sec.41Estate of deceased person liable for maintenance

### sec.41 Estate of deceased person liable for maintenance If any person (the deceased person ) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant. However, the court shall not make an order in respect of a dependant unless it is satisfied, having regard to the extent to which the dependant was being maintained or supported by the deceased person before the deceased person’s death, the need of the dependant for the continuance of that maintenance or support and the circumstances of the case, that it is proper that some provision should be made for the dependant. The court may— attach such conditions to the order as it thinks fit; or if it thinks fit—by the order direct that the provision shall consist of a lump sum or a periodical or other payment; or refuse to make an order in favour of any person whose character or conduct is such as, in the opinion of the court, disentitles him or her to the benefit of an order, or whose circumstances are such as make such refusal reasonable. The incidence of the payment or payments ordered shall, unless the court otherwise directs, fall rateably upon the whole estate of the deceased person or upon so much thereof as is or may be made directly or indirectly subject to the jurisdiction of the court. The court may, by such order or any subsequent order, exonerate any part of the estate of the deceased person from the incidence of the order, after hearing such of the parties as may be affected by such exoneration as it thinks necessary, and may for that purpose direct the personal representative to represent, or appoint any person to represent, any such party. The court may at any time fix a periodic payment or lump sum to be paid by any beneficiary in the estate, to represent, or in commutation of, such proportion of the sum ordered to be paid as falls upon the portion of the estate in which the beneficiary is interested, and exonerate such portion from further liability, and direct in what manner such periodic payment shall be secured, and 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. Where an application has been filed on behalf of any person it may be treated by the court as, and, so far as regards the question of limitation, shall be deemed to be, an application on behalf of all persons who might apply. The personal representative or the public trustee or the chief executive of the department in which the Child Protection Act 1999 is administered, or any person acting as the litigation guardian of a person under a legal incapacity, may apply on behalf of a person under a legal incapacity in any case where such person might apply, or may apply to the court for advice or directions as to whether the person ought so to apply; and, in the latter case, the court may treat such application as an application on behalf of such person for the purpose of avoiding the effect of limitation. Unless the court otherwise directs, no application shall be heard by the court at the instance of a party claiming the benefit of this part unless the proceedings for such application be instituted within 9 months after the death of the deceased; but the court may at its discretion hear and determine an application under this part although a grant has not been made. A person who, if a declaration of paternity were made upon the person’s application under the provisions of the Status of Children Act 1978 , would be entitled to make an application under this part may make an application under this part but such application shall not be proceeded with until the person has obtained a declaration of paternity under that Act; and the court may give such directions and act as it thinks fit to facilitate the making and determination of all necessary applications on behalf of that person under that Act and this part. Upon any order being made, the portion of the estate comprised therein or affected thereby shall be held subject to the provisions of the order. No mortgage, charge or assignment of any kind whatsoever of or over such provision, made before the order is made, shall be of any force, validity or effect, and no such mortgage, charge or assignment made after the order is made shall be of any force, validity or effect unless made with the permission of the court. Where any sum of money or other property is received by any person as a donatio mortis causa made by the deceased person that sum of money or that other property shall be treated for the purposes of this part as part of the estate of the deceased; but this subsection shall not render any person liable for having paid that sum or transferred that other property in order to give effect to that donatio mortis causa . s 41 amd 1987 No. 32 s 69 (1) sch ; 1999 No. 10 s 205 sch 3 ; 2000 No. 16 s 590 sch 1 pt 2 ; 2004 No. 43 s 110 (sec.41-ssec.1) If any person (the deceased person ) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant. (sec.41-ssec.1A) However, the court shall not make an order in respect of a dependant unless it is satisfied, having regard to the extent to which the dependant was being maintained or supported by the deceased person before the deceased person’s death, the need of the dependant for the continuance of that maintenance or support and the circumstances of the case, that it is proper that some provision should be made for the dependant. (sec.41-ssec.2) The court may— attach such conditions to the order as it thinks fit; or if it thinks fit—by the order direct that the provision shall consist of a lump sum or a periodical or other payment; or refuse to make an order in favour of any person whose character or conduct is such as, in the opinion of the court, disentitles him or her to the benefit of an order, or whose circumstances are such as make such refusal reasonable. (sec.41-ssec.3) The incidence of the payment or payments ordered shall, unless the court otherwise directs, fall rateably upon the whole estate of the deceased person or upon so much thereof as is or may be made directly or indirectly subject to the jurisdiction of the court. (sec.41-ssec.4) The court may, by such order or any subsequent order, exonerate any part of the estate of the deceased person from the incidence of the order, after hearing such of the parties as may be affected by such exoneration as it thinks necessary, and may for that purpose direct the personal representative to represent, or appoint any person to represent, any such party. (sec.41-ssec.5) The court may at any time fix a periodic payment or lump sum to be paid by any beneficiary in the estate, to represent, or in commutation of, such proportion of the sum ordered to be paid as falls upon the portion of the estate in which the beneficiary is interested, and exonerate such portion from further liability, and direct in what manner such periodic payment shall be secured, and 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. (sec.41-ssec.6) Where an application has been filed on behalf of any person it may be treated by the court as, and, so far as regards the question of limitation, shall be deemed to be, an application on behalf of all persons who might apply. (sec.41-ssec.7) The personal representative or the public trustee or the chief executive of the department in which the Child Protection Act 1999 is administered, or any person acting as the litigation guardian of a person under a legal incapacity, may apply on behalf of a person under a legal incapacity in any case where such person might apply, or may apply to the court for advice or directions as to whether the person ought so to apply; and, in the latter case, the court may treat such application as an application on behalf of such person for the purpose of avoiding the effect of limitation. (sec.41-ssec.8) Unless the court otherwise directs, no application shall be heard by the court at the instance of a party claiming the benefit of this part unless the proceedings for such application be instituted within 9 months after the death of the deceased; but the court may at its discretion hear and determine an application under this part although a grant has not been made. (sec.41-ssec.9) A person who, if a declaration of paternity were made upon the person’s application under the provisions of the Status of Children Act 1978 , would be entitled to make an application under this part may make an application under this part but such application shall not be proceeded with until the person has obtained a declaration of paternity under that Act; and the court may give such directions and act as it thinks fit to facilitate the making and determination of all necessary applications on behalf of that person under that Act and this part. (sec.41-ssec.10) Upon any order being made, the portion of the estate comprised therein or affected thereby shall be held subject to the provisions of the order. (sec.41-ssec.11) No mortgage, charge or assignment of any kind whatsoever of or over such provision, made before the order is made, shall be of any force, validity or effect, and no such mortgage, charge or assignment made after the order is made shall be of any force, validity or effect unless made with the permission of the court. (sec.41-ssec.12) Where any sum of money or other property is received by any person as a donatio mortis causa made by the deceased person that sum of money or that other property shall be treated for the purposes of this part as part of the estate of the deceased; but this subsection shall not render any person liable for having paid that sum or transferred that other property in order to give effect to that donatio mortis causa . - (a) attach such conditions to the order as it thinks fit; or - (b) if it thinks fit—by the order direct that the provision shall consist of a lump sum or a periodical or other payment; or - (c) refuse to make an order in favour of any person whose character or conduct is such as, in the opinion of the court, disentitles him or her to the benefit of an order, or whose circumstances are such as make such refusal reasonable.