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C.C.S.M. c. D37
The Dependants Relief Act
|Table of Contents|
(Assented to March 15, 1990)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act,
(a) a child conceived before and born alive after the parent's death, and
(b) a child to whom the deceased stood in loco parentis at the time of the deceased's death, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody; (« enfant »)
"common-law partner" of a deceased means
(a) a person who, with the deceased, registered a common-law relationship under section 13.1 of The Vital Statistics Act, the dissolution of which had not been registered under section 13.2 of The Vital Statistics Act before the death of the deceased, or
(b) a person who, not being married to the deceased, cohabited with him or her in a conjugal relationship
(i) for a period of at least three years, or
(ii) for a period of at least one year and they are together the parents of a child; (« conjoint de fait »)
"court" means the Court of Queen's Bench; (« tribunal »)
(a) the spouse of the deceased,
(b) a person divorced from the deceased or whose marriage to the deceased was declared a nullity and in whose favour an order or agreement for maintenance and support was subsisting at the time of the deceased's death,
(c) a common-law partner of the deceased, where
(i) cohabitation was subsisting at the deceased's death,
(ii) cohabitation was not subsisting but had ceased within three years of the deceased's death, or
(iii) the common-law partner was being paid or was entitled to be paid maintenance and support by the deceased under an agreement or a court order at the time of the deceased's death,
(d) a child of the deceased
(i) who was under the age of 18 years at the time of the deceased's death,
(ii) who, by reason of illness, disability or other cause was, at the time of the deceased's death, unable to withdraw from the charge of the deceased or to provide himself or herself with the necessaries of life, or
(iii) who was substantially dependant on the deceased at the time of the deceased's death,
(e) a grandchild of the deceased who was substantially dependant on the deceased at the time of the deceased's death,
(f) a parent or grandparent of the deceased who was substantially dependant on the deceased at the time of the deceased's death, or
(g) a brother or sister of the deceased, whether related to the deceased by the whole blood or the half blood, who was substantially dependant on the deceased at the time of the deceased's death; (« personne à charge »)
"personal representative" means an executor, an administrator or an administrator with will annexed; (« représentant personnel »)
"spouse" means either of two persons who
(a) are married to each other, or
(b) have entered into a marriage that is voidable or void, in good faith on the part of the person asserting a right under this Act. (« conjoint »)
If it appears to the court that a dependant is in financial need, the court, on application by or on behalf of the dependant, may order that reasonable provision be made out of the estate of the deceased for the maintenance and support of the dependant.
An order may be made under subsection (1) whether the deceased died testate or intestate and notwithstanding the provisions of the deceased's will or The Intestate Succession Act.
The reasonableness of provision for maintenance and support shall be determined as of the date of the hearing of the application.
On an application by or on behalf of a dependant, the court may make an order suspending in whole or in part the administration of the deceased's estate, for such time and to such extent as the court may decide.
An application for an order under section 2 may be dealt with by the court as an application made on behalf of all persons who might apply, and in so far as the limitation period referred to in section 6 is concerned, shall be deemed to be an application on behalf of all persons who might apply.
If a dependant or a person who is entitled under the deceased's will or under The Intestate Succession Act is
(a) a minor;
(b) a person for whom a committee has been appointed under The Mental Health Act; or
(c) a vulnerable person within the meaning of The Vulnerable Persons Living with a Mental Disability Act;
notice of an application under section 2 shall in every case be served on the Public Trustee, who has the right to appear and be heard on the application.
In this section, "limitation period" means a period of time not later than six months from the grant of letters probate of a will or of letters of administration.
Except as provided in subsection (3), no application for an order under section 2 may be made after the expiry of the limitation period.
The court may allow an application to be made at any time as to the portion of the estate remaining undistributed at the date notice of the application is served on the personal representative if the court is satisfied that,
(a) the dependant did not know of the death of the deceased until after the expiry of the limitation period;
(b) the dependant's need for maintenance and support did not arise until after the expiry of the limitation period; or
(c) circumstances beyond the control of the dependant prevented the dependant from making an application within the limitation period.
When an application is made for an order of provision and notice of it is served on the personal representative of the deceased, the personal representative shall not, after service of the notice, unless all persons entitled to apply under this Act consent or the court otherwise orders, proceed with the distribution of the estate until the court has disposed of the application.
Nothing in this Act prevents a personal representative from making advances in order to provide things immediately necessary for the maintenance and support of dependants who are entitled under the deceased's will or under The Intestate Succession Act.
If a personal representative distributes a portion of the estate in violation of this section and any provision for maintenance and support is ordered by the court to be made out of the estate, the personal representative is personally liable to pay the amount of the distribution to the extent that the provision or any part of it ought, under the order or this Act, to be made out of the portion of the estate distributed.
In determining the amount and duration, if any, of maintenance and support, the court shall have regard primarily to the financial needs of the dependant and shall consider all of the circumstances of the application, including,
(a) the size and nature of the deceased's estate;
(b) the assets and financial resources that the dependant has or is likely to have in the foreseeable future;
(c) the measures available for a dependant to become financially independent and the length of time and cost involved to enable the dependant to take such measures;
(d) the age and the physical and mental health of the dependant;
(e) the capacity of the dependant to provide for his or her own support;
(f) if the dependant is a spouse or common-law partner, any distribution or divison of property that the dependant has received or is entitled to receive under The Homesteads Act or The Family Property Act;
(g) the assets that the dependant is entitled to receive from the estate of the deceased otherwise than by an order under this Act;
(h) the claims that any other dependant or any other person has upon the estate;
(i) any provision which the deceased while living made for the dependant and for any other dependants;
(j) if the dependant is a child, the child's aptitude for and reasonable prospects of obtaining an education;
(k) if the dependant is a child to whom the deceased stood in loco parentis, the primary obligation of the child's parents to maintain the child and whether the parents have discharged that obligation.
On the hearing of an application, the court
(a) may inquire into and consider all matters that it considers should fairly be taken into account in deciding the application;
(b) may in addition to the evidence presented by the parties direct any other evidence to be given that it considers necessary or proper;
(c) may accept such evidence as it considers proper of the deceased's reasons, so far as ascertainable,
(i) for making the dispositions in his or her will, or
(ii) for not making reasonable provision for a dependant,
including any statement in writing signed by the deceased.
In estimating the weight to be given to a statement referred to in clause (2)(c), the court shall consider all the circumstances from which an inference can reasonably be drawn as to the accuracy or otherwise of the statement.
In an order making provision for a dependant, the court may impose such conditions and restrictions as it considers appropriate and may give such directions as it considers necessary to give effect to the order.
Provision may be made out of income or capital, or both, and an order may be made in one or more of the following ways:
(a) an amount payable annually or otherwise, whether for an indefinite or limited period, or until the happening of a specified event;
(b) a lump sum to be paid or held in trust;
(c) specified property to be transferred or assigned to or held in trust for the benefit of the dependant, whether absolutely, for life or for a term of years;
(d) the possession or use of specified property by the dependant for life or such period as the court considers appropriate;
(e) the securing of payment under an order by a charge on property or otherwise;
(f) in any other way that the court considers appropriate.
When a transfer or assignment of property is ordered, the court
(a) may give all necessary directions for the execution of the transfer or assignment by the deceased's personal representative or such other person as the court may direct; or
(b) may grant a vesting order.
The court shall not make an order under this section until it is satisfied that all persons who are or may be affected by the order have been served with notice of the application as provided by the rules of court, and every such person is entitled to be present and to be heard in person or by counsel at the hearing.
Despite subsection (4), if in the opinion of the court
(a) every reasonable effort has been made to serve those entitled to notice; or
(b) after every reasonable effort has been made, it is not possible to identify one or more of the persons entitled to notice;
the court may dispense with the requirement of notice in respect of any person who has not been served.
If an order making provision for maintenance and support falls upon a portion of the estate to which a person would, apart from that order, be entitled under the deceased's will or under The Intestate Succession Act, the court may
(a) fix a periodic payment or lump sum to be paid by the person to represent, or in commutation of, such proportion of the sum ordered to be paid as falls upon the portion of the estate in which that person is interested;
(b) relieve such portion of the estate from further liability; and
(i) the manner in which the periodic payment is to be secured, or
(ii) to whom the lump sum is to be paid and the manner in which it is to be dealt with for the benefit of the person to whom the commuted payment is payable.
When an application is made under this Act and it appears to the court that the applicant is in immediate need of financial assistance, but the matters referred to in sections 8 and 9 have not been ascertained by the court, the court may make such interim order of provision for maintenance and support as it considers appropriate.
The court shall not make an order under subsection (1) unless the deceased's personal representative has been served with notice of the application for interim relief.
Subject to subsection (2), the incidence of any provision for maintenance and support ordered shall
(a) be borne by the persons entitled to the deceased's estate in proportion to the value of their respective interests in the estate; and
(b) be in respect of that part of the deceased's estate to which the jurisdiction of the court extends under section 13.
The court may order that the provision for maintenance and support be made out of and charged against the whole or any portion of the estate in the proportion and in the manner that the court considers proper.
In this section,
"interest in land" includes a leasehold estate as well as a freehold estate in land, and any other estate or interest in land whether the estate or interest is real or personal property; (« intérêt dans un bien-fonds »)
"interest in movables" means an interest in tangible or intangible things other than land and includes personal property other than an estate or interest in land. (« intérêt dans des meubles »)
The court may grant an order making provision for a dependant in respect of
(a) an interest in land situated in Manitoba; and
(b) an interest in movables, no matter where situated, if the deceased died domiciled in Manitoba.
The court may make an order of provision in respect of an interest in movables situated in Manitoba at the time of the deceased's death if the deceased died domiciled outside Manitoba and
(a) the law of the deceased's domicile does not provide for an application for maintenance and support under dependants' relief legislation; and
(b) the dependant in whose favour the order is sought was habitually resident in Manitoba at the time of the deceased's death.
When an application is made under this Act in respect of a deceased who died domiciled outside Manitoba leaving an interest in land situated in Manitoba, the court may stay the application pending the conclusion of a dependants' relief proceeding in the jurisdiction in which the deceased died domiciled.
At any time subsequent to the making of an order of provision for maintenance and support, an application to have the order discharged, suspended or reduced may be made to the court by or on behalf of any of the following persons:
(a) the deceased's personal representative;
(b) a person entitled under the deceased's will or under The Intestate Succession Act;
(c) a dependant.
In an application under subsection (1), the court shall consider
(a) whether the dependant who benefitted by the order has become entitled to any other provision for his or her maintenance and support; and
(b) the reasonableness of the maintenance and support ordered;
and may discharge, suspend or reduce the provision made under the order.
Specified property that was ordered transferred absolutely to a dependant or a lump sum ordered to be paid directly to a dependant is not subject to an order under subsection (2).
Subject to subsections (2) and (3), at any time subsequent to the making of an order of provision for maintenance and support, a dependant in respect of whom the order was made may apply to the court for an order increasing the amount of provision.
The court may make an order increasing the amount of provision if it is satisfied that
(a) since the date of the order circumstances have so changed that undue hardship will be caused to the applicant if the increase is not ordered; and
(b) it would not be inequitable to order increased provision having regard to the implications in respect of other persons interested in the estate.
An order may be made under this section only as to that portion of the estate remaining undistributed at the date notice of the application for increased provision is served on the personal representative.
The provisions of section 7 respecting the distribution of the estate by the personal representative, with such modifications as the circumstances require, apply to an application under this section.
An order or direction made under this Act may be enforced against the estate of the deceased in the same way and by the same means as any other judgment or order of the court against the estate may be enforced.
When a court orders security for payment under an order made under this Act or charges a property therewith, the court may, upon application and notice to all persons having an interest in the property, direct its sale for the purpose of realizing the security or charge.
When provision for the maintenance and support of a dependant is ordered under this Act, a mortgage, charge or assignment of or with respect to such provision, made before the order of the court making such provision is entered, is invalid.
The rights of a surviving spouse or common-law partner under
(a) The Homesteads Act; and
(b) Part IV of The Family Property Act respecting the equalization of assets after the death of a spouse or common-law partner;
have priority over the rights of a dependant under this Act.
A surviving spouse or common-law partner who is entitled to an equalization of assets after the death of a spouse or common-law partner under Part IV of The Family Property Act may also apply for an order of provision for maintenance and support under this Act.
This Act binds the Crown.
This Act applies where the deceased dies on or after the date on which this Act comes into force.
Subject to subsection (2), The Testators Family Maintenance Act, R.S.M. 1988, c. T50, is repealed.
The Testators Family Maintenance Act, R.S.M. 1988, c. T50, continues in force as if unrepealed where the deceased dies before the date on which this Act comes into force.
This Act may be referred to as chapter D37 of the Continuing Consolidation of the Statutes of Manitoba.
This Act comes into force on a day fixed by proclamation.
NOTE: S.M. 1989-90, c. 42, was proclaimed in force July 1, 1990.