The Dependants Relief Act being Chapter 111 of The Revised Statutes of Saskatchewan, 1940 (effective February 1, 1941). NOTE: This consolidation is not official. Amendments have been incorporated for convenience of reference and the original statutes and regulations should be consulted for all purposes of interpretation and application of the law. In order to preserve the integrity of the original statutes and regulations, errors that may have appeared are reproduced in this consolidation.
Table of Contents 1 Short title 2 Interpretation 3 Application to court for relief 4 Notice of motion 5 Service of notice of motion 6 Affidavit 7 Other evidence 8 Maintenance order 9 Devise of property pursuant to contract 10 Allowances fall rateably on whole estate 11 Power of court to release part of estate 12 Power of court to allow commutation 13 Effect of order 14 Time limited for entertaining application 15 Distribution of estate postponed 16 Mortgage made in anticipation invalid 17 Power of court to discharge or vary order 18 Costs 19 Appeal 20 Enforcement of order
CHAPTER 111 An Act authorizing Provision for the Maintenance of Certain Dependants of Testators Short title 1 This Act may be cited as The Dependants Relief Act. 1940, c.36, s.1; R.S.S. 1940, c.111, s.1. Interpretation 2 In this Act, unless the context otherwise requires, the expression: Child 1. Child includes a child lawfully adopted by a testator and also a child of a testator en ventre sa mere at the date of the testator s death; Dependant 2. Dependant means the wife or husband of a testator, a child of a testator under the age of twenty-one years and a child of a testator over that age who by reason of mental or physical disability is unable to earn a livelihood; Estate 3. Estate means all the property of which a testator 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 succession duties payable out of his estate on his death; Will 4. Will includes a codicil. 1940, c.36, s.2; R.S.S. 1940, c.111, s.2. Application to court for relief 3 Where a person dies domiciled in Saskatchewan, leaving a will and leaving a dependant or dependants, an application may be made to the Court of King s Bench by or on behalf of any dependant for an order making reasonable provision for his or her maintenance. 1940, c.36, s.3; R.S.S. 1940, c.111, s.3. Notice of motion 4 The application may be made by notice of motion in the matter of the estate of the deceased. 1940, c.36, s.4; R.S.S. 1940, c.111, s.4. Service of notice of motion 5(1) The notice of motion shall be served upon the executors named in the will, or upon any person to whom a grant of letters of administration with the will annexed has been made, six clear days before the notice is returnable. (2) The court may direct any other person to he served with notice of the application, and the practice and procedure of the Court of King s Bench upon applications in chambers shall, so far as the same are found to be applicable, apply to proceedings under this Act, save as herein otherwise provided. 1940, c.36, s.5; R.S.S. 1940, c.111, s.5.
4 c. 111 DEPENDANTS RELIEF Affidavit 6 The application shall be supported by an affidavit of the applicant setting forth fully all the facts in support of the application. 1940, c.36, s.6; R.S.S. 1940, c.111, s.6. Other evidence 7 In addition to the evidence adduced by the applicant the court may direct such other evidence to be given as it deems necessary. 1940, c.36, s.7; R.S.S. 1940, c.111, s.7. Maintenance order 8(1) If upon an application the court is of opinion that the testator has by will so disposed of real or personal property that reasonable provision has not been made for the maintenance of the dependant to whom the application relates, then, subject to the following provisions and to such conditions and restrictions as the court deems fit, the court may, in its discretion, make an order charging the whole or any portion of the estate, in such proportion and in such manner as it deems proper, with payment of an allowance sufficient to provide such maintenance as the court thinks reasonable, just and equitable in the circumstances. (2) No allowance ordered to be made to the wife, of the testator shall, in the opinion of the court, be less than she would have received if the husband had died intestate leaving a widow and children. (3) The allowance may be by way of an amount payable annually or otherwise, or of a lump sum to be paid, or of certain property to be transferred or assigned, either absolutely or for life or for a term of years, to the dependant, or for the use and benefit of the dependant, as the court deems fit. If a transfer of property is ordered, the court may give all necessary and proper directions for the execution of the transfer either by the executors or the administrators with the will annexed or such other person as the court may direct, or may grant a vesting order. (4) 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 testator s estate and shall not order any provision necessitating a realization which would be improvident having regard to the interests of the dependants and of the person who, apart from the order, would be entitled to that property. (5) The court shall also have regard to any past, present or future capital or income from any source of the dependant to whom the application relates, to the conduct of that dependant in relation to the testator and otherwise, to the claims which any other person may have as a dependant of the testator, and generally to any other matters which the court deems should be fairly taken into account in deciding upon the application. (6) The court shall also have regard to the testator s reasons, so far as ascertainable, for making the dispositions made by his will, 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 testator and dated, provided 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.
DEPENDANTS RELIEF c. 111 5 (7) The court may refuse to make an order in favour of any person whose character or conduct is such as in the opinion of the court to disentitle him or her to the benefit of an order under this Act. 1940, c.36, s.8; R.S.S. 1940, c.111, s.8. Devise of property pursuant to contract 9 Where a testator has in his lifetime, bona fide and for valuable consideration, entered into a contract to devise or bequeath any property, real or personal, and has by his will devised or bequeathed such property in accordance with the provisions of the contract, such property shall not be 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 court, exceeds the consideration received by the testator therefor. 1940, c.36, s.9; R.S.S. 1940, c.111, s.9. Allowances fall rateably on whole estate 10 The incidence of any allowance ordered shall, unless the court otherwise determines, fall rateably upon the whole estate, or in cases where the authority of the court does not extend or cannot, directly or indirectly, be made to extend to the whole estate, then to so much thereof as is situated in the province. 1940, c.36, s.10; R.S.S. 1940, c.111, s.10. Power of court to release part of estate 11 The court may exonerate any part of the testator s estate from the incidence of the order after hearing such of the parties as may be affected by the exoneration as it thinks necessary, and may for that purpose direct any executor or trustee to represent, or appoint any person to represent, any such party. 1940, c.36, s.11; R.S.S. 1940, c.111, s.11. Power of court to allow commutation 12 The court may at any time fix a periodic payment or lump sum to be paid by any legatee or devisee to represent, or in commutation of, such proportion of a sum ordered to be paid as falls upon the portion of the estate in which he is interested, and may exonerate such portion from further liability, and may direct in what manner such periodic payment shall be secured, or 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. 1940, c.36, s.12; R.S.S. 1940, c.111, s.12.
6 c. 111 DEPENDANTS RELIEF Effect of order 13(1) Where an order is made under this Act, then for all purposes, including the purposes of enactments relating to succession duties, the will shall have effect, and shall be deemed to have had effect as from the testator s death, as if it had been executed, with such variations as are, specified in the order, for the purpose of giving effect to the provision for maintenance made by the order. (2) The court may give such consequential directions as it thinks fit for the purpose of giving effect to an order, but no larger part of the 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 certified copy of every order made under this Act shall be filed with the clerk of the surrogate court out of which the letters probate or letters of administration with the will annexed issued, and a memorandum of the order shall be indorsed on, or annexed to, the original letters probate or letters of administration with the will annexed, as the case may be. 1940, c.36, s.13; R.S.S. 1940, c.111, s.13. Time limited for entertaining application 14 No order shall be made unless on an application made within six months from the grant of probate of the will or of administration with the will annexed, but the court may, if it 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. 1940, c.36, s.14; R.S.S. 1940, c.111, s.14. Distribution of estate postponed 15(1) After service of notice of an application for an allowance under this Act the executor or trustee or the administrator shall not proceed with the distribution of the estate until the application is disposed of. (2) An executor, trustee or administrator who violates subsection (1) shall be guilty of an offence and liable on summary conviction, in the case of a natural person, to a fine not exceeding $1,000 and in default of payment to imprisonment for a term not exceeding sixty days, and in the case of a corporation, to a fine not exceeding $2,000. 1940, c.36, s.15; R.S.S. 1940, c.111, s.15. Mortgage made in anticipation invalid 16 No dependant for whom provision is made pursuant to this Act shall anticipate the same, and no mortgage, charge or assignment of any kind whatsoever of or over such provision made before the order of the court shall be of any force, validity or effect. 1940, c.36, s.16; R.S.S. 1940, c.111, s.16.
DEPENDANTS RELIEF c. 111 7 Power of court to discharge or vary order 17(1) The court may at any time discharge, vary or suspend any order made by it, or make such other order as it deems just in the circumstances, on the ground that any material fact was not disclosed to the court when the order was made. (2) An application for an order under subsection (1) may be made by or on behalf of a dependant or by or on behalf of a beneficiary under the will. 1940, c.36, s.17; R.S.S. 1940, c.111, s.17. Costs 18 The court may direct that the costs of any application shall be payable out of the estate or otherwise as it deems just, and may fix the amount of the costs payable by any party, exclusive of necessary disbursements, at a lump sum having regard to the value of the estate and the amount of any allowance applied for or directed by its order. 1940, c.36, s.18; R.S.S. 1940, c.111, s.18. Appeal 19 Except as to costs, an appeal shall lie to the Court of Appeal from an order made under this Act and the Court of Appeal may annul or vary the order and the decision of the court upon the appeal shall be final. 1940, c.36, s.19; R.S.S. 1940, c.111, s.19. Enforcement of order 20 Any order made under this Act may be enforced against the estate of the testator in the same way and by the same means as any other judgment or order of the court against the estate might be enforced, and the court may make such order or direction, or interim order or direction, as may be necessary to secure to the dependant payment out of the estate of the sum or sums to which the dependant is found entitled. 1940, c.36, s.20; R.S.S. 1940, c.111, s.20.
Regina, Saskatchewan Printed by the authority of THE QUEEN S PRINTER Copyright 2010