The following definitions apply in this Act. R.S.1973, c.T-4, s.1; 1979, c.41, s.118; 1991, c.62, s.3; 2008, c.45, s.30; 2020, c.24, s.19; 2023, c.17, s.218
“child” includes a child lawfully adopted, and an unborn child.(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 1 of the Family Law Act.
“executor” includes an administrator with the will annexed.(exécuteur testamentaire)
“judge” means a judge of The Court of King’s Bench of New Brunswick.(juge)
“order” includes suspensory order.(ordonnance)
R.S.1973, c.T-4, ss.2(1), s.4; 1991, c.62, s.3; 1997, c.8, s.1
If 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 of those 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 be made out of the estate of the deceased for the maintenance and support of the dependant or dependants.
In making an order for maintenance and support of a dependant, the judge
(a) may impose such conditions and restrictions as he or she considers fit, and
(b) may, in his or her discretion, make an order charging the whole or any portion of the estate, in such proportion and in such manner as to the judge seems proper, with payment of an allowance sufficient to provide the maintenance and support.
The judge may make an order, referred to in this Act 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. R.S.1973, c.T-4, ss.2(2); 1991, c.62, s.3
The judge may refuse to make an order in favour of any person if his or her character or conduct is such as, in the opinion of the judge, to disentitle that person to the benefit of an order under this Act. R.S.1973, c.T-4, ss.2(3)
Despite the provisions of the Devolution of Estates Act, if a person dies leaving a will but is intestate as to part of his or her estate, a judge may make an order affecting that part of the estate in respect of which the person died intestate in the same manner as if the will had provided for distribution of that part as on an intestacy. R.S.1973, c.T-4, ss.2(4); 1991, c.62, s.3
An application under this Act may be made by Notice of Application. R.S.1973, c.T-4, s.3; 1986, c.4, s.52
R.S.1973, c.T-4, ss.5(1), (2), s.12
The judge in any order making provision for maintenance and support of a dependant may impose such conditions and restrictions as he or she considers fit.
The judge may in his or her 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 the judge seems proper.
A judge may give such further directions as he or she considers fit for the purpose of giving effect to an order.
The provision for maintenance and support of a dependant 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 considers fit: R.S.1973, c.T-4, ss.5(3)
(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.
If a transfer or assignment of property is ordered, the judge R.S.1973, c.T-4, ss.5(4)
(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 directs, or
(b) may grant a vesting order.
If an order has been made under this Act, a judge at any subsequent date may R.S.1973, c.T-4, s.6
(a) inquire whether the party benefited by the order has become possessed of, or entitled to, any other provision for his or her 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 the judge considers fit in the circumstances.
At any time, a judge may 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 on the portion of the estate in which the legatee or devisee is interested, and may R.S.1973, c.T-4, s.7
(a) relieve that portion of the estate from further liability, and
(b) direct
(i) in what manner the periodic payment shall be secured, and
(ii) to whom the 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.
If an application is made and notice of the application is served on the executor or trustee of the estate of the deceased, the executor or trustee shall not, after service of the notice on him or her, proceed with the distribution of the estate until the judge has disposed of the application. R.S.1973, c.T-4, s.8; 1991, c.62, s.3
R.S.1973, c.T-4, s.9; 1991, c.62, s.3
If 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.
In estimating the weight, if any, to be attached to a statement referred to in subsection (1), 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.
R.S.1973, c.T-4, s.10; 1991, c.62, s.3
Subject to subsection (2), unless the judge otherwise determines, any provision for maintenance and support ordered shall fall rateably on the whole estate of the deceased.
In cases where the jurisdiction of the judge does not extend to the whole estate, unless the judge determines otherwise, the incidence of any provision for maintenance and support shall fall rateably on that part to which the jurisdiction of the judge extends.
The judge may relieve any part of the estate of the deceased from the application of the order.
A 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. R.S.1973, c.T-4, s.13; 1987, c.6, s.111; 1991, c.62, s.3
R.S.1973, c.T-4, s.14; 1991, c.62, s.3
A judge may, if he or she considers it just, allow an application to be made at any time as to any portion of the estate remaining undistributed on the date of the application.
If a deceased, in his or her lifetime in good faith and for valuable consideration, has entered into a contract to devise and bequeath any property real or personal and has by his or her will devised or bequeathed that property in accordance with the provisions of the contract, the 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 for it by the deceased. R.S.1973, c.T-4, s.16; 1991, c.62, s.3
No mortgage, assignment, or charge of or on an anticipated provision shall be of any force, validity or effect. R.S.1973, c.T-4, s.17
An appeal lies to the Court of Appeal from any order made under this Act. R.S.1973, c.T-4, s.18
R.S.1973, c.T-4, s.19; 1991, c.62, s.3
An 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.
A judge may make such order or direction or interim order or direction as is necessary to secure to a dependant out of the estate the benefit to which he or she is found to be entitled.