Division 4 General provisions relating to family provision orders
(cf FPA 11 (1) (a) and (d))
(1) A family provision order must specify:(a) the person or persons for whom provision is to be made, and(b) the amount and nature of the provision, and(c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and(d) any conditions, restrictions or limitations imposed by the Court.(2) A family provision order may require the provision to be made in one or more of the following ways:(a) by payment of a lump sum of money,(b) by periodic payments of money,(c) by application of specified existing or future property,(d) by way of an absolute interest, or a limited interest only, in property,(e) by way of property set aside as a class fund for the benefit of 2 or more persons,(f) in any other manner the Court thinks fit.(3) If provision is to be made by payment of an amount of money, the family provision order may specify whether interest is payable on the whole or any part of the amount payable for the period, and, if so, the period during which interest is payable and the rate of the interest.
66 Consequential and ancillary orders
(cf FPA 15 (1), 34)
(1) The Court may, in addition to, or as part of, a family provision order, make orders for or with respect to all or any of the following matters for the purpose of giving effect to the family provision order:(a) the transfer of property of the estate directly to the eligible person in whose favour the order is made, or to any other person as trustee for that person,(b) where property is to be held on trust, the purpose of the trust and the way in which it is to be constituted,(c) the appointment of a trustee of property of the estate,(d) the powers and duties of a trustee of property of the estate, including any trustee constituted or appointed under this section,(e) the vesting in any person of property of the estate,(f) the exercise of a right or power to obtain property for the estate,(g) the sale of or dealing with property of the estate,(h) the disposal of the proceeds of any sale or other realising of property of the estate,(i) the securing, either wholly or partially, of the due performance of an order under this Part,(j) the management of the property of the estate,(k) the execution of any necessary conveyance, document or instrument, the production of documents of title or the doing of such other things as the Court thinks necessary in relation to the performance of the family provision order,(l) any other matter the Court thinks necessary.(2) The Court may make such additional orders as it considers necessary to adjust the interests of any person affected by a family provision order and to be just and equitable to all persons affected by the order.(3) The execution of an instrument relating to property in the notional estate of a deceased person pursuant to an order under this section is not liable to duty under the Duties Act 1997.
67 Undertakings to restore property
(cf FPA 18)
(1) The Court may make a family provision order subject to a condition that the eligible person in whose favour the order is made is to enter into an undertaking, or give security, that, if the order is revoked because the deceased person was not deceased when the order was made, the person will restore any property received under the order, or otherwise make restitution, in accordance with any order of the Court made on the revocation.(2) In this section:deceased person means the person (whether or not deceased) from whose estate a family provision order is made.
68 Payment for exoneration from liability for orders
(1) The Court may, as part of a family provision order, or at any time, on the application of a beneficiary of the estate of a deceased person, by order:(a) fix a periodic payment or lump sum payable by a beneficiary of an estate affected by a family provision order to represent the proportion of the property in the estate affected by the family provision order that is borne by the beneficiary’s portion of the estate, and(b) exonerate the beneficiary’s portion of the estate from any further liability under the family provision order, on condition that payment is made as directed by the Court.(2) Without limiting subsection (1), in making any order under this section, the Court may do any of the following:(a) specify the person to whom the payment or lump sum is to be paid,(b) specify how any periodic payment is to be secured,(c) specify how any lump sum is to be invested for the benefit of any proposed beneficiary.Note. Section 92 enables the Court to replace property in the estate or notional estate of a deceased person that has been, or is proposed to be, affected by a family provision order with property offered in substitution for the affected property.
69 Effect of order vesting property in estate
(cf FPA 15 (2))
The provisions of sections 78 (except subsection (1)) and 79 of the Trustee Act 1925 apply to and in relation to an order under section 66 for the vesting of property in a person in the same way as they apply to and in relation to a vesting order referred to in those provisions and, in the case of section 78 (2) of that Act, as if the provisions of section 66 and the other provisions of this Act relating to the making of orders under this Act were contained in Part 3 of that Act.
70 Variation and revocation of family provision orders
(cf FPA 19 (1)–(3) and 20 (4))
(1) A family provision order may be varied or revoked by the Court only in accordance with this Chapter.(2) The Court may, by order, vary or revoke a family provision order so as to allow provision to be made in favour of another eligible person wholly or partly from all or any property affected by the order.(3) The Court must not vary or revoke a family provision order so as to allow provision to be made in favour of another eligible person unless that person shows sufficient cause for not having applied for a family provision order before the order sought to be varied or revoked was made.(4) A family provision order is revoked if the grant of administration in respect of the estate of the deceased person is revoked or rescinded, unless the Court otherwise provides when revoking or rescinding the grant.Note. The Court may also vary a family provision order under sections 62 and 92.
71 Variation and revocation of other orders
(cf FPA 19 (4))
If a family provision order is varied or revoked, the Court may:(a) vary or revoke any other orders made by it as a consequence of, or in relation to, the order to such extent as may be necessary as a result of the variation or revocation, and(b) make such additional orders as may be so necessary.
72 Effect of family provision order
(cf FPA 14 (1))
(1) A family provision order takes effect, unless the Court otherwise orders, as if the provision was made:(a) in a codicil to the will of the deceased person, if the deceased person made a will, or(b) in a will of the deceased person, if the deceased person died intestate.(2) Without limiting subsection (1), the Court may at the time of distribution of an estate that is insufficient to give effect to a family provision order make such orders concerning the abatement or adjustment of distributions from the estate as between the person in whose favour the family provision order is made and the other beneficiaries of the estate as it considers to be just and equitable among the persons affected.
(1) This Part applies to interim family provision orders in the same way as it applies to family provision orders.(2) This Part (other than section 63) applies to property designated as part of the notional estate of a deceased person in the same way as it applies to property that is part of the estate of a deceased person.