Succession
SUCCESSION ACT
CHAPTER 9:02
LAWS OF TRINIDAD AND TOBAGO
Act
27 of 1981
Amended by
28 of 2000
L.R.O.
Current Authorised Pages
Pages Authorised
(inclusive) by L.R.O.
1–97 ..
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Note on Subsidiary Legislation
This Chapter contains no subsidiary legislation.
Note on section 1(2)
Dates of Commencement
A. Section 122—(w.e.f. 30.7.1981) (By section 1 of the Act).
B. Part VIII (sections 94 to 116 inclusive) (w.e.f. 6.11.2000) (By LN 271/2000).
C. Parts I, II, III, IV, V, VI, VII and IX (On Proclamation) (i.e., These Parts are not yet in
operation).
Note on Acts not yet in operation
(1) In this Act references have been made to the following Acts:
(a) Landlord and Tenant Act, 1981 (Act No. 19 of 1981);
(b) Land Law and Conveyancing Act, 1981 (Act No. 20 of 1981);
(c) Trustee Act, 1981 (Act No. 21 of 1981);
(d) Limitation Act, 1981 (Act No. 22 of 1981); and
(e) Land Registration Act, 1981 (Act No. 24 of 1981)
(2) The above-mentioned Acts have not at the date of the revision of this Act been
brought into operation.
(3) The relevant provisions of this Act in which the above Acts are mentioned should
be read in the light of paragraph (2) above.
Note on section 65 of the Act
The Estate and Succession Duties Ordinance (Ch. 33 No. 5 -1950 Revised Edition) was
revised in 1980 and appeared in the 1980 Revised Edition of the Laws as the Estate and
Succession Duties Act, (Chap. 76:02) and was subsequently repealed by section 9(1) of the
Finance (Miscellaneous Provisions) Act, 2000 (Act No. 39 of 2000).
Note on section 88(5)
The Separation and Maintenance Ordinance (Ch. 5 No. 15 - 1950 Revised Edition) was
repealed by the Family Law (Guardianship of Minors, Domicile and Maintenance) Act, 1981
(Act No. 15 of 1981) which was subsequently revised in 1980 and appeared in the 1980 Revised
Edition of the Laws as Chapter 46:08.
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CHAPTER 9:02
SUCCESSION ACT
ARRANGEMENT OF SECTIONS
SECTION
1. Short title and Commencement.
PART I
INTERPRETATION
2. Interpretation.
PART II
WILLS
3. Property disposable by Will.
4. Capacity to make a Will.
5. Formalities for execution.
6. Wills with a foreign element.
7. Testamentary execution of power.
8. Incompetency of witness.
9. Gift to witness.
10. Attestation by creditor.
11. Attestation by executor.
12. Revocation by marriage.
13. Alteration in circumstances.
14. Revocation generally.
15. Alteration after execution.
16. Revival of revoked Will.
17. Subsequent conveyance or acts.
18. Will speaks from death.
19. Lapsed and void devises.
20. Meaning of certain expressions.
21. Contingent and future testamentary gifts.
22. General powers of appointment.
23. Words of limitation.
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ARRANGEMENT OF SECTIONS—Continued
SECTION
24. Lapsing of gifts to issue.
25. Secret trusts.
26. Abolition of doctrine of conversion.
27. General rules of construction.
28. Application of this Part.
PART III
ADMINISTRATOR GENERAL
29. Office and functions.
30. Security.
31. Transitional provisions.
32. Fees.
33. Doubt as to bona vacantia.
34. Regulations.
PART IV
DEVOLUTION
35. Realty to devolve as personalty.
36. Further assimilation of real and personal estates.
37. Construction of certain references.
PART V
GRANT OF REPRESENTATION
38. Jurisdiction of Court.
39. Number of representatives.
40. Trust corporations.
41. Proof of Will.
42. Solemn form.
43. Cesser of right to prove.
44. Withdrawal of renunciation.
45. Executor of executor.
46. Proving executor.
47. Disclaimer of executor.
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48. Grant of Administration.
49. Order of person entitled to Administration.
50. Administration pendente lite.
51. Continuance of legal proceedings.
52. Administration during minority of executor.
53. Administration with Will annexed.
54. Voidable Administration.
55. Citation of persons with prior right.
56. Creditors.
57. Special Administration.
58. Administration by Administrator General.
59. Small estates.
60. Form of application.
61. Contentious business.
62. Administration bonds.
63. Discharge and removal of personal representatives.
64. Caveats.
65. Certificate as to death duties.
66. Interim orders.
67. Appeals.
68. Filing of accounts.
69. Re-sealing of Commonwealth Grants.
70. Custody and registration of Wills.
71. Depositories.
PART VI
ADMINISTRATION OF ASSETS
72. General duty of personal representatives.
73. Protection of persons acting on Probate or Administration.
74. Executor de son tort.
75. Liability of estate of personal representative.
76. Assets for payment of debts.
77. Administration of assets.
78. Charges on property.
SECTION
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ARRANGEMENT OF SECTIONS—Continued
SECTION
79. Power of sale.
80. Power to assent or conveyance.
81. Powers to deal with land.
82. Right to follow property.
83. Powers of appropriation.
84. Minor’s property.
85. Power to give possession of land.
86. Powers of Court.
87. Distribution of estate.
PART VII
DISTRIBUTION ON INTESTACY
88. Rules for distribution on intestacy.
89. Statutory trusts for issue and other relatives.
90. Redemption of surviving spouse’s life interests.
91. Powers in respect of surviving spouse’s interests.
92. Partial intestacy.
93. Disposition of bona vacantia.
PART VIII
FAMILY PROVISION
94. Interpretation of this Part.
95. Application for financial provision.
96. Court orders.
97. Matters to be considered.
98. Time limit for applications.
99. Interim orders.
100. Variation and discharge of orders.
101. Payment by instalments.
102. Property—part of net estate.
103. Property held on a joint tenancy.
104. Anti-avoidance provisions.
105. Contracts to leave property by Will.
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SECTION
106. Supplementary provisions.
107. Provisions as to trustees.
108. Provisions after divorce or separation.
109. Restrictions on divorce and separation proceedings.
110. Variation and discharge of periodical payments orders.
111. Variation and revocation of maintenance agreements.
112. Availability of powers under this Part in other proceedings.
113. Effect, duration and form of orders.
114. Provisions as to personal representatives.
115. Admissibility of evidence.
116. Date of grant of representation.
PART IX
GENERAL PROVISIONS
117. Savings Bank deposits and insurance policies.
118. Access to documents.
119. Rules or Regulations.
120. Rules of Court.
121. Fees.
122. Abolition of estate duty.
123. Application of Act.
124. Repeals and amendments.
125. Adaptation of references.
SCHEDULE—ADMINISTRATION OF ASSETS.
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CHAPTER 9:02
SUCCESSION ACT
An Act relating to the law of succession.
[ASSENTED TO 30TH JULY 1981]
*1. (1) This Act may be cited as the Succession Act.
(2) This Act except for section 122 shall come into
operation on a date to be fixed by the President by Proclamation
published in the Gazette.
PART I
INTERPRETATION
2. (1) In this Act—
“administration” means, in relation to the estate of a deceased
person, letters of administration, whether general or limited,
or with the Will annexed or otherwise;
“administrator” means a person to whom administration is
granted;
“Administrator General” means the person appointed under
section 29;
“common form business” means the business of obtaining probate
and administration where there is no contention as to the right
thereto, including the granting of probates and
administrations in contentious cases when the contest is
terminated, and all business of a non-contentious nature to
be taken in Court in matters of testacy and intestacy not being
proceedings in any suit, and also the business of lodging
caveats against the grant of probate or administration;
“conveyance” includes any instrument, other than a Will,
consisting of or comprising a transfer, mortgage or other
charge, lease, assent, vesting declaration, disclaimer, release
or other assurance of property or of an interest therein; and
“convey” has a corresponding meaning;
27 of 1981.
Short title and
commencement.
Interpretation.
*See Note on page 2 for the commencement dates of this Act.
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“Court” means the High Court;
“death duties” includes any duty payable on the value of the estate
of a deceased person;
“grant” means a grant of representation;
“intestate”, when used as a noun, means a person who leaves no
Will or leaves a Will but leaves undisposed of some
beneficial interest in his estate;
“land” means the surface of the earth, the airspace above it and
the things, other than chattels, below it, and includes—
(a) buildings on land and parts of buildings whether
the division is vertical, horizontal, or made in any
other way;
(b) mines and minerals, whether or not held apart
from the surface;
(c) land covered by water;
(d) legal estates in land, whether or not they give a
right to possession of the soil;
(e) equitable interests in land;
“leasehold term” has the meaning assigned by section 5 of the
Land Law and Conveyancing Act, 1981;
“mortgage” includes any charge or lien on any property for
securing money or money’s worth;
“pecuniary legacy” includes an annuity, a general legacy, a
demonstrative legacy so far as it is not discharged out of the
designated property, and any other general direction by a
testator for the payment of money;
“personal chattels” means carriages, horses, stable furniture and
effects, motor cars and accessories, garden effects, domestic
animals, plate, plated articles, linen, china, glass, books,
pictures, prints, furniture, jewellery, articles of household or
personal use, or of ornament, musical and scientific
instruments and apparatus, wines, liquors and consumable
stores, but does not include any chattels used at the death of
the intestate for business or professional purposes nor money
or security for money;
20 of 1981.
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“personal representative” means the executor or the administrator
for the time being of a deceased person, and includes the
Administrator General;
“Public Trustee” has the meaning assigned by section 2 of the
Trustee Act, 1981;
“real estate” includes chattels real, and land in possession,
remainder or reversion, and every estate or interest in or over
land (including real estate held on trust or by way of
mortgage or security, but not money to arise under a trust
for sale of land, nor money secured or charged on land) to
which a deceased person was entitled at the time of his death;
“registered land” has the meaning assigned by section 2 of the
Land Registration Act, 1981;
“Registrar” means the registrar of the Supreme Court and includes
any Deputy or Assistant Registrar thereof;
“representation” means probate or administration;
“trust corporation” means the Public Trustee and a trust
corporation as defined by section 2 of the Trustee Act, 1981;
“unregistered land” has the meaning assigned by section 2 of the
Land Registration Act, 1981.
(2) Subject to section 88(2), in all cases where, after the
commencement of this Act, two or more persons have died—
(a) simultaneously; or
(b) in circumstances rendering it uncertain which of
them survived the other or others,
for all purposes affecting the title to property such deaths are
(unless the Court orders otherwise) presumed to have occurred
in order of seniority, the younger being presumed to have survived
the elder.
(3) Reference to a “spouse” includes—
(a) a single woman who has been living together with
a single man as his wife for a period of not less
than five years immediately preceding the date
of his death;
21 of 1981.
24 of 1981.
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(b) a single man who has been living together with a
single woman as her husband for a period of not
less than five years immediately preceding the
date of her death,
and for these purposes a reference to a single woman or a single
man includes a reference to a widow or widower or to a woman or
man who is divorced, but only one such relationship as is referred
to in paragraph (a) or (b) shall be taken into account for the purposes
of this Act.
(4) References to a child or issue living at the death of
any person include a child or issue en ventre sa mére at the death
and a child in respect of whom an adoption order has been made
under the Adoption of Children Act.
(5) The estate or interest of a deceased person under a
joint tenancy, where any tenant survives the deceased person, is
an estate or interest ceasing on his death.
PART II
WILLS
3. (1) Subject to this Part, every person may dispose, by
Will executed in accordance with this Part, of all property owned
by him at the time of his death, and which, if not disposed of,
would fall within his estate to be distributed in accordance with
Part VII.
(2) For the removal of doubt, it is hereby declared that
(without prejudice to the rights and interests of a personal
representative) any person may dispose of land by Will
notwithstanding that by reason of not being born in wedlock or
otherwise he did not leave an heir or next of kin surviving him.
4. To be valid a Will shall be made by a person who—
(a) has attained the age of eighteen years or is or has
been married; and
(b) is of sound disposing mind.
Ch. 46:03.
Property
disposable by
Will.
Capacity to
make a Will.
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5. (1) Subject to section 6, no Will is valid unless it is—
(a) in writing; and
(b) signed at the foot or end thereof by the testator,
or by some other person in his presence and by
his direction, in accordance with subsection (2).
(2) The signature of the testator or other person mentioned
in paragraph (b) of subsection (1) is effective—
(a) only if made or acknowledged by the testator in
the presence of two or more witnesses present at
the same time, such witnesses attesting and
subscribing the Will in the presence of the testator;
(b) so far as its position is concerned, if it satisfies
subsection (4).
(3) No particular form of attestation is necessary, nor is it
necessary for the witnesses to sign in the presence of each other,
nor is publication of the Will necessary.
(4) So far as regards the position of the signature of the
testator, or of the person signing for him—
(a) a Will is valid if the signature is so placed at, after,
following, under, beside or opposite the end of
the Will that it is apparent on the face of the Will
that the testator intended to give effect, by such
signature, to the writing signed as his Will;
(b) no Will is affected by the circumstances that—
(i) the signature does not follow, or is not
immediately after, the foot or end of the
Will; or
(ii) a blank space intervenes between the
concluding word of the Will and the
signature; or
(iii) the signature is placed among the words of
the testimonium clause or of the clause of
attestation, or follows or is after or under
the clause of attestation, either with or
without a blank space intervening, or
Formalities for
execution.
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follows or is after, under or beside the
names or one of the names of the
subscribing witnesses; or
(iv) the signature is on a side, page or other
portion of the paper or papers containing
the Will whereon no clause or paragraph
or disposing part of the Will is written
above the signature; or
(v) there appears to be sufficient space to
contain the signature on or at the bottom
of the preceding side, page or other portion
of the same paper on which the Will
is written,
and the enumeration of the above circumstances does not restrict
the generality of this subsection; but no signature under this section
operates to give effect to any disposition or direction which is
underneath or follows it, nor does it give effect to any disposition
or direction inserted after the signature is made.
(5) No person is a competent witness to the execution of
a Will if he attests the Will in any manner other than by signing his
name in his own handwriting.
6. (1) The Minister may make Regulations governing the
validity and recognition of Wills and other testamentary
dispositions with a foreign element or executed on board a vessel
or aircraft or which, for any other reason, may not comply with
the law of the State.
(2) In making Regulations under subsection (1), the
Minister may have regard to any convention providing a uniform
law on the form of an international Will or otherwise dealing with
the conflict of laws relating to testamentary dispositions.
7. (1) No appointment made by Will, in the exercise of any
power, is valid unless it is executed in accordance with section 5 or 6.
(2) Subsection (1) applies notwithstanding anything to the
contrary in the instrument creating the power.
Wills with a
foreign element.
Testamentary
execution of
power.
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(3) A Will executed in accordance with section 5 or 6 is,
so far as respects the execution and attestation thereof, a valid
execution of a power of appointment by Will, notwithstanding that
the instrument creating the power expressly requires that a Will
made in exercise of such power should be executed with some
additional or other form of execution or formality.
8. Subject to section 5(5), if any person who attests the
execution of a Will is, at the time of the execution, or becomes, at
any time afterwards, incompetent as a witness to prove the
execution, the Will is not invalid on that account.
9. (1) Subject to subsection (2), if a person who attests the
execution of a Will is a person to whom any interest is given by the
Will (whether by way of gift or by way of exercise of a power of
appointment, but other than and except charges and directions for
the payment of debts), the gift or appointment is void, so far as it
concerns such an attesting witness or any person claiming under the
witness; but the attesting witness is competent as a witness to prove
the execution, or to prove the validity or invalidity of the Will,
notwithstanding the gift or appointment mentioned in the Will.
(2) Attestation of a Will by a person to whom there is given
or made any such disposition as is described in subsection (1) shall
be disregarded if the Will is duly executed without his attestation
and without that of any other such person or if the attesting witness
is the testator’s spouse.
(3) This section applies to the Will of any person dying
after the passing of this Act, whether executed before or after the
passing of this Act.
10. If a Will charges any property with any debt, and—
(a) any creditor whose debt is so charged; or
(b) the wife or husband of any such creditor,
attests the execution, such an attesting witness is competent,
notwithstanding the charge, as a witness to prove the execution, or
to prove the validity or invalidity of the Will.
Incompetency of
witness.
Gift to witness.
Attestation by
creditor.
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11. No person is incompetent, on account of his being an
executor of a Will, as a witness to prove the execution, or to prove
the validity or invalidity of the Will.
12. (1) Subject to subsection (2), all Wills, whenever made,
are revoked by the marriage of the testator.
(2) Marriage of the testator does not revoke a Will—
(a) whenever made, if the marriage is in extremis and
solemnised in accordance with the provisions of
the Marriage Act;
(b) made on or after 1st January 1928, and in exercise
of a power of appointment, whereby the property
appointed would not, in default of the
appointment, pass to his intestate successors in
accordance with Part VII or to his personal
representative;
(c) made on or after the said date and expressed to
be in contemplation of marriage, whether so
expressed in the Will or not;
(d) made as a mutual Will by a survivor of two or
more persons who made such Wills, where any
such person other than the said survivor has since
died without revoking his mutual Will.
13. No Will is revoked by any presumption of an intention on
the ground of an alteration in circumstances.
14. No Will, or any part thereof, is revocable otherwise than—
(a) in accordance with section 12; or
(b) by another Will; or
(c) by some writing, declaring an intention to revoke
the Will, executed in the manner in which a Will
is required to be executed; or
(d) by the testator, or some person in his presence
and by his direction, burning, tearing or
otherwise destroying the Will, with the intention
of revoking it.
Attestation by
executor.
Revocation by
marriage.
Ch. 45:01.
Alteration in
circumstances.
Revocation
generally.
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15. No obliteration, interlineation or other alteration made in
any Will, after its execution, is valid, or has any effect so far as the
words or effect of the Will before the alteration are not apparent,
unless the alteration is executed in the manner in which a Will is
required to be executed; but the Will, with the alteration as part of
it, is duly executed if the signature of the testator and the
subscription of the witnesses are made in the margin, or on some
other part of the Will opposite or near the alteration, or at the foot
or end of or opposite a memorandum referring to the alteration
and written at the end or some other part of the Will.
16. (1) No Will, or any part thereof, which has been revoked,
is revived otherwise than by—
(a) re-execution of the revoked Will; or
(b) a codicil showing an intention to revive the
revoked Will.
(2) Where any Will, which has been, first, partly revoked,
and later wholly revoked, is revised, the revival does not extend to
the part revoked before the revocation of the whole Will unless an
intention to revive that part is shown.
17. No conveyance or other act, made or done subsequently
to the execution of a Will, of or relating to any property referred to
in the Will (except an act which revokes the Will in accordance
with section 12 or 14 ), prevents the operation of the Will with
respect to the interest in that property of which the testator has
power to dispose by Will at the time of his death.
18. Every Will shall be construed, with reference to the
property referred to in it, to speak and take effect as if it had been
executed immediately before the death of the testator, unless a
contrary intention appears from the Will.
19. Unless a contrary intention appears from the Will, if a
devise fails or is void by reason of the death of the devisee in the
lifetime of the testator, by reason of being contrary to law or
otherwise, any property comprised or intended to be comprised in
that devise is deemed to be included in the residuary devise (if
any) contained in the Will.
Alteration after
execution.
Revival of
revoked Will.
Subsequent
conveyance or
acts.
Will speaks
from death.
Lapsed and void
devises.
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20. (1) A disposition by Will of property described as realty
in any place, or in the occupation of a person mentioned in the
Will or otherwise described in a general manner, or a residuary
devise of property described as realty includes—
(a) any beneficial interest, of which the testator could
dispose by Will, in capital money arising under
the statutory trusts of a fee simple;
(b) if the testator dies owning no other property
passing under such a disposition, any beneficial
interest, of which the testator could dispose by
Will, in proceeds of sale under a trust for sale of
a fee simple.
(2) A disposition by Will of land in any place, or in the
occupation of a person mentioned in the Will or otherwise described
in a general manner, or a residuary devise or bequest of land,
includes the interests included by paragraphs (a) and (b) of
subsection (1) in a gift of property described as realty.
(3) A gift of property described as personalty in a general
manner, or a residuary bequest, includes any beneficial interest,
of which the testator could dispose by Will, under a trust for sale
of land, unless it is included in a disposition by virtue of
subsection (1) or (2).
(4) A devise of property described as land in any place,
or in the occupation of a person mentioned in the Will or of property
otherwise described as land in a general manner, and any other
general devise which would describe a leasehold term if the testator
had no fee simple (legal or equitable) which could be described by
it, includes the leasehold terms of the testator, or any of them to
which the description extends, as the case may be, as well as estates
in fee simple.
(5) This section takes effect subject to a contrary intention
appearing from the Will, and subsections (1) to (3) apply only to
Wills coming into operation after the commencement of this Act.
(6) In subsection (1) the expressions “capital money” and
“statutory trusts” have the meaning assigned by section 2(1) of the
Land Law and Conveyancing Act, 1981.
Meaning of
certain
expressions.
20 of 1981.
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21. (1) A contingent or future specific devise or bequest of
property, a contingent residuary devise of land and a specific or
residuary devise of land to trustees upon trust for persons whose
interests are contingent or executory all carry the intermediate
income of that property from the death of the testator, except so
far as that income, or any part there, may be otherwise expressly
disposed of.
(2) This section applies only to Wills coming into
operation after the commencement of this Act.
22. A general or residuary disposition of property, or of
property described as realty, personalty or by any other general
description, or of such property in any place, or in the occupation
of a person mentioned in the Will, or otherwise described in a
general manner, shall be construed to include any property to which
the description extends, which the testator has power to appoint in
any manner he thinks proper and operates as an execution of such
power, unless a contrary intention appears from the Will.
23. A devise of land, or any interest in land, whether
beneficially or to any trustee, passes the fee simple absolute in
possession, or other whole estate or interest which the testator had
power to dispose of or create by Will in the land devised, unless a
contrary intention appears from the Will.
24. Where property is devised or bequeathed to a child or other
issue of the testator, for an estate or interest not determinable at or
before the death of the devisee or legatee, and—
(a) the devisee or legatee dies in the lifetime of the
testator, having issue; and
(b) any such issue are living at the time of the death
of the testator,
the devise or bequest does not lapse, but takes effect as if the
death of the devisee or legatee had happened immediately after
the death of the testator, unless a contrary intention appears from
the Will.
Contingent and
future
testamentary
gifts.
General powers
of appointment.
Words of
limitation.
Lapsing of gifts
to issue.
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25. (1) Where any property is devised or bequeathed to any
person on trust but the Will does not specify the trusts upon which
the property is to be held, the legatee or devisee shall hold the
property on trust to give effect to any instructions given to him by
the testator otherwise than by Will and, if inconsistent instructions
have been given at different times, to give effect to the last
instruction given by the testator.
( 2) Subsection (1) has effect in relation to instructions
given before or after the making of a Will, and whether the
instructions are in writing or not.
26. The equitable doctrine of conversion is hereby abolished.
27. (1) Extrinsic evidence is admissible to show the intention
of the testator and to assist in the construction of or to explain any
contradiction in a Will.
(2) If the purport of a devise or bequest admits of more
than one interpretation, then, in the case of doubt, the interpretation
according to which the devise or bequest will be operative shall
be preferred.
28. (1) Except where otherwise expressly provided, the
foregoing provisions of this Part apply to Wills made before or
after the commencement of this Act, whether the testator dies before
or after such commencement.
(2) Every Will which is re-executed, re-published or
revived by codicil is, for the purposes of this Part, made at the
time of the re-execution, re-publication or revival.
PART III
ADMINISTRATOR GENERAL
29. (1) There shall be established the office of
Administrator General.
(2) The Administrator General is a corporation sole
under that name, with perpetual succession and an official seal,
and may sue and be sued under that name.
Secret trusts.
Abolition of the
doctrine of
conversion.
General rules of
construction.
Application of
this Part.
Office and
functions.
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(3) The office of Administrator General is a public office
within the meaning of the Civil Service Act, and the provisions of
the said Act apply accordingly.
(4) A public officer may be appointed to perform the
duties of the office of the Administrator General in conjunction
with the duties of any other office.
(5) Any other public officer may be appointed to assist
the Administrator General in his office or as his agent or delegate
in conjunction with the duties of any other office.
(6) Where the Administrator General is the head of a
Department of the public service, his powers extend to the clerks
and officers of his Department without any special appointment of
such clerks or officers to assist him in the discharge of his duties
and powers under this Act.
(7) Unless a new person is appointed to hold the office of
Administrator General from the commencement of this Act, the
person who immediately before the commencement of this Act is
performing the functions of the office of Administrator General
shall be deemed to have been lawfully appointed to, and shall
continue to hold or act in, that office as if he had been appointed
under this section.
30. The Administrator General shall not be called upon to give
security in respect of any property vesting in him or committed to
his charge under this Act.
31. Subject to such regulations as may be made, all property,
funds, books, records, documents and accounts held at the
commencement of this Act by the Administrator General appointed
under the Administration of Estates Act shall be deemed to be
transferred to and to be held by any new Administrator General
appointed to take office at the commencement of this Act.
32. (1) The Minister may by Order, subject to affirmative
resolution of the House of Representatives, prescribe fees to be
charged in respect of execution of the duties, and exercise of the
Ch. 23:01.
Security.
Transitional
provisions.
Ch. 9:01.
Fees.
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powers of the Administrator General, and such fees shall be
collected and accounted for by such persons and in such manner,
and shall be paid into such account, as may be prescribed.
(2) Such fees shall be applied as an appropriation in aid
of moneys provided for expenses under this Part, and so far as not
so applied shall be paid into the Consolidated Fund.
(3) The fees under this section shall be arranged from time
to time so as to produce an annual amount sufficient to discharge
the salaries and other expenses incidental to the carrying out of the
Administrator General’s functions under this Act.
33. (1) Where the Administrator General has taken or claims
possession of any property on behalf of the State and it is doubtful—
(a) what property was in the possession of the
deceased intestate; or
(b) what are the boundaries or other description of
so much of such property as consists of land; or
(c) whether the intestate died without leaving any
next of kin; or
(d) whether any person is entitled as against the State
to any right in or claim to such property; or
(e) whether any person is entitled as a creditor of the
deceased or otherwise to any payment out of or
charge upon such property,
he shall, by originating summons to be served upon any person
having or claiming to have any adverse right or interest, apply to the
Court for directions in respect of such matters and any other matters
which the Court considers proper matters to be so determined.
(2) Upon such application, the Court may—
(a) with the consent of the parties claiming to be
entitled to such property, determine any such
matter summarily without appeal; or
(b) at the request of the Administrator General or any
person appearing to such summons and claiming
to be entitled to such property, direct any such
Doubt as to
bona vacantia.
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matter to be tried in the same manner as any
question or issue arising in the course of
interpleader proceedings.
(3) On the trial of any such matter, any party interested
therein may at any time apply to the Court for such judgment or
order as he may be entitled to in consequence of the finding on
such trial.
34. Without prejudice to the generality of section 120, the
Minister may make Regulations for carrying into effect the objects
of this Part and other Parts of this Act relating to the Administrator
General, and in particular in respect of—
(a) the duties of the Administrator General, his officers
and any persons assisting him or acting for him;
(b) all applications to be made to and all business to
be transacted by or with the Administrator General
or such officers and other persons other than
proceedings in Court.
PART IV
DEVOLUTION
35. (1) Real estate to which a deceased person was entitled for
an estate or interest not ceasing on his death devolves on his death,
notwithstanding any testamentary disposition thereof, to and, subject
to subsection (3), becomes vested in his personal representatives
from time to time as if it were personal estate vested in them.
(2) Probate or Letters of Administration shall be granted
in respect of, and take effect to vest in, the personal representatives
all real and personal estate of a deceased person.
(3) For the avoidance of doubt, it is hereby declared that,
in respect of the real and personal estate of a person dying after the
commencement of this Act, such estate does not vest in the personal
representatives until Probate or Letters of Administration in respect
thereof are granted to them and, pending the grant of such Probate
or Letters of Administration, they have no power to deal or interfere
with such estate.
Regulations.
Realty to
devolve as
personalty.
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(4) On the death of any person, all his real and personal
estate vests in law in the Administrator General until the same is
divested by the grant of Probate or Letters of Administration to
some other person or persons.
(5) The Administrator General shall not, pending the grant
of such Probate or Letters of Administration, take possession of or
interfere in the administration of any estate save as provided in
this Act.
(6) For the avoidance of doubt, it is hereby declared
that a notice to determine a tenancy vested in a deceased person
to be served under section 63 of the Landlord and Tenant Act,
1981, shall be served on the Administrator General, pending
the grant of Probate or Letters of Administration in respect of
such person’s estate, and such service has the same effect as it
would have had if the deceased person were still alive and the
service had been on him.
(7) This section applies to any real estate over which a
person exercises by Will a general power of appointment, as if it
were real estate vested in him.
(8) In this section, and elsewhere in this Act—
(a) “real estate” includes chattels real, and land in
possession, remainder or reversion, and every
estate or interest in or over land (including real
estate held on trust or by way of mortgage or
security, but not money to arise under a trust for
sale of land, nor money secured or charged on
land) to which a deceased person was entitled at
the time of his death;
(b) an estate or interest vested on any trust in any
deceased person solely is not an estate or interest
as to which that person dies intestate;
(c) the estate or interest of a deceased person under a
joint tenancy where any tenant survives the
deceased person is an estate or interest ceasing
on his death which passes by survivorship;
19 of 1981.
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(d) on the death of a corporation sole, his estate or
interest in the corporation’s real estate is an estate
or interest ceasing on his death which devolves
to his successor.
36. (1) All enactments (including this Act) and rules of law
relating to—
(a) the effect of Probate or Letters of Administration
as respects personal estate;
(b) the dealing with personal estate before Probate
or Letters of Administration;
(c) the powers, rights, duties and liabilities of personal
representatives in respect of personal estate;
(d) the payment of costs of administration; and
(e) all other matters with respect to the administration
of personal estate,
extend and apply, so far as the same are applicable, to real estate
as if it were personal estate; and the subsequent provisions of this
section do not prejudice the generality of this subsection.
(2) All jurisdiction of any Court with respect to
appointment of administrators or otherwise with respect to the grant
of Probate or Letters of Administration as respects personal estate
extend over, and are exercisable in relation to, real estate as if it
were personal estate and the rights, as respects citations to see
proceedings, of persons interested or claiming to be interested in
the real estate of a deceased person are the same as those of persons
interested in or claiming to be interested in the personal estate of
that deceased person.
(3) A grant of Probate or Letters of Administration, unless
it contains an express limitation to the contrary, has effect as well
over the real as over the personal estate and, subject to
subsection (4), the personal representatives of a deceased person
hold his real estate as trustees for the persons by law entitled thereto.
(4) A personal representative in his capacity of personal
representative is not, by reason only of subsection (3), a trustee for
the purposes of the Limitation Act, 1981.
Further
assimilation of
real and
personal estates.
22 of 1981.
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(5) In the administration of assets of a deceased person,
his real estate shall be administered, subject to and in accordance
with the provisions of Part VI, in the same manner and with the
same incidents as if it were personal estate.
37. (1) References in the subsequent provisions of this Act
and in any subsequent enactment to the estate of a deceased person
shall, unless the contrary intention appears, include references to
both the real and personal estate of the deceased person.
(2) In any enactment, deed or instrument—
(a) passed or executed before or after the
commencement of this Act, the word “heir” or
“heirs” used as a word of limitation has the same
effect as if this Act had not been passed;
(b) passed or enacted before the commencement of
this Act, the word “heir” or “heirs” used as a word
of purchase has the same meaning as if this Act
had not been passed;
(c) passed or executed after the commencement of
this Act, the word “heir” or “heirs” used as a word
of purchase means, unless the contrary intention
appears, the person or persons, other than a
creditor, who would be beneficially entitled under
Part VII to the estate of the ancestor if the ancestor
had died intestate;
(d) passed or enacted before or after the
commencement to this Act, and in this Act, subject
as aforesaid, references to the heirs of any person
include references to his personal representatives.
PART V
GRANT OF REPRESENTATION
38. (1) The Court of jurisdiction in respect of the estate of a
deceased person, whether it consists of realty only or of personalty
only, or partly of realty and partly of personalty, to—
(a) determine the validity and admissibility to Probate
of the Will or the granting of administration of
Construction of
certain
references.
Jurisdiction of
Court.
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the estate of any person domiciled in the State
and of the estate in the State of any person,
wherever domiciled, dying seised or possessed
thereof or entitled thereto;
(b) revoke any Probate or Administration in any suit
instituted either—
(i) by an executor or Administrator or any
person claiming under a Will to have it
established or to have the trusts of it carried
into effect; or
(ii) any person claiming adversely to a Will or
Administration to have it declared void, and
its registration prevented or recalled, or
claiming to have Administration revoked.
(2) The jurisdiction of the Court under this section shall
be exercised subject to any Rules of Court applicable or made
under section 121.
(3) The Court may, at any stage of any proceedings under
this Act, direct the Administrator General to be made a party thereto,
and may adjourn any hearing, summons or other proceeding to
admit service on and appearance by the Administrator General.
39. (1) Probate or Administration shall not be granted to more
than four persons in respect of the same estate.
(2) This section applies to grants made after the date of
commencement of this Act, whether the testator or intestate died
before or after that date.
40. (1) The Court may—
(a) where a trust corporation is named in a Will as
executor, whether alone or jointly with another
person, grant Probate to the corporation either
solely or jointly with another person, as the case
may require;
(b) grant Administration to a trust corporation, either
solely or jointly with another person,
Number of
representatives.
Trust
corporations.
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and the trust corporation may act accordingly as executor or
administrator, as the case may be.
(2) Probate or Administration shall not be granted to a
syndic or nominee on behalf of a trust corporation.
(3) Any officer authorised for the purpose by a trust
corporation or the directors or governing body thereof may, on behalf
of the corporation, swear affidavits, give security and do any other
act or thing which the Court may require with a view to the grant to
the corporation of Probate or Administration, and the acts of any
officer so authorised are binding on the corporation.
(4) This section has effect whether the testator or intestate
died before or after the commencement of this Act.
41. (1) No Will of any deceased person has any effect whatever
in law or in equity, or passes any right, title or interest whatever,
until the same has been duly proved in accordance with the provisions
of this Act.
(2) The Administrator General or any person alleging
himself to be interested in the estate of any deceased person may, by
summons, at any time call upon any person whom he alleges to be in
possession of any Will of the deceased to produce the same.
(3) The party upon whom such summons is served shall
appear on the day named therein and is bound to produce any such
Will, and, if he refuses or omits so to produce any such Will—
(a) no Will afterwards by him shall be admitted to
probate at any time thereafter without express
leave of the Court;
(b) he is liable to attachment, if it is at any time
proved that any such Will was at the time of
service on him of such summons in his custody
or control.
42. (1) Any person claiming probate in the first instance may,
by application, to be heard as an application for grant in solemn
form, commence an action to establish the Will against any person
with any opposite interest.
Proof of Will.
Solemn form.
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(2) In such a case, the Court shall, at the trial not allow
the applicant the costs or any part of the costs of such action out of
the estate, unless satisfied that the action was necessary.
43. Where a person appointed executor by Will—
(a) survives the testator but dies without having taken
out probate of the Will; or
(b) is cited to take out probate of the Will and does
not appear to the citation; or
(c) renounces probate of the Will,
his rights in respect of the executorship wholly cease, and the
representation to the testator and the administration of his real and
personal estate devolve and are committed in like manner as if
that person had not been appointed executor.
44. (1) Where an executor who has renounced Probate has
been permitted, whether before or after the commencement of this
Act, to withdraw the renunciation and prove the Will, the Probate
takes effect and shall be deemed always to have taken effect without
prejudice to the previous acts and dealings of and notices to any
other personal representative who has previously proved the Will
or taken out Letters of Administration, and a memorandum of the
subsequent Probate shall be endorsed on the original Probate or
Letters of Administration.
(2) This section applies whether the testator died before
or after the commencement of this Act.
45. (1) An executor of a sole or last surviving executor of a
testator is the executor of that testator.
(2) Subsection (1) does not apply to an executor who does
not prove the Will of his testator, and, in the case of an executor
who on his death leaves surviving him some other executor of his
testator who afterwards proves the Will of that testator, it ceases to
apply on such probate being granted.
(3) So long as the chain of such representation is
unbroken, the last executor in the chain is the executor of every
preceding testator.
Cesser of right
to prove.
Withdrawal of
renunciation.
Executor of
executor.
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(4) The chain of such representation is broken by—
(a) an intestacy; or
(b) the failure of a testator to appoint an executor; or
(c) the failure to obtain probate of a Will,
but is not broken by a temporary grant of Administration if Probate
is subsequently granted.
(5) Every person in the chain of representation to
a testator—
(a) has the same rights in respect of the real and
personal estate of that testator as the original
executor would have had if living; and
(b) is, to the extent to which the estate whether real
or personal of that testator has come to his hands,
answerable as if he were an original executor.
46. (1) Where probate is granted to one or some of two or
more persons named as executors, whether or not power is
reserved to the others or other to prove, all the powers which
are by law conferred on the personal representative may be
exercised by the proving executor or executors for the time being
and are as effectual as if all the persons named as executors had
concurred therein.
(2) This section applies whether the testator died before
or after the commencement of this Act.
47. (1) Any executor, notwithstanding that he may have
proved the Will of his testator, may at any time before he has
intermeddled with the assets or acted as the personal
representative of any person (in this section referred to as the
“original testator”) of whom his testator was executor, renounce
and disclaim being the personal representative of such original
testator by making a declaration to that effect in such form as
may be prescribed.
(2) Such form shall be registered with the Registrar
General, and a certified copy thereof shall be filed in the Registry
of the Court.
Proving
executor.
Disclaimer of
executor.
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(3) The declaration has effect and validity only when so
registered and, on registration, all the estate of the original testator
which devolved to and became vested in such executor vests in
law in the continuing executor or executors or, if there is none, in
the Administrator General.
(4) The registration fee on such declaration shall be as
prescribed, but no stamp duty is chargeable thereon.
(5) Any person making a declaration under this section,
which contains any false or incorrect particulars, is guilty of an
offence and, in addition to any civil liabilities, is liable, on summary
conviction, on a complaint by the Administrator General, to a fine
of three thousand dollars or to imprisonment for two years.
(6) The Administrator General may take summary
proceedings under this section at any time within five years from
the time when the cause of the complaint arose.
48. (1) Subject to subsection (2), where—
(a) any person dies intestate; or
(b) any person dies without having appointed any
executor or having made an appointment which
fails; or
(c) the executor named in the Will is under the age
of eighteen years or is absent from the State
without having proved the Will; or
(d) any person dies out of the State but having any
estate within the State,
Administration in respect of the estate shall be granted to the
person entitled under this Act.
(2) Where, by reason of the insolvency of the estate or
any other special circumstances, it appears to the Court to be
necessary or expedient to appoint as administrator some person
other than the person who, but for this provision, would have been
entitled to the grant of Administration, the Court may in its
discretion, notwithstanding any other provision in this Act, appoint
as administrator such person as it thinks expedient, and any
Administration granted under this subsection may be limited in
any way the Court thinks fit.
Grant of
Administration.
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49. Applications for Administration may be made by the
following persons as of course, and in the following order of
preference, that is to say—
(a) in cases of intestacy—
(i) the surviving spouse of the intestate;
(ii) the next of kin;
(iii) the Administrator General;
(b) where no executor has been appointed or the
executor is absent from the State, or is unable or
unwilling to act—
(i) the residuary devisee or residuary legatee;
(ii) a devisee or legatee;
(iii) the next of kin;
(iv) the Administrator General.
50. (1) Where any legal proceedings touching the validity of
the Will of a deceased person, or for obtaining, recalling or revoking
any grant, are pending, the Court may grant Administration of the
estate of the deceased person to an administrator, who has all the
rights and powers of a general administrator other than a right of
distributing the residue of the estate.
(2) Every such administrator is subject to the immediate
control of the Court and acts under its direction.
(3) The Court may, out of the deceased’s estate, assign to
an administrator appointed under this section such reasonable
remuneration as the Court thinks fit.
51. If, while any legal proceeding is pending in any Court by
or against an administrator to whom a temporary Administration
has been granted, that Administration is revoked, that Court may
order that the proceeding be continued by or against the new
personal representative in like manner as if the same had been
originally commenced by or against him, but subject to such
conditions and variations, if any, as the Court directs.
Order of person
entitled to
Administration.
Administration
pendente lite.
Continuance of
legal
proceedings.
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52. (1) Where a minor is sole executor of a Will,
Administration with the Will annexed shall to his guardian, or to
such other person as the Court thinks fit, until the minor attains the
age of eighteen years, and on his attaining that age and not before
Probate of the Will may be granted to him.
(2) Where a testator by his Will appoints a minor to be an
executor, the appointment does not operate to constitute him a
personal representative for any purpose, unless and until probate
is granted to him under this section.
53. In any case where—
(a) there is an executor of a Will, but he has not
proved the Will nor signed a declaration of
renunciation; or
(b) there is any residuary or other devisee or legatee
or next of kin who has not signed such a
declaration,
the Court may, if such executor, devisee, legatee or next of kin does
not appear after citation, or if such person shall appear, but not show
any sufficient cause to the contrary, order that administrator with
the Will annexed to be granted to the person who would be entitled
thereto, if such other person had duly renounced.
54. (1) All Letters of Administration granted at a time when
there is an executor who has not proved the Will are voidable only,
but they become void as soon as a Will of the deceased person of
whose estate such Administration was granted is duly proved by
any executor, or when such Administration is revoked by order of
the Court.
(2) All acts done by an administrator under such voidable
Letters of Administration are valid notwithstanding that the
administration later becomes void or is revoked, but persons who
have received any property as next of kin are liable to account for
and transfer the same to the legatees or devisees or other persons
entitled thereto under the Will without prejudice to the rights of
purchases of such property.
Administration
during minority
of executor.
Administration
with Will
annexed.
Voidable
Administration.
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55. (1) An applicant for a grant of Administration with the
Will annexed or for Administration shall cite all persons having a
prior right to apply for a grant of Probate or Administration, as the
case may be, and who have not renounced the right to the grant.
(2) The Court may grant Administration to such an
applicant in the event of the persons having such prior right failing
to appear and to accept the grant after having been cited to do so.
(3) Subject to subsection (4), the Court may grant
administration of the estate within the State of any person to any
person resident within the State who would otherwise be entitled
to the same without any previous citation to or the consent of any
other party having a prior right to administration, but not resident
or actually living within the State.
(4) Administration granted under subsection (3) shall be
with reservation of the right of the party having such prior right.
56. (1) Subject to subsection (2), on production of an affidavit—
(a) stating who is the person entitled to Probate or
Administration;
(b) showing that such person has renounced the right
to the same or has neglected or refused to apply
for the same after citation, and that the claim of
the applicant is unsatisfied,
but not otherwise, any person proving himself to be a creditor
of the testator or intestator or for financial expenses may apply
for Administration.
(2) An application made under subsection (1) shall set
out and the applicant shall swear therein to the alleged debt and
the particulars thereof with the same particularity as is required
for the special endorsement of a writ of summons in an action.
(3) In any such application, the Court may, in its
discretion, cause to be summoned—
(a) the executor named in the Will, spouse, residuary
devisee or the legatee or next of kin, as the case
may be, or any person interested in the deceased’s
estate; or
Citation of
persons with
prior right.
Creditors.
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(b) if there are no persons so entitled or interested,
the Administrator General.
57. (1) If at the expiration of six months from the death of a
person any personal representative of the deceased person to whom
a grant has been made is residing out of the jurisdiction of the
Court, the Court may, on the application of the Administrator
General or any creditor or person interested in the estate of the
deceased person, grant to him in such form as the Court thinks fit
special Administration of the estate of the deceased person.
(2) The Court may, for the purpose of any legal
proceedings to which the administrator under the special
Administration is a party, order the transfer into Court of any money
or securities belonging to the estate of the deceased person, and all
persons shall obey any such order.
(3) If the personal representative capable of acting as such
returns to and resides within the jurisdiction of the Court while
any legal proceedings to which a special administrator is a party
are pending, that personal representative shall be made a party to
the legal proceedings, and the costs of and incidental to the special
administration and the legal proceedings shall be paid by such
person and out of such fund as the Court in which the proceedings
are pending may direct.
58. (1) Subject to the foregoing provisions, the Administrator
General may apply to the Court for Letters of Administration,
general or restricted as the case may be, to the estate and effects of
any person, whether domiciled in the State or not, who—
(a) has died intestate; or
(b) has died having made a Will but the executor or
executors named therein have renounced and
disclaimed execution thereof or, after being duly
cited, have refused or neglected to prove it.
(2) In the case of the death of any personal representative
of any such deceased person, the Administrator General may
apply for a grant of Administration with the Will annexed to the
estate unadministered.
Special
Administration.
Administration
by
Administrator
General.
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59. (1) In any case where—
(a) no executor has been appointed by the Will of a
deceased person or no person has obtained Letters
of Administration to his estate; and
(b) it appears to him to be necessary to do so,
the Administrator General, as such, may, without applying for
Probate of any Will or grant of Letters of Administration, take
possession of and administer any estate of any person dying in the
State or dying possessed of property in the State which is shown
not to exceed in gross value the sum of ten thousand dollars.
(2) Subsection (1) does not limit in any way the power
to grant Administration conferred by any rule made under this
Act and Administration granted under any such rule in respect of
any estate so taken in possession shall be deemed equivalent to a
grant of Administration of the estate unadministered by the
Administrator General.
(3) In any case where—
(a) it appears that the estate of a deceased intestate
does not exceed in gross value the sum of ten
thousand dollars; and
(b) no application has been made by any person
entitled under any rule made under this Act,
the Administrator General may make an application under the
said rule.
(4) In any case where a person dies intestate without
leaving next of kin, the Administrator General—
(a) may, where the estate does not exceed in gross
value the sum of ten thousand dollars without
obtaining Letters of Administration;
(b) shall, in any other case, after obtaining Letters of
Administration,
take possession of and administer the estate on behalf of the State.
Small estates.
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LAWS OF TRINIDAD AND TOBAGO
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(5) If, at any time after the Administrator General has taken
possession of an estate under subsection (2) or subsection (4)(a),
it appears that the estate exceeds in gross value the sum of ten
thousand dollars, such possession and any acts done in administration
of the estate or any part thereof shall not be invalidated, but the
Administrator General shall forthwith apply for Probate or Letters
of Administration to be granted to him or to any other person or
persons entitled thereto.
(6) On the death of any person beneficially entitled to an
estate, or any part (of whatever amount or value) thereof, vested in
and administered by the Administrator General, the Administrator
General shall, without obtaining proof of any Will of such person
or the grant of Letters of Administration to his estate, be deemed
the person entitled to represent such person until proof of his Will
or the grant of Letters of Administration to his estate by or to some
other person.
(7) Where, under the foregoing provisions of this section,
possession of any estate has been taken by, or Administration of
any estate has been granted to the Administrator General, the Court
may on the application of the Administrator General or any other
interested person, make an order for—
(a) the administration of such estate;
(b) accounts to be taken of the estate;
(c) the application of the estate in payment of costs
of suit of the Administrator General, to be taxed
as between Attorney-at-law and client, and of
debts and legacies, if any;
(d) ascertainment of persons beneficially entitled to
the residue of such estate,
and such proceedings shall be heard as if an action has been filed
for the Administration of the estate.
60. (1) Applications for Probate or for grant of Administration
in solemn form shall be by writ of summons, the endorsement
thereof stating the reason for the application being made for proof
or grant in solemn form.
Form of
application.
UNOFFICIAL VERSION
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(2) The writ shall be served upon any party as against
whom the applicant desires to establish his right or, if no such
party is alleged, upon the Administrator General, and any party so
served may enter appearance thereto in the prescribed manner and
may attend the hearing thereof.
61. The following matters shall be deemed contentious
business, that is to say—
(a) all procedure for obtaining proof of a Will in
solemn form;
(b) all proceedings in any application subsequent to
appearance being entered in answer to the warning
of a caveat;
(c) all applications for revocation or amendment of
any Probate or Administration on any ground;
(d) all proceedings by or against personal
representatives or the Administrator General.
62. (1) Subject to subsection (2) and (3), every person to
whom a grant of Administration is made shall give a bond (in this
section referred to as an “Administration bond” ) to the Registrar,
with one or more sureties, conditioned for duly collecting, getting
in and administering the deceased’s estate.
(2) The Court may in its discretion and in a fit and proper
case dispense with any surety to an Administration bond.
(3) No security shall be required for the due
Administration of an estate, unless the Court orders otherwise,
where the person applying for Administration is the—
(a) spouse or only child or sole next of kin of the
deceased; or
(b) Administrator General; or
(c) Public Trustee.
(4) Where it appears to the satisfaction of the Court that
the condition of an Administration bond has been broken, the Court
may, on an application in that behalf, order that the bond be assigned
to such person as may be specified in the order.
Contentious
business.
Administration
bonds.
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LAWS OF TRINIDAD AND TOBAGO
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(5) Upon such assignment, that person is entitled to—
(a) sue thereon in his own name as if the bond had
been originally given to him instead of to the
Registrar;
(b) recover thereon as trustee for all persons
interested the full amount recoverable in respect
of the breach of the condition thereof.
63. The Court may, by order—
(a) discharge, a personal representative from his
office and, upon such discharge, grant (if
necessary) Administration to any other person or
persons, which administration is as valid as if the
representative so discharged had died;
(b) remove a personal representative for disobedience
to any of its orders or for any other reason and
appoint (if necessary) some other person in his
stead and vest such of the deceased’s estate as
was vested in the personal representative so
removed in such other person.
64. Any person claiming, as against the applicant for
Administration, to be entitled to Administration, and any person
objecting to the proof of the alleged Will, may enter a caveat against
the grant of Administration or Probate to the applicant.
*65. No Probate or Administration shall be granted by the Court
in respect of the estate of a person dying before 1st January 1981,
until the applicant has filed with the Registrar—
(a) the certificate mentioned in section 35(3) of the
Estate and Succession Duties Ordinance; or
(b) the certificate mentioned in section 36(3) of the
said Ordinance.
66. (1) Pending the hearing of any action, petition, summons
or other proceeding, whether in the nature of contentious or
common form business, the Court may, on the application of the
Discharge and
removal of
personal
representatives.
Caveats.
Certificate as to
death duties.
Ch. 33. No. 5.
Interim orders.
*See “Note on section 65 of the Act” on page 2 re the application of this section.
UNOFFICIAL VERSION
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L.R.O.
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Administrator General or of any other party interested and on being
shown that the deceased’s estate is in danger of spoilation, or for
any other reason require steps to be taken for the custody or
preservation of any property forming part of such estate—
(a) appoint an interim receiver; or
(b) grant an interim injunction; or
(c) order the sale of any perishable goods to be made
by any person; or
(d) otherwise intervene for the protection of such
estate in such manner and on such terms as to
security and otherwise as the Court thinks fit.
(2) Any application under subsection (1) may be made in
the first instance ex parte on affidavit.
(3) In any proceedings in which the validity of a Will is in
question, or which are brought to recall any Letters of Administration,
the Court may grant an injunction to prevent any personal
representative from acting under such Will or Administration.
67. (1) Subject to subsection (2), on a refusal to grant Probate
or Administration arising in the course of common form business,
the applicant has the same right of appeal as if such refusal had
been a refusal to make an order on an interlocutory application in
Chambers ex parte in an ordinary action.
(2) No appeal (other than by action for revocation of
Probate or grant) lies on behalf of any party other than the applicant
from the decision of the Court.
68. (1) Within twelve months from the date of granting of
Probate or Administration, as the case may be, every personal
representative shall file with the Registrar an account showing—
(a) his receipts and disbursements of the deceased’s
estate;
(b) that all sums due in respect of the said estate for
death duties have been duly paid;
(c) the debts of the deceased and the extent to which
they have been paid.
Appeals.
Filing of
accounts.
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(2) If any personal representative neglects or omits to
file an account under subsection (1), the Administrator General
or any other person alleging himself to be interested in the
deceased’s estate may, by summons in the prescribed form, call
upon such personal representative to show cause why he should
not file such account.
(3) Upon return of such summons, the Court may direct
that such account be filed within such time as the Court may
specify and, in case of default, the personal representative is liable
to attachment.
(4) A personal representative is entitled, as against the
estate, to the costs and expenses of and attendant on the rendering
and filing of an account under subsection (1), provided it is filed
within the twelve-month period specified therein, but not otherwise.
69. (1) Subject to subsection (3), where, before or after the
commencement of this Act, a Court of Probate in any other
Commonwealth country has granted Probate or Letters of
Administration in respect of the estate of a deceased person, the
Probate or Letters so granted may, on being produced to, and on a
copy thereof being deposited with, the Registrar, be sealed with
the seal of the Court.
(2) Upon such sealing, the Probate or Letters of
Administration have the same force and effect and operation in
the State as if granted by the Court.
(3) Before sealing a Probate or Letters of Administration
under subsection (1), the Court—
(a) shall be satisfied that—
(i) all death duties have been paid in respect
of so much, if any, of the estate as is liable
thereto in the State;
(ii) in the case of Letters of Administration,
security has been given to the Registrar in
a sum sufficient in amount to cover the
property, if any, in the State to which the
Letters of Administration relate,
Re-sealing of
Commonwealth
Grants.
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L.R.O.
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and may require such evidence, if any, as it thinks fit as to the
domicile of the deceased person;
(b) in respect of the estate of a person dying before
1st January 1981, may if it thinks fit, on the
application of any creditor, require that adequate
security be given for payment of debts due from
the estate to creditors residing in the State.
(4) For the purposes of this section, a duplicate of any
Probate or Letters of Administration sealed with the seal of the
Court granting the same, or a copy thereof certified as correct by
or under the authority of the Court granting the same, has the same
effect as the original.
(5) In this section—
“Court of Probate” means any Court or authority, by whatever
name designated, having jurisdiction in matters of Probate;
“Probate” and “Letters of Administration” include confirmation
in Scotland and any instrument having in any other
Commonwealth country the same effect which under the law
of Trinidad and Tobago is given to Probate and Letters of
Administration respectively.
70. (1) There shall remain in the Registry of the Court all
Wills of which Probate has been granted or which have been
re-sealed under section 69.
(2) A certified copy of every such Will and of every
administration grant, shall, immediately upon Probate or
Administration being granted or re-sealed, be—
(a) prepared by the Registrar;
(b) sealed with the seal of the Court;
(c) transmitted to the Registrar General;
(d) registered by him in the Protocol of Wills in
accordance with subsection (3).
(3) Upon receipt of every such certified copy, the Registrar
General shall—
(a) number the same;
Custody and
registration of
Wills.
UNOFFICIAL VERSION
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LAWS OF TRINIDAD AND TOBAGO
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(b) register it according to the order of time of its
receipt by him;
(c) endorse upon or annex to it a certificate under his
hand in such form as may be prescribed.
(4) Subject to any rules or regulations prescribing
otherwise, such certified copies shall be registered in each year as
they are received by the Registrar General, beginning with the
number one and proceeding in a regular numerical series.
(5) The contents of every such certified copy and of
any other certified copy of a proved Will under the seal of the
Court are conclusive evidence of the due execution and
attestation thereof.
(6) Where in any suit, the Court—
(a) declares a Will to be void; or
(b) revokes any Administration; or
(c) declares one Will to be void and establishes
another; or
(d) grants a new Administration in lieu of an
existing one,
the Registrar shall transmit a sealed copy of the decree to the
Registrar General.
(7) Upon receipt of such copy the Registrar General shall
enter the same in the Protocol of Wills and note or refer to it in the
margin of the copy of the Will or Administration so declared void
or revoked, as the case may be.
71. (1) There shall be provided at the registry of the Court at
Port-of-Spain and such other places as may be prescribed safe and
convenient depositories for the custody of Wills of living persons.
(2) Such depositories are subject to the control and
direction of the Court.
(3) Any person may deposit his Will in such a depository,
on payment of such fees and subject to such rules as may
be prescribed.
Depositories.
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PART VI
ADMINISTRATION OF ASSETS
72. The personal representatives are under a duty to—
(a) collect and get in the real and personal estate of
the deceased and administer it according to law;
(b) when required to do so by the Court, exhibit on
oath in Court a full inventory of the estate and,
when so required but without prejudice to
section 68, render an account of the
Administration of the estate to the Court;
(c) when required to do so by the Court deliver up the
grant of Probate or Administration to the Court.
73. (1) Every person making or permitting to be made any
payment or disposition in good faith under a representation
shall be indemnified and protected in so doing,
notwithstanding any defect or circumstances whatsoever
affecting the validity of the representation.
(2) Where a representation is revoked, all payments and
dispositions made in good faith to a personal representative under
the representation before the revocation thereof are a valid
discharge to the person making the same; and the personal
representative who acted under the revoked representation may
retain and reimburse himself in respect of any payments or
dispositions made by him which the person to whom representation
is afterwards granted might have properly made.
74. (1) If any person, to the defrauding of creditors or without
full valuable consideration, obtains, receives or holds any real or
personal estate of a deceased person or effects the release of any
debt or liability due to the estate of the deceased, he shall be charged
as executor in his own wrong to the extent of the real and personal
estate received or coming to his hands, or the debt or liability
released, after deducting—
(a) any debt for valuable consideration and without
fraud due to him from the deceased person at the
time of his death; and
General duty of
personal
representatives.
Protection of
persons acting
on Probate or
Administration.
Executor
de son tort.
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(b) any payment made by him which might properly
be made by a personal representative.
(2) If any person takes possession of or in any manner
administers any part of a deceased person’s estate without proving
the Will or obtaining administration of the estate, he is guilty of an
offence and, in addition to any civil liability, is liable, on summary
conviction, on the complaint of the Administrator General, to a
fine of five thousand dollars or to imprisonment for two years.
(3) The Adminstrator General may take proceedings under
subsection (2) at any time within five years from the time when
the cause of complaint arose.
75. Where a person as personal representative of a deceased
person (including an executor in his own wrong) wastes or converts
to his own use any part of the real or personal estate of the deceased,
and dies, his personal representative is, to the extent of the available
assets of the defaulter, liable and chargeable in respect of such
waste or conversion in the same manner as the defaulter would
have been if living.
76. (1) The real and personal estate, whether legal or
equitable, of a deceased person, to the extent of his beneficial
interest therein, and the real and personal estate of which a deceased
person in pursuance of any general power including the statutory
power to dispose of entailed interests disposes by his Will, are
assets for payment of his debts (whether by specialty or simple
contract) and liabilities, and any disposition by Will inconsistent
with this enactment is void as against the creditors, and the Court
shall, if necessary, administer the property for the purpose of the
payment of the debts and liabilities.
(2) Subsection (1) takes effect without prejudice to the
rights of incumbrancers.
(3) If any person to whom any such beneficial interest
devolves or is given, or in whom any such interest vests, disposes
thereof in good faith before an action is brought or process is sued
out against him, he is personally liable for the value of the interest
so disposed of by him, but that interest is not liable to be taken in
execution in the action or under the process.
Liability of
estate of
personal
representative.
Assets for
payment of
debts.
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77. (1) Where the estate of a deceased person is insolvent,
his real and personal estate shall be administered in accordance
with the rules set out in Part I of the Schedule.
(2) The right of retainer of a personal representative and
his right to prefer creditors are hereby abolished.
(3) Nevertheless a personal representative—
(a) other than one mentioned in paragraph (b) who,
in good faith and at a time when he has no reason
to believe that the deceased’s estate is insolvent,
pays the debt of any person (including himself)
who is a creditor of the estate; or
(b) to whom administration has been granted solely
by reason of his being a creditor and who, in good
faith and at such a time pays the debts of another
person who is a creditor of the estate,
is not, if it subsequently appears that the estate is insolvent, liable
to account to a creditor of the same degree as the paid creditors for
the sum so paid.
(4) Where the estate of a deceased person is solvent his
real and personal estate shall, subject to Rules of Court and the
provisions hereinafter contained as to charges on property of the
deceased, and to the provisions, if any, contained in his Will, be
applicable towards the discharge of the funeral, testamentary and
administration expenses, debts and liabilities payable thereout in
the order mentioned in Part II of the Schedule.
78. (1) Where a person dies possessed of, or entitled to, or
under a general power of appointment by his Will disposes of, an
interest in property, which at the time of his death is charged with
the payment of money, whether by way of legal mortgage, equitable
charge or otherwise (including a lien for unpaid purchase money)
and the deceased has not by Will, deed or other document signified
a contrary or other intention, the interest so charged is, as between
the different persons claiming through the deceased, primarily liable
for the payment of the charge; and every part of the said interest,
according to its value, shall bear a proportionate part of the charge
on the whole thereof.
Administration
of assets.
Schedule.
Part I.
Schedule.
Part II.
Charges on
property.
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(2) Such a contrary or other intention shall not be deemed
to be signified by—
(a) a general direction for the payment of debts or of
all the debts of the testator out of his personal
estate, or his residuary real and personal estate,
or his residuary real estate; or
(b) a charge of debts upon any such estate,
unless such intention is further signified by words expressly or by
necessary implication referring to all or some part of the charge.
(3) Nothing in this section affects the right of a person
entitled to the charge to obtain payment or satisfaction thereof either
out of the other assets of the deceased or otherwise.
79. (1) The personal representatives may sell the whole
or any part of the estate of a deceased person for the purposes
not only of paying debts, but also (whether there are or are
not debts) of distributing the estate among the persons
beneficially entitled thereto.
(2) Subject to subsection (3), before selling for the
purposes of distribution, the personal representatives shall, so far
as practicable, give effect to the wishes of the person of full age
for the time being beneficially entitled to the property proposed to
be sold or, in case of dispute, of the majority (according to the
value of their combined interests) of such persons.
(3) Upon such a sale—
(a) the purchaser is not concerned to see that the
personal representatives have complied with
subsection (2);
(b) it is not necessary in any case for any person
beneficially entitled to concur in the sale.
(4) A purchaser—
(a) from personal representatives of a deceased
person, of any property, being the whole or part
of the estate of that deceased person—
(i) holds that property freed and discharged
from any debts or liabilities of the deceased
Power of sale.
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person, except such as are charged thereon
otherwise than by the deceased person’s
Will, and from all claims of the persons
beneficially entitled thereto;
(ii) is not concerned to see the application of
the purchase money;
(iii) is not affected by any subsequent revocation
or variation of the grant of representation to
such personal representatives;
(b) of any property, being the whole or part of the
estate of a deceased person which has been
transferred by the personal representatives to the
person beneficially entitled thereto, or to the
vesting of which in the person beneficially entitled
thereto the personal representatives have assented,
hold that property freed and discharged from the
claims of creditors of the deceased person, except
claims of which the purchaser had notice at the
time of his purchase.
(5) Subsection (4)(b) applies to all property other than
registered land.
80. (1) Without prejudice to any other power conferred by
this Act on personal representatives with respect to any land of a
testator or intestate, the personal representatives may—
(a) execute an assent to the vesting of any estate or
interest in any such land in the person entitled
thereto; or
(b) convey any such estate or interest to such person,
and may make the assent or conveyance either subject to or free
from a charge for the payment of any money which the personal
representatives are liable to pay.
(2) Where the assent or conveyance is made subject to a
charge for all moneys, if any, which the personal representatives
are liable to pay, all liabilities of the personal representatives in
respect of the land cease, except as to any acts done or contracts
entered into by them before the assent or conveyance.
Power to assent
or conveyance.
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(3) At any time after the expiration of one year from the
death of an owner of land, if the personal representatives have
failed on the request of the person entitled to convey by assent or
otherwise, the land to that person, the Court may, if it thinks fit—
(a) on the application of that person and after notice
to the personal representatives, order that the
assent or conveyance be made; and
(b) in default of compliance with that order within the
time specified therein by the Court, make an order
vesting the land in that person as fully and
effectually as might have been done by a
conveyance thereof by the personal representatives
and such order is subject to the same provisions
(including those relating to registration) as a
conveyance by the personal representatives.
(4) An assent executed under this section in relation to
unregistered land shall be by deed in such form as may be prescribed.
(5) An assent or conveyance is not effectual to pass any
estate or interest in land unless and until—
(a) where it relates to unregistered land, it is
registered under Part IV of the Land Registration
Act, 1981;
(b) where it relates to registered land, it is registered
under section 82 of the said Act.
(6) The statutory covenants implied by a person being
expressed in a deed to convey as personal representative are also
implied in any assent executed by a personal representative under
this section, unless the assent otherwise provides.
(7) An assent or conveyance relating to unregistered
land by personal representatives, which has been unregistered
under Part IV of the Land Registration Act, 1981, is, in favour
of a purchaser, conclusive evidence that the person in whose
favour the assent or conveyance is given or made is the person
who was entitled to have the estate or interest vested in him,
but does not otherwise prejudicially affect the claim of any
person originally entitled to that estate or interest or to any
charge or incumbrance thereon.
24 of 1981.
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(8) The Court may order land not specifically devised or
land vested in a personal representative as such to be sold on such
terms and within such period as may appear reasonable, and on failure
of the personal representative to comply with such order, may, on
the application of the person entitled or any person beneficially
interested, direct a sale of the land upon such terms as it thinks fit.
( 9) In this section—
(a) reference to the land of a testator or intestate are
references to land to which the testator or intestate
was entitled or over which he exercised a general
power of appointment by Will;
(b) the expression “person entitled” includes, in
relation to any estate or interest in land of a testator
or intestate—
(i) the person or persons (including the
personal representative of the testator or
intestate or any of them) who (whether by
devise, bequest, devolution, appropriation
or otherwise) may be beneficially entitled
to that estate or interest;
(ii) the trustee or trustees or the personal
representative or representatives of any
such person or persons.
81. (1) The personal representatives of a deceased owner of land
may, in addition to any other powers conferred on them by this Act—
(a) grant such leases of the land as may be reasonably
necessary for the due administration of the estate
of the deceased owner; or
(b) with the consent of the beneficiaries, or with the
approval of the Court, grant leases of the land for
such term and on such conditions as the personal
representatives may think proper,
and, where personal representatives lease any land pursuant to any
power conferred on them by this subsection, they may sell any
rent reserved on such grant or any reversion expectant upon the
determination of any such lease.
Powers to deal
with land.
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(2) Notwithstanding anything to the contrary contained
in the Rent Restriction Act and Agricultural Small Holdings Tenure
Act, the right of the personal representatives to obtain possession
of any premises demised by them pursuant to the power conferred
by subsection (1)(a) is exerciseable as if those enactments had not
been passed.
(3) The personal representatives of a deceased person may
from time to time raise money by way of mortgage for the payment
of debts, death duties (in respect of the estate of a person dying
before 1st January 1981) or other taxes and, with the approval of
all the beneficiaries being sui juris or the Court (but not otherwise),
for the erection, repair, improvement or completion of buildings,
or the improvement of lands forming part of the estate of that
deceased person.
(4) The personal representatives of a deceased person may
distrain upon land for arrears of rent due or accruing to the deceased
person in like manner as the deceased person might have done had
he been living, and the Landlord and Tenant Act, 1981, applies
accordingly.
(5) This section does not prejudice or affect—
(a) any power or duty of personal representatives to
execute any document or do any act or thing for
the purpose of completing any transaction entered
into by a deceased person before his death;
(b) any powers conferred by Will on personal
representatives, and the powers conferred by this
section on the personal representatives of a
deceased person who has died testate shall be
exercised subject to any provisions contained in
his Will with respect to disposal of his estate.
(6) Subject to subsection (7), some or one only of several
joint personal representatives may not, without the leave of the
Court, exercise any power conferred by this section or section 79
to dispose of any land.
Ch. 59:50.
Ch. 59:53.
24 of 1981.
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(7) Subsection (6) operates subject to section 46 and,
where a disposition of land is made by the proving executor or
executors, this section and section 79 have effect as if the references
therein to personal representatives were references to the proving
executor or executors.
82. (1) An assent or conveyance by personal representatives
to a person other than a purchaser does not prejudice the rights of
any person to follow the property to which the assent or conveyance
relates, or any property representing the same, into the hands of
the person in whom it is vested by the assent or conveyance, or of
any other person (not being a purchaser) who may have received
the same or in whom it may be vested.
(2) Notwithstanding any such assent or conveyance
the Court may, on the application of any creditor or other
person interested—
(a) order a sale, exchange, mortgage, charge, lease,
payment, transfer or other transaction to be
carried out which the Court considers requisite
for the purpose of giving effect to the rights of
the persons interested;
(b) declare that the person, not being a purchaser,
in whom the property is vested is a trustee for
those purposes;
(c) give directions respecting the preparation and
execution of any conveyance or other instrument
or as to any other matter required for giving effect
to the order;
(d) make any vesting order, or appoint a person to
convey in accordance with the provisions of the
Trustee Act, 1981.
(3) This section does not prejudice the rights of a
purchaser or a person deriving title under him, but applies whether
the testator or intestate died before or after the commencement
of this Act.
Right to follow
property.
21 of 1981.
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83. (1) The personal representatives may appropriate any part
of the estate, including things in action, of the deceased in the
actual condition or state of investment thereof at the time of
appropriation in or towards satisfaction of any legacy bequeathed
by the deceased, or of any other interest or share in his property,
whether settled or not, as to the personal representatives may seem
just and reasonable, according to the respective rights of the persons
interested in the property of the deceased:
Provided that—
(a) an appropriation shall not be made under
this section so as to affect prejudicially
any specific devise or bequest;
(b) an appropriation of property, whether
or not being an investment authorised
by law or by the Will, if any, of the
deceased for the investment of money
subject to the trust, shall not (save
as hereinafter mentioned) be made
under this section except with the
following consents:
(i) when made for the benefit of
a person absolutely and
beneficially entitled in
possession, the consent of
that person;
(ii) when made in respect of any
settled legacy, share or
interest, the consent of either
the trustee thereof, if any (not
being also the personal
representative), or the person,
who may for the time being be
entitled to the income;
If the person’s consent is so
required as aforesaid is a
minor or is incapable, by
Powers of
appropriation.
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reason of mental illness within
the meaning of the Mental
Health Act of managing and
administering his property and
affairs, the consent shall be
given on his behalf by his
parents or parent, testamentary
or other guardian, or receiver,
or if, in the case of a minor,
there is no such parent or
guardian, by the Court on the
application of his next friend;
(c) no consent (save of such trustees as
aforesaid) shall be required on behalf
of a person who may come into
existence after the time of
appropriation, or who cannot be found
or ascertained at that time;
(d) if no receiver is acting for a person
suffering from mental illness, then, if
the appropriation is of an investment
authorised by law or by Will, if any, of
the deceased for the investment of
money subject to the trust, no consent
shall be required on behalf of the
said person;
(e) if, independently of the personal
representatives, there is no trustee of
a settled legacy, share or interest, and
no person of full age and capacity
entitled to the income thereof, no
consent shall be required to an
appropriation in respect of such
legacy, share or interest, provided that
the appropriation is of an investment
authorised as aforesaid.
Ch. 28:02.
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(2) Any property duly appropriated under the powers
conferred by this section shall thereafter be treated as an authorised
investment, and may be retained or dealt with accordingly.
(3) For the purposes of such appropriation, the personal
representatives may ascertain and fix the value of the respective
parts of the real and personal estate and the liabilities of the deceased
as they may think fit, and shall for that purpose employ a duly
qualified valuer in any case where such employment may be
necessary; and may make any conveyance (including an assent)
which may be requisite for giving effect to the appropriation.
(4) An appropriation made pursuant to this section binds
all persons interested in the property of the deceased whose consent
is not hereby made requisite.
(5) The personal representatives shall, in making the
appropriation, have regard to the rights of any person who may
thereafter come into existence, and of any other person whose
consent is not required by this section.
(6) This section does not prejudice any other power of
appropriation conferred by law or by the Will (if any) of the
deceased, and takes effect with any extended powers conferred by
the Will (if any) of the deceased, and where an appropriation is
made under this section, in respect of a settled legacy, share or
interest, the property appropriated remains subject to all trusts for
sale and powers of leasing, disposition, and management or varying
investments which would have been applicable thereto or to the
legacy, share or interest in respect of which the appropriation is
made, if no such appropriation has been made.
(7) If after any real estate has been appropriated in
purported exercise of the powers conferred by this section, the
person to whom it was conveyed disposes of it or any interest
therein, then, in favour of a purchaser, the appropriation shall
be deemed to have been made in accordance with the
requirements of this section after all requisite consents, if any,
had been given.
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(8) In this section, a settled legacy, share or interest
includes any legacy, share or interest to which a person is not
absolutely entitled in possession at the date of the appropriation,
and also any annuity.
(9) This section applies whether the deceased died
intestate or not, and whether before or after the commencement of
this Act, and extends to property over which a testator exercises a
general power of appointment, and authorises the setting apart of
a fund to answer an annuity by means of the income of that fund
or otherwise.
(10) Where any property is appropriated under the
provisions of this section, a transfer thereof by the personal
representatives to the person to whom it is appropriated—
(a) on production of such evidence of the
appropriation as is considered by the Land
Registrar to be sufficient, and subject to any
directions of the Court as may be given, authorises
the Land Registrar, where the property is
registered land, to register that person as
proprietor of the said land;
(b) is not, by reason only that the property is accepted
by that person in or towards satisfaction of a
legacy or a share in residuary estate, liable to any
higher stamp duty than that payable on a transfer
of personal property for the like purpose.
84. (1) Where a minor is absolutely entitled under the Will
or on the intestacy of a person dying before or after the
commencement of this Act (in this subsection called “the
deceased”) to a devise or legacy, or to the residue of the estate of
the deceased, or any share therein, and such devise, legacy, residue
or share is not under the Will, if any, of the deceased, devised or
bequeathed to trustees for the minor, the personal representatives
of the deceased may appoint a trust corporation or two or more
individuals not exceeding four (whether or not including the
personal representatives or one or more of the personal
representatives), to be the trustee or trustees of such devise, residue
Minor’s
property.
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or share for the minor, and to be trustees of any land devised or
any land being or forming part of such residue or share for the
purposes of Part III of the Land Law and Conveyancing Act, 1981,
and of the statutory provisions relating to the management of land
during a minority, and may execute or do any assurance or thing
requisite for vesting such devise, legacy, residue or share in the
trustee or trustees so appointed.
(2) On such appointment the personal representatives,
as such, are discharged from all further liability in respect of
such devise, legacy, residue or share, and the same may be
retained in its existing condition or state of investment, or may
be converted into money, and such money be invested in any
authorised investment.
(3) Where a personal representative has before the
commencement of this Act retained or sold any such devise, legacy,
residue or share, and invested the same or the proceeds thereof in
any investments in which he was authorised to invest money subject
to the trust, then, subject to any order of the Court made before
such commencement, he shall not be deemed to have incurred any
liability on that account, or by reason of not having paid or
transferred the money or property into Court.
85. (1) The personal representatives before giving an assent
or making a conveyance in favour of any person entitled, may
permit that person to take possession of the land, and such
possession shall not prejudicially affect the right of the personal
representatives to take or resume possession nor their power to
convey the land as if they were in possession thereof, but subject
to the interest of any lessee, tenant or occupier in possession or in
actual occupation of the land.
(2) This section applies whether the testator or intestate
died before or after the commencement of this Act.
86. (1) Any person who as against the personal
representatives claims possession of real estate, or the appointment
of a receiver thereof, or a conveyance thereof, or an assent to the
vesting thereof, or to be registered as proprietor thereof under the
20 of 1981.
Power to give
possession of
land.
Powers of
Court.
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Land Registration Act, 1981, may apply to the Court for directions
with reference thereto, and the Court may make such vesting order
as may be deemed proper, and the provisions of the Trustee Act, 1981,
relating to vesting orders and to the appointment of a person to
convey, apply thereto.
(2) This section applies whether the testator or intestate
died before or after the commencement of this Act.
87. (1) The personal representatives of a deceased person
shall distribute his estate as soon after his death as is reasonably
practicable having regard to—
(a) the nature of the estate;
(b) the manner in which it is required to be
distributed;
(c) all other relevant circumstances,
but, proceedings against the personal representatives in respect of
their failure to distribute shall not, without the leave of the Court,
be brought before the expiration of one year from the date of the
death of the deceased person.
(2) Nothing in this section prejudices or affects the rights
of creditors of a deceased person to bring proceedings against his
personal representatives before the expiration of one year from
his death.
PART VII
DISTRIBUTION ON INTESTACY
88. (1) All estate to which a deceased person was entitled
for an estate or interest not ceasing on his death and as to which
he dies intestate after the commencement of this Act shall, after
payment of all debts, duties and expenses properly payable
thereto, be distributed or held on trust in accordance with this
section, namely—
(a) if the intestate leaves a spouse, then in accordance
with the following Table:
24 of 1981.
21 of 1981.
Distribution of
estate.
Rules for
distribution on
intestacy.
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If the intestate—
(1) leaves—
(a) no issue; and
(b) no parent, or
brother or sister of
the whole blood,
or issue of a
brother or sister of
the whole blood.
(2) (a) leaves one child
(whether or not
persons mentioned
in sub-paragraph
(b) above also
survive);
(b) leaves more than
one child (whether
or not persons
mentioned in
subparagraph (b)
a b o v e a l s o
survive).
(3) leaves one or both
parents, but leaves no
issue (whether or not
brothers or sisters of
the whole blood, or
issue of brothers or
sisters of the who1e
blood survive).
the estate shall be held in trust for
t h e s u r v i v i n g s p o u s e
absolutely.
the surviving spouse shall take
one-half absolutely of the
estate and the other half shall
be held on the statutory trusts
for the child.
the surviving spouse shall take
one-third of the estate
absolutely and the remaining
two-thirds shall be held on the
statutory trust for the children.
the surviving spouse shall take
the personal chattels
absolutely and, in addition, the
estate of the intestate (other
than the personal chattels)
shall stand charged with the
payment of the sum of
$200,000, or such larger
amount as may be prescribed
free of death duties and costs,
to the surviving spouse with
interest thereon from the date
of the death at such rate as
TABLE
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may be prescribed until paid or
appropriated, and, subject to
providing for that sum and the
interest thereon, the estate (other
than the personal chattels) shall
be held—
(a) as to one-half in trust for
the surviving spouse
absolutely; and
(b) as to the other half, where
the intestate leaves one
parent, in trust for that
parent absolutely, or, if the
intestate leaves both
parents, for the two parents
in equal shares absolutely.
(b) if the intestate leaves issue but no spouse, the
estate of the intestate shall be held on the statutory
trusts for the issue of the intestate;
(c) if the intestate leaves no spouse and no issue but
both parents, then the estate of the intestate shall
be held in trust for the father and mother in equal
shares absolutely;
(d) if the intestate leaves no spouse and no issue
but one parent, then the estate of the intestate
shall be held in trust for the surviving father or
mother absolutely;
(e) if the intestate leaves no spouse and no issue
and no parent, then, the estate of the intestate
shall be held in trust for the following persons
living at the death of the intestate, and in the
following order and manner, namely:
First, on the statutory trusts for the brothers
and sisters of the whole blood of the intestate;
but if no person takes an absolutely vested
interest under such trusts; then
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Secondly, on the statutory trusts for the
brothers and sisters of the half blood of the
intestate; but if no person takes an absolutely
vested interest under such trusts; then
Thirdly, for the grandparents of the
intestate and, if more than one survive the
intestate, in equal shares; but if there is no
member of this class; then
Fourthly, on the statutory trusts for the
issue of the brothers and sisters of the whole
blood of the intestate; but if no person takes
an absolutely vested interest under such
trusts;
Fifthly, on the statutory trusts for the
brothers and sisters of the half blood of the
intestate; but if no person takes an absolutely
vested interest under such trusts; then
Sixthly, on the statutory trusts for the
uncles and aunts of the intestate (being
brothers or sisters of the whole blood of a
parent of the intestate); but if no person takes
an absolutely vested interest under such
trusts; then
Seventhly, on the statutory trusts for the
uncles and aunts of the intestate (being
brothers and sisters of the half blood of a
parent of the intestate);
(f) in default of any person taking an absolute interest
under the foregoing provisions, the estate of the
intestate belongs to the State as bona vacantia.
(2) Where an intestate and his spouse have died in such
circumstances that, if section 2(3) applied, the spouse would be
presumed to have survived the intestate, this section nevertheless
has effect as respects the intestate as if the spouse had not survived
the intestate.
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(3) The interest payable on the sum charged on the estate
to the surviving spouse is primarily payable out of income.
(4) Where a decree of judicial separation is in force with
respect to an intestate and his spouse and the separation is
continuing at the date of death of the intestate, his estate shall be
distributed or held on trust as if the other party to the marriage
which is the subject of the said decree had been dead at that date.
*(5) Notwithstanding anything in section 4(1)(a) of the
Separation and Maintenance Ordinance, a provision in force in an
order made, or having effect as if made, under that section that a
party to a marriage be no longer bound to cohabit with the other
party to the marriage does not have effect as a decree of judicial
separation for the purposes of subsection (4).
89. (1) Where under this Part the estate of an intestate, or
any part thereof, is directed to be held on the statutory trusts for
the issue of the intestate, the same shall be held upon the following
trusts, namely:
(a) in trust, in equal shares if more than one, for all
or any of the children or child of the intestate,
living at the death of the intestate, who attain the
age of eighteen years or marry under that age,
and for all or any of the issue living at the death
of the intestate who attain the age of eighteen
years or marry under that age of any child of the
intestate who predeceases the intestate, such issue
to take through all degrees, according to their
stocks, in equal shares if more than one, the share
which their parent would have taken if living at
the death of the intestate, and so that no issue shall
take whose parent is living at the death of the
intestate and so capable of taking;
(b) the statutory power of advancement, and the
statutory provisions which relate to maintenance
and accumulation of surplus income, apply, but
when a minor marries, such minor is entitled to
give valid receipts for the income of the minor’s
share or interest;
Ch. 5 No. 15.
Statutory trusts
for issue and
other relatives.
*See “Note on section 88(5)” on page 2 re the application of this subsection.
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(c) where the property held on the statutory trusts
for issue is divisible into shares, then any
money or property which, by way of
advancement or on the marriage of a child of
the intestate, has been paid to such child by the
intestate or settled by the intestate for the
benefit of such child (including any life or less
interest and including property covenanted to
be paid or settled) shall, subject to any contrary
intention expressed or appearing from the
circumstances of the case, be taken as being so
paid or settled in or towards satisfaction of the
share of such child or the share which such child
would have taken if living at the death of the
intestate, and shall be brought into account, at
a valuation (the value to be reckoned as at the
death of the intestate), in accordance with the
requirements of the personal representatives;
(d) the personal representatives may permit any
minor contingently interested to have the use and
enjoyment of any personal chattels in such manner
and subject to such conditions (if any) as the
personal representatives may consider reasonable,
and without being liable to account for any
consequential loss.
(2) If the trusts in favour of the issue of the intestate
fail by reason of no child or other issue attaining an absolutely
vested interest—
(a) the estate of the intestate and the income thereof
and all statutory accumulations, if any, of the
income thereof, or so much thereof as may not
have been paid or applied under any power
affecting the same, shall go, devolve and be held
under the provisions of this Part as if the intestate
had died without leaving issue living at the death
of the intestator;
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(b) reference in this Part to the intestate “leaving no
issue” shall be construed as “leaving no issue who
attain an absolutely vested interest”;
(c) references in this Part to the intestate “leaving
issue” or “leaving a child or other issue” shall be
construed as leaving issue who attain an
absolutely vested interest.
(3) Where under this Part the estate of an intestate or any
part thereof is directed to be held on the statutory trusts for any
class of relatives of the intestate, other than issue of the intestate,
the same shall be held on trusts corresponding to the statutory trusts
for the issue of the intestate (other than the provision for bringing
any money or property into account) as if such trusts (other than
as aforesaid) were repeated with the substitution of references to
the members or member of that class for references to the children
or child of the intestate.
(4) References in paragraph (a) of subsection (1) of the
last foregoing section to the intestate leaving, or not leaving, a
member of the class consisting of brothers and sisters of the whole
blood of the intestate and issue of brothers or sisters of the whole
blood of the intestate shall be construed as references to the intestate
leaving, or not leaving, a member of that class who attains an
absolutely vested interest.
90. (1) Where a surviving spouse is entitled to a life interest
in part of the estate, and so elects, the personal representative
shall purchase or redeem the life interest by paying the capital
value thereof to the tenant for life, or the persons deriving title
under the tenant life, and the costs of the transaction; and
thereupon the estate of the intestate may be dealt with and
distributed free from the life interest.
(2) The said capital value shall be reckoned in accordance
with such rules as may be prescribed.
(3) An election under this section is exercisable only if at
the time of the election the whole of the said part of the estate
consists of property in possession, but, for the purposes of this
Redemption of
surviving
spouse’s life
interest.
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section, a life interest in property partly in possession and partly
not in possession shall be treated as consisting of two separate life
interests in those respective parts of the property.
(4) If the tenant for life dies after the exercise of the
election under this section but before effect is given to that
election, the date of redemption shall be taken for the purposes
of subsection (2) to be the date immediately before the death of
the tenant for life.
(5) An election under this section is exercisable only
within the period of twelve months from the date on which
representation with respect to the estate of the intestate is first
taken out.
Provided that if the surviving spouse satisfies the Court
that the limitation to the said period of twelve months will
operate unfairly—
(a) in consequence of the representation first taken
out being Probate of a Will subsequently revoked
on the ground that the Will was invalid; or
(b) in consequence of a question whether a person
had an interest in the estate, or as to the nature of
an interest in the estate, not having been
determined at the time when representation was
first taken out, or
(c) in consequence of some other circumstances
affecting the administration or distribution of
the estate,
and the Court may extend the said period.
(6) An election under this section is exercisable, except
where the tenant for life is the sole personal representative, by
notifying the personal representatives (or, where there are two or
more personal representatives of whom one is the tenant for life,
all of them except the tenant for life) in writing; and a notification
in writing under this subsection is not revocable except with the
consent of the personal representatives.
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(7) Where the tenant for life is the sole personal
representative, an election under this section is not effective unless
written notice thereof is given to the Registrar within the period
within which it must be made; and provision may be made by
Rules for keeping a record of such notices and making that record
available to the public.
(8) An election under this section by a tenant for life who
is a minor is as valid and binding as it would be if the tenant for
life were of age; but the personal representatives shall, instead of
paying the capital value of the life interest to the tenant for life,
deal with it in the same manner as with any other part of the estate
to which the tenant for life is absolutely entitled.
(9) In considering for the purposes of the foregoing
provisions of this section the question when representation was
first taken out, a grant limited to settled land or to trust property
shall be left out of account and a grant limited to real estate or to
personal estate shall be left out of account unless a grant limited to
the remainder of the estate has previously been made or is made at
the same time.
91. The personal representatives may raise—
(a) the sum charged on the estate or any part thereof
and the interest thereon payable to the surviving
spouse of the intestate on the security of the whole
or any part of the estate of the intestate (other
than the personal chattels) so far as that estate
may be sufficient for the purpose of the said sum
and interest may not have been satisfied by an
appropriation under the statutory power available
in that behalf; and
(b) in like manner the capital sum, if any, required
for the purchase or redemption of the life interest
of the surviving spouse of the intestate, or any
part thereof not satisfied by the application for
that purpose of any part of the residuary estate of
the intestate,
and in either case the amount, if any, properly required for the
payment of the costs of the transaction.
Powers in
respect of
surviving
spouse’s
interests.
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92. (1) Where any person dies leaving a Will effectively
disposing of part of his property, this Part shall have effect as respects
the part of his property not so disposed of subject to the provisions
contained in the Will and subject to the following modifications:
(a) where the deceased leaves a spouse who acquires
any beneficial interest under the Will of the
deceased ( other than personal chattels specifically
bequeathed) the references in this Part to the sum
payable to a surviving spouse, and to the interest
on that sum, shall be taken as references to the
said sum diminished by the value at the date of
death of the said beneficial interests, and to
interest on that sum as so diminished, and,
accordingly, where the said value exceeds the said
sum, this Part shall have effect as if references to
the said sum, and interest thereon, were omitted;
(b) the requirements of section 89 as to bringing
property into account apply to any beneficial
interests acquired by any issue of the deceased
under the Will of the deceased, but not to beneficial
interests so acquired by any other persons;
(c) the personal representatives, subject to their rights
and powers for the purposes of administration,
are trustees for the persons entitled under this Part
in respect of the part of the estate not expressly
disposed of unless it appears by the Will that the
personal representatives were intended to take
such part beneficially.
(2) References in the foregoing provisions of this section
to beneficial interests acquired under a Will be construed as
including a reference to a beneficial interest acquired by virtue of
the exercise by the Will of a general power of appointment, but
not of a special power of appointment.
(3) For the purposes of paragraph (a) in the foregoing
provisions of this section, the personal representatives shall employ
a duly qualified valuer in any case where such employment may
be necessary.
Partial intestacy.
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(4) The references in subsection (3) of section 90 to
property are references to property comprised in the estate and,
accordingly, where a Will of the deceased creates a life interest in
property in possession, and the remaining interest in that property
forms part of the estate, the said references are references to that
remaining interest (which, until the life interest determines, is
property not in possession).
93. Where any property belongs to the State as bona vacantia,
it may be used or disposed of in accordance with such provisions
as may be prescribed.
PART VIII
FAMILY PROVISION
94. (1) In this Part—
“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 Part; and
(b) a person who has received any sum of money or
other property, which by virtue of section 102(1)
or (2) 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 Part;
“cohabitant” or “cohabiting partner” means—
(a) in relation to a man, a woman who has been living
with or who has lived together with a man in a
bona fide domestic relationship for a period of
not less than five years immediately preceding
the date of his death;
(b) in relation to a woman, a man who has been
living with or has lived together with a woman
Disposition of
bona vacantia.
Interpretation of
this Part.
[28 of 2000].
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in a bona fide domestic relationship for a period
of not less than five years immediately preceding
the date of her death,
but only one such relationship shall be taken into account for
the purposes of this Part;
“cohabitational relationship” means the relationship between
cohabitants, who not being married to each other, have lived
together in a bona fide domestic relationship for a period of
not less than five years immediately preceding the death of
either cohabitant;
“conveyance” includes any instrument, other than a Will,
consisting of or comprising a transfer, mortgage or other
charge, lease, assent, vesting declaration, disclaimer, release
or other assurance of property or of an interest therein and
“convey” has a corresponding meaning;
“Court” means the High Court;
“deceased” or “deceased person” includes a person who is not of
full age and capacity who is, for the purposes of this Part,
treated as having power to dispose of by Will all property
of which he would have had power to dispose had he been
of full age and capacity;
“former spouse” means a person whose marriage was, during the
deceased’s lifetime, dissolved or annulled by a decree of
divorce or of nullity of marriage made under the Matrimonial
Proceedings and Property Act;
“grant” means a grant of probate or administration;
“net estate” in relation to a deceased person means—
(a) all property of which the deceased had power to
dispose 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;
(b) any property in respect of which the deceased
held a general power of appointment (not being
a power exercisable by Will) which has not
been exercised;
Ch. 45:51.
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(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 102(1) or (2);
(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 103;
(e) any sum of money or other property which is by
reason of a disposition or contract made by the
deceased, ordered under section 104 or 105 of
this Act to be provided for the purpose of the
making of financial provision under this Part;
“real estate” includes chattels real, and land in possession,
remainder or reversion, and every estate or interest in or over
land, including real estate held on trust or by way of
mortgage or security, to which a deceased person was entitled
at the time of his death;
“reasonable financial provision” means—
(a) in the case of an application made by a person
described in section 95(1)(a) and 95(1)(aa),
except where, in case of a spouse of the deceased,
the marriage was the subject of a decree of judicial
separation and at the date of the death the decree
was in force and the separation was continuing,
such financial provision as would be reasonable
in all the circumstances for a spouse or cohabitant
to receive, whether or not that provision is
required for his or her maintenance;
(b) in the case of any other application made by a
person described in section 95(1)(b) to (e), such
financial provision as would be reasonable in all
the circumstances for the applicant to receive for
his or her maintenance;
“relevant property” means the income from that part of the net
estate used for the purpose of providing periodic payments
or a lump sum payment to the person in whose favour an
Order is made under section 4;
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“spouse” means a husband or wife and in relation to a deceased
person a widow or widower;
“valuable consideration” does not include marriage or a promise
of marriage;
(2) For the purposes of paragraph (a) of the definition of
“net estate” in subsection (1), a person who is not of full age and
capacity shall be treated as having power to dispose by Will of all
property of which he would have had power to dispose by Will if
he had been of full age and capacity.
(3) Any reference in this Part to provision out of the net
estate of a deceased person includes a reference to provision
extending to the whole of that estate.
(4) For the purposes of this Part, any reference to a spouse
shall be treated as including a reference to a person who in good
faith entered into a void marriage with the deceased unless either—
(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 of the State; or
(b) that person has during the lifetime of the deceased
entered into a later marriage.
(5) Any reference in this Part to remarriage or to a person
who has remarried includes 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 Part as a remarriage, in relation to any party
thereto, notwithstanding that the previous marriage of that party
was void or voidable.
(6) Any reference in this Part to an order or decree made
under the Matrimonial Proceedings and Property Act, or under
any section of that Act shall be construed as including a reference
to an order or decree which is deemed to have been made under
that Act or under that section thereof, as the case may be.
Ch. 45:51.
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(7) Any reference in this Part to any enactment is a
reference to that enactment as amended by or under any subsequent
enactment.
(8) A reference to a child includes a child en ventre sa
mere and a child in respect of whom an Adoption Order has been
made under the Adoption of Children Act.
(9) A reference to a Will includes the disposition of the
deceased’s estate by his Will or under the law relating to intestacy
or to a combination of the deceased’s Will and that law.
95. (1) Where after the commencement of this Act a person
dies domiciled in the State or dies outside the State leaving any
estate in the State and is survived by any of the following persons:
(a) the spouse of the deceased;
(aa) a cohabitant;
(b) a former spouse of the deceased who has
not remarried;
(c) a child of the deceased;
(d) 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;
(e) 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 96
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) (Repealed by Act No. 28 of 2000).
Ch. 46:03.
Application for
financial
provision.
[28 of 2000].
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(3) For the purposes of subsection (1)(e), 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.
96. (1) Subject to the provisions of this Part, 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:
(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
Court orders.
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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.
(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 payments—
(a) of such amount as may be specified in the order;
(b) equal to the whole of the income of the net estate
or of such portion thereof as may be so specified;
(c) 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 apportioned 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—
(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;
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(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.
97. (1) Where an application is made for an order under
section 96, 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 the 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 needs which
any other applicant for an order under section 96
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 96 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 96 or any beneficiary
of the estate of the deceased;
Matters to be
considered.
[28 of 2000].
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(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 96 is
made by virtue of section 95(1)(a) or (b), 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 or the cohabitational relationship;
(b) the contribution made by the applicant to the
welfare of the family of the deceased, including
any contribution by looking after the home or
caring for the family,
and in the case of an application by the spouse of the deceased, 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 or divorce.
(3) Without prejudice to the generality of paragraph (g)
of subsection (1), where an application for an order under section 96
is made by virtue of section 95(1)(e) or (d), 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 95(1)(d),
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;
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(b) whether in assuming and discharging that
responsibility the deceased did so knowing that
the applicant was not his own child;
(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 96
is made by virtue of section 95(1)(e), 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.
98. An application for an order under section 96 shall not,
except with the permission of the Court, be made after the end of
the period of six months from the date on which representation
with respect to the estate of the deceased is first taken out.
99. (1) Where on an application for an order under section 96
it appears to the Court that—
(a) 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 that
section; and
(b) property forming part of the net estate of the
deceased is or can be made available to meet the
need of the applicant,
Time limit for
applications.
Interim orders.
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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 Part, 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 96 or decides not to exercise its powers under that section.
(2) Subsections (2), (3) and (4) of section 96 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 to which the Court is
required to have regard under section 97.
(4) An order made under section 96 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.
100. (1) Subject to the provisions of this Part, where the Court
has made an order under section 96(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 as “the original recipient”),
the Court, on an application under this section, may by order vary or
discharge the original order or suspend any provision of it temporarily
and revive the operation of any provisions 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 provide for the—
(a) making out of any relevant property of such
periodical payments and for such terms as may
be specified in the order to any person who has
applied, or would but for section 98 be entitled to
Variation and
discharge of
orders.
[28 of 2000].
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apply, for an order under section 96 whether or
not, in the case of any application, an order was
made in favour of paragraph (a);
(b) 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) 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 (other than the
marriage of a former spouse) or on the expiration of a period so
specified, then, 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 may 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 the date or from
such later date as the Court may specify).
(4) Any reference in this section to the original order
includes a reference to an order made under this section and any
reference in this section to the original recipient includes 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 95(1) has
applied, or would but for section 98 be entitled to
apply, for an order under section 96;
(b) the personal representatives of the deceased;
(c) the trustees of any relevant property;
(d) any beneficiary of the estate of the deceased.
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(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 in part for the making
of periodical payments to any person who has
applied for an order under this Part; 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) above 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 96(1)(d),
(e) or (f), 103, 104 or 105 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 (other than the remarriage of a former spouse) or on
the expiration of a period so specified, the power to vary an order
includes power to provide for the making of periodical payments
after the expiration of that period or the occurrence of that event.
101. (1) An order under section 96(1)(b) or 100(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.
Payment by
instalments.
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(2) Where an order is made by virtue of subsection (1),
the Court may, 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, vary that order by varying the number of
instalments payable, the amount of any instalment and the date on
which any instalment becomes payable.
102. (1) Where a deceased person has in accordance with the
provisions of any enactment nominated any person to receive any
sum of money or other property on his death and that nomination
is in force at the time of his death, the sum of money, or that other
property, to the extent of the value thereof at the date of the death
of the deceased shall be treated for the purposes of this Part as part
of the net estate of the deceased; but this subsection does not render
any person liable for having paid that sum or transferred that other
property to the person named in the nomination in accordance with
the directions given in the nomination.
(2) 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, or that other property, to the extent of the value
thereof at the date of the death of the deceased shall be treated for
the purposes of this Part as part of the net estate of the deceased;
but this subsection does 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.
103. (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 six months 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 96, 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
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.
Property—part
of net estate.
Property held
on a joint
tenancy.
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(2) Where an order is made under subsection (1), the
provisions of this section do 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.
104. (1) Where an application is made to the Court for an order
under section 96, the applicant may, in the proceedings on that
application, apply to the Court for an order under subsection (2).
(2) Where on an application under subsection (1) the
Court is satisfied that—
(a) less than six years before the date of the death of
the deceased, the deceased with the intention of
defeating an application for financial provision
under this Part made a disposition;
(b) 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;
(c) the exercise of the powers conferred by this
section would facilitate the making of financial
provision for the applicant under this Part,
then, subject to the provisions of this section and of sections 106
and 107, 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.
Anti-avoidance
provisions.
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(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 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 death duties 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 applicant
for an order under section 96 the Court is satisfied that—
(a) less than six 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;
(b) 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 includes a
reference to the person in whom or for the benefit of whom that
other disposition was made.
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(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.
(7) In this section “disposition” does not include—
(a) any provision in a Will, any such nomination as
is mentioned in section 102(1) or any donatio
mortis causa; 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.
105. (1) Where an application is made to a Court for an order
under section 96, 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 that—
(a) 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;
(b) the deceased made that contract with the intention
of defeating an application for financial provision
under this Part;
(c) when the contract was made full valuable
consideration for that contract was not given or
Contracts to
leave property
by Will.
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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;
(d) the exercise of the powers conferred by this
section would facilitate the making of financial
provision for the applicant under this Part,
then, subject to the provisions of this section and of sections 106
and 107, 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
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.
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.
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(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 are subject to any adjustment made by the Court
under section 106(3) and 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.
106. (1) Where the exercise of any of the powers conferred
by section 104 or 105 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 Part, 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 Part 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 105 with
respect to any contract made by the deceased and no valuable
consideration was given or promised by any person for the 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 Part.
(3) Where the Court makes an order under section 104
or 105, 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.
Supplementary
provisions.
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(4) Any power conferred on the Court by the said
section 104 or 105 to order the donee, in relation to any
disposition or contract, to provide any sum of money or other
property is exercisable in like manner in relation to the personal
representatives of the donee, and—
(a) any reference in section 104(4) to the disposal of
property by the donee includes a reference to
disposal by the personal representatives of the
donee;
(b) any reference in section 104(5) to an application
by the donee under that subsection includes a
reference to an application by the personal
representatives of the donee,
but the Court may not under section 104 or 105 make an order in
respect of any property forming part of the estate of the donee
which has been distributed by the personal representatives and the
personal representatives are not liable for having distributed any
such property before they have notice of the making of an
application under section 104 or 105 on the ground that they ought
to have taken into account the possibility that such an application
would be made.
107. (1) Where an application is made for an order under—
(a) section 104 in respect of a disposition made by
the deceased to any person as a trustee; or
(b) section 105 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 104 or 105 to order that
trustee to provide a sum of money or other property are subject to
the following limitation (in addition, in a case of an application
under section 104, to any provision regarding the deduction of
death duties) namely, that the amount of any sum of money or the
value of any property ordered to be provided:
(i) in the case of an application in respect of a
disposition which consisted of the payment
Provisions as to
trustees.
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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 the 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 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 or in respect of any payment made
or property transferred in pursuance of a contract to any person as
a trustee, the trustee is not 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 the said section 104
or 105 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.
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108. (1) Where, within twelve months from the date on which
a decree of divorce or nullity of marriage has been made absolute
or a decree of judicial separation has been granted, a party to the
marriage dies and—
(a) an application for a financial provision order
under section 24 or 25 of the Matrimonial
Proceedings and Property Act, or a property
adjustment order under section 26 of that Act
has not been made by the other party to the
marriage; or
(b) such an application has been made but the
proceedings thereon have not been determined at
the time of the death of the deceased,
then, if an application for an order under section 96 of this Act is
made by that other party, the Court may, notwithstanding anything
in section 95 or section 97 of this Act, if it thinks it just to do so,
treat that party for the purposes of that application as if the decree
of divorce or nullity of marriage had not been made absolute or
the decree of judicial separation had not been granted, as the case
may be.
(2) This section does not apply in relation to a decree of
judicial separation unless at the date of the death of the deceased
the decree was in force and the separation was continuing.
109. (1) On granting a decree of divorce, a decree of nullity of
marriage or a decree of judicial separation or at any time thereafter,
the Court may, if the Court considers it just to do so and the parties
to the marriage agree, order that either party to the marriage shall
not be entitled on the death of the other party to apply for an order
under section 96.
(2) In the case of a decree of divorce or nullity of
marriage an order may be made under subsection (1) before or
after the decree is made absolute, but if it is made before the
decree is made absolute it does not take effect unless the decree
is made absolute.
Provisions after
divorce or
separation.
Ch. 45:51.
Restrictions on
divorce and
separation
proceedings.
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(3) Where an order made under subsection (1) on the grant
of a decree of divorce or nullity of marriage has come into force
with respect to a party to a marriage, then, on the death of the
other party to that marriage, the Court shall not entertain any
application for an order under section 96 made by the first-
mentioned party.
(4) Where an order made under subsection (1) on the grant
of a decree of judicial separation has come into force with respect
to any party to a marriage, then, if the other party to that marriage
dies while the decree is in force and the separation is continuing,
the Court shall not entertain any application for an order under
section 96 made by the first-mentioned party.
110. (1) Where an application for an order under section 96 is
made to the Court by any person who was at the time of the death
of the deceased entitled to payments from the deceased under a
secured periodical payments order made under the Matrimonial
Proceedings and Property Act, then, in the proceedings on that
application, the Court may, if an application is made under this
section by that person or by the personal representatives of the
deceased, vary or discharge that periodical payments order or revive
the operation of any provision thereof which has been suspended
under section 31 of that Act.
(2) In exercising the powers conferred by this section,
the Court shall have regard to all the circumstances of the case,
including any order which the Court proposed to make under
section 96 or section 99 and any change (whether resulting from
the death of the deceased or otherwise) in any of the matters to
which the Court was required to have regard when making the
secured periodical payments order.
(3) The powers exercisable by the Court under this section
in relation to an order are exercisable also in relation to any
instrument executed in pursuance of the order.
111. (1) Where an application for an order under section 96
is made to the Court by any person who was at the time of the
death of the deceased entitled to payments from the deceased
Variation and
discharge of
periodical
payments
orders.
Ch. 45:51.
Variation and
revocation of
maintenance
agreements.
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under a maintenance agreement which provided for the
continuation of payments under the agreement after the death of
the deceased, then, in the proceedings on that application, the
Court may, if an application is made under this section by that
person or by the personal representatives of the deceased, vary
or revoke that agreement.
(2) In exercising the powers conferred by this section the
Court shall have regard to all the circumstances of the case,
including any order which the Court proposes to make under
section 96 or section 99 and any change (whether resulting from
the death of the deceased or otherwise) in any of the circumstances
in the light of which the agreement was made.
(3) If a maintenance agreement is varied by the Court under
this section the like consequences shall ensue as if the variation had
been made immediately before the death of the deceased by
agreement between the parties and for valuable consideration.
(4) In this section “maintenance agreement” in relation
to a deceased person, means any agreement made, whether in
writing or not and whether before or after the commencement of
this Act, by the deceased with any person with whom he entered
into a marriage, being an agreement which contained provisions
governing the rights and liabilities towards one another when living
separately of the parties to that marriage (whether or not the
marriage has been dissolved or annulled) in respect of the making
or securing of payments or the disposition or use of any property,
including such rights and liabilities with respect to the maintenance
or education of any child, whether or not a child of the deceased or
a person who was treated by the deceased as a child of the family
in relation to that marriage.
112. (1) Where—
(a) a person against whom a secured periodical
payments order was made under the Matrimonial
Proceedings and Property Act, has died and an
application is made under section 31(6) of that
Act for the variation or discharge of that order or
for the revival of the operation of any provision
thereof which has been suspended; or
Availability of
powers under
this Part in other
proceedings.
Ch. 45:51.
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(b) a party to a maintenance agreement within the
meaning of section 38 of that Act has died,
the agreement being one which provides for
the continuation of payments thereunder after
the death of one of the parties, and an
application is made under section 40(1) of that
Act for the alteration of the agreement under
section 39 thereof,
the Court may direct that the application made under the said
section 31(6) or 40(1) shall be deemed to have been accompanied
by an application for an order under section 96 of this Act.
(2) Where the Court gives a direction under subsection (1),
it may, in the proceedings on the application and under the said
section 31(6) or 40(1), make any order which the Court would
have had power to make under the provisions of this Act if the
application under the said section 31(6) or 40(1), as the case may
be, had been made jointly with an application for an order under
the said section 96; and the Court may give such consequential
directions as may be necessary for enabling the Court to exercise
any of the powers available to the Court under this Act in the case
of an application for an order under section 96.
(3) Where an order made under section 109(1) of this Act
is in force with respect to a party to a marriage, the Court shall not
give a direction under subsection (1) with respect to any application
made under the said section 31(6) or 40(1) by that party on the
death of the other party.
113. (1) Where an order is made under section 96 then for all
purposes, including the purposes of the enactments relating to death
duties, the Will or the law relating to intestacy, or both the Will
and the law relating to intestacy, as the case may be, 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 96 or 94 in favour of
an applicant who was—
(a) the former spouse of the deceased; or
Effect, duration
and form of
orders.
[28 of 2000].
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(b) the spouse 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,
ceases, in so far as it provides for the making of periodical
payments, 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) The Registrar shall transmit an office copy of every
order made under this Part to the Registrar General, who shall
forthwith register it in the Protocol of Wills and make reference
to the order in the margin of the certified copy of the grant
registered by him.
114. (1) The provisions of this Part do not render the personal
representatives of a deceased person liable for having distributed
any part of the estate of the deceased, after the end of the period of
six months 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 that—
(a) the Court might permit the making of an
application for an order under section 96 after the
end of that period; or
(b) where an order has been made under the said
section 96, the Court might exercise in relation
thereto the powers conferred on it by section l00,
but this subsection does 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 representatives of a deceased
person pay any sum directed by an order under section 99 to be
paid out of the deceased’s estate, they are not under any liability
by reason of that estate not being sufficient to make the payment,
unless at the time of making the payment they have reasonable
cause to believe that the estate is not sufficient.
Provisions as to
personal
representatives.
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(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 representatives of the deceased have
reason to believe that the deceased entered into the contract with
the intention of defeating an application for financial provision
under this Act, they may, notwithstanding anything in the contract,
postpone the payment of the sum of money or the transfer of that
property until the expiration of the period of six months 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 96, until the determination of the
proceedings on that application.
115. In any proceedings under this Part a statement made by the
deceased, whether orally or in a document or otherwise, shall be
admissible under section 37 of the Evidence Act as evidence of any
fact stated therein in like manner as if the statement were a statement
falling within section 37 (1) of that Act; and any reference in that
Act to a statement admissible, or given or proposed to be given, in
evidence under section 37 thereof or to the admissibility or the giving
in evidence of a statement by virtue of that section or to any statement
falling within section 37 (1) of that Act shall be construed accordingly.
116. In consideration for the purposes of this Part when
representation with respect to the estate of a deceased person was
first taken out, a grant limited to trust property shall be left out of
account, and a grant limited to real estate or to personal estate shall
be left out of account unless a grant limited to the remainder of the
estate has previously been made or is made at the same time.
PART IX
GENERAL PROVISIONS
117. Nothing in this Act affects in any way the powers—
(a) under the Post Office Savings Bank Act to pay,
apply and distribute money standing to the credit
of a depositor to the several classes of persons
specified in the said Act;
Admissibility of
evidence.
[28 of 2000].
Ch. 7:02.
Date of grant of
representation.
Savings Bank
Deposits and
insurance
policies.
Ch. 79:04.
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(b) under the Insurance Act, to pay moneys, including
bonuses (if any), to the person specified in
sections 139 and 140 of the said Act.
118. (1) The Commissioner of Inland Revenue, the Accountant
General and the Administrator General have at all times free access
to all probate documents in the registry of the Court.
(2) Any other person may, on payment of the
prescribed fee—
(a) examine any Will or other document deposited
in the said registry;
(b) obtain an office copy of any such document.
119. The Minister may make Rules or Regulations governing
any matter to be prescribed under this Act or respecting any matter
necessary or convenient to carry out effectively the intent and
purpose of this Act.
120. Rules of Court may be made by the Rules Committee under
section 76 of the Supreme Court of Judicature Act, for regulating
the practice and procedure in respect of any proceedings of any
kind under this Act.
121. The Minister may by Order, subject to affirmative
resolution of the House of Representatives, prescribe fees to be
charged for the following matters, that is to say—
(a) the various matters and things to be done or
permitted to be done under Part V;
(b) the administration of assets under Part VI;
(c) the distribution on intestacy under Part VII;
(d) the applications for family provision under
Part VIII;
(e) the examination and obtaining of copies of
documents under section 118.
122. Estate duty is abolished in respect of the estate of any
person dying on or after 1st January 1981.
Ch. 84:01.
Access to
documents.
Rules or
Regulations.
Rules of Court.
Ch. 4:01.
Fees.
Abolition of
estate duty.
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123. (1) Except to the extent to which any provision of this
Act expressly provides to the contrary, the provisions of this Act
do not apply to the estate of any person dying before the
commencement of this Act.
(2) Nothing in this Act affects the operation of any rule
of law whereby a person may, by reason of his own criminal act,
be precluded from taking any benefit either under the Will or on
the intestacy of that other.
(3) Subject to section 194(2) of the Land Law and
Conveyancing Act, 1981, which shall apply to this Act as it applies
to that Act, this Act binds the State.
124. (1) [This subsection specified (in the Second Schedule
which has been omitted) the Acts repealed by this Act].
(2) [This subsection specified (in the Third Schedule
which has been omitted) the Acts amended by this Act].
(3) All statutes of general application of the Imperial
Parliament relating to the subject matter of this Act and still in
force in the State by virtue of section 12 of the Supreme Court of
Judicature Act, are repealed to the extent that they so relate.
125. References in any document to any provision repealed by
this Act shall be construed as references to the corresponding
provision of this Act.
Application of
Act.
20 of 1981.
Repeals and
amendments.
Second
Schedule.
Third Schedule.
Ch. 4:01.
Adaptation of
references.
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SCHEDULE
ADMINISTRATION OF ASSETS
PART I
RULES AS TO PAYMENTS OF DEBTS WHERE
THE ESTATE IS INSOLVENT
1. The funeral, testamentary, and administration expenses have priority.
2. Subject as aforesaid, the same rules shall prevail and be observed as to
the respective rights of secured and unsecured creditors and as to debts and
liabilities provable and as to the valuation of annuities and future and contingent
liabilities respectively, and as to the priorities of debts and liabilities as may be
in force for the time being under the law of bankruptcy with respect to the
assets of persons adjudged bankrupt.
PART II
ORDER OF APPLICATION OF ASSETS WHERE
THE ESTATE IS SOLVENT
1. Property of the deceased undisposed of by Will, subject to the retention
thereout of a fund sufficient to meet any pecuniary legacies.
2. Property of the deceased not specifically devised or bequeathed but
included (either by a specific or general description) in a residuary gift, subject
to the retention out of such property of a fund sufficient to meet any pecuniary
legacies, so far as not provided aforesaid.
3. Property of the deceased specifically appropriated or devised or
bequeathed (either by a specific or general description) for the payment of debts.
4. Property of the deceased charged with, or devised or bequeathed (either
by a specific or general description) subject to a charge for the payment of
debts.
5. The fund, if any, retained to meet pecuniary legacies.
6. Property specifically devised or bequeathed, rateably according
to value.
7. Property appointed by Will under a general power rateably according
to value.
[Section 77(1)
and (4)].
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8. The following provisions shall also apply:
(a) the order of application may be varied by the Will of the
deceased;
(b) this Part of this Schedule does not affect the liability of land to
answer the death duty imposed thereon in exoneration of other
assets.
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