Sch Fourth ScheduleRights in respect of dwelling houses

Fourth Schedule — Rights in respect of dwelling houses [s. 14] [Heading inserted: No. 138 of 1976 s. 16; amended: No. 25 of 2002 s. 52; No. 19 of 2010 s. 6(3).] 1. Rights of surviving spouse if dwelling house is residence (1) Subject to the provisions of this Schedule where — [(a) deleted] (b) the whole or a part of the intestate property consists of an interest in a dwelling house that, at the date of the death of the deceased person, was ordinarily used by the surviving husband or wife as his or her ordinary place of residence (in this Schedule called the interest); and (c) the surviving husband or wife is not entitled under sections 14 and 15 to the whole of the intestate property, the surviving husband or wife may elect to have the interest appropriated under section 30(1)(k) of the *Trustees Act 1962* in or towards satisfaction of any entitlement or entitlements that the surviving husband or wife has under item 2 or 3 of the Table. (2) The right conferred by this paragraph shall not be exercisable where the interest is — (a) a tenancy that, at the date of the death of the intestate, was a tenancy that would determine within the period of 2 years from that date; or (b) a tenancy that the landlord, by notice given after the date of the death of the intestate, could determine within the period of 2 years from that date of death. (3) Where part of a building was, at the date of the death of the intestate, ordinarily occupied as a separate dwelling, that part of the building shall, for the purposes of this Schedule, be treated as a dwelling house. (4) Except where the context otherwise requires, references in this Schedule to a dwelling house include references to any garden or portion of ground attached to and usually occupied with the dwelling house or otherwise required for the amenity or convenience of the dwelling house. [Clause 1 amended: No. 19 of 2010 s. 51.] 2. Court order required in certain cases Where — (a) the dwelling house forms part of a building and an interest in the whole of the building is comprised in the intestate property; or (b) the dwelling house is held with land used for agricultural purposes and an interest in that land is comprised in the intestate property; or (c) the whole or a part of the dwelling house was, at the date of the death of the intestate, used as an hotel or lodging house; or (d) a part of the dwelling house was, at the date of the death of the intestate, used for purposes other than domestic purposes, the right conferred by paragraph 1 shall not be exercisable unless the Court, on being satisfied that the exercise of that right is not likely to diminish the value of assets in the estate of the intestate (other than the interest) or make them more difficult to dispose of, so orders. [Clause 2 amended: No. 19 of 2010 s. 51.] 3. Time limit for exercising right under par. 1 (1) The right conferred by paragraph 1 shall not be exercisable — (a) after the expiration of 12 months from the first grant of administration of the estate of the intestate; or (b) after the death of the surviving husband or wife. (2) The Court may, on the application of the surviving husband or wife, grant an extension of the period of 12 months mentioned in this paragraph. [Clause 3 amended: No. 19 of 2010 s. 51.] 4. Mode of exercising right under par. 1 (1) The right conferred by paragraph 1 shall be exercisable by furnishing a notification in writing — (a) if the surviving husband or wife is not a personal representative of the intestate — to the personal representative or to each personal representative, as the case may be, of the intestate; or (b) if the surviving husband or wife is one of the personal representatives of the intestate — to the other personal representative, or to each other personal representative, as the case may be, of the intestate; or (c) if the surviving husband or wife is the sole personal representative of the intestate — to the Principal Registrar. (2) A notification under subparagraph (1) is not revocable except with the consent of the personal representative or of each personal representative, as the case may be, of the intestate. (3) Where the surviving husband or wife is not a personal representative of the intestate he or she may require the personal representative to have the interest valued and to inform him or her of the result of that valuation before he or she decides whether to exercise the right conferred by paragraph 1. [Clause 4 amended: No. 19 of 2010 s. 51.] 5. Determination of value Notwithstanding section 50 of the *Trustees Act 1962*, as respects an appropriation in pursuance of paragraph 1 the value of the interest is the amount determined by a qualified valuer engaged by the personal representative of the intestate to be the market value of the interest. [Clause 5 amended: No. 19 of 2010 s. 51.] 6. Restriction on sale during election period (1) In this paragraph — election period means the period of 12 months mentioned in paragraph 3 and includes any extension of that period granted under subparagraph (2) of that paragraph. (2) During the election period the personal representative of the intestate shall not, without the written consent of the surviving husband or wife, sell or otherwise dispose of the interest except in the course of administration owing to want of other assets or except with the approval of the Court. (3) An application to the Court under paragraph 2 may be made by the personal representative of the intestate as well as by the surviving husband or wife, and if, on an application under that paragraph, the Court does not order that the right conferred by paragraph 1 shall be exercisable by the surviving husband or wife, the Court may authorise the personal representative to dispose of the interest within the election period. (4) This paragraph shall not apply where the surviving husband or wife is the sole personal representative, or one of 2 or more personal representatives, of the intestate. (5) Nothing in this paragraph shall confer any right on the surviving husband or wife as against a purchaser from the personal representative of the intestate. [Clause 6 amended: No. 19 of 2010 s. 51.] 7. Surviving spouse as sole personal representative (1) Where the surviving husband or wife is the sole personal representative, or one of 2 or more personal representatives of the intestate, he or she may, notwithstanding that he or she is a trustee, acquire the interest under an appropriation in pursuance of paragraph 1. (2) The power of appropriation under section 30(1)(k) of the *Trustees Act 1962* shall include power to appropriate the interest partly in satisfaction of the entitlement or entitlements of the surviving husband or wife under item 2 or 3 of the Table and partly in return for a payment of money by the surviving husband or wife to be applied in or towards satisfaction of the other entitlements under these items. [Clause 7 amended: No. 19 of 2010 s. 51.] 8. Surviving spouse not of full mental capacity (1) Where the surviving husband or wife is not of full mental capacity a requirement or consent under this Schedule may be made or given on his or her behalf by the person, if any, having the care and management of his or her estate, or, where there is no such person, by the Court. (2) A requirement or consent made or given under this Schedule by a surviving husband or wife who is an infant shall be as valid and binding as it would be if he or she were of age; and, as respects an appropriation in pursuance of paragraph 1, the provisions of section 30(1)(k) of the *Trustees Act 1962* as to obtaining the consent of the infant’s parent or guardian shall not apply. [Clause 8 amended: No. 19 of 2010 s. 51.] 9. Terms used Unless the contrary intention appears, words and expressions used in this Schedule have the same respective meanings as they have in and for the purposes of section 14. [Clause 9 amended: No. 19 of 2010 s. 51.] [Fourth Schedule inserted: No. 138 of 1976 s. 16; amended: No. 67 of 1979 s. 44(z); No. 25 of 2002 s. 52; No. 19 of 2010 s. 51.]