might otherwise be granted by an
order thereunder.
(2) Where an application is made under section 13
with respect to any contract made by the deceased and no
valuable consideration was given or promised by any person
for that contract then notwithstanding anything in subsection
(1), it shall be presumed, unless the contrary is shown, that
the deceased made that contract with the intention of
defeating an application for financial provision under this
Act.
(3) Where the Court makes an order under section
12 or 13 it may give such consequential directions as it thinks
fit (including directions requiring the making of any payment
or the transfer of any property) for giving effect to the order
or for securing a fair adjustment of the rights of the persons
affected thereby.
(4) Any power conferred on the Court by section
12 or 13 to order the donee, in relation to any disposition or
contract, to provide any sum of money or other property shall
be exercisable in like manner in relation to the personal
representative of the donee, and—
(a) any reference in section 12(4) to the
disposal of property by the donee
shall include a reference to disposal
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Provisions as to
trustees.

by the personal representative of the
donee; and
(b) any reference in section 12(5) to an
application by the donee under that
subsection shall include a reference to
an application by the personal
representative of the donee,
but the Court shall not have power under section 12 or 13 to
make an order in respect of any property forming part of the
estate of the donee which has been distributed by the
personal representative; and the personal representative shall
not be liable for having distributed any such property before
he has notice of the making of an application under section 12
or 13 on the ground that he ought to have taken into account
the possibility that such an application would be made.
15. (1) Where an application is made for—
(a) an order under section 12 in respect of
a disposition made by the deceased to
any person as a trustee; or
(b) an order under section 13 in respect of
any payment made or property
transferred, in accordance with a
contract made by the deceased, to any
person as a trustee,
the powers of the Court under section 12 or 13 to order that
trustee to provide a sum of money or other property shall be
subject to the following limitation (in addition, in a case of an
application under section 12, to any provision regarding the
deduction of estate duty) namely, that the amount of any sum
of money or the value of any property ordered to be
provided—

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(i) in the case of an application in
respect of a disposition which
consisted of the payment of
money or an application in
respect of the payment of
money in accordance with a
contract, shall not exceed the
aggregate of so much of that
money as is at the date of the
order in the hands of the
trustee and the value at that
date of any property which
represents that money or is
derived therefrom and is at that
date in the hands of the trustee;
(ii) in the case of an application in
respect of a disposition which
consisted of the transfer of
property (other than a sum of
money) or an application in
respect of the transfer of
property (other than a sum of
money) in accordance with a
contract, shall not exceed the
aggregate of the value at the
date of the order of so much of
that property as is at that date
in the hands of the trustee and
the value at that date of any
property which represents the
first-mentioned property or is
derived therefrom and is at that
date in the hands of the trustee.
(2) Where any such application is made in respect
of a disposition made to any person as a trustee or in respect
of any payment made or property transferred in pursuance of
a contract to any person as a trustee, the trustee shall not be
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Effect, duration
and form of
orders.


liable for having distributed any money or other property on
the ground that he ought to have taken into account the
possibility that such an application would be made.
(3) Where any such application is made in respect
of a disposition made to any person as a trustee or in respect
of any payment made or property transferred in accordance
with a contract to any person as a trustee, any reference in
section 12 or 13 to the donee shall be construed as including a
reference to the trustee or trustees for the time being of the
trust in question and any reference in subsection (1) or (2) to a
trustee shall be construed in the same way.
16. (1) Where an order is made under section 4 then
for all purposes, including the purposes of the enactments
relating to estate duty the will or the law relating to intestacy,
or both the will and the law relating to intestacy, as the case
may be, the order shall have effect and be deemed to have
had effect as from the deceased’s death subject to the
provisions of the order.
(2) Any order made under section 4 or 7 in favour
of an applicant who was the husband or wife of the deceased
in a case where the marriage with the deceased was the
subject of a decree of judicial separation and at the date of
death the decree was in force and the separation was
continuing, shall, in so far as it provides for the making of
periodical payments, cease to have effect on the remarriage of
the applicant, except in relation to any arrears due under the
order on the date of the remarriage.
(3) A copy of every order made under this Act
shall be sent to the Registrar of the Supreme Court of
Judicature for entry and filing, and a memorandum of the
order shall be endorsed on, or permanently annexed to, the
probate or letters of administration under which the estate is
being administered.

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Provisions as to
personal
representatives.
17. (1) The provisions of this Act shall not render the
personal representative of a deceased person liable for having
distributed any part of the estate of the deceased, after the
end of the period of one year from the date on which
representation with respect to the estate of the deceased is
first taken out, on the ground that he ought to have taken into
account the possibility—
(a) that the Court might permit the
making of an application for an order
under section 4 after the end of that
period; or
(b) that, where an order has been made
under section 4, the Court might
exercise in relation thereto the powers
conferred on it by section 8;
but this subsection shall not prejudice any power to recover,
by reason of the making of an order under this Act, any part
of the estate so distributed.
(2) Where the personal representative of a
deceased person pays any sum directed by an order under
section 7 to be paid out of the deceased’s net estate, he shall
not be under any liability by reason of that estate not being
sufficient to make the payment, unless at the time of making
the payment he has reasonable cause to believe that the estate
is not sufficient.
(3) Where a deceased person entered into a
contract by which he agreed to leave by his will any sum of
money or other property to any person or by which he agreed
that a sum of money or other property would be paid or
transferred to any person out of his estate, then, if the
personal representative of the deceased has reason to believe
that the deceased entered into the contract with the intention
of defeating an application for financial provision under this
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Act, he may, notwithstanding anything in that contract,
postpone the payment of that sum of money or the transfer of
that property until the expiration of the period of one year
from the date on which representation with respect to the
estate of the deceased is first taken out or, if during that
period an application is made for an order under section 4,
until the determination of the proceedings on that
application.
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