Testator's Family Maintenance Act 1912


Tasmanian Crest
Testator's Family Maintenance Act 1912

An Act to assure to the family of a deceased person a certain interest in the estate of the deceased person

[Royal Assent 6 December 1912]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1.   Short title

This Act may be cited as the Testator's Family Maintenance Act 1912 .

2.   Interpretation

[Section 2 Amended by 6 Geo. V No. 65, s. 2 ][Section 2 Amended by 25 Geo. V No. 78 ][Section 2 Amended by No. 52 of 1957, s. 2 ][Section 2 Amended by No. 46 of 1991, s. 4 and Sched. 2 ][Section 2 Amended by No. 34 of 1995, s. 4 ]
(1)  In this Act –
adopted child
(a) in the case of a child that is adopted in this State, means a child that is adopted by a person, or by a person and his spouse jointly, in accordance with the law relating to the adoption of children; or
(b) in the case of a child that is adopted elsewhere than in this State, means a child that is adopted by a person, or by a person and his spouse jointly, in accordance with the law of the State, Territory, or country where the adoption takes place, as in force at the date of the adoption;
child includes –
(a) an adopted child; and
(b) [Section 2 Subsection (1) amended by No. 31 of 2012, s. 21, Applied:01 May 2013] a stepchild; and
(c) [Section 2 Subsection (1) amended by No. 31 of 2012, s. 21, Applied:01 May 2013] a surrogate child;
Court means the Supreme Court;
[Section 2 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] spouse includes the person with whom a person is, or was at the time of his or her death, in a significant relationship, within the meaning of the Relationships Act 2003 ;
[Section 2 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] [Section 2 Subsection (1) amended by No. 38 of 2015, s. 55, Applied:13 Oct 2015]
[Section 2 Subsection (1) amended by No. 38 of 2015, s. 55, Applied:13 Oct 2015] stepchild means, in relation to a person –
(a) a child of that person's spouse; and
(b) a child whose natural parent was the spouse of that person at the time of the natural parent's death;
[Section 2 Subsection (1) amended by No. 31 of 2012, s. 21, Applied:01 May 2013] surrogate child means, in relation to another person, a person (whether or not the person has attained the age of 18 years) –
(a) who is a child of the other person by virtue of the operation of section 26(1) of the Surrogacy Act 2012 , or a law, of another State or a Territory or a foreign country, that corresponds to that Act; and
(b) who has not ceased to be a child of the other person under that Act or law;
[Section 2 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] [Section 2 Subsection (1) amended by No. 66 of 1997, Sched. 1, Applied:01 Feb 1998]
[Section 2 Subsection (1) amended by No. 66 of 1997, Sched. 1, Applied:01 Feb 1998] will includes a codicil and a nomination made in accordance with the rules of a society within the meaning of the Friendly Societies (Tasmania) Code.
(2)  [Section 2 Subsection (2) substituted by No. 38 of 2015, s. 55, Applied:13 Oct 2015] For the avoidance of doubt, the definition of stepchild, as substituted by the Justice and Related Legislation (Miscellaneous Amendments) Act 2015, does not apply in respect of a claim against the estate of a person whose death occurred before the commencement of that Act.
(3)  [Section 2 Subsection (3) inserted by No. 34 of 1995, s. 4 ][Section 2 Subsection (3) omitted by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] .  .  .  .  .  .  .  .  
(4)  [Section 2 Subsection (4) inserted by No. 34 of 1995, s. 4 ][Section 2 Subsection (4) omitted by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] .  .  .  .  .  .  .  .  
(5)  [Section 2 Subsection (5) inserted by No. 34 of 1995, s. 4 ][Section 2 Subsection (5) omitted by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] .  .  .  .  .  .  .  .  

3.   Claims for maintenance against estate of deceased person

[Section 3 Substituted by No. 52 of 1957, s. 3 ]
(1)  If a person dies, whether testate or intestate, and in terms of his will or as a result of his intestacy any person by whom or on whose behalf application for provision out of his estate may be made under this Act is left without adequate provision for his proper maintenance and support thereafter, the Court or a judge may, in its or his discretion, on application made by or on behalf of the last-mentioned person, order that such provision as the Court or judge, having regard to all the circumstances of the case, thinks proper shall be made out of the estate of the deceased person for all or any of the persons by whom or on whose behalf such an application may be made, and may make such other order in the matter, including an order as to costs, as the Court or judge thinks fit.
(2)  In addition to, and without prejudice to, any other powers conferred on the Court or a judge by subsection (1) of this section, the Court or judge may order that the provision to be made out of the estate of the deceased person shall consist of –
(a) the payment to the applicant of a lump sum;
(b) a life interest or any lesser interest in any dwelling-house belonging to that estate; or
(c) a life interest or any lesser interest in a dwelling-house that the Court or judge may order to be purchased for occupation by the applicant –
and may, in any case, order that that provision shall be made upon and subject to such terms and conditions, if any, as the Court or judge may think desirable in the circumstances of the case.
(3)  For the purposes of paragraph (c) of subsection (2) of this section, the Court or judge may, notwithstanding any provision or direction to the contrary in the will of a deceased person, order that any moneys belonging to or forming part of the estate of that person shall be expended in the purchase of the fee simple of any real property.
(4)  Where an application under subsection (1) of this section is made by or on behalf of any person, the Court or a judge may order that it shall be regarded as an application on behalf of all persons who are entitled under this Act to make such an application, and if the Court or a judge so orders, the application shall, for the purposes of section eleven , be treated as an application made by all of those persons.
(5)  The executor or administrator of the estate of a deceased person, on behalf of a person who is entitled to make an application under subsection (1) of this section and who is not of full age or mental capacity, may –
(a) make an application under that subsection; or
(b) apply to the Court or a judge for directions as to whether he should make an application under that subsection –
and, in the latter case, the Court or judge may treat the application for directions as an application under that subsection on behalf of that person.

3A.   Persons entitled to claim under this Act

[Section 3A Inserted by No. 52 of 1957, s. 3 ][Section 3A Amended by No. 34 of 1995, s. 5 ]An application under subsection (1) of section three for provision out of the estate of a deceased person may be made by or on behalf of all or any of the following persons, that is to say:
(a) [Section 3A Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] The spouse of the deceased person;
(b) The children of the deceased person;
(c) [Section 3A Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] The parents of the deceased person, if the deceased person dies without leaving a spouse or any children;
(d) A person whose marriage to the deceased person has been dissolved or annulled and who at the date of the death of the deceased person was receiving or entitled to receive maintenance from the deceased person whether pursuant to an order of a court, or to an agreement or otherwise; and
(e) [Section 3A Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] A person whose significant relationship, within the meaning of the Relationships Act 2003 , with the deceased person had ceased before the date of the death of the deceased person and who was receiving or entitled to receive maintenance from the deceased person whether pursuant to an order of a court or to an agreement or otherwise.

4.   Application by summons in chambers

(1)  [Section 4 Subsection (1) amended by No. 52 of 1957, s. 4 ]Every such application shall be made by summons in chambers, entitled "In the matter of the Testator's Family Maintenance Act 1912 , and in the matter of the estate of _______ deceased".
(2)  [Section 4 Subsection (2) substituted by No. 52 of 1957, s. 4 ]A summons under this section shall be served on –
(a) the executor of the will of the deceased person or the person to whom letters of administration with the will annexed have been granted, or, in the case of an intestate estate, the administrator of that estate; and
(b) such other persons as the Court or a judge may direct to be served therewith.
(3)  The judge may, if he thinks fit, adjourn such summons into Court.

5.   

[Section 5 Repealed by No. 52 of 1957, s. 5 ]

6.   Powers of Court or judge

[Section 6 Amended by No. 52 of 1957, s. 9 and Sched. 1 ]At the hearing of such application the Court or judge shall inquire fully into the estate of the deceased person, and for that purpose may –
(a) summon and examine the persons who are entitled to make an application under this Act, or such of them as the Court or judge may think it desirable to examine, and also such witnesses as may be necessary; and
(b) require the executor or person applying for probate or letters of administration to furnish full particulars of the estate.

7.   Court or judge to consider net estate and means of widow or child

[Section 7 Amended by 25 Geo. V No. 78 ][Section 7 Amended by No. 52 of 1957, s. 9 and Sched. 1 ]In granting or refusing any such application, and in fixing the amount of the provision to be made under this Act for any person who is entitled to make an application under subsection (1) of section three, the Court or judge shall have regard, inter alia, to –
(a) the net value only of the estate of the deceased person, as ascertained by deducting from the gross value thereof all debts, testamentary and funeral expenses, and all other lawful liabilities to which the said estate is subject; and
(b) whether any such person is entitled to independent means, whether secured by any covenant, settlement, transfer, or other provision made by the deceased person during his life or derived from any other source whatsoever.

8.   Cases in which Court or judge may refuse application

(1)  The Court or judge may refuse any such application if the character or conduct of any person by or on behalf of whom the application is made is such as in the opinion of the Court or judge should disentitle him or her to the benefit of any provision under this Act.
(2)  The Court or judge in making any order under this Act may impose such conditions, restrictions, and limitations, whether to prevent, restrict, or defeat any alienation or charge of or upon the benefit of any provision made under such order or otherwise, as the Court or judge may think fit.
(3)  [Section 8 Subsection (3) added by 25 Geo. V No. 78 ][Section 8 Subsection (3) amended by No. 52 of 1957, s. 9 and Sched. ][Section 8 Subsection (3) omitted by No. 36 of 1974, s. 12 and Sched. 1 ].  .  .  .  .  .  .  .  

8A.   Evidence as to deceased's reasons for dispositions

[Section 8A Inserted by No. 52 of 1957, s. 6 ]
(1)  On the hearing of an application under subsection (1) of section three, the Court or judge may have regard to the deceased person's reasons, so far as they are ascertainable, for making the dispositions made by his will, or for not making any provision or further provision, as the case may be, for any person, and the Court or judge may accept such evidence of those reasons as it or he considers sufficient, whether that evidence would otherwise be admissible in a court of law or not.
(1A)  [Section 8A Subsection (1A) inserted by No. 68 of 1995, s. 13, Applied:01 Sep 1997] [Section 8A Subsection (1A) substituted by No. 58 of 2008, Sched. 1, Applied:01 Mar 2009] Where an application under section 3(1) relates to a will made under Part 3 of the Wills Act 2008 by the Guardianship and Administration Board or the Court, the Court or judge may have regard to the records of the Board or Court relating to the person for whom the will was made and the reasons given by the Board or Court for making an order authorising the making or alteration of a will in specific terms.
(2)  Nothing in this section shall be construed as restricting the evidence that is admissible, or the matters that may be taken into account, on the hearing of an application under subsection (1) of section three.

9.   Contents of order

(1)  [Section 9 Subsection (1) amended by 25 Geo. V No. 78 ][Section 9 Subsection (1) amended by No. 52 of 1957, s. 7 ]Every order under this Act making provision for any person shall specify, inter alia
(a) the amount and nature of such provision;
(b) the manner in which such provision shall be made; or be raised or paid, out of some, and what, part of the estate of the deceased person;
(c) how and by whom the burden of any such provision shall be borne; and
(d) any conditions, restrictions, or limitations imposed by the Court or judge.
(2)  [Section 9 Subsection (2) amended by No. 52 of 1957, s. 7 ]The Court or judge shall in every case in which provision is made under this Act direct that a certified copy of such order be made upon the probate of the will or letters of administration, with the will annexed, of the estate of the deceased person, or, as the case may be, upon the letters of administration of the estate of the deceased person, and for that purpose shall retain such probate or letters until such copy is made.
(3)  [Section 9 Subsection (3) substituted by No. 52 of 1957, s. 7 ]Subject to this Act, every provision made under this Act operates and takes effect –
(a) in the case of the estate of a person who dies testate, as if it had been made by a codicil to the will of the deceased person executed immediately before his death; or
(b) [Section 9 Subsection (3) amended by No. 19 of 2010, s. 52, Applied:01 Jan 2011] in the case of the estate of a person who dies intestate, as a modification of the provisions of the Intestacy Act 2010 .
(4)  [Section 9 Subsection (4) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] [Section 9 Subsection (4) added by No. 52 of 1957, s. 7 ]If in the opinion of the Court or a judge it is desirable so to do, having regard to all the circumstances of the case, the Court or judge may, in any order under this Act making provision for the spouse of a deceased person, direct that that provision shall operate for the benefit of the spouse notwithstanding that he or she may, at any time after the making of the order, remarry or enter into a significant relationship, within the meaning of the Relationships Act 2003 .
(5)  [Section 9 Subsection (5) added by No. 52 of 1957, s. 7 ][Section 9 Subsection (5) amended by No. 57 of 1970, s. 2 ]The Court or a judge may, at any time, on the application of the executor or administrator of the estate of a deceased person or of any person who is beneficially entitled to, or interested in, any part of that estate –
(a) rescind any order making any provision under this Act out of that estate or any part thereof; or
(b) alter any such order by increasing or reducing the amount of any provision made thereby or by varying such order in such manner as the Court or judge thinks proper.
(5A)  [Section 9 Subsection (5A) inserted by No. 57 of 1970, s. 2 ]The Court or a judge shall not, in the exercise of the power conferred on it or him by paragraph (b) of subsection (5) of this section, alter an order under this Act so as to disturb a distribution of any part of the estate that was lawfully made before the making of the application for the alteration.
(6)  [Section 9 Subsection (6) added by No. 52 of 1957, s. 7 ]A person who makes an application under subsection (5) of this section shall cause notice of the application to be served on all persons taking any benefit under the order sought to be rescinded or altered.
(7)  [Section 9 Subsection (7) added by No. 52 of 1957, s. 7 ]Upon an order being made under this Act, the portion of the estate comprised therein or affected thereby shall be held subject to the provisions of the order.

10.   Provision for class fund

[Section 10 Substituted by No. 52 of 1957, s. 8 ]
(1)  Without prejudice to the powers conferred on the Court or a judge under any other provision of this Act, the Court or a judge may order that any amount specified in an order made on an application under subsection (1) of section three shall be set aside out of the estate to which the order relates and held on trust as a class fund for the benefit of two or more persons specified in the order (being persons who are entitled under section three A to make an application under that subsection).
(2)  Where an amount is ordered to be held on trust as a class fund for any persons, pursuant to this section, that amount shall be invested, and the trustee may –
(a) in his discretion but subject to such directions and conditions as the Court or judge may give or impose, apply the income and capital of that amount, or so much thereof as the trustee from time to time thinks fit, for or towards the maintenance or education (including past maintenance or education provided after the death of the deceased person), or the advancement or benefit, of those persons or of any one or more of them to the exclusion of the other or others of them, in such shares and proportions, and generally in such manner, as the trustee thinks fit; and
(b) so apply the income and capital of that amount notwithstanding that only one of those persons remains alive.
(3)  For the purposes of this section, the expression trustee means the executor or administrator of the estate of the deceased person unless the Court or judge appoints any other trustee (whether by the order creating the class fund or subsequently), in which case it means the trustee so appointed.
(4)  If the trustee is not the executor or administrator of the estate of the deceased person, the Court or judge may give such directions as it or he thinks fit relating to the payment to the trustee of the amount that is to be held on trust as a class fund, and may exercise any power conferred on the Court by section forty-seven of the Trustee Act 1898 , either on the creation of the class fund or at any time during the continuance of the trusts thereof.

10A.   Incidence of payments ordered

[Section 10A Inserted by No. 52 of 1957, s. 8 ]
(1)  The incidence of any payment directed to be made by an order under this Act shall, unless the Court or a judge otherwise orders, fall ratably upon the whole estate of the deceased person, or, where the authority of the Court does not extend or cannot be made to extend to the whole estate, ratably upon such part of the estate as is subject to the authority of the Court.
(2)  The Court or a judge may exonerate any part of the estate of a deceased person from the incidence of an order under this Act, after hearing such of the parties who may be affected by the exoneration as the Court or judge thinks necessary, and may, for that purpose, direct any executor or administrator to represent, or appoint any person to represent, any of those parties.
(3)  The Court or a judge may, at any time, fix a periodical payment or lump sum to be paid by any beneficiary in the estate of the deceased person 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 that beneficiary is interested, and may exonerate that portion from further liability, and may direct in what manner the periodical payment shall be secured, and 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 is payable.

10B.   Adjustment of estate duty

[Section 10B Inserted by No. 52 of 1957, s. 8 ]For the purpose of apportioning the duty payable on the estate of a deceased person, any provision directed to be made by an order under this Act shall –
(a) if the deceased person died testate, be deemed to be a bequest made by the deceased person by a codicil executed immediately before his death; or
(b) if the deceased person died intestate, be deemed to be a bequest made by the deceased person as if effected by a will made by him immediately before his death.

11.   Time within which application to be made

(1)  [Section 11 Subsection (1) amended by 6 Geo. V No. 65, s. 6 ][Section 11 Subsection (1) amended by 25 Geo. V No. 78 ][Section 11 Subsection (1) amended by No. 46 of 1954, s. 3 and Sched. 2 ][Section 11 Subsection (1) amended by No. 52 of 1957, s. 9 and Sched. 1 ]Except as provided by subsection (2) of this section, the Court or judge shall have no jurisdiction to hear any application, or to make any order under this Act, unless the summons hereinbefore mentioned be taken out before or not later than three months after the date of grant of probate of the will of the deceased person, or letters of administration of the estate of the deceased person, as the case may be.
(2)  [Section 11 Subsection (2) added by No. 46 of 1954, s. 3 and Sched. 2 ]Notwithstanding anything in subsection (1) of this section, upon application being made in that behalf by a person claiming the benefit of this Act, the Court or a judge may, after hearing such of the persons affected or likely to be affected by that application as it or he may think fit, extend the time limited by that subsection for the taking out of a summons for such further period as the Court or judge may think necessary.
(3)  [Section 11 Subsection (3) added by No. 46 of 1954, s. 3 and Sched. 2 ]The powers conferred on the Court or a judge by subsection (2) of this section may be exercised notwithstanding that the time limited by subsection (1) of this section for the taking out of a summons may have expired (whether that time expired or expires before or after the commencement of this subsection).
(4)  [Section 11 Subsection (4) added by No. 46 of 1954, s. 3 and Sched. 2 ]An application under subsection (2) of this section shall be made before the final distribution of the estate of the deceased person, and no distribution of any part of the estate made before the making of an application under that subsection shall be disturbed by reason of that application or of any order made thereon or in consequence thereof.