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Family Provision Act 1966

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This is the original version (as it was originally enacted).

Family Provision Act 1966

1966 CHAPTER 35

An Act to amend the law of England and Wales in relation to the rights after a person's death of that person's spouse or former spouse and children, and to repeal section 47(5) of the Administration of Estates Act 1925, as amended.

[17th November 1966]

Be it enactedby the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

1Increase of net sum payable to surviving husband or wife on intestacy

(1)In the case of a person dying after the coming into force of this section, section 46(1) of the Administration of Estates Act 1925, as amended by section 1 of the Intestates' Estates Act 1952 and set out in Schedule 1 to that Act, shall apply as if the net sums charged by paragraph (i) on the residuary estate in favour of a surviving husband or wife were as follows, that is to say.—

(a)under paragraph (2) of the Table (which charges a net sum of £5,000 where the intestate leaves issue) a sum of £8,750 or of such larger amount as may from time to time be fixed by order of the Lord Chancellor; and

(b)under paragraph (3) of the Table (which charges a net sum of £20,000 where the intestate leaves certain close relatives but no issue) a sum of £30,000 or of such larger amount as may from time to time be so fixed.

(2)Accordingly in relation to the estate of a person dying after the coming into force of this section sections 46, 48 and 49 (as so amended and set out) of the Administration of Estates Act 1925 shall be further amended as follows:—

(a)in the Table in section 46(1)(i) for the words " net sum of £5,000 " in paragraph (2), and for the words " net sum of £20,000 " in paragraph (3), there shall in each case be substituted the words

fixed net sum, and at the end of the Table there shall be added—

(b)in sections 46(4) and 48(2)(a) for the words " the net sum of £5,000 or, as the case may be, £20,000 and in section 49(1)(aa) for the words " the net sum of £5,000 or £20,000 ", there shall in each case be substituted the words

the fixed net sum;

and any reference in any other enactment to the said net sum of £5,000 or the said net sum of £20,000 shall have effect as a reference to the corresponding net sum of the amount fixed by or under this section.

(3)Any order of the Lord Chancellor under this section fixing the amount of either of the said net sums shall have effect (and, so far as relates to that sum, shall supersede any previous order) in relation to the estate of any person dying after the coming into force of the order.

(4)Any order of the Lord Chancellor under this section shall be made by statutory instrument, and a draft of the statutory instrument shall be laid before Parliament.

2Removal of restriction on applications under Inheritance (Family Provision) Act 1938

(1)In section 1(1) of the Inheritance (Family Provision) Act 1938, as amended by Schedule 3 to the Intestates' Estates Act 1952, there shall be omitted the proviso (under which no application may be made under the Act where the surviving spouse has not less than two-thirds of the income of the deceased's net estate and there is no other dependant except children of the surviving spouse).

(2)This section shall not apply to applications made with reference to the death of any person dying more than six months before the coming into force of this section, nor shall the repeal by this Act of the said proviso affect its operation in relation to any such application.

3Periodical payments under Inheritance (Family Provision) Act 1938 or under s. 26 of Matrimonial Causes Act 1965

(1)In section 1 of the Inheritance (Family Provision) Act 1938, as amended by Schedule 3 to the Intestates' Estates Act 1952, there shall be omitted subsection (3) (under which the amount of the periodical payments ordered by way of maintenance out of the deceased's estate for a spouse and children are limited to the estimated income of his net estate at the date of the order).

(2)In section 3 of the Inheritance (Family Provision) Act 1938, as so amended, there shall be inserted as a new subsection (1A): —

(1A)Any order under this Act providing for maintenance by way of periodical payments may provide for payments of a specified amount, or for payments equal to the whole or part of the income of the net estate or of the income of any part to be set aside or appropriated under this Act of the net estate, or may provide for the amount of the payments or any of them to be determined in any other way which the court thinks fit

and in section 28(3) of the Matrimonial Causes Act 1965 (maintenance out of deceased's estate for former spouse) after the words " Section 3 of the Inheritance (Family Provision) Act 1938 " there shall be inserted the words

as amended by the Family Provision Act 1966;

.

(3)This section shall come into force on the date of the passing of this Act, and orders made before that date under the Inheritance (Family Provision) Act 1938, or under any Act applying section 3 of the Inheritance (Family Provision) Act 1938, shall be deemed to have been within the powers of the Act in question if they would have been within those powers had the amendments made by this section in the Inheritance (Family Provision) Act 1938 been made by the Intestates' Estates Act 1952.

4Lump sum payments under Inheritance (Family Provision) Act 1938 or under s. 26 of Matrimonial Causes Act 1965

(1)An order for maintenance under section 1 or 4 of the Inheritance (Family Provision) Act 1938 (maintenance out of deceased's estate for spouse or child), or under section 26 of the Matrimonial Causes Act 1965 (maintenance out of deceased's estate for former spouse), may in any case in which the court sees fit provide for maintenance in whole or in part by way of a lump sum payment; and accordingly—

(a)in the said section 1, as amended by Schedule 3 to the Intestates' Estates Act 1952, the words " Where the value of a deceased's net estate does not exceed five thousand pounds " at the beginning of subsection (4) shall be omitted, and after the word

power

in that subsection there shall be inserted the words

if it sees fit; and

(b)in the said section 26 for the words " if the value of the net estate of the deceased does not exceed five thousand pounds " in subsection (3) there shall be substituted the words

if the court sees fit.

(2)This section shall not apply to orders made with reference to the death of any person dying before the coming into force of this section.

5Time limit for applications under Inheritance (Family Provision) Act 1938 or under s. 25 or s. 26 of Matrimonial Causes Act 1965

(1)With a view to extending and making uniform the period for making certain applications to the court, the amendments provided for by this section shall be made in the following enactments, that is to say—

(a)section 2 of the Inheritance (Family Provision) Act 1938 (applications for maintenance out of deceased's estate by spouse or child); and

(b)section 25 of the Matrimonial Causes Act 1965 (applications for alteration of maintenance agreements after death of one party); and

(c)section 26 of the Matrimonial Causes Act 1965 (applications for maintenance out of deceased's estate by former spouse).

(2)In section 2 of the Inheritance (Family Provision) Act 1938, as amended by Schedule 3 to the Intestates' Estates Act 1952, for subsection (1) there shall be substituted—

(1)Except as provided by section 4 of this Act, an application under this Act shall not, without the permission of the court, be made after the end of the period of six months from the date on which representation in regard to the estate of the deceased is first taken out

and accordingly subsection (1A) (which enables the time for making applications to be extended by the court, but in particular circumstances only) shall be omitted, and in subsection (1B) for the words

the possibility that the court might exercise its power to extend that period;

there shall be substituted the words

the possibility that the court might permit an application under this Act after the end of that period.

(3)In section 25(1) and in section 26(1) of the Matrimonial Causes Act 1965 there shall be omitted paragraphs (a) and (b), and there shall be added at the end of the subsection— An application under this section shall not, except with the permission of the court, be made after the end of the period of six months from the date on which representation in regard to the estate of the deceased is first taken out

(4)This section shall not apply to applications made with reference to the death of any person dying more than six months before the coming into force of this section, nor shall the repeal by this Act of any enactment referred to in this section affect the operation of that enactment in relation to applications so made.

6Interim orders on applications under Inheritance (Family Provision) Act 1938 or under s. 26 of Matrimonial Causes Act 1965

(1)After section 4 of the Inheritance (Family Provision) Act 1938 there shall be inserted a new section 4A in the terms set out in Schedule 1 to this Act

(2)After section 28 of the Matrimonial Causes Act 1965 there shall be inserted a new section 28A in the same terms, except that—

(a)in subsection (1) of the new section the words " under this Act " shall be replaced by the words " under section 26 of this Act ".; and

(b)in subsection (3) of the new section the words " section 3 of this Act " shall be replaced by the words " section 3 of the Inheritance (Family Provision) Act 1938 as applied by section 28 of this Act ";

and in section 26(6) of the Matrimonial Causes Act 1965 (which defines terms used in that and the next following section) for the words " the next following section " there shall be substituted the words

the three next following sections.

7Extension to county court of jurisdiction under Inheritance (Family Provision) Act 1938 and s. 26 of Matrimonial Causes Act 1965

(1)A county court shall have all the jurisdiction of the High Court to hear and determine any proceedings for an order (or for permission to apply for an order) under section 1 of the Inheritance (Family Provision) Act 1938 or under section 26 of the Matrimonial Causes Act 1965, where it is shown to the satisfaction of the court that the value of the deceased's net estate as it is to be determined for purposes of the relief sought does not exceed the sum of £5,000 or such larger sum as may from time to time be fixed for this purpose by order of the Lord Chancellor.

(2)Where a county court makes an order in relation to a person's estate under section 1 of the Inheritance (Family Provision) Act 1938 or under section 26 of the Matrimonial Causes Act 1965, the court shall have all the jurisdiction of the High Court for the purpose of any further proceedings under section 4 or section 27, as the case may be, of the same Act.

(3)Where there are commenced in the High Court any such proceedings as are referred to in subsection (1) above, and it appears to the court that the value of the deceased's net estate is such as would give jurisdiction in the matter to a county court if proceedings were commenced there, the court may, if it thinks fit, whether upon the application of any party to the proceedings or otherwise, order that the proceedings be transferred to any county court which the court may deem the most convenient.

(4)Accordingly in the Inheritance (Family Provision) Act 1938, as amended by Schedule 3 to the Intestates' Estates Act 1952, there shall be inserted in section 5(1), in the definition of

the court,

after the word " Durham " the words " or a county court " (and in section 3(3) for the words " An office copy " there shall be substituted the words

A copy); and in the Matrimonial Causes Act 1965 there shall be inserted in section 26(6) as the first of the definitions there set out the definition—

(5)Any order of the Lord Chancellor under subsection (1) above shall be made by statutory instrument, and a draft of the statutory instrument shall be laid before Parliament; and—

(a)in relation to proceedings commenced in a county court before the coming into force of any such order the court may, if it thinks fit, refuse to make an order under section 66 of the County Courts Act 1959 (transfer to High Court of proceedings outside jurisdiction of county court), if the proceedings are within the jurisdiction of the county court as extended by the order of the Lord Chancellor; but

(b)the coming into force of any such order of the Lord Chancellor shall not be taken to affect any order previously made under section 66.

8Amendment of reference in Inheritance (Family Provision) Act 1938 to adopted children

(1)In the Inheritance (Family Provision) Act 1938, as amended by Schedule 3 to the Intestates' Estates Act 1952, the definition in section 5(1) of the expressions " son " and " daughter " shall be amended by substituting for the words

by virtue of an order made under the provisions of the Adoption of Children Act 1926(which have effect by virtue of later enactments and in particular the Adoption Act 1964 so that children adopted anywhere in the United Kingdom, the Isle of Man and the Channel Islands are included) the words " in pursuance of adoption proceedings taken in any part of the United Kingdom, the Isle of Man and the Channel Islands ".

(2)Accordingly in section 26(6) of the Matrimonial Causes Act 1965 (which provides, among other things, for the word "dependant" to have the same meaning as in the Inheritance (Family Provision) Act 1938) after the words "the Inheritance (Family Provision) Act 1938 " there shall be inserted the words

as amended by the Family Provision Act 1966.

9Administration of Estates Act 1925 s. 47(5) to be omitted

In section 47 of the Administration of Estates Act 1925, as amended by section 1 of the Intestates' Estates Act 1952 and set out in Schedule 1 to that Act, there shall be omitted subsection (5) (which has no operative effect, but contains a declaratory provision about the failure of certain trusts under section 46 in favour of a class of relatives of an intestate).

10Short title, repeal, etc.

(1)This Act may be cited as the Family Provision Act 1966.

(2)The enactments mentioned in Schedule 2 to this Act are hereby repealed to the extent specified in the third column of that Schedule, subject however to any saving provided for in the foregoing sections of this Act; and in accordance with the provisions of this Act the Inheritance (Family Provision) Act 1938, as respects cases to which it applies as amended by Schedule 3 to the Intestates' Estates Act 1952 and by this Act, shall have effect as set out in Schedule 3 to this Act.

(3)Nothing in this Act extends to Scotland or to Northern Ireland.

(4)This Act, apart from section 3, shall come into force on such date as may be appointed by order of the Lord Chancellor made by statutory instrument, and different dates may be appointed for the coming into force of different provisions.

Schedule 1New Section 4A (Interim orders) of Inheritance (Family Provision) Act 1938

(1)Where on an application for maintenance under this Act it appears to the court—

(a)that the applicant is in immediate need of financial assistance, but it is not yet possible to determine what order (if any) should be made on the application for the provision of maintenance for the applicant; and

(b)that property forming part of the net estate of the deceased is or can be made available to meet the need of the applicant;

the court may order that, subject to such conditions or restrictions, if any, as the court may impose and to any further order of the court, there shall be paid to or for the benefit of the applicant out of the deceased's net estate such sum or sums and (if more than one) at such intervals as the court thinks reasonable.

(2)In determining what order, if any, should be made under this section the court shall, so far as the urgency of the case admits, take account of the same considerations as would be relevant in determining what order should be made on the application for the provision of maintenance for the applicant; and any subsequent order for the provision of maintenance may provide that sums paid to or for the benefit of the applicant by virtue of this section shall be treated to such extent, if any, and in such manner as may be provided by that order as having been paid on account of the maintenance provided for by that order.

(3)Subject to subsection (2) above, section 3 of this Act shall apply in relation to an order under this section as it applies in relation to an order providing for maintenance.

(4)Where the deceased's personal representative pays any sum directed by an order under this section to be paid out of the deceased's net estate, he shall not be under any liability by reason of that estate not being sufficient to make the payment, unless at the time of making the payment he has reasonable cause to believe that the estate is not sufficient.

Schedule 2Repeals

ChapterShort TitleExtent of Repeal
15 & 16 Geo. 5. c. 23.The Administration of Estates Act 1925.In section 47, the subsection (5) inserted by the Intestates' Estates Act 1952.
1 & 2 Geo. 6. c. 45.The Inheritance (Family Provision) Act 1938.

In section 1, subsection (1) proviso and subsection (3).

In section 2, the subsection (1A) inserted by the Intestates' Estates Act 1952.

In section 4(1), the words (inserted as aforesaid)

or, as the case may be, of that period as extended under subsection (1A) of that section.

In section 5(1) the definition of " annual income ".

15 & 16 Geo. 6 and 1 Eliz. 2. c. 64.The Intestates' Estates Act 1952.

So much of section 1(3) or of Schedule 1 as sets out the new subsection (5) of section 47 of the Administration of Estates Act 1925.

Section 8.

So much of Schedule 3 as amends section 1(1) proviso of the Inheritance (Family Provision) Act 1938, or substitutes a new section 1(3) of that Act, or amends section 2(1) of that Act, or inserts section 2(1 A) of that Act, or inserts in section 4(1) or 5(1) of that Act words repealed by this Schedule.

Schedule 4.

1965 c. 72.The Matrimonial Causes Act 1965.

Section 25(1)(a) and (b).

Section 26(1)(a) and (b).

Schedule 3Inheritance (Family Provision) Act 1938 as amended by Intestates' Estates Act 1952 and this Act

1(1)Where, after the commencement of this Act, a person dies domiciled in England leaving—

(a)a wife or husband,

(b)a daughter who has not been married, or who is, by reason of some mental or physical disability, incapable of maintaining herself,

(c)an infant son, or

(d)a son who is, by reason of some mental or physical disability, incapable of maintaining himself,

then, if the court on application by or on behalf of any such wife, husband, daughter or son as aforesaid (in this Act referred to as a " dependant" of the deceased) is of opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable provision for the maintenance of that dependant, the court may order that such reasonable provision as the court thinks fit shall, subject to such conditions or restrictions, if any, as the court may impose, be made out of the deceased's net estate for the maintenance of that dependant.

(2)The provision for maintenance to be made by an order shall, subject to the provisions of subsection (4) of this section, be by way of periodical payments and the order shall provide for their termination not later than—

(a)in the case of a wife or husband, her or his re-marriage;

(b)in the case of a daughter who has not been married, or who is under disability, her marriage or the cesser of her disability, whichever is the later;

(c)in the case of an infant son, his attaining the age of twenty-one years;

(d)in the case of a son under disability, the cesser of his disability;

or, in any case, his or her earlier death.

(4)The court shall have power, if it sees fit, to make an order providing for maintenance, in whole or in part, by way of a lump sum payment.

(5)In determining whether, and in what way, and as from what date, provision for maintenance ought to be made by an order, the court shall have regard to the nature of the property representing the deceased's net estate and shall not order any such provision to be made as would necessitate a realisation that would be improvident having regard to the interests of the deceased's dependants and of the person who, apart from the order, would be entitled to that property.

(6)The court shall, on any application made under this Act, have regard to any past, present or future capital or income from any source of the dependant of the deceased to whom the application relates, to the conduct of that dependant in relation to the deceased and otherwise, and to any other matter or thing which in the circumstances of the case the court may consider relevant or material in relation to that dependant, to persons interested in the estate of the deceased, or otherwise.

(7)The court shall also, on any such application, have regard to the deceased's reasons, so far as ascertainable, for making the dispositions made by his will (if any), or for refraining from disposing by will of his estate or part of his estate, or for not making any provision, or any further provision, as the case may be, for a dependant, and the court may accept such evidence of those reasons as it considers sufficient including any statement in writing signed by the deceased and dated, so, however, that in estimating the weight, if any, to be attached to any such statement the court shall have regard to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement.

(8)The court in considering for the purposes of subsection (1) of this section whether the disposition of the deceased's estate effected by the law relating to intestacy, or by the combination of the deceased's will and that law, makes reasonable provision for the maintenance of a dependant shall not be bound to assume that the law relating to intestacy makes reasonable provision in all cases.

2(1)Except as provided by section 4 of this Act, an application under this Act shall not, without the permission of the court, be made after the end of the period of six months from the date on which representation in regard to the estate of the deceased is first taken out.

(1B)The provisions of this Act shall not render the personal representatives of the deceased liable for having distributed any part of the estate of the deceased after the expiration of the said period of six months on the ground that they ought to have taken into account the possibility that the court might permit an application under this Act after the end of that period, but this subsection shall be without prejudice to any power to recover any part of the estate so distributed arising by virtue of the making of an order under this Act.

(1C)In considering under the foregoing subsections the question when representation was first taken out, a grant limited to settled land or to trust property shall be left out of account and a grant limited to real estate or to personal estate shall be left out of account unless a grant limited to the remainder of the estate has previously been made or is made at the same time.

(2)For the purpose of section 162(1) of the Supreme Court of Judicature (Consolidation) Act 1925 (which relates to the discretion of the court as to the persons to whom administration is to be granted) a dependant of a deceased person by whom or on whose behalf an application under this Act is proposed to be made shall be deemed to be a person interested in his estate.

3(1)Where an order is made under this Act then for all purposes including the purposes of the enactments relating to death duties the will or the law relating to intestacy or both the will and the law relating to intestacy, as the case may be, shall have effect, and shall be deemed to have had effect as from the deceased's death, subject to such variations as may be specified in the order for the purpose of giving effect to the provision for maintenance thereby made.

(1A)Any order under this Act providing for maintenance by way of periodical payments may provide for payments of a specified amount, or for payments equal to the whole or part of the income of the net estate or of the income of any part to be set aside or appropriated under this Act of the net estate, or may provide for the amount of the payments or any of them to be determined in any other way which the court thinks fit.

(2)The court may give such consequential directions as it thinks fit for the purpose of giving effect to an order made under this Act, but no larger part of the net estate shall be set aside or appropriated to answer by the income thereof the provision for maintenance thereby made than such a part as, at the date of the order, is sufficient to produce by the income thereof the amount of the said provision.

(3)A copy of every order made under this Act shall be sent to the principal probate registry for entry and filing, and a memorandum of the order shall be endorsed on, or permanently annexed to, the probate or letters of administration under which the estate is being administered.

4(1)On an application made at a date after the expiration of the period specified in section 2(1) of this Act the court may make such an order as is hereinafter mentioned, but only as respects property the income of which is at that date applicable for the maintenance of a dependant of the deceased, that is to say,

(a)an order for varying the previous order on the ground that any material fact was not disclosed to the court when the order was made, or that any substantial change has taken place in the circumstances of the dependant or of a person beneficially interested in the property under the will or, as the case may be, under the law relating to intestacy, or

(b)an order for making provision for the maintenance of another dependant of the deceased.

(2)An application to the court for an order under paragraph (a) of the preceding subsection may be made by or on behalf of a dependant of the deceased or by the trustees of the property or by or on behalf of a person beneficially interested therein under the will or, as the case may be, under the law relating to intestacy.

4A(1)Where on an application for maintenance under this Act it appears to the court—

(a)that the applicant is in immediate need of financial assistance, but it is not yet possible to determine what order (if any) should be made on the application for the provision of maintenance for the applicant; and

(b)that property forming part of the net estate of the deceased is or can be made available to meet the need of the applicant;

the court may order that, subject to such conditions or restrictions, if any, as the court may impose and to any further order of the court, there shall be paid to or for the benefit of the applicant out of the deceased's net estate such sum or sums and (if more than one) at such intervals as the court thinks reasonable.

(2)In determining what order, if any, should be made under this section the court shall, so far as the urgency of the case admits, take account of the same considerations as would be relevant in determining what order should be made on the application for the provision of maintenance for the applicant; and any subsequent order for the provision of maintenance may provide that sums paid to or for the benefit of the applicant by virtue of this section shall be treated to such extent, if any, and in such manner as may be provided by that order as having been paid on account of the maintenance provided for by that order.

(3)Subject to subsection (2) above, section 3 of this Act shall apply in relation to an order under this section as it applies in relation to an order providing for maintenance.

(4)Where the deceased's personal representative pays any sum directed by an order under this section to be paid out of the deceased's net estate, he shall not be under any liability by reason of that estate not being sufficient to make the payment, unless at the time of making the payment he has reasonable cause to believe that the estate is not sufficient.

5(1)In this Act, unless the context otherwise requires, the following expressions shall have the meanings hereby respectively assigned to them, that is to say—

  • "the court" means the High Court and also the Court of Chancery of the County Palatine of Lancaster or the Court of Chancery of the County Palatine of Durham or a county court where those courts respectively have jurisdiction;

  • "death duties " means estate duty and every other duty leviable or payable on death;

  • " net estate " means all the property of which a deceased person had power to dispose by his will (otherwise than by virtue of a special power of appointment) less the amount of his funeral, testamentary and administration expenses, debts and liabilities and estate duty payable out of his estate on his death;

  • " will " includes codicil;

  • " son " and " daughter " respectively include a male or female child adopted by the deceased in pursuance of adoption proceedings taken in any part of the United Kingdom, the Isle of Man and the Channel Islands, and also the son or daughter of the deceased en ventre sa mere at the date of the death of the deceased.

(2).References in this Act to any enactment or any provision of any enactment shall, unless the context otherwise requires, be construed as references to that enactment or provision as amended by any subsequent enactment including this Act.

6(1)This Act may be cited as the Inheritance (Family Provision) Act 1938.

(2)This Act shall not extend to Scotland or to Northern Ireland.

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