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The Testators Family Maintenance Act
This is an unofficial archived version of The Testators Family Maintenance Act
as enacted by SM 1988-89, c. 1 on October 19, 1988.

R.S.M. 1988, c. T50

The Testators Family Maintenance Act

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definitions.

1

In this Act,

"child" includes

(a) a child lawfully adopted by the testator, and

(b) a child of the testator en ventre sa mère at the date of the testator's death. ("enfant")

"dependant" means the wife, husband, or child, of the testator. ("personne à charge")

"executor" includes an administrator with the will annexed. ("exécuteur testamentaire")

"judge" means a judge of the Court of Queen's Bench. ("juge")

"order" includes suspensory order. ("ordonnance")

Provision for dependants.

2(1)

Where a person (hereinafter called the "testator") dies leaving a will, and without making therein adequate provision for the proper maintenance and support of his dependants, or any of them, a judge on application by or on behalf of such dependants, or any of them, may, in his discretion and taking into consideration all the circumstances of the case, order that such provision as he deems adequate shall be made out of the estate of the testator for the proper maintenance and support of the dependants, or any of them.

Suspensory orders.

2(2)

The judge may make an order, herein referred to as a suspensory order, suspending in whole or in part the administration of the testator's estate, to the end that application may be made at any subsequent date for an order making specific provision for maintenance and support.

Refusal of order.

2(3)

The judge may refuse to make an order in favour of any person if his character or conduct is such as, in the opinion of the judge, to disentitle him to the benefit of an order under this Act.

Order on partial intestacy.

2(4)

Notwithstanding The Devolution of Estates Act, where a testator dies intestate as to part of his estate, a judge may make an order affecting that part of his estate in respect of which he died intestate in the same manner as if the will had provided for distribution of that part as on an intestacy.

Application of Act on intestacy.

2(5)

Notwithstanding The Devolution of Estates Act, this Act applies, with such modifications as the circumstances require, to the estate of a person who dies intestate in the same manner as if he had by a will left his estate in accordance with The Devolution of Estates Act; and for the purposes of an application made to a judge under this Act in respect of the estate of a person who died intestate

(a) the word "testator", where it appears in this Act, includes a person who died intestate;

(b) the word "executor", where it appears in this Act, includes the administrator of the estate of the person who died intestate; and

(c) the expression "letters of probate", where they appear in this Act, include letters of administration.

Common-law spouse.

3(1)

Where the testator

(a) cohabited with a person continuously for a period of not less than five years immediately preceding death in a relationship in which that person was substantially dependent upon the testator; or

(b) cohabited with a person continuously for a period of not less than one year immediately preceding death and there is a child of the union; or

(c) was paying maintenance to a person pursuant to a written agreement or a court order;

that person shall be deemed to be a dependant and shall, subject to subsection (2), be entitled to apply under subsection 2(1).

No right where agreement to the contrary.

3(2)

Where the testator and the person have agreed in writing that the person would have no right to maintenance from the testator, the person shall not have the benefit of clause (l)(a).

Manner of application.

4

An application under this Act may be made by originating notice of motion.

Q. B. practice to prevail.

5

Save as herein otherwise provided, the practice and procedure of the Court of Queen's Bench, upon applications in chambers under Rule 534(1), shall, so far as they are applicable, apply to the proceedings under this Act.

Conditions and restrictions.

6(1)

The judge in any order making provision for maintenance and support of a dependant may impose such conditions and restrictions as he deems fit.

Provision charged to estate.

6(2)

The judge may in his discretion order that the provision for maintenance and support be made out of and charged against the whole or any portion of the estate in such proportion and in such manner as to him seems proper.

Method.

6(3)

Such provision may be made out of income or corpus or both and may be made in one or more of the following ways, as the judge deems fit:

(a) an amount payable annually or otherwise;

(b) a lump sum to be paid or held in trust;

(c) any specified property to be transferred or assigned absolutely, or in trust or for life, or for a term of years, to or for the benefit of the dependant.

Transfer of property.

6(4)

Where a transfer or assignment of property is ordered, the judge

(a) may give all necessary directions for the execution of the transfer or assignment by the executor or administrator or such other person as the judge may direct; or

(b) may grant a vesting order.

Inquiry as to sufficiency of order.

7

Where an order has been made under this Act a judge at any subsequent date may

(a) inquire whether the party benefited by the order has become possessed of, or entitled to, any other provision for his proper maintenance or support;

(b) inquire into the adequacy of the provision ordered; and

(c) discharge, vary, or suspend, the order, or make such other order as he deems fit in the circumstances.

Periodic or lump sum payments.

8

A judge at any time may,

(a) fix a periodic payment or lump sum to be paid by any legatee or devisee 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 he is interested;

(b) relieve such portion from further liability; and

(c) direct,

(i) in what manner such periodic payment shall be secured; and

(ii) to whom such lump sum shall be paid, and in what manner it shall be invested for the benefit of the person to whom the commuted payment was payable.

Suspension of distribution.

9

Where an application is made and notice thereof is served on the executor or trustee of the estate of the testator, he shall not, after service of the notice upon him, proceed with the distribution of the estate until the judge has disposed of the application.

Evidence of testator's reasons.

10

The judge may accept such evidence as he deems proper of the testator's reasons, as far as ascertainable, for making the dispositions made by his will, or for not making provision or further provision, as the case may be, for a dependant, including any statement in writing signed by the testator; and in estimating the weight, if any, to be attached to such statement, the judge shall have regard to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement.

Incidence of provision ordered.

11

The incidence of any provision for maintenance and support ordered shall, unless the judge otherwise determines, fall rateably upon the whole estate of the testator, or, in cases where the jurisdiction of the judge does not extend to the whole estate, then to that part to which the jurisdiction of the judge extends, and the judge may relieve any part of the testator's estate from the incidence of the order.

Effect of order on succession duties.

12

For the purposes of enactments relating to succession duties, where an order is made under this Act, the will shall be deemed to have had effect from the testator's death as if it had been executed with such variations as may be necessary to give effect to the provisions of the order; and Her Majesty is bound by this section.

Further directions.

13

A judge may give such further directions as he deems fit for the purpose of giving effect to an order.

Filing of order in court.

14

A certified copy of every order made under this Act shall be filed with the registrar of the court out of which the letters probate or letters of administration with the will annexed issued and a memorandum of the order shall be endorsed on or annexed to the copy of the original letters probate or letters of administration with the will annexed in the custody of the registrar.

Limitation for making application.

15(1)

Subject to subsection (2), no application for an order under section 2 may be made except within six months from the grant of probate of the will or of administration with the will annexed.

Extension of period.

15(2)

A judge may, if he deems it just, allow an application to be made at any time as to any portion of the estate remaining undistributed at the date of the application.

Inclusive effect of application.

16

Where an application for an order under section 2 is made by or on behalf of any dependant,

(a) it may be dealt with by the judge as; and

(b) in so far as the question of limitation is concerned, it shall be deemed to be;

an application on behalf of all persons who might apply.

Mentally disordered persons and infants.

17(1)

An application may be made

(a) on behalf of a dependant who is a mentally disordered person within the meaning of The Mental Health Act, by the committee or the Public Trustee, having custody of his estate, as the case may be; or

(b) on behalf of a dependant who is an infant, by the Public Trustee in his capacity as official guardian or by a guardian appointed by the court.

Service of notice of application.

17(2)

Where a dependant is a mentally disordered person within the meaning of The Mental Health Act, or is an infant, notice of any application in respect of the estate in which the said dependant is interested shall in every case be served upon the committee or the Public Trustee or the guardian or the Public Trustee in his capacity as official guardian having custody and management of the estate of that dependant, who has the right to appear and be heard upon the application.

Property bequeathed under contract.

18

Where a testator, in his lifetime, bona fide and for valuable consideration, has entered into a contract to devise and bequeath any property, real or personal, and has by his will devised or bequeathed that property in accordance with the provisions of the contract, that property is not liable to the provisions of an order made under this Act except to the extent that the value of the property in the opinion of the judge exceeds the consideration received by the testator therefor.

Invalidity of charge on provision.

19

No mortgage, assignment, or charge of any kind, of or upon an anticipated provision is of any force, validity, or effect.

Appeal.

20

An appeal lies to The Court of Appeal from any order made under this Act.

Enforcement of order.

21

An order or direction made under this Act may be enforced against the estate of the testator in the same way, and by the same means, that any other judgment or order of the court against the estate may be enforced; and a judge may make such order or direction or interim order or direction as may be necessary to secure to the dependant out of the estate the benefit to which he is found to be entitled.

Orders subject to Dower Act.

22(1)

No order shall be made that has the effect of reducing the interest of a husband or wife in the estate of a testator to an amount that, in the opinion of the judge, is less than the share to which the husband or wife would have been entitled under The Dower Act, should he or she elect to take under that Act.

Benefits in lieu of dower rights.

22(2)

The benefits given the husband or wife of a testator by an order under this Act are in lieu of the share given him or her under The Dower Act; and thereafter he or she, except as to a life estate in the homestead, has no rights under The Dower Act.

Uniform interpretation.

23

This Act shall be so interpreted and construed as to effect its general purpose of making uniform the law of the provinces that enact it.