Dependants Relief Act

Consolidated act

Citation: R.S.N.W.T. 1988, c.D-4
Source: Unofficial consolidation PDF (justice.gov.nt.ca)

This is an unofficial reading copy parsed from the Department of Justice consolidation PDF above — itself an office consolidation, not an official statement of the law. The authoritative text is in the Revised Statutes of the Northwest Territories, 1988 and the annual Statutes volumes.

s.1 amended by SNWT 1998,c.17,s.8
s.1 amended by SNWT 2000,c.16,s.8
s.1 amended by Modernization of Benefits and Obligations Act
s.1 amended by Miscellaneous Statute Law Amendment Act, 2022
s.13 amended by Miscellaneous Statute Law Amendment Act, 2021

Cites

Cited by

Contents

1. Definitions 2. Order for maintenance 3. Application 4. Powers of judge 5. Conditions and restrictions 6. Inquiries and further orders by judge 7. Powers of judge 8. Distribution stayed 9. Incidence of provision 10. Further directions 11. Effect of order 12. Filing of certified copy of order 13. Limitation period 14. Effect of contract 15. Validity of mortgage, charge, assignment 16. Appeal 17. Orders and directions 18. Enforcement 19. Testamentary dispositions 20. Exception 21. Contribution by transferee

Definitions

In this Act,

"child" includes

(a) a natural child or a stepchild,

(b) a child who appears to the satisfaction of the Supreme Court in effect to have been adopted although there has not been compliance with the Adoption Act or any predecessor Act, and

"cohabit" means to live together in a conjugal relationship, whether within or outside marriage; (cohabiter)

"deceased" means a testator or a person dying intestate; (défunt)

"dependant" means

(a) the surviving spouse of the deceased,

(b) a child of the deceased who is under the age of 19 years at the time of the death of the deceased,

(c) a child of the deceased who has attained the age of 19 years at the time of the death of the deceased and unable by reason of mental or physical disability to earn a livelihood,

(d) a person who cohabited with the deceased for one year immediately before the time of the death of the deceased and was dependent on the deceased for maintenance and support,

(e) a person who at the time of the death of the deceased was cohabiting with the deceased and between whom one or more children were born, or

(f) a person who at the time of the death of the deceased was acting as a foster parent of the children of the deceased in the same household and who was dependent on the deceased for maintenance and support; (personne à charge)

"judge" means a judge of the Supreme Court; (juge)

"order" includes an order made under subsection 2(2); (ordonnance) "spouse" has the meaning assigned to that term by section 1 of the Family Law Act. (conjoint) SNWT 1998,c.17,s.8; SNWT 2000,c.16,s.8; SNWT 2005,c.2,s.2; SNWT 2023,c.7,s.11.

Order for maintenance

(1) Where a person

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

(b) dies intestate as to all or part of his or her estate and the share under the Intestate Succession Act of his or her dependants or 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, notwithstanding the provisions of the will or the Intestate Succession Act, order that the 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.

Order suspending administration

(2) A judge, on application by or on behalf of the dependants or any of them, may by order suspend in whole or in part the administration of the estate of the deceased in order that application may be made at any later date for an order making specific provision for maintenance and support.

Application

An application under this Act may be made by originating notice of motion in the matter of the estate of the deceased.

Powers of judge

(1) A judge on hearing an application under this Act may

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

(b) in addition to the evidence adduced by the parties, receive any other evidence that the judge considers necessary or proper;

(c) accept evidence that the judge considers proper, including any statement in writing signed by the deceased, of the reasons of the deceased, so far as can be ascertained, for

(i) making the dispositions made by his or her will, or

(ii) not making adequate provision for a dependant; and

(d) refuse to make an order in favour of any dependant whose character or conduct, in the opinion of the judge, disentitles the dependant to the benefit of an order under this Act.

Accuracy of statement

(2) In determining the weight to be given to a statement referred to in paragraph (1)(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.

Conditions and restrictions

(1) In an order providing for maintenance and support of a dependant, a judge may impose the conditions and restrictions that the judge considers fit.

Payment of maintenance and support

(2) A judge may order that the provision for maintenance and support of a dependant is to be made out of and charged against all or any part of the estate of the deceased in the proportion and manner that the judge considers proper.

Methods of payment

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

(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 or for the benefit of the dependant.

Transfer or assignment of property

(4) Where a transfer or assignment of property is ordered under paragraph (3)(c), the judge may

(a) give all necessary directions for the execution of the transfer or assignment by the executor or administrator or another person directed by the judge; or

(b) grant a vesting order.

Inquiries and further orders by judge

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

(a) inquire whether the dependant benefited by the order has become entitled to the benefit and any other provision for his or her proper maintenance and support;

(b) inquire into the adequacy of the maintenance and support ordered;

(d) make another order that the judge considers fit in the circumstances.

Powers of judge

A judge may, at any time

(a) fix a periodic payment or lump sum to be paid by

(i) a legatee,

(ii) a devisee, or

(iii) a beneficiary under an intestacy, to represent, or in commutation of, the proportion of the sum ordered to be paid that falls on the part of the estate of the deceased in which that person is interested;

(b) relieve the part of the estate referred to in paragraph (a) from further liability; and

(i) the manner in which the periodic payment fixed under paragraph (a) is to be secured, or

(ii) to whom the lump sum fixed under paragraph (a) 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.

Distribution stayed

(1) Where notice of an application made under this Act is served on the executor, administrator or trustee of the estate of a deceased, the person served shall not, unless the judge orders otherwise, proceed with the distribution of the estate until the judge has disposed of the application.

Liability

(2) Where

(a) an executor, administrator or trustee disposes of or distributes part of an estate in contravention of subsection (1), and

(b) 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 provision to the extent that the provision or any part of it, under the order or this Act, ought to be made out of the part of the estate disposed of or distributed.

Reasonable advances

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

Incidence of provision

(1) Unless the judge determines otherwise, the incidence of a provision for maintenance and support ordered falls rateably on that part of the estate of the deceased to which the jurisdiction of the judge extends.

Relief

(2) The judge may relieve any part of the estate from the incidence of an order referred to subsection (1).

Further directions

10.

A judge may give further directions that the judge considers fit for the purpose of giving effect to an order made under this Act.

Effect of order

11.

(1) An order made under this Act has for all purposes, including the purpose of any enactment relating to succession duties, effect on and after the date of the death of the deceased.

Effect of will

(2) A will has effect on and after the date of the death of the deceased as if it had been executed with the variations necessary to give effect to an order referred to in subsection (1).

Filing of certified copy of order

12.

(1) A certified copy of every order made under this Act must be filed with the Clerk of the Supreme Court from which the letters probate or letters of administration issued.

Memorandum of order

(2) A memorandum of an order under this Act must be endorsed on or annexed to the copy of the original letters probate or letters of administration that is in the custody of the Clerk of the Supreme Court.

Limitation period

13.

(1) Subject to subsection (2), an application for an order under section 2 may not be made more than six months after the grant of probate of the will or of administration.

Exception

(2) If a judge considers it just, the judge may allow an application to be made at any time as to any part of the estate of the deceased remaining undistributed at the date of the application. SNWT 2022,c.4,s.6.

Effect of contract

14.

Where a deceased has

(a) in his or her lifetime, in good faith and for valuable consideration, entered into an agreement to devise and bequeath real or personal property, and

(b) by his or her will devised and bequeathed the property referred to in paragraph (a) in accordance with the agreement,

the property is not liable to the provision 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 deceased for the property.

Validity of mortgage, charge, assignment

15.

A mortgage, charge or assignment of or with respect to a provision for the maintenance and support of a dependant that is ordered by a judge under this Act is void if it is made before the order making the provision is entered.

Appeal

16.

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

Orders and directions

17.

A judge may make the necessary order or direction or interim order or direction to secure to a dependant out of the estate of the deceased the benefit to which the dependant is found entitled.

Enforcement

18.

An order or direction made under this Act may be enforced against the estate of the deceased in the same manner as any other judgment or order of the court against the estate.

Testamentary dispositions

19.

(1) Subject to section 14, for the purposes of this Act, the capital value of the following transactions effected by a deceased before death, whether benefiting the dependants of the deceased or another person, shall be treated as testamentary dispositions as of the date of the death of the deceased and included in the net estate of the deceased:

(a) gifts mortis causa;

(b) money deposited, together with interest on that money, in an account with a bank, savings office or trust company, in the name of the deceased in trust for another person or persons and remaining on deposit at the date of the death of the deceased, to the extent that the money was the property of the deceased immediately before the deposit;

(c) money deposited, together with interest on that money, in an account with a bank, savings office or trust company, in the name of the deceased and another person or persons and payable on death under the terms of the deposit or by operation of law to the survivor of those persons and remaining on deposit at the date of the death of the deceased, to the extent that the money was the property of the deceased immediately before the deposit;

(d) any disposition of property made by the deceased by which means the property is, at the date of the death of the deceased, held by the deceased and another person as joint tenants with rights of survivorship, to the extent that the consideration for the property was provided by the deceased;

(e) any disposition of property made by the deceased in trust or otherwise, to the extent that, by the express provisions of the disposing instrument, the deceased at the date of his or her death retained, either alone or with another person or persons, a power to revoke the disposition or a power to consume, invoke or dispose of the principal of it, but this does not affect the right of an income beneficiary to the income accrued and undistributed at the date of the death of the deceased;

(f) any amount payable under an insurance policy on the life of the deceased owned by the deceased, where the beneficiary of the policy was not, immediately before the death of the deceased, designated irrevocably under Part IV of the Insurance Act.

Burden of establishing ownership

(2) A dependant claiming under this Act has the burden of establishing that the money or property referred to in paragraph (1)(b), (c) or (d), or part of that money or property, belonged to the deceased.

Burden of establishing amount

(3) Where the other party to a transaction referred to in paragraph (1)(c) or (d) is a dependant, the dependant has the burden of establishing the amount of his or her contribution.

Exception

20.

(1) Section 19 does not prohibit a person from paying or transferring any money or property, or part of any money or property, to a person otherwise entitled to it, unless the person making the payment or transfer has been served personally with a certified copy of an order made under subsection 2(2) enjoining the payment or transfer.

Effect of service

(2) Service of an order under subsection (1) is a defence to an action or proceeding brought against the person served with respect to the money or property referred to in subsection (1) during the period the order is in force.

Rights of creditors

(3) Section 19 and this section do not affect the rights of creditors of the deceased in a transaction with respect to which a creditor has rights.

Contribution by transferee

21.

Where

(a) the estate of a deceased is insufficient to provide appropriate maintenance to the dependants of the deceased, and

(b) the deceased, within three years before the date of his or her death, made a transfer of property that in the opinion of the Supreme Court was unreasonably large,

if the Supreme Court considers it just in the circumstances, the Supreme Court may, on the application of the dependants or any of them, order the transferee to contribute to the maintenance of the dependant or dependants of the deceased.