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Wills and probate lecture 5 and 6

COMMON PROBLEMS IN PROBATE APPLICATIONS

NB: The following acronyms: PAA = Probate and Administration Act, EDA = Estate Duty Act, Intestate
Succession Act = ISA, Inheritance (Family Provisions) Act = I(FP)A

OUTLINE

(i) Liability of Accountable Persons


(ii) Applicability of Intestate Succession Act
(iii) Specific Problems in Probate Applications:
· Insurance
· Shares in Limited Companies
· Accident Claims
· Problems relating to the Will
· Miscellaneous Assets
(iv) Conflict of Laws
· Assets outside Jurisdiction
· Estate Duty payable on Assets Outside Jurisdiction
· Assets within Jurisdiction belonging to Persons of other Nationalities
(v) Income Tax
(vi) Intestacy despite availability of Will
(vii) Issues pursuant to Inheritance (Family Provisions) Act
(viii) Required number of Trustees
(ix) Summarised procedure for extracting Grant of Probate

Valuation of Assets

1. Bank accounts
- If fixed deposit, clear how much cash there is – write to banks, CPF board, POSB, asking for letters of
confirmation

2. Stock/Shares in Public Listed Companies

In determining the value of such shares one would take the previous day’s1 prices. The method normally used is
the quartering up method. This is set out below:

(Selling Price – Buying Price) ÷ 4 + Buying Price

Or just write to registrar of comp on stock exchange for probate value of shares on partr day in qn

Public listed companies:


- Shares easy to calc. Values of shares published everyday in ST except Sunday and Monday; Tues to sat –
there will be reports of transactions in shares

- diff fig – oen set sowing how much buyer offering, another how much seller is asking for seling shares
o buyer’s bid lower than seller’s bid
o shares calc by taking highest bid fr seller and lowest bid to buy made by a prospective 0urchaser
o subtract lower amt fr higher amount – the difference
o divide this by 4
o add to the lowest bid by buyer
o this is the price which esttae duty will take as being the value of that artr share traded on the day
tt the deceased passed away
o if no news ppr copy of the day of the death, then the day AFTER the death (figures are published
the next day)
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i.e. the day before the death of the deceased.

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o or just write to SEX of sg and ask them value of shre in qn traded oin the date of death – fee
payable – abt $20 to get the info

3. Sole proprietorships/ public companies/ partnerships


- but sp and partnerships – value of shares depends on performance. Look at accounts to establish the value of
any partr item

4. Shares in a Private Company

- Restricted membership.
- Need balance sheets and profit and loss accts for at lesast 3 yrs preceding death of shr whose ahares
being valued

One would look at the following factors when determining the value of such shares:

a) Paid up capital of the company


b) Capital Reserves – the undistributed profits of comp over last few yrs
c) Net profit for the last years which was carried forward to the balance sheet
d) Goodwill of the company*
(*) Derived by calculating average of 3 years’ profit/ loss before death

Add (a) – (d) up and divide by the total of issued shares ( not authorised shares). One would normally make
provisions for the immarketability of the shares and would divide such a total by a factor of between 20-25%.

Valuation of shares in a Private Company


[Net Asset Valuation Method (NAV Method)]

Add

i) Issued and paid up capital (fully paid up shares) $50,000

ii) Reserve capital (Part of profits of the company – not yet spent
set aside for future use)( – may be later issued as bonus shares) $20,000

iii) Surplus of profits carried from profit and loan account


to the balance sheet $10,000

iv) Average of 3 years profit as goodwill immediately


proceeding the death of the deceased (referred to as gdwill) $30,000
depends on person carrying out the business.
Every comp will have gdwill
(If negative entry, don’t add but take away)

Total: $110,000

The total to be divided by issued and paid up shares (e.g. 50,000)

The quotient – value per share - is about $2.20. As the shares in private limited companies is not marketable,
discount of abt 15 to 20 or 25 % normally grantd by commr to acct for non marketability oif shares.
existing shareholders have right of pre-emption.

The commissioner may or may not give you a discount (e.g. 20%). But only if you are a minority shareholder. If
20 percent discout given, net value for estae duty prupses wld be 1.76 -

2.20/100 multiply by 20 = 0.44


2.20-0.44 (the amt decductable fr value of shares.) =$1.76 cents at the end

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This method is accetalbe to commr of estate duties. Adopted by most acctants. Knwn as net asset valuation
method.

Two other ways – price earnings ratio/ yield method (how mch comp can make by way of profits)

Note:
- 80 pecent shr and 20 percent shr.
- Maj shr will have higher value for his shares – because can dictate comp policy with mahj shrholding
- Go to item 4 immed – 3 yrs balance sheet of proft and loss acct –commr will then work out value of shares
and amt of estae duty payable
- If z agree with commr’s decision, can appeal by fiing OS in HC – see proced in act itself. Higher deductin
may be allowed

5. jewellery, antiques, cars etc


- write to those competent to assess
- valuer/ registrar of vehicles/ jeweller

Value of assets payable


- value of assets is tt prevailing at date of deceased’s death, not tt of payment of estate duty
++> then extract grant of letters of repn

SPECFIC PROBLEMS

1. Insurance policies

 s61 Insurance Act states that payment of policy moneys may be made to a proper claimant before grant of
probate.

Payment of life policy and personal accident claims without probate, etc.
61. —
(1) In any case where the policy owner of any life policy or personal accident policy of an insurer dies, and
the policy moneys are payable thereunder on his death, the insurer may make payment to any proper
claimant a prescribed amount of the policy moneys of all such policies issued by the insurer on the
deceased’s life without the production of any probate or letters of administration; and the insurer shall be
discharged from all liability in respect of the amount paid.

(6) In this section —


(a) “policy owner” includes a part owner of a policy;
(b) “proper claimant” means a person who claims to be entitled to the sums in question as executor of the
deceased, or who claims to be entitled to that sum (whether for his own benefit or not) and is the widower,
widow, parent, child, brother, sister, nephew or niece of the deceased.
 Proper claimant
 Payment has to be made to the proper claimant.
 Next closest kin and personal representative.
 Personal representatives can ask insurers to release monies

 Prescribed Amount
 No definition. To determine prescribed amount, refer to Regulation 28
 Depends on how much the policy is worth; but insurer can release up to $150k without grant of
probate.

Insurance Regulations Cap. 142, Regulation 1

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Payment of policy claims without probate
28. For the purposes of section 61 of the Act, $150,000 is prescribed as the amount of life and personal
accident policy moneys which may be paid without probate or letters of administration or without having
been included in a schedule or certificate under section 44 (2) of the Estate Duty Act (Cap. 96).

2. Shares in Limited Company

 Shares are usually kept at the Central Depositary (CDP).


 Clients are required to turn up at the CDP and personal rep required to personally submit relevant
application forms to register themselves as legal owners.
 If will directs that shares be given to a certain beneficiary (given beneficiary interest to named person), the
beneficiary has to have a CDP Account no. for the shares to be transferred to.
 If the beneficiary does not have a CDP a/c no. it is mandatory for them to open an account with the CDP in
order to gain the beneficiary interest.

3. Accident Claims (Motor/Industrial Accidents)

 Accident claims (amount paid by way of damages) forms the assets of the deceased.
 Widow cannot commence action without grant of representation (collective term for letters of probate and
letters of administration); which cannot be obtained without payment of estate duty.
 s30(3) EDA serves as remedy as it allows:
 Filing an estate return without mentioning the amount of damages payable.
 However have to give details of damages and estimated amount of the claims.

Liability of executor
s30 (3) Where the executor does not know the amount or value of any property which has passed on the
death, he may state in the estate duty return that —
(a) such property exists, but that he does not know the amount or value thereof; and
(b) he undertakes as soon as the amount and value are ascertained, to bring in an account thereof, and
to pay both the duty for which he is or may be liable, and any further duty payable by reason
thereof for which he is or may be liable in respect of the other property mentioned in the return.

 Widow can however commence action as the deceased’s personal representative suing as executrix in
testate cases.
 Commence action without grant however grant required at the time of hearing. Widow is ∴ able to
postpone payment of estate duties via s30(3) EDA by undertaking to pay the amount once damages are
awarded to obtain grant.

4. Problems relating to the Will

4.1 Original Will Missing


 Usually not acceptable for a photocopy or a signed duplicate of the will to be tendered Ord 71 r 7(1).
 Only common situation in which probate of a copy of a will may be granted is under s11 PAA which states
that the will has been proved in a non-Singaporean court and a properly authenticated copy of the will is
produced.
 Application under Ord 71 r46 required if desired to obtain probate of anything other than the original will.
Application by way of an originating summons supported by an affidavit.

4.2 Will in Other Languages


 English translation of the will should be annexed to the original and every copy that is filed in the court.
 Ord 71 r7(2) states that the English translation should be:
(a) certified by a court interpreter; or
(b) verified by the affidavit of a person qualified to translate it.

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5. Other assets

 Procedure required to distribute other specific assets:

(i) Money in bank; fixed accounts


 Send letter of grant and order (retain duplicate) to the bank in order to deal with asset.

(ii) Landed Property


 Lodge Certified True Copy of Grant sealed with the seal of the court with the Land Registry.
 Ensure that estate duty is already paid to minimize the anxiety of prospective purchaser.

6. Miscellaneous issues
 Ensure that there is individual requisition of grant of representation.
 Also ensure that proper receipt received from beneficiary: that his share has been distributed and that there
are no further claims.

CONFLICT OF LAWS

1. Assets outside Singapore

(a) Movable Assets


 s4 ISA: Distribution of movable property would depend on the law of domicile of the deceased.
 Law of domicile (lex domicilii): nexus deceased has with the particular country, which country did the
deceased treat as his home. Person cannot be domiciled in more than 1 country.
 ∴ for persons domiciled in Singapore, if they die intestate, their movable assets will be distributed
according to Intestate Succession Act.

(b) Immovable assets


 Immovable assets outside Singapore will be distributed according to the law of the country where the
landed property is located. (lex situs)

Intestate Succession Act

Law regulating distribution.


4. —
(1) The distribution of the movable property of a person deceased shall be regulated by the law of the
country in which he was domiciled at the time of his death.

(2) The distribution of the immovable property of a person deceased shall be regulated by this Act wherever
he may have been domiciled at the time of his death.

WHEN THE DECEASED LEAVES ASSETS OUTSIDE SINGAPORE

 What is to be distributed to beneficiaries would depend on the domicile of the deceased: s 4 ISA.
 Domicile = nexus of the deceased to a particular country.
 A person cannot be a domiciliary to more than one country.
 A person’s domiciliary is a question of fact.

 In intestate cases, if the deceased was a Singapore domicile, the moveable assets of a deceased will be
distributed according to Singapore law (i.e. the ISA). His immoveable assets outside Singapore will be
distributed according to the law of that country where the immoveable asset is located (i.e. the lex situs).
 ∴If a foreign domiciliary left immoveable assets in Singapore, they will be distributed in accordance with
Singapore law (predominant).

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 Estate duty is payable on all the moveable assets of the deceased, regardless of whether they are
located within Singapore. Will credit be given if estate duty has been paid in the jurisdiction where the
assets are located?
 Refer to ss 28(1) & (6) EDA.
 If an asset is located in a Commonwealth country, whatever estate duty has been paid in that country is
deducted from the estate duty payable in Singapore for the same asset.
 If an asset is located in a non-Commonwealth country, whatever estate duty has been paid in that
country is deducted not from estate duty, but against the gross value of the estate.
 Note that although Hong Kong has ceased being a Commonwealth jurisdiction, Hong Kong has been
given the same recognition as a Commonwealth jurisdiction for all deaths which took place after 1st
July 1997: s 46(1)(b) PAA, which enables the Minister to make any declaration as he may choose to as
to privileges + Probate and Administration (Hong Kong Special Administrative of the PRC)
Notification 1999.

2. Realm of Conflict
 Eg 1: Landed property in Singapore belonging to Indian domicile. According to Indian Succession laws,
parents have 1/3 right of movable assets. But no similar provision available in Singapore for parents, only
wife and children gets estate.
 However, as the Indian had already entered into a contract to sell the property, the equitable doctrine of
conversion kicks in and the property changes from realty to movable property and ∴ the applicable law is
the lex loci which is Indian law and the mother succeeded in claiming 1/3 share.

 Eg 2: English man domiciled in England, leaving landed property in Singapore law. Applicable law is the
lex situs. ∴ wife and dependents take equal shares.
 s4 ISA applies.

3. Estate Duties Payable to Assets Overseas (IMPT)

 Payable on global movable assets.

(i) Assets in Commonwealth Countries


 S28(1) EDA states that if estate duty is paid in a Commonwealth country, the entire sum paid is deductible
from Estate Duty Office in Singapore.
 Greater benefits if assets only confined in the Commonwealth.

(ii) Assets in Foreign Countries (non-Commonwealth countries)


 Eg: Money in fixed deposit account in Shanghai and had already paid estate duty due in Shanghai.
 S28(5) states that estate duty paid in non-Commonwealth countries is only deductible against the gross
value of the estate, cannot deduct the entire sum of the estate duty paid.

Deduction of duty paid in other countries


28. —
(1) Where the Commissioner is satisfied that in any part of the Commonwealth duty is payable by reason of
a death in respect of any property situate in such part of the Commonwealth and passing on such death, he
shall allow a sum equal to the amount of that duty to be deducted from the estate duty payable in respect of
that property on the same death.
…..

(5) Where any property passing on the death of the deceased is situate in a country to which subsection (1)
does not apply and the Commissioner is satisfied that by reason of such death any duty is payable in that
country in respect of that property, he shall make an allowance of the amount of that duty from the value of
the property.

(iii) Special Note

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 After 1/7/1997, Hong Kong ceased to be a Commonwealth country as it became part of China however, HK
still given the same recognition as a Commonwealth country.
 S47(1)(b) PAA enabled the minister to make a declaration to make any privileges to any countries. Rf to
Probate and Administration (Hong Kong, Special Administration Region of the People’s Republic of China)
Notification 1999 which accorded HK Commonwealth status.
 Notification was backdated to 1/7/1997.

4. Re-sealing of Overseas Grants of Probate and Letters of Administration

Resealing Of Grants
- assets left behind elsewhere eg HK
- must have proper letters of probate
- same process applies
- grants of letters sent to HK
- no estate duty payable
- probate still to be obtained; can be sent over and resealed
- only applicable to Commonwealth countries. Since 1997 part of china but exemptn still given.

 Grant of probate or letters of administration by an overseas country or territory may be re-sealed by the
Supreme Court – NOT in sub courts s47.1 PAA
 Effect of re-sealing: grant of probate or letters of administration is likened to that made by the High Court.

 2 types of grant can be re-sealed:


(i) s47(1)(a) PAA: grant of probate from any part of the Commonwealth; and
(ii) s47(1)(b) PAA: those from courts of probate of a country or territory in respect which the Minister for
Law has declared that the s47 shall apply. (Only declaration made was that with regards to Hong
Kong)

4.1 Procedure for Re-sealing


 File the following documents:
(c) OS and statement in form 172;
(d) An administration oath;
(e) A certificate in Form 173 – certificate to confirm that the probate caveat book was searched before
the petition was filed. Certificate required by O71 r5(1A).
(f) The original of the overseas grant which has been sealed by the overseas court and one copy
certified true by the overseas court –
(g) Affidavit verifying truth of statement in form 172 O7r5.2
 Note
(a) Applicants must be grantees of overseas garnt
(b) Names of deceasd and applicants must be same as overseas grant
(c) IC of apoilcants and edeceased included in OS, statement and other docs
(d) If did nt die docmiciled within juris of court of grant, 47.4PAA applies
(e) Any instumrnet having in any part of commonwealth same effect wihc hunder sg law is given to
probate or letters of amin may be resealed – s2 for effect of probates and var types of letters of
admin
 Admuin oath – same as tt earlier

Power of court to re-seal


47. —(1) Subject to subsections (3) and (4), where —
(a) a court of probate in any part of the Commonwealth has, either before, on or after 25th February 1999,
granted probate or letters of administration in respect of the estate of a deceased person; or
(b) a court of probate in a country or territory, being a country or territory declared by the Minister under
subsection (5) as a country or territory to which this subsection applies, has, on or after a date specified by the
Minister in respect of that country or territory (referred to in this section as the relevant date), granted probate or
letters of administration in respect of the estate of a deceased person,

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the probate or letters of administration so granted, or a certified copy thereof, sealed with the seal of the court
granting the same, may, on being produced to and a copy thereof deposited in the High Court, be sealed with the
seal of the Supreme Court.
[2/99]
(2) Upon sealing under subsection (1), the probate or letters of administration shall be of the like force and effect,
and have the same operation in Singapore, as if granted by the High Court to the person by whom or on whose
behalf the application for sealing was made.
[2/99]
(3) Before the probate or letters of administration is sealed with the seal of the Supreme Court, the High Court
may require such evidence as it thinks fit as to the domicile of the deceased person.
[2/99]
(4) If it appears that the deceased was not, at the time of his death, domiciled within the jurisdiction of the
court from which the grant was issued, the seal shall not be affixed unless the grant is such as the High
Court would have made.
[2/99]
(5) For the purposes of subsection (1) (b), the Minister may, by notification in the Gazette —
(a) declare any country or territory, which is not a part of the Commonwealth, as a country or territory to which
subsection (1) applies; and
(b) specify the relevant date in respect of that country or territory which may be a date before, on or after 25th
February 1999.

WHEN THE DECEASED DIED OVERSEAS

 What happens if a deceased dies overseas, but leaves assets in Singapore?


 If the deceased died in a Commonwealth country, a grant obtained in that country can be re-sealed in
Singapore. I.e. the same grant can be used.
 Resealing is a repeat of filing the petition and obtaining sureties, etc just as you would do in a normal
petition for grant in Singapore. The distinction is that the grant obtained from the Commonwealth
country is exhibited with the petition in Singapore.
 If the deceased died in a non-Commonwealth country, the re-sealing provisions of the PAA do not apply ∴
need to apply for a fresh grant: s 47 PAA.
 The grant obtained from the non-Commonwealth country need not be exhibited with the petition in
Singapore.
 The court would also require proof of foreign law to show that the person petitioning for the grant is the
rightful person: O 71 r 16.
 Proof of foreign law can be obtained from a practitioner who specializes in probate work – he files an
affidavit stating his experience, that he is competent to give an opinion on who is entitled to petition for
a grant.
Otherwise, get a consular officer, or an academic who teaches probate law in that country to swear an
affidavit.

4.2 After application granted


- Same steps as for orig grant of probate/ letters of admin
- Dispensation - same steps
4.3 Non-applicability of Re-sealing provisions
 Resealing provisions do not apply to non-Commonwealth countries and countries which do not fall under
s47(1)(b) PAA.
 Fresh grant required as required proof of foreign law under Ord 71 r 6 ROC
 Require to obtain proof from a practitioner who specializes in probate work and competent to state who is
entitled to the grant.
 Safer to get a consular officer or an academic whose main research area of practice is probate law.
 Ensure that the person who is petitioning is the right person.

INTESTACY DESPITE AVALIABILITY OF WILL

1. Intestacy in situations where there is a will

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 Usually the main reasons are:
 Partial intestacy due to failure to include residual clause
 Executor not named/executor pre-deceased the maker of the will.

1.1 Partial Intestacy


 As a result of the failure to include a residuary clause and certain assets are not mentioned in the will: assets
would fall into intestacy.
 Petition for letters of probate to be granted for distribution of unspecified assets in accordance with the ISA.

1.2 Executor Pre-deceased Maker of will


 Estate falls into intestacy; next-of-kin has to take out letters of administration.
 Petition for grant of letters of administration with will annexed.
 Distribution in accordance with the ISA.

Application for grants of letters of admin with will annexed


- Contrast with probate –
- This is sitrn where grant of proate wld be obtained except for existence 9f one of facts in s13a-e of act

On failure of executors
13. —(1) Where —
(a) no executor is appointed by a will;
(b) the executor or all the executors appointed by will are legally incapable of acting as such, or have renounced
the right to act as such;
(c) no executor survives the testator;
(d) all the executors die before obtaining probate or before having administered all the estate of the deceased; or
(e) the executors appointed by any will do not appear and extract probate,
letters of administration with the will annexed may be granted to such person or persons as the court considers
the fittest to administer the estate.
(2) A prior right to a grant under subsection (1) shall belong to the following persons in the following order:
(a) a universal or residuary legatee;
(b) a legal personal representative of a deceased universal or residuary legatee;
(c) such person or persons, being beneficiaries under the will, as would have been entitled to a grant of letters of
administration if the deceased had died intestate;
(d) a legatee having a beneficial interest;
(e) a creditor of the deceased.

- Documents to be filed
o Templates for OS and statement – s172
o Certified true copy of will
o Admin oath
o Extract of death cert
o Renunciations
o Cert in form 173 – O71r5(2A)
o Affidabit verying info in statement in form 172
- Application
o Statement filed in form 172a except tt para 4 shld be as set out in form 172(c)
o Note matters fo probate application
o Aditonal pts
 S13.2 sets out priorities
 If applicant has lesser right then nec to insert para in para 5 of 172b stating tt they have
renounced their right
 Priorities undr intestacy have no application in light of s13.2
 If all opersons in 13.2 renounce right, then cort may grant letters of admin with will
annexed to persons as court think fittest to administer estate
 If died domiciled otherwise than in sg, the persons eitnteld must be determine accoridn to
a-d of O71r25 th0ough note proviso a not applicable
- After application granted

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o S29 to be complied with – admin bond

Unadministered estates – applicants for grants of letters of admin with will annexed
- When nec
o Where al grantees have died before completing admin or grantees died before completing executin
of will
- Grantees of letters of admin with will annexed died
o Ame rules above apply s25.2 PAA
o Para in terms of form 172d included in statement prepared in accordance with forms 172a and
172c
- Grantees of probate died before completing execution
o Can be granted in respect of estate not fully administered
o But s16A CLA – executor of deceasd person who was executor of testator also executor of testator
o Wld seem tt where CLA applies and executor of executor has obtained probate of executris will,
letters of admin with will annexed x be obtained because executor of executor becomes executor
for testator and s13d PAA x apply
o If grant of letters of admin is applied for before executor of executor obt probate the maybe grant
obtainable but if probate subseq granted, chain of executorship not broken so grant of letters of
admin will expire on this contingency
o Therefore no grant of letters of admin wth will annxed may be granted for unadministered estate
o Also not open for executor of executor of testator to obtain fresh probate of testator’s will because
he is not executor appted by a will

INHERITANCE (FAMILY PROVISIONS) ACT


Bear in mind tt x apply to muslims.
***
Person to ensure tt any dependent of his is adeq provided for. If not, classess of persons called depdents who can
get claim: -> see (3)

1. Inheritance (Family Provisions) Act

 Dependents may apply if it is felt that the deceased had not left adequate provisions.
 Applies to both testate and intestate cases but does not apply to Muslims.
 Procedure: Order 86 ROC – file affidavit in support of an OS.

2. Limitation Period
 S4 I(FP)A states that order must be made within 6 months from the date on which representation in regard
to the deceased estate is first taken out.
 Exceptions to 6 months limitation period (found in s4(2) I(FP)A): courts may extend the period only when
the period of 6 months would operate unfairly due to these factors:
(a) Discovery of a will involving a substantial change in the disposition of the deceased assets;
(b) Person’s interest in estate not determined at the time representation was first taken out; or
(c) Other circumstances affecting the administration or distribution of estate. .

3. Persons who May apply under the Act


(a) Wife/Husband
(b) Daughter who is unmarried or handicapped and is incapable of maintaining herself
(c) Infant son (below 21 in sg) (other juris 18)
(d) Son who is handicapped and is incapable of maintaining herself.

 Sons and daughters include adopted children who are adopted under an Order of Court. Those who are not
formally adopted cannot claim relief.

- How to apply – order 86 rules of court – by way of OS supported by affidavit. Before or after grant issued,
within 6 mths of grant being issued.
- if spills over 6mths, court has discretion to entertain such application.

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- can ask for icreased if show tt need more money eg tertiary edn
- whether WC impliedly qualifies age restrictin in Inheritance Act – yet to be tested
- grant then to be surrended to court pending outcome of application

- then order of ocurt becomes part of grant and clipped tog with grant of letters of repn

4. Circumstances when application are made


(a) Prove that they are dependents of the deceased

(b) If there is a will, prove that what is left in the will is not adequate.

(c) Draws an arbitrary line between spouses and dependents however if need arises, strict requirements of
the ISA can be departed from.

(d) Application must be made within 6 months of death of deceased.

(e) Personal representatives are respondents, other beneficiaries may be joined as plaintiffs if they consent
but if they are indifferent, they are joined as respondents.

(f) Grant lodged with the court must be left at the Registry, cannot be released until court disposes action.

(g) S3 I(FP)A states that you have to examine these factors in consideration for the granting of an order:
 Nature of property left behind
 Income of dependent
 Dependent’s conduct viz a viz the deceased
 Why the deceased did not leave adequate provisions in the will. The will would be carefully
scrutinized as sometimes the will would state the reasons for providing the defendant with a
certain amount.

Power for court to order payment out of net estate of deceased for benefit of surviving spouse or child.

S3 –

(5)The court shall have regard to the nature of the property representing the deceased’s net estate;

(6) The court shall have regard to any (division of sections my own)
(i) past, present or future capital or income from any source of the dependant of the deceased to
whom the application relates;
(ii) to the conduct of that dependant in relation to the deceased and otherwise;
(iii) and to any other matter or thing which in the circumstances of the case the court may consider
relevant or material in relation to that dependant, to persons interested in the estate of the
deceased, or otherwise.

(7) The court shall also, on any such application, have regard to the deceased’s reasons, so far as
ascertainable, for ….. refraining from disposing by will of his estate or part of his estate ….. for a dependant,
and the court may accept such evidence of those reasons as it considers sufficient including any statement in
writing signed by the deceased ….. (and) also have regard to all the circumstances from which any inference
can reasonably be drawn as to the accuracy or otherwise of the statement.

(h) In situations of intestacy, ct will not take into account of what had been provided for in the lifetime of
the deceased – Doctrine of Hotchpot does not apply: s9 I(FP)A

Children’s advancement not to be taken into account.


9. Where a distributive share of the property of a person dying intestate is claimed by a child or any
descendant of a child of that person no money or other property which the intestate may during his life have

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given, paid or settled to or for the advancement of the child by whom or by whose descendant the claim is
made shall be taken into account in estimating such distributive share.

(i) Grant subject to an order made on a specific date

(j) Endorsement made under s5 I(FP)A.

Effect and form of order.


5. —(1) Where an order is made under this Act, then for all purposes, including the purposes of the
enactments relating to death duties, the will or the law relating to intestacy, or both the will and the law
relating to intestacy, as the case may be, shall have effect, and shall be deemed to have had effect as from the
deceased’s death, subject to such variations as may be specified in the order for the purpose of giving effect
to the provision for maintenance thereby made.
….

(3) An office copy of every made order under this Act shall be sent to the Registrar for entry and filing, and a
memorandum of the order shall be endorsed on, or permanently annexed to, the probate or letters of
administration under which the estate is being administered

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