Testators' Family Maintenance Act
REVISED STATUTES, 1989
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An Act to Authorize Provision for the
Proper Maintenance of Certain
Dependants of Testators
1 This Act may be cited as the Testators' Family Maintenance Act.
R.S., c. 465, s. 1.
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
- (iii) of which the testator is the natural parent;
- (b) "dependant" means the widow or widower or the child of a
- (c) "executor" includes an administrator with the will annexed;
- (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,
Evidence at hearing
- (a) whether the character or conduct of the dependant is such as
should disentitle the dependant to the benefit of an order under this
- (b) whether the dependant is likely to become possessed of or
entitled to any other provision for his maintenance and support;
- (c) the relations of the dependant and the testator at the time of
- (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.
(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
Directions for transfer of property of estate
- (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.
(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
- (c) discharge, vary or suspend the order or make any other
orders the judge considers proper in the circumstances.
(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;
- (c) an infant child of the testator who has attained the age of
- (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
Restriction on time of distribution
- (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;
- (c) direct
- (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.
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,
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.
- (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,
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.
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,
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.
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
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
- (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.
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.
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