Statutes
| Published date | 01 June 1939 |
| Date | 01 June 1939 |
| DOI | http://doi.org/10.1111/j.1468-2230.1939.tb00746.x |
STATUTES
53
STATUTES
Inheritance
(Frrmily
Provision)
Act,
1938
In view of the thorough consideration given to the subject-matter of
this Act in Volume
I
of this Review
at
page
296
(to which the reader is
referred), it will be sufficient here briefly to summarise its effect.
The Act does not come into operation until the expiration of one year
from the date of its passing (13th July,
1938),
and only applies
to
a
person
who dies domiciled in England after the passing of the Act, and who leaves
a
will. In such
a
case the Court has power to order payment of reasonable
provision out of the net estate
of
the testator for the benefit of
(a)
a
sur-
viving spouse,
(b)
a
son who is an infant or by reason of some mental or
physical disability incapable of maintaining himself, or
(c)
a
daughter who
has not been married. or who is under such
a
disability. An order may be
made if the Court
is
satisfied that the will does not make reasonable pro-
vision for the maintenance of that dependent and can be subject to such
conditions or restrictions as the Court may impose. But no application
can be made to the Court for the exercise
of
the power if not less than two-
thirds of the income of the net estate has been bequeathed to
a
surviving
spouse and the only other dependents are children of the surviving spouse.
Moreover, unless the net estate does not exceed
Azooo,
the provision for
maintenance can only be by way
of
periodical payments of income which
must terminate not later than remarriage in the case of
a
surviving spouse,
marriage or the cesser
of
the disability (whichever
is
the later) in the case
of
a
daughter, and attainment of full age or cesser of the disability (which-
ever is the later) in the case of a son, or, in any case on the death of the
dependent. Further, the amount of the annual income applicable for the
maintenance of dependents at any one time is not to exceed two-thirds
of
the annual income if the testator leaves a spouse and one or more depen-
dents, or one-half if the testator does not leave a spouse or leaves a spouse
and no other dependents
(s.
I
(3)
).
Where the total net estate does not exceed
Azooo
the Court may order
provision in whole or in part by payment
of
capital but the Court in deter-
mining the amount shall give effect to the principle of
s.
I
(3)
szippva.
In the exercise of its discretion the Court is to have regard to the nature
of the testator’s propcrty and is not to order
a
provision which would
necessitate an improvident realisation
of
the property, and is also to take
into consideration the testator’s reasons,
so
far as ascertainable, for making
the dispositions contained in
his
will. The Court may accept such evidence
of these reasons as
it
considers sufficient, including ally statement in
writing signed by the testator and dated, but in estimating the weight to
be attached to this statement the Court is to have regard to all the circum-
stances. This provision
as
to evidence is not entirely clear. The commence-
ment
at
first sight appears to provide that the Court may have regard to
any evidence whether or not this would be admissible under ordinary
pricciples of the law of evidence. The latter part, however, suggests that
statements by the testator are not admissible unless in writing and signed
and dated.
By
S.
2
of the Act an application to the Court must be made within
6
months from the date on which
a
general grant of representation is taken
out and
a
“dependent
”
under the Act is deemed to be
a
person interested
in the estate for the purpose of obtaining
a
grant of representation.
Where an order
is
made the will is deemed for all purposes
(including
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