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1In this Act

“child” includes a child lawfully adopted, and also a child en ventre sa mère;(enfant)

“dependant” means(personne à charge)

(a) the spouse or child of the deceased, and

(b) any other person who is, at the time of the deceased’s death, a dependant of the deceased as defined in section 111 of the Family Services Act;

“executor” includes an administrator with the will annexed;(exécuteur testamentaire)

“judge” means a judge of The Court of Queen’s Bench of New Brunswick;(juge)

“order” includes suspensory order.(ordonnance)

1959, c.14, s.1; 1979, c.41, s.118; 1991, c.62, s.3; 2008, c.45, s.30

Respecting maintenance orders

2(1)Where a person dies and is survived by a dependant or dependants whose resources, taking into consideration everything to which the dependant or dependants are entitled under a will, on intestacy or otherwise on the death of the deceased, are not sufficient to provide adequately for the dependant or dependants, a judge on application by or on behalf of any or all such dependants, may, in the judge’s discretion and taking into consideration all the circumstances of the case, order that such provision as the judge considers adequate shall be made out of the estate of the deceased for the maintenance and support of the dependant or dependants.

Repealed

2(1.1)Repealed: 1997, c.8, s.1

Repealed

2(1.2)Repealed: 1997, c.8, s.1

Suspensory order respecting deceased’s estate

2(2)The judge may make an order, herein referred to as a suspensory order, suspending in whole or in part the administration of the deceased’s estate, to the end that application may be made at any subsequent date for an order making specific provision for maintenance and support.

Respecting maintenance orders

2(3)The judge may refuse to make an order in favour of any person if his character or conduct is such as, in the opinion of the judge, to disentitle him to the benefit of an order under this Act.

Where person dies leaving a will but is intestate as to part of estate

2(4)Notwithstanding the provisions of the Devolution of Estates Act, where a person dies leaving a will but is intestate as to part of his estate, a judge may make an order affecting that part of his estate in respect of which he died intestate in the same manner as if the will had provided for distribution of that part as on an intestacy.

1959, c.14, s.2; 1991, c.62, s.3; 1997, c.8, s.1

Application by notice of application

3An application under this Act may be made by notice of application.

1959, c.14, s.3; 1986, c.4, s.52

Respecting maintenance orders

4The judge in making an order for maintenance and support of a dependant, may impose such conditions and restrictions as he deems fit; and may, in his discretion, make an order charging the whole or any portion of the estate, in such proportion and in such manner as to him seems proper, with payment of an allowance sufficient to provide such maintenance and support.

1959, c.14, s.4

Respecting maintenance orders

5(1)The judge in any order making provision for maintenance and support of a dependant may impose such conditions and restrictions as he deems fit.

Respecting maintenance orders

5(2)The judge may in his discretion order that the provision for maintenance and support be made out of and charged against the whole or any portion of the estate in such proportion and in such manner as to him seems proper.

Transfer or assignment of property of estate

5(3)Such provision may be made out of income or corpus or both and may be made in one or more of the following ways, as the judge deems fit:

(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 to or for the benefit of the dependant.

Transfer or assignment of property of estate

5(4)Where a transfer or assignment of property is ordered, the judge

(a) may give all necessary directions for the execution of the transfer or assignment by the executor or administrator or such other person as the judge may direct, or

(b) may grant a vesting order.

1959, c.14, s.5

Powers of judge subsequent to making of order

6Where an order has been made under this Act a judge at any subsequent date may

(a) inquire whether the party benefited by the order has become possessed of, or entitled to, any other provision for his proper maintenance or support,

(b) inquire into the adequacy of the provision ordered, and

(c) discharge, vary, or suspend the order, or make such other order as he deems fit in the circumstances.

1959, c.14, s.6

Power of judge respecting periodic or lump sum payments

7A judge at any time may

(a) fix a periodic payment or lump sum to be paid by any legatee or devisee 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 he is interested,

(b) relieve such portion from further liability, and

(c) direct

(i) in what manner such periodic payment shall be secured, and

(ii) 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.

1959, c.14, s.7

Duty of trustee or executor after notice of application

8Where an application is made and notice thereof is served on the executor or trustee of the estate of the deceased, he shall not, after service of the notice upon him, proceed with the distribution of the estate until the judge has disposed of the application.

1959, c.14, s.8; 1991, c.62, s.3

Evidence

9Where the deceased has left a will, the judge may accept such evidence as the judge considers proper of the deceased’s reasons as far as ascertainable, for making the dispositions made by the deceased’s will, or for not making provision or further provision as the case may be, for a dependant, including any statement in writing signed by the deceased, and in estimating the weight, if any, to be attached to such statement, 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.

1959, c.14, s.9; 1991, c.62, s.3

Provision for maintenance and support to fall rateably upon whole estate

10The incidence of any provision for maintenance and support ordered shall, unless the judge otherwise determines, fall rateably upon the whole estate of the deceased, or, in cases where the jurisdiction of the judge does not extend to the whole estate, then to that part to which the jurisdiction of the judge extends, and the judge may relieve any part of the estate of the deceased from the incidence of the order.

1959, c.14, s.10; 1991, c.62, s.3

Succession duties

11Repealed: 1991, c.62, s.3

1959, c.14, s.11; 1991, c.62, s.3

Respecting maintenance orders

12A judge may give such further directions as he deems fit for the purpose of giving effect to an order.

1959, c.14, s.12

Filing of order with registrar

13A certified copy of every order made under this Act shall be filed with the clerk of The Probate Court of New Brunswick for the judicial district in which the letters probate, letters of administration or letters of administration with the will annexed were issued, and a memorandum of the order shall be endorsed on or annexed to the copy of the original letters probate, letters of administration or letters of administration with the will annexed in the custody of the clerk.

1959, c.14, s.13; 1987, c.6, s.111; 1991, c.62, s.3

Limitation of actions

14(1)Subject to subsection (2), no application for an order under section 2 may be made except within four months after the death of the deceased.

14(2)A judge may, if he 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.

1959, c.14, s.14; 1991, c.62, s.3

Scope of application

15Where an application for an order under section 2 is made by or on behalf of any dependant,

(a) it may be dealt with by the judge as, and

(b) in so far as the question of limitation is concerned it shall be deemed to be

an application on behalf of all persons who might apply.

1959, c.14, s.15

Contracts of testator

16Where a deceased, in his lifetime bona fide and for valuable consideration, has entered into a contract to devise and 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 judge exceeds the consideration received by the deceased therefor.

1959, c.14, s.16; 1991, c.62, s.3

Effect of mortgage, assignment or charge

17No mortgage, assignment, or charge of any kind of or upon an anticipated provision shall be of any force, validity or effect.

1959, c.14, s.17

Appeal

18An appeal lies to the Court of Appeal from any order made under this Act.

1959, c.14, s.18

Enforcement of order

19An order or direction made under this Act may be enforced against the estate of the deceased in the same way and by the same means as any other judgment or order of the Court against the estate may be enforced; and a judge may make such order or direction or interim order or direction as may be necessary to secure to the dependant out of the estate the benefit to which he is found to be entitled.

1959, c.14, s.19; 1991, c.62, s.3

N.B. This Act is consolidated to March 1, 2013.

P-22.3 - Provision for Dependants Act

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