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Inheritance (Family Provision) Act 1938

As Enacted Cited authorities 2 Cited in Amendments 3 Related
JurisdictionUK Non-devolved
Citation1938 c. 45
Year1938


Inheritance (Family Provision) Act, 1938

(1 & 2 Geo. 6.) 45.

An Act to amend the law relating to testamentary dispositions; and for other purposes connected therewith.

[13th July 1938]

B E it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

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

1 Power for court to order payment out of net estate of testator 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;

and leaving a will, 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 testator) is of opinion that the will does not 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 testator'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 testator has bequeathed not less than two-thirds of the income of the net estate to a surviving spouse and 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, be by way of periodical payments of income, 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) The amount of the annual income which may be made applicable for the maintenance of a testator's dependants by an order or orders to be in force at any one time shall in no case be such as to render them entitled under the testator's will as varied by the order or orders to more than the following fraction of the annual income of his net estate, that is to say:—

(a ) if the testator leaves both a wife or husband and one or more other dependants, two-thirds; or

(b ) if the testator does not leave a wife or husband, or leaves a wife or husband and no other dependant, one-half.

(4) Where the value of a testator's net estate does not exceed two thousand pounds, the court shall have power to make an order providing for maintenance, in whole or in part, by way of a payment of capital, so however that the court, in determining the amount of the provision, shall give effect to the principle of the last preceding subsection.

(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 testator'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 testator's dependants and of the person who, apart from the order, would be...

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