APPLICATION FOR FURTHER PROVISION

These applications are best known as Family Provision Applications. They were once referred to as Testators Family Maintenance Claims or TFM Claims.

The situation may arise where a client is dissatisfied with the terms of the will of a deceased and wishes to dispute the distribution to be made under that will.

Section 41 of the Succession Act allows the deceased person’s spouse, child or dependant to make application to the Supreme Court for adequate provision out of the estate of the deceased person for his or her “proper maintenance and support”. There are special definitions given to “Spouse”, “Child” and “Dependant”.

It is important that the time frame set by the legislation in which the application must be brought, is adhered to. At present under the Succession Act, such application must be instituted within 9 months after the date of death of the deceased.

Another important time frame to note that is it is necessary for the personal representative of the estate to be notified within 6 months of the date of death of the person’s intention to make a Family Provision Claim. In fact it is best that such notification of intention be given at the earliest possible date.

If no such notice is provided to the personal representative then there is a risk that the estate may be distributed to the beneficiary in the terms of the will or within the rules of intestacy which ever is the case, and that no action in the circumstances may lie against the personal representative who has taken action in distributing the estate.

The personal representative may be protected by Section 44 (3) of the Succession Act, which provides that no action shall lie against the personal representative by reason of his or her having distributed either:

  1. after the expiration of 6 months from the death the deceased and without notice of any application or intended application for an order for further provision.
  2. or

  3. where notice of intention has been received, after the after the expiration of 9 months from the death of the deceased unless the personal representative receives written notice that the application has been commenced in the court, or is served with a copy of the application.

Thus it is far better to stay within the time frames if one is contemplating making such an application.

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