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RSNL1990 CHAPTER F-3

FAMILY RELIEF ACT

Amended:

2004 cL-3.1 s33; 2013 c16 s25

CHAPTER F-3

AN ACT TO AUTHORIZE PROVISION FOR THE MAINTENANCE OF CERTAIN DEPENDANTS OF TESTATORS AND INTESTATES

Analysis



Short title

        1. This Act may be cited as the Family Relief Act.

RSN1970 c124 s1

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Definitions

        2. In this Act

             (a)  "child" includes

                      (i)  a child lawfully adopted by the deceased, and

                     (ii)  a child of the deceased which is in the mother's womb at the date of the deceased's death;

             (b)  "deceased" means a testator or a person dying intestate;

             (c)  "dependant" means the widow, widower or child of the deceased;

             (d)  "executor" includes an administrator with the will annexed;

             (e)  "judge" means a judge of the Trial Division;

             (f)  "order" includes suspensory order; and

             (g)  "testator" means a person who has died leaving a will.

RSN1970 c124 s2; 1974 No57 s35(s264(n)); 1986 c42 Sch A

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Labrador Inuit rights

      2.1 This Act shall be read and applied in conjunction with the Labrador Inuit Land Claims Agreement Act and, where a provision of this Act is inconsistent or conflicts with a provision, term or condition of the Labrador Inuit Land Claims Agreement Act , the provision, term or condition of the Labrador Inuit Land Claims Agreement Act shall have precedence over the provision of this Act.

2004 cL-3.1 s33

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Application to court

        3. (1) Where a person

             (a)  dies testate without having made in his or her will adequate provision for the proper maintenance and support of his or her dependants or 1 of them; or

             (b)  dies intestate and the share under the Intestate Succession Act of the intestate's dependants or 1 of them in the estate is inadequate for their or his or her proper maintenance and support,

a judge, on application by or on behalf of those dependants, or 1 of them, may in his or her discretion and taking into consideration all relevant circumstances of the case, notwithstanding the provisions of the will or the Intestate Succession Act, order that adequate provision shall be made out of the estate of the deceased for the proper maintenance and support of the dependants or 1 of them.

             (2)  The judge may make an order, referred to as a suspensory order, suspending in whole or in part the administration of the deceased's estate to the end that application may be made at a subsequent date for an order making specific provision for maintenance and support.

RSN1970 c124 s3

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Originating application

        4. An application under this Act may be made by originating application.

RSN1970 c124 s4

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Criteria for determining issue

        5. (1) Upon the hearing of an application made by or on behalf of a dependant under subsection 3(1), the judge shall inquire into and consider all matters that should be fairly taken into account in deciding upon the application, including

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

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

             (c)  the relations of the dependant and the deceased;

             (d)  the financial circumstances of the dependant;

             (e)  the claims which another dependant has upon the estate;

             (f)  provisions which the deceased while living has made for the dependant and for other dependants;

             (g)  services rendered by the dependant to the deceased;

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

              (i)  rights that a widow or widower has under the Family Law Act or a marriage contract made under that Act.

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

             (3)  Upon the hearing of an application under subsection 3(1) the judge may receive evidence he or she considers relevant of the deceased's reasons, as far as ascertainable, for making the disposition made by the deceased's will or for not making provision or further provision for a dependant, including a statement in writing signed by the deceased, and in estimating the weight to be attached to the statement, the judge shall have regard to all the circumstances from which an inference can reasonably be drawn as to the accuracy of the statement.

             (4)  Notwithstanding the Intestate Succession Act, where a testator dies intestate as to part of his or her estate the judge may make an order affecting either the part of the estate as to which the testator died testate or the part as to which he or she died intestate or as to both parts.

RSN1970 c124 s5; 1979 c32 s43

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Contents of orders

        6. (1) The judge in an order making provision for maintenance and support of a dependant may impose those conditions and restrictions that he or she considers appropriate.

             (2)  The judge may in his or her discretion order that the provision for maintenance and support be made out of and charged against the whole or a portion of the estate in the proportion and in the manner that seems proper to the judge.

             (3)  Provision for maintenance and support may be made out of income or capital or both and may be made in 1 or more of the following ways, that the judge considers appropriate:

             (a)  by an amount payable annually or otherwise;

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

             (c)  by specified property being transferred or assigned, absolutely or in trust or for life, or for a term of years, to or for the benefit of the dependant.

             (4)  Where a transfer or assignment of property is ordered, the judge may

             (a)  give all necessary directions for the execution of the transfer or assignment by the executor or administrator or other person whom the judge may direct; or

             (b)  grant a vesting order.

RSN1970 c124 s6

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Variation, etc. of order

        7. (1) Where an order has been made under this Act, a judge at a subsequent date may

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

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

             (c)  discharge, vary or suspend the order, or make whatever other order that may be appropriate in the circumstances.

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

             (a)  the widow or widower of the deceased and has remarried;

             (b)  a disabled child of the deceased who has since ceased to be disabled; or

             (c)  a child of the deceased who has since attained the age of majority.

RSN1970 c124 s7; 1979 c39 s7

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Payment

        8. A judge may

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

             (b)  relieve that portion of the estate from further liability; and

             (c)  direct

                      (i)  in what manner a periodic payment is to be secured, and

                     (ii)  to whom a lump sum is to be paid and in what manner it is to be dealt with for the benefit of the person to whom the commuted payment is payable.

RSN1970 c124 s8

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Distribution of estate stopped

        9. (1) Where an application is made and notice of it is served on the executor, administrator or trustee of the estate of the deceased, he or she shall not, after service of the notice, proceed with the distribution of the estate until the judge has disposed of the application.

             (2)  An executor, administrator or trustee who disposes of or distributes a portion of an estate in violation of subsection (1) is, where a provision for maintenance and support is ordered by a judge to be made out of the estate, personally liable to pay the amount of the provision to the extent that the provision or a part of the provision, under the order or this Act, ought to be made out of the portion of the estate disposed of or distributed.

             (3)  An executor, administrator or trustee of the estate of the deceased may, until notice of an application is served upon him or her, proceed with the distribution of the estate.

RSN1970 c124 s9

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Effect on estate

      10. The incidence of a provision for maintenance and support shall, unless the judge otherwise determines, fall rateably upon the whole estate of the deceased, or, in cases where the jurisdiction of the judge does not extend to the whole estate, then to that part to which the jurisdiction of the judge extends, and the judge may relieve a part of the deceased's estate from the incidence of the order.

RSN1970 c124 s10

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Effect of order

      11. (1) Where an order is made under this Act, then for all purposes, including the purpose of an enactment relating to succession duties, the order has effect from the date of the deceased's death, and the will has effect from that date as if it had been executed with the variations that are necessary to give effect to the provisions of the order.

             (2)  The Crown is bound by this section.

RSN1970 c124 s11

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Direction of judge

      12. A judge may give whatever further directions he or she considers appropriate for the purpose of giving effect to an order.

RSN1970 c124 s12

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Order to be filed

      13. (1) A certified copy of every order made under this Act shall be filed with the Trial Division.

             (2)  A memorandum of the order shall be endorsed on or annexed to the copy of the original letters of probate, letters of administration with the will annexed or letters of administration in the custody of the Trial Division.

2013 c16 s25

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Time limit

      14. (1) No application for an order under section 3 may be made except within 6 months after the grant of probate of the will, administration with the will annexed or administration.

             (2)  A judge may, where he or she considers it just, allow an application to be made, at any time, as to a portion of the estate remaining undistributed at the date of the application.

RSN1970 c124 s14

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Application on behalf of dependant

      15. Where an application for an order under section 3 is made by or on behalf of a dependant, in so far as the question of limitation is concerned, it shall be considered to be an application on behalf of all persons who might apply.

RSN1970 c124 s15

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Contracts

      16. Where a testator has in his or her lifetime and for valuable consideration entered into a contract to devise and bequeath property, real or personal, and has by his or her will devised or bequeathed that property in accordance with the provisions of the contract, that property is not liable to an order made under this Act except to the extent that the value of the property, in the opinion of the judge, exceeds the value of the consideration to the testator under the contract at the date of the contract.

RSN1970 c124 s16

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Certain changes invalid

      17. Where provision for the maintenance and support of a dependant is ordered under this Act, a mortgage, charge or other assignment

             (a)  of or with respect to that provision; and

             (b)  made before the order of the judge making that provision is entered,

has no effect.

RSN1970 c124 s17

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Enforcement of order

      18. (1) An order or direction made under this Act may be enforced against the estate of the deceased in the same way and by the same means as another judgment or order of the court against the estate may be enforced.

             (2)  A judge may make whatever order or direction or interim order or direction that may be necessary to secure to the dependant out of the estate the benefit to which he or she is found to be entitled.

RSN1970 c124 s18

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Appeal

      19. (1) A party or person taking part in the proceedings may appeal from an order or decision made under this Act to the Court of Appeal.

             (2)  Where the party or person having a right of appeal does not appeal from the order or decision, a person beneficially interested in the estate, by leave of a judge, may appeal from the order.

             (3)  A person beneficially interested in the estate may, by leave of a judge, appear and be heard upon an appeal.

             (4)  Every appeal under this Act shall be made by notice of appeal served upon all interested parties within 30 days after the date of the order or decision appealed from, and, when the circumstances of a case in the opinion of a judge so warrant, the judge may permit service to be effected by registered mail.

             (5)  The time limited for appeal may be extended by a judge, either before or after the expiry of the time limit.

             (6)  The Rules of Court, 1986 apply to appeals under this Act.

RSN1970 c124 s19; 1974 No57 Sch D; 1986 c42 Sch B