Testators' Family Maintenance Act

CHAPTER 465

OF THE

REVISED STATUTES, 1989

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An Act to Authorize Provision for the
Proper Maintenance of Certain
Dependants of Testators

Short title

1 This Act may be cited as the Testators' Family Maintenance Act. R.S., c. 465, s. 1.

Interpretation

2 In this Act,

(a) "child" includes a child

(i) lawfully adopted by the testator,

(ii) of the testator not born at the date of the death of the testator,

(iii) of which the testator is the natural parent;

(b) "dependant" means the widow or widower or the child of a testator;

(d) "judge" means a judge of the Trial Division of the Supreme Court or a local judge thereof acting within the district for which the local judge is appointed a judge of the county court;

(e) "testator" means a person who has died leaving a will. R.S., c. 465, s. 2.

Order for adequate maintenance and support

3 (1) Where a testator dies without having made adequate provision in his will for the proper maintenance and support of a dependant, a judge, on application by or on behalf of the dependant, has power, in his discretion and taking into consideration all relevant circumstances of the case, to order that whatever provision the judge deems adequate be made out of the estate of the testator for the proper maintenance and support of the dependant.

Suspension of administration pending order

(2) Pending the making of an order under subsection (1), the judge may make a suspensory order, suspending in whole or in part the administration of the estate of the testator to enable application to be made at a later date for an order making specific provision for proper maintenance and support of a dependant. R.S., c. 465, s. 3.

Form of application

4 An application under this Act may be made by originating notice. R.S., c. 465, s. 4.

Inquiry by judge

5 (1) Upon the hearing of an application made by or on behalf of a dependant under subsection (1) of Section 3, the judge shall inquire into and consider all matters that should be fairly taken into account in deciding upon the application including, without limiting the generality of the foregoing,

(a) whether the character or conduct of the dependant is such as should disentitle the dependant to the benefit of an order under this Act;

(b) whether the dependant is likely to become possessed of or entitled to any other provision for his maintenance and support;

(d) the financial circumstances of the dependant;

(e) the claims which any other dependant has upon the estate;

(f) any provision which the testator while living has made for the dependant and for any other dependant;

(g) any services rendered by the dependant to the testator;

(h) any sum of money or any property provided by the dependant for the testator for the purpose of providing a home or assisting in any business or occupation or for maintenance or medical or hospital expenses.

Evidence at hearing

(2) Upon the hearing of an application under subsection (1) of Section 3, the judge, in addition to any evidence adduced by the parties appearing, may direct evidence to be given in respect of any matter that the judge considers relevant.

Evidence of testators reasons

(3) Upon the hearing of an application under subsection (1) of Section 3, the judge may receive any evidence the judge considers relevant of the testators reasons, as far as ascertainable, for making the dispositions made by his will, or for not making provision or further provision, as the case may be, for a dependant, including any statement in writing signed by the testator. R.S., c. 465, s. 5.

Conditions and restrictions of order

6 (1) The judge, in making an order for proper maintenance and support of a dependant, may impose conditions and restrictions.

Order charging estate

(2) The judge may make an order charging the whole or any portion of the estate, in any proportion and manner that to the judge seems proper, with payment of an allowance sufficient to provide proper maintenance and support, and the judge may order that the provision for proper maintenance and support be made out of the whole or any portion of the estate and out of income or corpus or both, and may be by way of

(a) an amount payable annually or otherwise;

(b) a lump sum to be paid or held in trust;

(c) the transfer or assignment of particular property either absolutely, in trust, for life or for a term of years to or for the benefit of the dependant; or

(d) any combination of the foregoing methods.

Directions for transfer of property of estate

(3) Where a transfer or assignment of property is ordered, the judge may give all necessary and proper directions for the execution of the transfer or assignment either by the executor or other person the judge directs. R.S., c. 465, s. 6.

Variation or suspension or discharge of order

7 (1) Where an order has been made for proper maintenance and support, a judge, upon application at any subsequent date, may

(a) inquire whether the party benefited by the order has become possessed of, or entitled to, any other provision for his maintenance or support;

(b) inquire into the adequacy of the provision ordered; and

Relevant facts

(2) The judge may, when proceeding under subsection (1), include as relevant the fact that the dependant was

(a) the surviving spouse of the testator and has remarried;

(b) an unmarried child of the testator who has married;

(d) a disabled child of the testator who has ceased to be disabled. R.S., c. 465, s. 7.

Periodic or lump sum payment by beneficiary

8 A judge at any time may

(a) fix a periodic payment or lump sum to be paid by any legatee or devisee to represent, or be in commutation of, the proportion of the sum ordered to be paid to the dependant that falls upon the portion of the estate in which the legatee or devisee is interested;

(b) relieve such portion from further liability;

(i) in what manner a periodic payment shall be secured,

(ii) to whom a lump sum shall be paid and in what manner it shall be vested for the benefit of the dependant. R.S., c. 465, s. 8.

Restriction on time of distribution

9 (1) Except so far as is necessary to pay debts, and funeral and testamentary expenses, the executor or trustee of the estate of any testator shall not distribute any portion of the estate without the consent of all the dependants of the testator or unless authorized to do so by order of a judge made on summary application,

(a) until the expiration of six months from the grant of probate or administration with the will annexed; or

(b) after an application has been made under this Act and notice thereof served upon the executor or trustee, until a judge has disposed of the application,

but nothing herein contained shall prevent an executor or trustee from making reasonable advances for maintenance to dependants who are beneficiaries under the will or prevent a court of probate from making an allowance under the Probate Act.

Liability of executor or trustee

(2) An executor or trustee who disposes of or distributes any portion of an estate in violation of the provisions of subsection (1) shall, if any provision for maintenance and support is ordered by a judge to be made out of the estate, be personally liable to pay the amount of the provision to the extent that the provision or any part thereof, pursuant to the order or this Act, ought to be made out of the portion of the estate disposed of or distributed. R.S., c. 465, s. 9.

How cost of proper maintenance and support borne

10 The cost of any provision for proper maintenance and support ordered under this Act shall, unless the judge otherwise determines, be borne rateably by the whole estate of the testator or, in cases where the jurisdiction of the judge does not extend to the whole estate, then by that part to which the jurisdiction of the judge extends, and the judge may relieve any part of the testators estate from the incidence of the order. R.S., c. 465, s. 10.

Succession duties

11 For the purposes of enactments relating to succession duties, where an order is made under this Act, the will shall be deemed to have had effect from the death of the testator as if it had been executed with any variations necessary to give effect to the provisions of the order, and Her Majesty shall be bound by the provisions of this Section. R.S., c. 465, s. 11.

Further direction by judge

12 A judge may give any further directions the judge considers proper for the purpose of giving effect to an order made under this Act. R.S., c. 465, s. 12.

Filing of order

13 A certified copy of every order made under this Act shall be filed with the registrar of the court out of which the letters probate, or letters of administration with the will annexed, issued and a memorandum of the order shall be endorsed on or annexed to the copy of the original letters probate or letters of administration with the will annexed in the custody of the registrar. R.S., c. 465, s. 13.

Limitation period

14 (1) Subject to subsection (2) of this Section, an application for an order under Section 3 may not be made after expiration of six months from the grant of probate of the will or of administration with the will annexed.

Extension of limitation period

(2) A judge may, if the judge considers it just, allow an application to be made at any time as to any portion of the estate remaining undistributed at the date of the application. R.S., c. 465, s. 14.

Notice of application to interested person

15 Where an application is made by or on behalf of a dependant,

(a) the judge shall not make any order until the judge is satisfied upon oath that all persons who are or may be interested in or affected by the order have been served in accordance with the Civil Procedure Rules with notice of the application and every such person shall be entitled to be heard in person or by counsel at the hearing; and

(b) the application shall, except as otherwise ordered by the judge, be deemed to be an application on behalf of all dependants who have been so served. R.S., c. 465, s. 15.

Effect of order on contract for devise of property

16 (1) Where a testator, in his lifetime, bona fide and for valuable consideration, has entered into a contract to devise and bequeath any property, real or personal, and has by will devised or bequeathed such property in accordance with the provisions of the contract, such property shall not be liable to the provisions of an order made under this Act, except to the extent that the value of the property, in the opinion of the judge, exceeds the consideration received by the testator.

No contracting out of Act in lifetime of testator

(2) If a dependant has entered into any agreement with a testator in his lifetime the consideration for which is a promise by the dependant not to apply under this Act for relief from the provisions of the testators will, such promise is not binding upon the dependant under this Act. R.S., c. 465, s. 16.

Right of dependant does not survive his death

17 The right to apply for an order for relief under this Act does not survive the death of a dependant. R.S., c. 465, s. 17.

Enforcement of order

18 An order or direction made under this Act may be enforced in the same way and by the same means as any other judgment or order of the Supreme Court may be enforced, and a judge may make such order or direction or interim order or direction as may be necessary to secure to the dependant the benefit to which the dependant is found to be entitled. R.S., c. 465, s. 18.

Appeal

19 An appeal lies to the Appeal Division of the Supreme Court from any order made under this Act and the decision of the Court upon the appeal shall be final. R.S., c. 465, s. 19.

This page and its contents published by the Office of the Legislative Counsel, Nova Scotia House of Assembly, and © 1998 Crown in right of Nova Scotia. Updated September 22, 1998. Send comments to legc.office@gov.ns.ca.

Testators' Family Maintenance Act

An Act to Authorize Provision for the Proper Maintenance of Certain Dependants of Testators

An Act to Authorize Provision for the
Proper Maintenance of Certain
Dependants of Testators