"maintainance"
Re Dennis, Dennis v
Who can apply
Wife or husband of deceased (incl. party to
void marriages in some situations )
person cohabiting with deceased
(single man or single woman [no
definition of "single" - could exclude
widower, divorcee)
as husband or wife "common
law spouse" for not less
than 5 years immediately
preceding date of deceased
death
Former wife or husband (if wholly,
partially maintained by deceased or
entitled to full/partial maintenance
under existing court order
or agreement between parties
immediately before death)
[former spouse - person whose
marriaged was dissolved by
decree of divorce or nullity and who
has not remarried]
Child (under 18, includes legally
adopted, cnild en ventre sa mere (not
yet born), child of deceased's husband
or wife accepted as one of
family by deceased);
(over 18, under 23 years pursuing
academic/trade/professional studies
or special circumstances exists (e.g. physical
or menatl disability) to justify exception to
18 year old age limit)
[includes out of wedlock]
Parent (if wholly/partially
maintained or legally entitled to
be maintained by deceased
immediately preceeding death -hence
not automatic) - also applies
to person who stood in loco
parentis to deceased immediately before
death
section 4
Inheritance (Provision for Family
and Dependants) Act
Inheritance (Provision for Family
and Dependants) Act
Prescribed family members can apply
to Supreme Court for financial support on
the basis that disposition does not
make reasonable financial provision for
maintenance of applicant
whether by Will, Intestacy or Combination
Discretionary jurisdiction of
court and so no guarantee of
favourable disposition
Time for applications -
6 months after representation
to estate (Probate/LA etc) first granted
Leave of Court may be granted
in exceptional circumstances
to apply out of time
section 5
Inheritance (Provision for Family
and Dependants) Act
Types of Orders
Procedure
FDCF application
Applicant is claimant
and Executor/Administrator
is defendant
Applicantion supported by
Affidavit setting out
matters
Needs to establish that
distribution of estate not
reasonable provision
for applicant objectively
Lloyd's Bank Ltd
[1981]
[as per Browne-Wilkinson J
"maintenance connotes only
payments which ...enable
the applicant in the future
to discharge cost of daily
living at whatever standard
is appropriate to him..
meet reucrring expense being
expenses of living
of an income nature"]
Introduction
T competent to
make wills providing for Can be lump sum
allocation of his/her property
on death as T see's fit Should take into account not only
T has power to financial position but considerations
of social status
distribute estate subject to
Power of court to make discretionary Re Duranceau
award for financial provision on [1952]
application of specified persons
Test of whether reasonable
is objective one - court not
concerned with whether T acted
"Reasonable financial provison"
unreasonably towards applicant
Court assess whether distribution of estate Courts will not lightly disturb T's
effected reasonable financial provision for dispositions by will but act with
applicant caution
Even where division of estate not
Restriction on reasonable vis-a-vis applicant, Williams v Mavaou
(2000)
Testamentary Court must go further to determine [as per Harrison J [in
Freedom whether it will exercise powers under Jamaica]]
statute and if so, in what manner
Factors taken into account
Example - factors applied
Size/nature of net estate
Financial resources and
needs of applicant
Re Clarke, Clarke v Roberts
and other applicants
Basic Orders [where applicant A moved
and beneficiary of estate
Periodical payment orders - out of T's house due to
for periodical payments Obligations/Responsibilities
out of net estate challenge with T's mother
of deceased towards
Lump sum payment orders , T left 1000 pounds for A,
applicant or beneficiary
and all to his mother (who
Other Orders (legal and moral)
died soon after)
Transfer of property to Reason of Ddeceased for
applicant e.g. setting up of - court considered
making provision or no
trust fund and settlement obligations of deceased
of property provision
to both A and mother,
Interim orders -
useful to meet
Conduct of applicant reasons for making no
desperate situations towards deceased further provisions for A -
where unclear what
Physical or mental disability found that T broke bargain
specific final order
court will make of applicant/beneficiary and so disposition of
in circumstances Relationship of applicant estate not reasonable -
to deceased and nature held wife should take
of any provison deceased entire estate but as marriage
section 6
made for applicant during lasted only over 3 years
Inheritance
lifetime and A had reasonable
(Provision for Family
income - A to receive
and Dependants) Act Any other matter court half income of net
consideres relevant estate for rest of life
in circumstances or until remarriage]
Consideration of manner
in which child was
or to be educated or trained -
if child accepted as
part of family -
consideration of whether
deceased assumed responsibility Franklyn v Biddy
for maintenance and liability (1960)
of any other person to maintain [wife left husband, removed
child furniture, husband
later formed liaison with
mistress to whom entire estate
section 7
given - wife $25 -oral statements
Inheritance
admissible to understand reasons,
(Provision for Family
denied claim of widow]
and Dependants) Act
Millwood v Shenton****
[1972]
[re disability]
Re Coventry [1980]***
[re dire financial
circumstances
of applicant and how
they apply]