Intestates' Estates Act 1952

Section 8.

FOURTH SCHEDULE Inheritance (Family Provision) Act, 1938, as amended by Part II of this Act as respects Persons Dying after the Commencement of this Act

An Act to amend the law relating to dispositions of estates of deceased persons, and for other purposes connected therewith.

1. 1. Power for court to order payment out of net estate of deceased for benefit of surviving spouse or child

2. 2. Time within which application must be made

3. 3. Effect and form of order

4. 4. Variation of orders

5. 5. Interpretation

6. 6. Short title, commencement and extent

(Formal enacting words)

1 Power for court to order payment out of net estate of deceased for benefit of surviving spouse or child

(1) Where, after the commencement of this Act, a person dies domiciled in England leaving—

(a) a wife or husband,

(b) a daughter who has not been married, or who is, by reason of some mental or physical disability, incapable of maintaining herself,

(c) an infant son, or

(d) a son who is, by reason of some mental or physical disability, incapable of maintaining himself,

then, if the court on application by or on behalf of any such wife, husband, daughter or son as aforesaid (in this Act referred to as a " dependant" of the deceased) is of opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable provision for the maintenance of that dependant, the court may order that such reasonable provision as the court thinks fit shall, subject to such conditions or restrictions, if any, as the court may impose, be made out of the deceased's net estate for the maintenance of that dependant:

Provided that no application shall be made to the court by or on behalf of any person in any case where the disposition of the deceased's estate effected as aforesaid is such that the surviving spouse is entitled to not less than two-thirds of the income of the net estate and where the only other dependant or dependants, if any, is or are a child or children of the surviving spouse.

(2) The provision for maintenance to be made by an order shall, subject to the provisions of subsection (4) of this section, he by way of periodical payments and the order shall provide for their termination not later than—

(a) in the case of a wife or husband, her or his re-marriage ;

(b) in the case of a daughter who has not been married, or who is under disability, her marriage or the cesser of her disability, whichever is the later ;

(c) in the case of an infant son, his attaining the age of twenty one, years ;

(d) in the case of a son under disability, the cesser of his disability ;

or, in any case, his or her earlier death.

(3) Periodical payments made under subsection (2) of this section to any one dependant shall not be at an annual rate which exceeds the annual income of the net estate, and, where payments are so made to more than one dependant in respect of the same period, the aggregate of the annual rates at which those payments are made shall not exceed the annual income of the net estate.

(4) Where the value of a deceased's net estate does not exceed five thousand pounds, the court shall have power to make an order providing for maintenance, in whole or in part, by way of a lump sum payment.

(5) in determining whether, and in what way, and as from what date, provision for maintenance ought to be made by an order, the court shall have regard to the nature of the property representing the deceased's net estate and shall not order any such provision to be made as would necessitate a realisation that would be improvident having regard to the interests of the deceased's dependants and of the person who, apart from the order, would be entitled to that property.

(6) The court shall, on any application made under this Act, have regard to any past, present or future capital or income from any source of the dependant of the deceased to whom the application relates, to the conduct of that dependant in relation to the deceased and otherwise, and to any other matter or thing which in the circumstances of the case the court may consider relevant or material in relation to that dependant, to persons interested in the estate of the deceased, or otherwise.

(7) The court shall also, on any such application, have regard to the deceased's reasons, so far as ascertainable, for making the dispositions made by his will (if any), or for refraining from disposing by will of his estate or part of his estate, or for not making any provision, or any further provision, as the case may be, for a dependant, and the court may accept such evidence of those reasons as it considers sufficient including any statement in writing signed by the deceased and dated, so. however, that in estimating the weight, if any, to be attached to any such statement the court shall have regard to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement.

(8) The court in considering for the purposes of subsection (1) of this section whether the disposition of the deceased's estate effected by the law relating to intestacy, or by the combination of the deceased's will and that law, makes reasonable provision for the maintenance of a dependant shall not be bound to assume that the law relating to intestacy makes reasonable provision in all cases.

2 Time within which application must be made

(1) Except as provided by the following provisions of this section or section four of this Act, an order under this Act shall not be made save on an application made within six months from the date on which representation in regard to the deceased's estate is first taken out.

(1A) If it is shown to the satisfaction of the court that the limitation to the said period of six months would operate unfairly,—

(a) in consequence of the discovery of a will or codicil involving a substantial change in the disposition of the deceased's estate (whether or not involving a further grant of representation) or

(b) in consequence of a question whether a person had an interest in the estate, or as to the nature of an interest in the estate, not having been determined at the time when representation was first taken out, or

(c) in consequence of some other circumstances affecting the administration or distribution of the estate,

the court may extend that period.

(1B) The provisions of this Act shall not render the personal representatives of the deceased liable for having distributed any part of the estate of the deceased after the expiration of the said period of six months on the ground that they ought to have taken into account the possibility that the court might exercise its power to extend that period, but this subsection shall be without prejudice to any power to recover any part of the estate so distributed arising by virtue of the making of an order under this Act.

(1C) In considering under the foregoing subsections the question when representation was first taken out, a grant limited to settled land or to trust property shall be left out of account and a grant limited to real estate or to personal estate shall be left out of account unless a grant limited to the remainder of the estate has previously been made or is made at the same time.

(2) For the purpose of subsection (1) of section one hundred and sixty-two of the Supreme Court of Judicature (Consolidation) Act. 1925, (which relates to the discretion of the court as to the persons to whom administration is to be granted), a dependant of a deceased person by whom or on whose behalf an application under this Act is proposed to be made shall be deemed to be a person interested in his estate.

3 Effect and form of order

(1) Where an order is made under this Act, then for all purposes, including the purposes of the enactments relating to death ' duties, the will or the law relating to intestacy, or both the will and the law relating to intestacy, as the case may be, shall have effect, and shall be deemed to have had effect as from the deceased's death, subject to such variations, as may be specified in the order for the purpose of giving effect to the provision for maintenance thereby made.

(2) The court may give such consequential directions as it thinks fit for the purpose of giving effect to an order made under this Act, but no larger part of the net estate shall be set aside or appropriated to answer by the income thereof the provision for maintenance thereby made than such a part as, at the date of the order, is sufficient to produce by the income thereof the amount of the said provision.

(3) An office copy of every order made under this Act shall be sent to the principal probate registry for entry and filing, and a memorandum of the order shall be endorsed on, or permanently annexed to, the probate or letters of administration under which the estate is being administered.

4 Variation of orders

(1) On an application made at a date after the expiration of the period specified in subsection (1) of section two of this Act, or, as the case may be, of that period as extended under subsection (1A) of that, section, the court may make such an order as is hereinafter mentioned, but only as respects property the income of which is at that date applicable for the maintenance of a dependant of the deceased, that is to say,

(a) an order for varying the previous order on the ground that any material fact was not disclosed to the court when the order was made, or that any substantial change has taken place in the circumstances of the dependant or of a person beneficially interested in the property under the will or, as the case may be, under the law relating to intestacy, or

(b) an order for making provision for the maintenance of another dependant of the deceased.

(2) An application to the court for an order under paragraph (a) of the preceding subsection may be made by or on behalf of a dependant of the deceased or by the trustees of the property or by or on behalf of a person beneficially interested therein under the will or, as the case may be, under the law relating to intestacy.

5 Interpretation

(1) In this Act, unless the context otherwise requires, the following expressions shall have the meanings hereby respectively assigned to them, that is to say—

• " annual income " means in relation to the net estate of a deceased person, the income that the net estate might be expected at the date of the order, when realised, to yield in a year ;

• " the court " means the High Court and also the Court of Chancery of the County Palatine of Lancaster or the Court of Chancery of the County Palatine of Durham where those courts respectively have jurisdiction ;

• " death duties " means estate duty and every other duty leviable or payable on death ;

• " net estate " means all the property of which a deceased person had power to dispose by his will (otherwise than by virtue of a special power of appointment) less the amount of his funeral, testamentary and administration expenses, debts and liabilities and estate duty payable out of his estate on his death ;

• " will " includes codicil;

• " son " and " daughter ", respectively, include a male or female child adopted by the deceased by virtue of an order made under the provisions of the Adoption of Children Act, 1926, and also the son or daughter of the deceased en ventre sa mere at the date of the death of the deceased.

(2) References in this Act to any enactment or any provision of any enactment shall, unless the context otherwise requires be construed as references to that enactment or provision as amended by any subsequent enactment including this Act.

6 Short title, commencement and extent

(1) This Act may be cited as the Inheritance (Family Provision) Act. 1938.

(3) This Act shall not extend to Scotland or to Northern Ireland.

Table of Statutes referred to in this Act

Short Title	Session and Chapter
National Debt (Conversion) Act, 1888	51 & 52 Vict. c. 2.
Civil List Act, 1910	10 Edw. 7. & 1 Geo. 5. c. 28.
Law of Property Act, 1925	15 & 16 Geo. 5. c. 20.
Administration of Estates Act, 1925	15 & 16 Geo. 5. c. 23.
Supreme Court of Judicature (Consolidation) Act, 1925	15 & 16 Geo. 5. c. 49.
Adoption of Children Act, 1926	16 & 17 Geo. 5. c. 29.
Inheritance (Family Provision) Act, 1938	1 & 2 Geo. 6. c. 45.