Getting your fair share of estate

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June 13, 2016

In May 1993, our Parliament passed a very progressive piece of legislation called the Inheritance (Provision for Family and Dependants) Act (the 'Act'). According to its long title, the Act makes provisions for reasonable financial provisions for family and dependants of deceased persons to be made out of the net estate of the deceased where the disposition of the deceased's estate, based on his will or the law of intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for their maintenance. The Act, however, only applies to cases where a deceased person dies after May 20,1993.

The Act underscores the point that the duty of the deceased to make adequate financial provisions for his family and dependants overrides his personal right to distribute his property in a manner that ignores their maintenance.

The mischief, which this Act was passed to correct, is to prevent the provisions of the will of a deceased person to be the final word as to how his estate should be distributed, if sufficient financial provision is not made for his family and dependants. Therefore, where there is inadequate provision in a will for such persons, an application can be made to the court under Section 6 of the Act for reasonable financial provision to be made from the deceased's net estate. The court is empowered to make several orders, including the payment of money, the transfer of property, and the setting up of a trust fund. The court, in determining the most appropriate order, will take into account the circumstances of the applicant at the time of the application.

Section 4 of the Act makes detailed provisions as to the persons who are entitled to make an application under Section 6. These include the wife or husband of the deceased; a child under 18 years of age or under 23 years old, if attending tertiary institution; parents of the deceased who have been maintained by the deceased immediately prior to his death; a former wife or former husband of the deceased who was being maintained by the deceased or who was under an existing order of the court or by agreement between the parties to be maintained by the deceased immediately before his death. It also provides for applications to be made by a person who, where the deceased was a single man, was a single woman living with the deceased as his wife for a period of not less than five years immediately before his death; or, where the deceased was a single woman, a single man who was living with the deceased as her husband for a period of not less than five years before the date of death of the deceased.

Section 5 provides that an application under Section 6 should be made within six months from the date within which representation of the deceased's estate is first taken out, unless the court permits a longer period for the application to be made. It is clear that the lawmakers did not intend for these applications to be made too late.

So, in light of the six-month limitation period, family and dependants of a deceased must seek to ascertain whether adequate provisions have been made for them as soon as is reasonably practicable following the death of the deceased. If the answer is no, then steps should be taken promptly to apply to the court for the necessary financial provisions out of the deceased's net estate to be made for them.

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