Powers of court in relation to transactions intended to defeat applications for financial provision
Contracts to leave property by will13
1
Where an application is made to the court for an order under Article 4, the applicant may, in the proceedings on that application, apply to the court for an order under this Article.
2
Where on an application under paragraph (1) the court is satisfied—
a
that the deceased made a contract by which he agreed to leave by his will a sum of money or other property to any person or by which he agreed that a sum of money or other property would be paid or transferred to any person out of his estate, and
b
that the deceased made that contract with the intention of defeating an application for financial provision under this Order, and
c
that when the contract was made full valuable consideration for that contract was not given or promised by the person with whom or for the benefit of whom the contract was made (in this Article referred to as “the donee”) or by any other person, and
d
that the exercise of the powers conferred by this Article would facilitate the making of financial provision for the applicant under this Order,
then, subject to the provisions of this Article and of Articles 14 and 15, the court may make any one or more of the following orders:—
i
if any money has been paid or any other property has been transferred to or for the benefit of the donee in accordance with the contract, an order directing the donee to provide, for the purpose of the making of that financial provision, such sum of money or other property as may be specified in the order;
ii
if the money or all the money has not been paid or the property or all the property has not been transferred in accordance with the contract, an order directing the personal representative of the deceased not to make any payment or transfer any property, or not to make any further payment or transfer any further property, as the case may be, in accordance therewith or directing the personal representative only to make such payment or transfer such property as may be specified in the order.
3
Notwithstanding anything in paragraph (2), the court may exercise its powers thereunder in relation to any contract made by the deceased only to the extent that the court considers that the amount of any sum of money paid or to be paid or the value of any property transferred or to be transferred in accordance with the contract exceeds the value of any valuable consideration given or to be given for that contract, and for this purpose the court shall have regard to the value of property at the date of the hearing.
4
In determining whether and in what manner to exercise its powers under this Article, the court shall have regard to the circumstances in which the contract was made, the relationship, if any, of the donee to the deceased, the conduct and financial resources of the donee and all the other circumstances of the case.
5
Where an order has been made under paragraph (2) in relation to any contract, the rights of any person to enforce that contract or to recover damages or to obtain other relief for the breach thereof shall be subject to any adjustment made by the court under Article 14(3) and shall survive to such extent only as is consistent with giving effect to the terms of that order.
6
The provisions of this Article do not apply to a contract made before the commencement of this Order.