DEPENDANTS RELIEF ACT

Chapter D‑10.5

Table of Contents

                1       Definitions

                2       Where spouse presumed dead

                3       Order for maintenance support

                4       Dower Act

                5       Conditions and restrictions

                6       Judge’s power after order is made

                7       Immediate distribution of estate

                8       Further powers of judge

                9       Proportioning maintenance

              10       Validity of mortgage

              11       Effect of order on will

              12       Contracts

              13       Application for maintenance and support

              14       When no obligation on the Public Trustee

              15       Time for making application

              16       Application made on behalf of dependant

              17       Distribution of estate

              18       Estate subject to order

              19       Enforcement of order

              20       Certified copy of order filed with the clerk of the court

              21       Appeal

              22       Transitional

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

Definitions

1   In this Act,

                                 (a)    “adult interdependent partner agreement” means an adult interdependent partner agreement as defined in the Adult Interdependent Relationships Act;

                              (a.1)    “application” means an application for maintenance and support under this Act;

                                 (b)    “child” includes

                                           (i)    a child born after the death of a deceased, or

                                          (ii)    a child born within or outside marriage;

                                 (c)    “deceased” means a testator or a person dying intestate;

                                 (d)    “dependant” means

                                           (i)    the spouse of the deceased,

                                          (ii)    the adult interdependent partner of the deceased,

                                         (iii)    a child of the deceased who is under the age of 18 years at the time of the deceased’s death, and

                                         (iv)    a child of the deceased who is 18 years of age or over at the time of the deceased’s death and unable by reason of mental or physical disability to earn a livelihood;

                                 (e)    “judge” means a judge of the Court of Queen’s Bench;

                                  (f)    “order” includes suspensory order;

                                 (g)    “testator” means a person who by will or by any other instrument or act disposes of real or personal property or any interest in real or personal property so that the property or interest will pass on the person’s death to some other person;

                                 (h)    “will” includes a will, codicil or other instrument or act by which a testator disposes of real or personal property or any interest in real or personal property so that the property or interest will pass on the person’s death to some other person.

RSA 2000 cF‑5 s1;RSA 2000 c16(Supp) s45;2002 cA‑4.5 s35

Where spouse presumed dead

2(1)  If

                                 (a)    a judge makes a declaration of presumption of death, and

                                 (b)    the spouse of the person presumed to be dead goes through a form of marriage with another person in accordance with the law in force at the place where the marriage ceremony is performed,

then, notwithstanding that it is later found that the person presumed to be dead was alive when that marriage ceremony was performed, the parties to the marriage ceremony and their children have the same rights under this Act as they would have had if the person presumed to be dead had in fact died before the marriage ceremony.

(2)  If

                                 (a)    a judge makes a declaration of presumption of death, and

                                 (b)    the spouse of the person presumed to be dead enters into an adult interdependent partner agreement with another person,

then notwithstanding that it is later found that the person presumed to be dead was alive when the adult interdependent partner agreement was entered into, the parties to the adult interdependent partner agreement and their children have the same rights under this Act as they would have had if the person presumed dead had in fact died before the adult interdependent partner agreement was entered into.

RSA 2000 cF‑5 s2;2002 cA‑4.5 s35

Order for maintenance support

3(1)  If a person

                                 (a)    dies testate without making in the person’s will adequate provision for the proper maintenance and support of the person’s dependants or any of them, or

                                 (b)    dies intestate and the share under the Intestate Succession Act of the intestate’s dependants or of any of them in the estate is inadequate for their proper maintenance and support,

a judge, on application by or on behalf of the dependants or any of them, may in the judge’s discretion, notwithstanding the provisions of the will or the Intestate Succession Act, order that any provision  that the judge considers adequate be made out of the estate of the deceased for the proper maintenance and support of the dependants or any of them.

(2)  The judge on the hearing of the application

                                 (a)    may inquire into and consider all matters that the judge considers should be fairly taken into account in deciding the application,

                                 (b)    may in addition to the evidence adduced by the parties appearing direct any other evidence to be given that the judge considers necessary or proper, and

                                 (c)    may accept any evidence that the judge considers proper of the deceased’s reasons, so far as ascertainable,

                                           (i)    for making the dispositions made by the deceased’s will, or

                                          (ii)    for not making adequate provision for a dependant,

                                          including any statement in writing signed by the deceased.

(3)  In estimating the weight to be given to a statement referred to in subsection (2)(c), 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.

(4)  The judge may make a suspensory order suspending in whole or in part the administration of the deceased’s estate so that an application may be made for an order making specific provision for maintenance and support.

(5)  The judge may refuse to make an order in favour of any dependant whose character or conduct is such as in the opinion of the judge disentitles the dependant to the benefit of an order under this Act.

(6)  When a testator dies intestate as to part of the testator’s estate, the judge may make an order affecting either the part of the estate as to which the testator died testate or the part as to which the testator died intestate or as to both parts.

RSA 1980 cF‑2 s3

Dower Act

4   The benefits to which a spouse is entitled under the Dower Act shall be taken into account by the judge when determining the provision that ought to be made for the spouse out of the estate.

RSA 1980 cF‑2 s4

Conditions and restrictions

5(1)  The judge in any order making provision for maintenance and support of a dependant may impose any conditions and restrictions the judge sees fit.

(2)  The judge may in the judge’s 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 the proportion and in the manner that to the judge seem proper.

(3)  Provision for maintenance and support may be made out of income or capital, or both, and may be made in one or more of the following ways, as the judge sees fit:

                                 (a)    an amount payable annually or otherwise;

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

                                 (c)    a 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.

(4)  When 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 any other person that the judge may direct, or

                                 (b)    may grant a vesting order.

RSA 1980 cF‑2 s5

Judge’s power after order is made

6   When an order making provision for the maintenance and support of a dependant has been made, a judge at any subsequent time

                                 (a)    may, for the purpose of giving effect to the order, give any further or other directions the judge considers necessary, and

                                 (b)    may, when periodic payments have been ordered, discharge, vary or suspend the order or make any other order the judge considers fit in the circumstances.

RSA 1980 cF‑2 s6

Immediate distribution of estate

7   When, under a testator’s will, distribution of the estate is postponed until after the death of the spouse, adult interdependent partner or any other dependant, if the spouse, adult interdependent partner or other dependant has obtained an order under this Act, or under The Widows’ Relief Act, RSA 1942 c304, making more adequate provision out of the estate for the spouse’s, adult interdependent partner’s or other dependant’s maintenance and support, a judge may, on the application of any person interested and on any notice that the judge considers proper, direct immediate distribution of the residue of the estate remaining after providing for the payment or for the securing of the payment of the portion awarded under this Act to the spouse, adult interdependent partner or other dependant.

RSA 2000 cF‑5 s7;2002 cA‑4.5 s35

Further powers of judge

8   A judge at any time

                                 (a)    may fix a periodic payment or lump sum to be paid by a legatee, devisee or beneficiary under an intestacy to represent, or in commutation of, the proportion of the sum ordered to be paid that falls on the portion of the estate in which the legatee, devisee or beneficiary is interested,

                                 (b)    may relieve that portion of the estate from further liability, and

                                 (c)    may direct

                                           (i)    in what manner the periodic payment is to be secured, or

                                          (ii)    to whom the lump sum is to be paid and in what manner it is to be dealt with for the benefit of the person to whom the commuted payment is payable.

RSA 1980 cF‑2 s8

Proportioning maintenance

9   Unless the judge otherwise determines, the incidence of any provision for maintenance and support that is ordered pursuant to this Act falls ratably

                                 (a)    on the whole estate of the deceased, or

                                 (b)    if the jurisdiction of the judge does not extend to the whole estate, on that part of the estate to which the jurisdiction of the judge extends,

and the judge may relieve any part of the deceased’s estate from the incidence of the order for maintenance and support.

RSA 1980 cF‑2 s9

Validity of mortgage

10   If provision for the maintenance and support of a dependant is ordered pursuant to this Act, a mortgage, charge or assignment

                                 (a)    of or with respect to that provision, and

                                 (b)    made before the order of the judge making the provision is entered,

is void.

RSA 1980 cF‑2 s10

Effect of order on will

11(1)  When an order is made under this Act, the order has effect as from the date of the deceased’s death and the will, if any, has effect from that date as if it had been executed with any variations that are necessary to give effect to the order.

(2)  The Crown is bound by this section.

RSA 1980 cF‑2 s11

Contracts

12   When a testator

                                 (a)    has, in the testator’s lifetime, in good faith and for valuable consideration entered into a contract to devise and bequeath any real or personal property, and

                                 (b)    has by the testator’s will devised and bequeathed that property in accordance with the contract,

the property is not subject to 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.

RSA 1980 cF‑2 s12

Application for maintenance and support

13(1)  An application for maintenance and support under this Act may be made in the matter of the estate of the deceased by notice of motion to the Court of Queen’s Bench.

(2)  An application may be made

                                 (a)    by a trustee for a represented adult as defined in the Adult Guardianship and Trusteeship Act, if such a trustee has been appointed for the dependant, or by the Public Trustee if the Public Trustee is trustee for the dependant under a certificate of incapacity that is in effect under the Public Trustee Act, and

                                 (b)    by a parent or by a guardian appointed by a court or by the Public Trustee, on behalf of a dependant who is a minor.

(3)  When the dependant is a minor or the subject of an order under The Mentally Incapacitated Persons Act, RSA 1970 c232, a trusteeship order under the Adult Guardianship and Trusteeship Act or a certificate of incapacity that is in effect under the Public Trustee Act, or a person for whom the Public Trustee is trustee, notice of any application in respect of an estate in which the dependant is interested shall be served on the trustee, and the trustee is entitled to appear and to be heard on the application.

(4)  No costs of or incidental to an application, other than the executor’s or administrator’s costs, shall be ordered to be paid out of the estate in any case where the value of the net estate, as finally determined by the clerk of the court in fixing probate or administration fees, is less than $5000.

RSA 2000 cF‑5 s13;RSA 2000 c16(Supp) s45;
2008 cA‑4.2 s127

When no obligation on the Public Trustee

14   If it appears that at the date of the deceased’s death the spouses or adult interdependent partners were living together and

                                 (a)    all the children of the deceased who at the date of the deceased’s death were under the age of 18 years, and

                                 (b)    all the children of 18 years of age or over who by reason of mental or physical disability were unable to earn a livelihood,

were living with or being supported by the spouses or either of them or by the adult interdependent partners or either of them, as the case may be, there is no obligation on the guardian, Public Trustee or other person representing a child who is a dependant under this Act to make an application on behalf of the child if the guardian, Public Trustee or other person is satisfied that the child is receiving adequate maintenance and support.

RSA 2000 cF‑5 s14;2002 cA‑4.5 s35

Time for making application

15(1)  Subject to subsection (2), no application may be made except within 6 months from the grant of probate of the will or of administration.

(2)  A judge may, if the judge considers 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.

RSA 1980 cF‑2 s15;1984 c55 s20

Application made on behalf of dependant

16(1)  When an application is made on behalf of a dependant

                                 (a)    the judge shall not make an order until the judge is satisfied on oath that all persons who are or may be interested in or affected by the order have been served, in accordance with the Surrogate Rules, with notice of the application and a copy of this section, and each of those persons is entitled to be heard in person or by counsel at the hearing, and

                                 (b)    the application is, except as otherwise ordered by the judge,  deemed to be an application on behalf of all dependants who have been so served.

(2)  Nothing in this section deprives a dependant who has not actually received notice of an application of any rights the dependant would otherwise have under this Act.

RSA 1980 cF‑2 s16;1992 c21 s47

Distribution of estate

17(1)  Until the expiration of 6 months from the grant of probate of the will or of administration, the executor, administrator or trustee shall not distribute any portion of the estate to any beneficiary without the consent of all the dependants of the deceased, or unless authorized to do so by order of a judge made on summary application.

(2)  Nothing in this Act prevents an executor, administrator or trustee from making reasonable advances for maintenance to dependants who are beneficiaries.

(3)  If an executor, administrator or trustee distributes any portion of the estate in contravention of subsection (1) and provision for maintenance and support is ordered by a judge to be made out of the estate, the executor, administrator or trustee is personally liable to pay the amount of the distribution to the extent that the provision or any part of it ought, pursuant to the order or this Act, to be made out of the proportion of the estate distributed.

RSA 1980 cF‑2 s17

Estate subject to order

18(1)  On notice of any application being given to the executor, administrator or trustee, the estate is subject to the provisions of any order that may be made and the executor, administrator or trustee shall not proceed with the distribution of the estate otherwise than in accordance with that order.

(2)  If an executor, administrator or trustee distributes or disposes of any portion of the estate in any manner in contravention of subsection (1) and provision for maintenance and support is ordered by a judge to be made out of the estate, the executor, administrator or trustee is personally liable to pay the amount distributed or disposed of to the extent that the provision or any part of it ought, pursuant to the order or this Act, to be made out of the portion of the estate distributed or disposed of.

(3)  In addition to being personally liable as provided in subsection (2), an executor, administrator or trustee who wilfully contravenes subsection (1) is guilty of an offence and liable,

                                 (a)    in the case of a natural person, to a fine of not more than $1000 and in default of payment to a term of imprisonment of not more than 60 days, and

                                 (b)    in the case of a corporation, to a fine of not more than $5000.

RSA 1980 cF‑2 s18

Enforcement of order

19   An order made or direction given under this Act may be enforced in the same way and by the same means as any judgment, order or direction of the Court of Queen’s Bench can be enforced, and a judge may make any interim order or direction that appears necessary

                                 (a)    to protect or preserve the assets of the estate, or

                                 (b)    to provide for the carrying on of the administration of the estate until the application has been finally disposed of.

RSA 2000 cF‑5 s19;RSA 2000 c16(Supp) s45

Certified copy of order filed with the clerk of the court

20(1)  A certified copy of every order made under this Act shall be filed with the clerk of the court out of which the letters probate or letters of administration issued.

(2)  A memorandum of the order shall be endorsed on or annexed to the copy, in the custody of the clerk, of the original letters probate or letters of administration, as the case may be.

RSA 1980 cF‑2 s20

Appeal

21(1)  An appeal lies to the Court of Appeal from any order made under this Act.

(2)  The Court of Appeal may affirm, annul or vary the order appealed from in any manner that in its discretion it considers proper.

RSA 1980 cF‑2 s21

Transitional

22(1)  In this section, “previous Act” means the Family Relief Act as it read immediately before it was amended by the Adult Interdependent Relationships Act.

(2)  The previous Act continues to apply in cases of death occurring before this section comes into force.

2002 cA‑4.5 s35