Succession Act 1974

Succession to real and personal estate on intestacy

5 (1) Subject to section 11, the residuary estate of an intestate shall be distributed in the manner or held on the trusts mentioned in this section, namely—

Case 1

If the intestate leaves a husband or wife and leaves

(a) no issue; and

(b) no parent, or brother or sister of the whole blood, or is sue of a brother or sister of the whole blood;

the residuary estate shall be held in trust for the surviving husband or wife absolutely.

Case 2

If the intestate leaves a husband or wife and issue (whether or not per sons mentioned in sub-paragraph (b) of Case 1 also survive) the surviv ing husband or wife shall take the personal chattels absolutely, and, in addition, the residuary estate of the intestate (other than the personal chattels) shall stand charged with the payment of a sum equal to fifty per centum of the value of the residuary estate (other than the personal chattels) or one hundred thousand dollars, whichever is the greater, free of costs to the surviving husband or wife with interest thereon from the end of the time allowed by law for administration at the rate of five per centum per annum until paid or appropriated, and subject to providing for that sum and the interest thereon, the residuary estate (other than the personal chattels) shall be held on the intestacy trusts for the issue of the intestate according to their stock (per stirpes).

Case 3

If the intestate leaves a husband or wife and one or more of the following, that is to say, a parent, a brother or sister of the whole blood, or issue of a brother or sister of the whole blood, but leaves no issue, the surviving husband or wife shall take the personal chattels absolutely and, in addi tion, the residuary estate of the intestate (other than the personal chat tels) shall stand charged with the payment of a sum equal to sixty-six and two thirds per centum of the value of the residuary estate (other than the personal chattels) or one hundred and fifty thousand dollars, whichever is the greater, free of costs to the surviving husband or wife with interest thereon from the end of the time allowed by law for admin istration at the rate of five per centum per annum until paid or appropri ated, and, subject to providing for that sum and the interest thereon, the residuary estate (other than the personal chattels) shall be held—

(a) where the intestate leaves one parent or both parents (whether or not brothers or sisters of the intestate or their issue also survive) in trust for the parent absolutely or, as the case may be, for the two parents in equal shares absolutely;

(b) where the intestate leaves no parent, on the intestacy trusts for the brothers and sisters of the whole blood of the intestate and in the event that any of the brothers and sisters of the whole blood of the intestate prede ceased the intestate leaving issue any of whom shall be living at the death of the intestate such issue living at the death of the intestate shall take equally among them if more than one the share which their respective par ents would have taken if living at the death of the intes tate.

Case 4

If the intestate leaves issue but no husband or wife, the residuary estate of the intestate shall be held on the intestacy trusts for the issue of the intestate according to their stock.

Case 5

If the intestate leaves no husband or wife and no issue but both parents, then the residuary estate of the intestate shall be held in trust for the parents in equal shares absolutely.

Case 6

If the intestate leaves no husband or wife and no issue but one parent, then the residuary estate of the intestate shall be held in trust for the surviving parent absolutely.

Case 7

If the intestate leaves no husband or wife and no issue and no parent, then the residuary estate of the intestate shall be held in trust for the following persons living at the death of the intestate and in the following
order and manner, namely—

First, on the intestacy trusts for the brothers and sisters of the whole blood of the intestate; however, in the event that any of the brothers and sisters of the whole blood of the intestate predeceased the intestate leaving issue any of whom shall be living at the death of the intestate such issue living at the death of the intestate shall take equally among them if more than one the share which their respective parents would have taken if living at the death of the intestate; but if no person takes an abso lutely vested interest under such trusts; then

Secondly, on the intestacy trusts for the brothers and sis ters of the half blood of the intestate; however, in the event that any of the brothers and sisters of the half blood of the intestate predeceased the intestate leaving issue any of whom shall be living at the death of the in testate such issue living at the death of the intestate shall take equally among them if more than one the share which their respective parents would have taken if living at the death of the intestate; but if no person takes an absolutely vested interest under such trusts; then

Thirdly, for the grandparents of the intestate and, if more than one survive the intestate, in equal shares; but if there is no member of this class; then

Fourthly, on the intestacy trusts for the uncles and aunts of the intestate (being brothers or sisters of the whole blood of a parent of the intestate); however, in the event that any of such uncles and aunts of the intestate prede ceased the intestate leaving issue any of whom shall be living at the death of the intestate such issue living at the death of the intestate shall take equally among them if more than one the share which their respective par ents would have taken if living at the death of the intes tate; but if no person takes an absolutely vested interest under such trusts; then

Fifthly, on the intestacy trusts for the uncles and aunts of the intestate (being brothers or sisters of the half blood of a parent of the intestate); however, in the event that any of such uncles and aunts of the intestate prede ceased the intestate leaving issue any of whom shall be living at the death of the intestate such issue living at the death of the intestate shall take equally among them if more than one the share which their respective par ents would have taken if living at the death of the intes tate.

Case 8

In default of any person taking an absolute interest under the foregoing provisions, the residuary estate of the intestate shall belong to the Gov ernment as bona vacantia, and in lieu of any right to escheat.

The Government may, out of the whole or any part of the property de volving on the Government, provide for dependants, whether kindred or not, of the intestate, and other persons for whom the intestate might reasonably have been expected to make provision or any other person whom the Government is satisfied has a legal, equitable or moral claim.

(2) A husband and wife shall for all purposes of distribution or division under the foregoing provisions of this section be treated as two persons.

(3) Where the intestate and the intestate's husband or wife have died in circumstances rendering it uncertain which of them sur vived the other and the intestate's husband or wife is by virtue of section 1 of the Presumption of Survivorship Act 1956 [title 26 item 7] deemed to have survived the intestate, this section shall, nevertheless, have effect as respects the intestate as if the husband or wife had not survived the intestate.

(4) The interest payable to a surviving husband or wife under Case 2 or Case 3 of subsection (1) shall be primarily payable out of in come.

(5) For the purposes of Case 2 or Case 3 of subsection (1) the estate representative shall employ an independent valuer in any case where such employment may be necessary.

(6) The Premier may by order vary the sum specified in sub section (1), Case 2 and Case 3 which order is subject to the affirmative resolution procedure.

Intestacy trusts in favour of issue and other classes of relatives of intestate

6 (1) Where under this Part the residuary estate of an intestate,
or any part thereof, is directed to be held on the intestacy trusts for the issue of the intestate the same shall be held by the estate representatives upon the following trusts, namely:

(a) In trust, in equal shares if more than one, for all or any the children or child of the intestate, living at the death of the intestate, who attain the age of twenty-one years or marry under that age, and for all or any of the issue living at the death of the intestate who attain the age of twenty-one years or marry under that age of any child of the intestate who predeceases the intestate, such issue to take through all degrees, according to their stocks, in equal shares if more than one, the share which their parent would have taken if living at the death of the in testate, and so that no issue shall take whose parent is living at the death of the intestate and so capable of taking;

(b) The statutory provisions which relate to maintenance and accumulation of surplus income, under the Trustee Act 1975 [title 26 item 51], shall apply, but when an in fant marries such infant shall be entitled to give valid re ceipts for the income of the infant's share or interest;

(c) Where the property held on the intestacy trusts for issue is divisible into shares, then any money or property which, by way of advancement or on the marriage of a child of the intestate, has been paid to such child by the intestate or settled by the intestate for the benefit of such child (including any life or less interest and in cluding property covenanted to be paid or settled) shall, subject to any contrary intention expressed or appearing from the circumstances of the case, be taken as being so paid or settled in or towards satisfaction of the share of such child or the share which such child would have taken if living at the death of the intestate, and shall be brought into account, at a valuation (the value to be reckoned as at the death of the intestate), in accordance with the requirements of the estate representatives;

(d) The estate representatives may permit any infant contin gently interested to have the use and enjoyment of any personal chattels in such manner and subject to such conditions (if any) as the estate representatives may con sider reasonable, and without being liable to account for any consequential loss.

(2) If the trusts in favour of the issue of the intestate fail by reason of no child or other issue attaining an absolutely vested interest—

(a) the residuary estate of the intestate and the income thereof and all statutory accumulations, if any, of the in come thereof, or so much thereof, as may not have been paid or applied under any power affecting the same, shall go, devolve and be held under this Part as if the intestate had died without leaving issue living at the death of the intestate;

(b) references in this Part to the intestate "leaving no issue" shall be construed as "leaving no issue who attain an absolutely vested interest";

(c) references in this Part to the intestate "leaving issue" or "leaving a child or other issue" shall be construed as "leaving issue who attain an absolutely vested interest".

(3) Where under this Part the residuary estate of an intestate or any part thereof is directed to be held on the intestacy trusts for any class of relatives of the intestate, other than issue of the intestate, the same shall be held on trusts corresponding to the intestacy trusts for the issue of the intestate (other than the provision for bringing any money or property into account) as if such trusts (other than as aforesaid) were re peated with the substitution of references to the members or member of that class for references to the children or child of the intestate.

(4) References in Case 1 or Case 3 of section 5(1) to the intes tate leaving, or not leaving, a member of the class consisting of brothers or sisters of the whole blood of the intestate and issue of brothers or sisters of the whole blood of the intestate shall be construed as refer ences to the intestate leaving, or not leaving, a member of that class who attains an absolutely vested interest.

Powers of estate representative in respect of interest of surviving spouse

7 The estate representatives may raise the whole or any part of the sum payable under Case 2 or Case 3 of section 5(1) to the surviving hus band or wife, and interest thereon and the amount, if any, properly

re quired for the payment of the costs of the transaction, on the security of the whole or any part of the residuary estate of the intestate (other than the personal chattels), so far as that estate may be sufficient for the pur pose or the said sum and interest may not have been satisfied by an ap propriation under the statutory power available in that behalf.

Rights of surviving spouse as respects the matrimonial home

8 The First Schedule shall have effect for enabling the surviving husband or wife of a person dying intestate after 31 August 1974 to ac quire the matrimonial home.

Partial intestacy

9 Where the will of a testator effectively disposes of part only of his estate, then, unless it appears by the will that his estate representatives are intended to take beneficially the remainder of his estate, the estate representatives shall, subject to their powers and rights for the purposes of administration, hold the remainder of his estate upon trust for the persons who would have been entitled thereto under this Part if the tes tator had died intestate and left no other estate.

Construction of documents

10 (1) References to the Intestates' Estates Act 1787 in an instru ment inter vivos made, or in a will coming into operation, after 31 August 1974, shall be construed as references to this Part; and references in such an instrument or will to statutory next of kin shall be construed, unless the context otherwise requires, as referring to the persons who would take beneficially on an intestacy under the foregoing provisions of this Part.

(2) Trusts declared in an instrument inter vivos made, or in a will coming into operation, before 1 September 1974 by reference to the Intestates' Estates Act 1787 shall, unless the contrary thereby appears, be construed as referring to that Act.

Rights of succession on intestacy in respect of child, and parent of child, not born in wedlock

11 (1) Where either parent of a child not born in wedlock dies intestate as respects all or any of his or her real or personal property, that child or, if he is dead, his issue, shall be entitled to take any interest therein to which he or such issue would have been entitled if he had been born in wedlock.

(2) Where a child not born in wedlock dies intestate in respect of all or any of his real or personal property, each of his parents, if surviving, shall be entitled to take any interest therein to which that parent would have been entitled if the child had been born in wedlock.

(3) In accordance with the provisions of subsections (1) and (2), this Part shall have effect as if—

(a) any reference to the issue of the intestate included a reference to a child of his not born in wedlock and to the issue of any such child;

(b) any reference to the child or children of the intestate included a reference to any child or children of his not born in wedlock; and

(c) in relation to an intestate who is a child not born in wedlock, any reference to the parent, parents, father or mother of the intestate were a reference to his natural parent, parents, father or mother.

(4) For the purposes of subsection (2) and for the purposes of the provisions modified by subsection 3(c), a child not born in wedlock shall be presumed not to have been survived by his father unless the contrary is shown.

(5) For the purposes of subsections (1) and (2), "parent" shall be deemed not to include the father of a child not born in wedlock unless prima facie evidence of paternity is established in accordance with subsection (6) or section 11A.

(6) Prima facie evidence of paternity of a chid [sic] not born in wedlock is established if—

(a) the name of the father was entered in the General Register of Births pursuant to section 9(2) of the Registration (Births and Deaths) Act 1949 [title 28 item 1];

(b) the father by a sworn affidavit in which the child is described with sufficient particularity to identify the child and which was deposited within thirty days of its making in the office of the Registrar-General acknowledged himself to be the father of the child; or

(c) the putative father of the child is adjudged by a court having jurisdiction as the father under an affiliation order made pursuant to the Affiliation Act 1976 [title 27 item 24].

(7) This section does not apply to or affect the right of any person to take any entailed estate or interest in real property.

(8) The reference in section 10(1) of this Part, or to the foregoing provisions of this Part shall, in relation to an instrument inter vivos made, or a will coming into operation, after the coming into operation of this Act [1 September 1974] (but not in relation to instruments inter vivos made or wills coming into operation earlier), be construed as including references to this section.

(9) In this section "child not born in wedlock" does not include such a child who is—

(a) a legitimated person within the meaning of the Legitimacy Act 1933 [title 27 item 23], or a person recognized by virtue of that Act or the common law as having been legitimated; or

(b) an adopted person under an adoption order made under the Adoption of Children Act 1963 [title 27 item 22].

(10) Notwithstanding the foregoing provisions of this section, estate representatives may convey or distribute any real or personal property to or among the persons entitled thereto without having ascertained that there is no person who is or may be entitled to any interest therein by virtue of this section so far as it confers any interest on children not born in wedlock or the issue of such children or on the father of a child not born in wedlock, and shall not be liable to any such person of whose claim they have not had notice at the time of such conveyance or distribution; but nothing in this subsection shall prejudice the right of any such person to follow the property, or any property representing it, into the hands of any person other than a bona fide purchaser for value, who may have received it.

[section 11 amended by 1991:21 effective 18 June 1991]

General provisions as to the making and effect of declarations

11A (1) Where the putative father of a child dies, the child is entitled to make a claim against the father's estate but no such claim shall be made after the expiry of the notice to send particulars of claims against the estate or after the expiry of three months after the grant of probate or letters of administration, whichever is the longer period.

(2) Where the estate representative rejects a child's claim made pursuant to subsection (1) on the ground that he is not a child of the deceased, the child may apply to the Court for a declaration that he is the child of the deceased, and such application shall be made within twenty-eight days commencing on the day he receives notification of the rejection.

(3) Where on an application for a declaration under subsection 92) the truth of the proposition to be declared is proved to the satisfaction of the Court, the Court shall make that declaration unless to do so would manifestly be contrary to public policy.

(4) A declaration made under this section is binding on Her Majesty and all other persons.

(5) An application for a declaration under this section shall be in such form as may be prescribed by rules of Court [sic].

(6) Rules of court may make provisions as to—

(a) the information required to be given by an applicant for a declaration under this section; and

(b) the persons who are to be parties to proceedings on an application under this section.

(7) The Court hearing an application under this section may direct that the whole or any part of the proceedings shall be heard in camera, and an application for a direction under this subsection shall be heard in camera unless the Court otherwise directs.

[section 11A amended by 1991:21 effective 18 June 1991]

PART III
APPLICATION FOR FINANCIAL PROVISION FROM DECEASED'S ESTATE

Interpretation of Part III

12 (1) In this Part, unless the context otherwise requires—

"beneficiary", in relation to the estate of a deceased person, means—

(a) a person who under the will of the deceased or under the law relating to intestacy is beneficially interested in the estate or would be so interested if an order had not been made under this Part, and

(b) a person who has received any sum of money or other property which by virtue of section 20(1) or 20(2) is treated as part of the net estate of the deceased or would have received that sum or other property if an order had not been made under this Part;

"child" includes a child not born in wedlock and a child en ventre sa mere at the death of the deceased;

"former spouse", in relation to a deceased person, means a per son whose marriage with the deceased was during the de ceased's lifetime dissolved or annulled by a decree of a court of competent jurisdiction;

"net estate", in relation to a deceased person, means—

(a) all property of which the deceased had power to dispose by his will (otherwise than by virtue of a special power of appointment) less the amount of his funeral, testamen tary and administration expenses, debts and liabilities payable out of his estate on his death;

(b) any property in respect of which the deceased held a general power of appointment (not being a power exer cisable by will) which has not been exercised;

(c) any sum of money or other property which is treated for the purposes of this Part as part of the net estate of the deceased by virtue of section 20(1) or (2);

(d) any sum of money or other property which is, by reason of a disposition or contract made by the deceased, or dered under section 21 or 22 to be provided for the pur pose of the making of financial provision under this Part;

"property" includes any chose in action;

"reasonable financial provision" has the meaning assigned to it by section 13;

"valuable consideration" does not include marriage or a promise of marriage.

(2) For the purposes of paragraph (a) of the definition of "net estate" in subsection (1), a person who is not of full age and capacity shall be treated as having power to dispose by will of all property of which he would have had power to dispose by will if he had been of full
age and capacity.

(3) Any reference in this Part to provision out of the net estate of a deceased person includes it reference to provision extending to the whole of that estate.

(4) For the purposes of this Part any reference to a wife or hus band shall be treated as including a reference to a person who in good faith entered into a void marriage with the deceased unless either—

(a) the marriage of the deceased and that person was dis solved or annulled during the lifetime of the deceased and the dissolution or annulment is recognised by the law of Bermuda, or

(b) that person has during the lifetime of the deceased en tered into a later marriage.

(5) Any reference in this Part to remarriage or to a person who has remarried includes a reference to a marriage which is by law void or voidable or to a person who has entered into such a marriage, as the case may be, and a marriage shall be treated for the purposes of this Part as a remarriage, in relation to any party thereto, notwithstanding that the previous marriage of that party was void or voidable.

(6) Any reference in this Part to an order or decree made under the Matrimonial Causes Act 1974 [title 27 item 3] or under any section of that Act shall be construed as including a reference to an order or decree which is deemed to have been made under that Act or under that section thereof, as the case may be.

[section 12 amended by 1991:21 effective 18 June 1991]

Application for financial provision from deceased's estate

13 (1) Where after 7 January 1988 a person dies domiciled in Bermuda and is survived by any of the following persons:

(a) the wife or husband of the deceased;

(b) a former spouse of the deceased who has not remarried;

(d) a grandchild of the deceased who immediately before the death of the deceased was being maintained either wholly or partly, by the deceased,

that person may apply to the Court for an order under section 14 on the ground that the disposition of the deceased's estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant.

(2) In this Part "reasonable financial provision" —

(a) in the case of an application made by virtue of subsec tion (1)(a) by the husband or wife of the deceased (except where the marriage with the deceased was the subject of a decree of judicial separation and at the date of death the decree was in force and the separation was continu ing), means such financial provision as it would be rea sonable in all the circumstances of the case for a hus band or wife to receive, whether or not that provision is required for his or her maintenance;

(b) in the case of any other application made by virtue of

been paid on account of any payment provided for by that order.

Variation or discharge of orders for periodical payments

18 (1) Subject to this Part, where the Court has made an order under section 14(1)(a) (in this section referred to as "the original order") for the making of periodical payments to any person (in this section re ferred to as "the original recipient"), the Court, on an application under this section, has power by order to vary or discharge the original order or to suspend any provision of it temporarily and to revive the operation of any provision so suspended.

(2) Without prejudice to the generality of subsection (1), an or der made on an application for the variation of the original order may—

(a) provide for the making out of any relevant property of such periodical payments and for such term as may be specified, in the order to any person who has applied, or would but for section 16 be entitled to apply, for an or der under section 14 (whether or not, in the case of any application, an order was made in favour of the appli cant);

(b) provide for the payment out of any relevant property of a lump sum of such amount as may be so specified to the original recipient or to any such person as is mentioned in paragraph (a);

(c) provide for the transfer of the relevant property, or such part thereof as may be so specified, to the original re cipient or to any such person as is so mentioned.

(3) Where the original order provides that any periodical pay ments payable thereunder to the original recipient are to cease on the occurrence of an event specified in the order (other than the remarriage of a former spouse) or on the expiration of a period so specified, then, if, before the end of the period of six months from the date of the occur rence of that event or of the expiration of that period, an application is made for an order under this section the Court has power to make any order which it would have had power to make if the application had been made before that date (whether in favour of the original recipient or any such person as is mentioned in subsection (2)(a) and whether having ef fect from that date or from such later date as the Court may specify).

(4) Any reference in this section to the original order includes a reference to an order made under this section and any reference in this section to the original recipient includes a reference to any person to whom periodical payments are required to be made by virtue of an order under this section.

(5) An application under this section may be made by any of the following persons—

(a) any person who by virtue of section 13(1) has applied, or would but for section 16 be entitled to apply, for an or der under section 14;

(b) the estate representatives of the deceased;

(d) any beneficiary of the estate of the deceased.

(6) An order under this section may only affect—

(a) property the income of which is at the date of the order applicable wholly or in part for the making of periodical payments to any person who has applied for an order under this Part, or

(b) in the case of an application under subsection (3), in re spect of payments which have ceased to be payable on the occurrence of an event or the expiration of a period, property the income of which was so applicable immedi ately before the occurrence of that event or the expira tion of that period, as the case may be,

and any such property as is mentioned in paragraph (a) or (b) is in sub sections (2) and (5) referred to as "relevant property".

(7) In exercising the powers conferred by this section the Court shall have regard to all the circumstances of the case, including any change in any of the matters to which the Court was required to have re gard when making the order to which the application relates.

(8) Where the Court makes an order under this section, it may give such consequential directions as it thinks necessary or expedient having regard to the provisions of the order.

(9) No such order as is mentioned in section 14(1)(d), (e) or (f), 21 or 22 shall be made on an application under this section.

(10) In relation to an order which provides for the making of pe riodical payments which are to cease on the occurrence of an event specified in the order (other than the re-marriage of a former spouse) or on the expiration of a period so specified, the power to vary an order in-
cludes power to provide for the making of periodical payments after the expiration of that period or the occurrence of that event.

Payment of lump sums by instalments

19 (1) An order under section 14(1)(b) or 18(2)(b) for the payment of a lump sum may provide for the payment of that sum by instalments of such amount as may be specified in the order.

(2) Where an order is made by virtue of subsection (1), the Court has power, on an application made by the person to whom the lump sum is payable, by the estate representatives of the deceased or by the trustees of the property out of which the lump sum is payable, to vary that order by varying the number of instalments payable, the amount of any instalment and the date on which any instalment be comes payable.

Property treated as part of "net estate"

20 (1) Where a deceased person has in accordance with any en actment nominated any person to receive any sum of money or other property on his death and that nomination is in force at the time of his death, that sum of money or that other property, to the extent of the value thereof at the date of the death of the deceased, shall be treated for the purposes of this Part as part of the net estate of the deceased; but this subsection does not render any person liable for having paid that sum or transferred that other property to the person named in the nomi nation in accordance with the directions given in the nomination.

(2) Where any sum of money or other property is received by any person as a donatio mortis causa made by a deceased person, that sum of money or that other property, to the extent of the value thereof at the date of the death of the deceased, shall be treated for the purposes of this Part as part of the net estate of the deceased; but this subsection does not render any person liable for having paid that sum or transferred that other property in order to give effect to that donatio mortis causa.

Dispositions intended to defeat applications for financial provision

21 (1) Where an application is made to the Court for an order un der section 14, the applicant may, in the proceedings on that application, apply to the Court for an order under subsection (2).

(2) Where on an application under subsection (1) the Court is satisfied —

(a) that, less than three years before the date of the death of the deceased, the deceased with the intention of defeat ing an application for financial provision under this Part made a disposition; and

(b) that full valuable consideration for that disposition was not given by the person to whom or for the benefit of whom the disposition was made (in this section referred to as "the donee") or by any other person; and

(c) that the exercise of the powers conferred by this section would facilitate the making of financial provision for the applicant under this Part,

then, subject to this section and sections 23 and 23A the Court may or der the donee (whether or not at the date of the order he holds any inter est in the property disposed of to him or for his benefit by the deceased) to provide, for the purpose of the making of that financial provision, such sum of money or other property as may be specified in the order.

(3) Where an order is made under subsection (2) as respects any disposition made by the deceased which consisted of the payment of money to or for the benefit of the donee, the amount of any sum of money or the value of any property ordered to be provided under that subsection shall not exceed the amount of the payment made by the de ceased.

(4) Where an order is made under subsection (2) as respects any disposition made by the deceased which consisted of the transfer of property (other than a sum of money) to or for the benefit of the donee, the amount of any sum of money or the value of any property ordered to be provided under that subsection shall not exceed the value at the date of the death of the deceased of the property disposed of by him to or for the benefit of the donee (or if that property has been disposed of by the person to whom it was transferred by the deceased, the value at the date of that disposal thereof).

(5) Where an application (in this subsection referred to as "the original application') is made for an order under subsection (2) in relation to ally disposition, then, if on an application under this subsection by the donee or by any applicant for an order under section 14 the Court is satisfied—

(b) that full valuable consideration for that other disposition was not given by the person to whom or for the benefit of whom that other disposition was made or by any other person,

the Court may exercise in relation to the person to whom or for the ben efit of whom that other disposition was made the powers which the Court would have had under subsection (2) if the original application had been made in respect of that other disposition and the Court had been satis fied as to the matters set out in paragraphs (a), (b) and (c) of that sub section; and where any application is made under this subsection, any reference in this section (except in subsection (2)(b) ) to the donee in cludes a reference to the person to whom or for the benefit of whom that other disposition was made.

(6) In determining whether and in what manner to exercise its powers under this section, the Court shall have regard to the circum stances in which any disposition was made and any valuable considera tion which was given therefor, the relationship, if any, of the donee to the deceased, the conduct and financial resources of the donee and all the other circumstances of the case.

(7) In this section "disposition" does not include —

(a) any provision in a will, any such nomination as is men tioned in section 20(1) or any donatio mortis causa, or

(b) any appointment of property made, otherwise than by will, in the exercise of a special power of appointment,

but, subject to these exceptions, includes any payment of money (including the payment of a premium under a policy of assurance) and any conveyance, assurance, appointment or gift of property of any de scription, whether made by an instrument or otherwise.

(8) This section does not apply to any disposition made before 8 January 1988.

Contracts to leave property by will

22 (1) Where an application is made to a Court for an order under section 14, the applicant may, in the proceedings on that application, apply to the Court for an order under this section.

(2) Where on an application under subsection (1) the Court is satisfied —

(a) that the deceased made a contract by which he agreed to leave by his will a sum of money or other property to any person or by which he agreed that a sum of money or other property would be paid or transferred to any per son out of his estate, and

(b) that the deceased made that contract with the intention of defeating an application for financial provision under this Part, and

(c) that when the contract was made full valuable consider ation for that contract was not given or promised by the person with whom or for the benefit of whom the con tract was made (in this section referred to as "the donee") or by any other person, and

(d) that the exercise of the powers conferred by this section would facilitate the making of financial provision for the applicant under this Part,

then, subject to this section and sections 23 and 23A, the Court may make any one or more of the following orders, that is to say—

(e) if any money has been paid or any other property has been transferred to or for the benefit of the donee in ac cordance with the contract, an order directing the donee to provide, for the purpose of the making of that finan cial provision such sum of money or other property as may be specified in the order;

(f) if the money or all the money has not been paid or the property or all the property has not been transferred in accordance with the contract, an order directing the es tate representatives not to make any payment or transfer any property, or not to make any further payment or transfer any further property, as the case may be, in ac cordance therewith or directing the estate representa tives only to make such payment or transfer such prop erty as may be specified in the order.

(3) Notwithstanding anything in subsection (2) the Court may exercise its powers thereunder in relation to any contract made by the deceased only to the extent that the Court considers that the amount of any sum of money paid or to be paid or the value of any property trans-ferred or to be transferred in accordance with the contract exceeds the value of any valuable consideration given or to be given for that
contract, and for this purpose the Court shall have regard to the value of property at the date of the hearing.

(4) In determining whether and in what manner to exercise its powers under this section, the Court shall have regard to the circum stances in which the contract was made, the relationship, if any, of the donee to the deceased, the conduct and financial resources of the donee and all the other circumstances of the case.

(5) Where an order has been made under subsection (2) in re lation to any contract, the rights of any person to enforce that contract or to recover damages or to obtain other relief for the breach thereof shall be subject to any adjustment made by the Court under section 23(3) and shall survive to such extent only as is consistent with giving effect to the terms of that order.

(6) This section does not apply to a contract made before 8 January 1988.

Provisions supplementary to sections 21 and 22

23 (1) Where the exercise of any of the powers conferred by section 21 or 22 is conditional on the Court being satisfied that a disposition or contract was made by a deceased person with the intention of defeating an application for financial provision under this Act, that condition shall be fulfilled if the Court is of the opinion that, on a balance of probabili ties, the intention of the deceased (though not necessarily his sole inten tion) in making the disposition or contract was to prevent an order for fi nancial provision being made under this Part or to reduce the amount of the provision which might otherwise be granted by an order thereunder.

(2) Where an application is made under section 22 with respect to any contract made by the deceased and no valuable consideration was given or promised by any person for that contract then, notwithstanding anything in subsection (1), it shall be presumed, unless the contrary is shown, that the deceased made that contract with the intention of de feating an application for financial provision under this Part.

(3) Where the Court makes an order under section 21 or 22 it may give such consequential directions as it thinks fit (including direc tions requiring the making of any payment or the transfer of any prop erty) for giving effect to the order or for securing a fair adjustment of the rights of the persons affected thereby.

(4) Any power conferred on the Court by section 21 or 22 to or der the donee, in relation to any disposition or contract, to provide any sum of money or other property shall be exercisable in like manner in relation to the estate representative of the donee, and —

(a) any reference in section 21(4) to the disposal of property by the donee shall include a reference to disposal by the estate representative of the donee, and

(b) any reference in section 21(5) to ail application by the donee under that subsection shall include a reference to an application by the estate representative of the donee;

but the Court does not have power under section 21 or 22 to make an order in respect of any property forming part of the estate of the donee which has been distributed by the estate representative; and the estate representative is not liable for having distributed any such property be fore he has notice of the making of an application under section 21 or 22 on the ground that he ought to have taken into account the possibility that such an application would be made.

Trustees in relation to sections 21 and 22

23A (1) Where an application is made for —

(a) an order under section 21 in respect of a disposition made by the deceased to any person as a trustee, or

(b) an order under section 22 in respect of any payment made or property transferred, in accordance with a con tract made by the deceased, to any person as a trustee,

the powers of the Court under section 21 or 22 to order that trustee to provide a sum of money or other property are subject to the following limitation namely, that the amount of any sum of money or the value of any property ordered to be provided —

(c) in the case of an application in respect of a disposition which consisted of the payment of money or an applica tion in respect of the payment of money in accordance with a contract, shall not exceed the aggregate of so much of that money as is at the date of the order in the hands of the trustee and the value at that date of any property which represents that money or is derived therefrom and is at that date in the hands of the trustee;

(d) in the case of an application in respect of a disposition which consisted of the transfer of property (other than a
sum of money) or an application in respect of the trans fer of property (other than a sum of money) in accor dance with a contract, shall not exceed the aggregate of the value at the date of the order of so much of that property as is at that date in the hands of the trustee and the value at that date of any property which repre sents the first mentioned property or is derived there from and is at that date in the hands of the trustee.

(2) Where any such application is made in respect of a disposi tion made to any person as a trustee or in respect of any payment made or property transferred in pursuance of a contract to any person as a trustee, the trustee is not liable for having distributed any money or other property on the ground that he ought to have taken into account the possibility that such an application would be made.

(3) Where any such application is made in respect of a disposi tion made to any person as a trustee or in respect of any payment made or property transferred in accordance with a contract to any person as a trustee, any reference in section 21 or 22 to the donee shall be construed as including a reference to the trustee or trustees for the time being of the trust in question and any reference in subsection (1) or (2) to a trustee shall be construed in the same way.

Where no financial relief was granted in divorce proceedings

23B (1) Where, within twelve months from the date on which a de cree of divorce or nullity of marriage has been made absolute or a decree of judicial separation has been granted, a party to the marriage dies and—

(a) an application for a financial provision order under sec tion 27 of the Matrimonial Causes Act 1974 [title 27 item 3] or a property adjustment order under section 28 of that Act has not been made by the other party to that marriage, or

(b) an application mentioned in paragraph (a) has been made but the proceedings thereon have not been deter mined at the time of the death of the deceased,

then, if an application for an order under section 14 is made by that other party, the Court shall, notwithstanding anything in section 13 or section 15, have power, if it thinks it just to do so, to treat that party for the purposes of that application as if the decree of divorce or nullity of marriage had not been made absolute or the decree of judicial separation had not been granted, as the case may be.

(2) This section does not apply in relation to a decree of judicial separation unless at the date of the death of the deceased the decree was in force and the separation was continuing.

Restriction on application under this Part may be imposed in di vorce proceedings

23C (1) On the grant of a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter, the Court, if it considers it just to do so, may, on the application of either party to the marriage, order that the other party to the marriage shall not on the death of the applicant be entitled to apply for an order under sec tion 14.

(2) In the case of a decree of divorce or nullity of marriage an order may be made under subsection (1) before or after the decree is made absolute, but if it is made before the decree is made absolute it shall not take effect unless the decree is made absolute.

(3) Where an order made under subsection (1) on the grant of a decree of divorce or nullity of marriage has come into force with respect to a party to a marriage, then, on the death of the other party to that marriage, the Court shall not entertain any application for an order un der section 14 made by the first-mentioned party.

(4) Where an order made under subsection (1) on the grant of a decree of judicial separation has come into force with respect to any party to a marriage, then, if the other party to that marriage dies while the decree is in force and the separation is continuing, the Court shall not entertain any application for an order under section 14 made by the first-mentioned party.

Variation and discharge of secured periodical payments orders

23D (1) Where an application for an order under section 14 is made to the Court by any person who was at the time of the death of the de ceased entitled to payments from the deceased under a secured periodi cal payments order made under the Matrimonial Causes Act 1974 [title 27 item 3], then, in the proceedings on that application, the Court has power, if an application is made under this section by that person or by the estate representative of the deceased, to vary or discharge that peri odical payments order or to revive the operation of any provision thereof which has been suspended under section 35 of that Act.

(2) In exercising the powers conferred by this section the Court shall have regard to all the circumstances of the case, including any or -
der which the Court proposes to make under section 14 or section 17 and any change (whether resulting from the death of the deceased or otherwise) in any of the matters to which the Court was required to have regard when making the secured periodical payments order.

(3) The power exercisable by the Court under this section in relation to an order shall be exercisable also in relation to any instru ment executed in pursuance of the order.

Variation and revocation of maintenance agreements

23E (1) Where an application for an order under section 14 is made to the Court by any person who was at the time of the death of the de ceased entitled to payments from the deceased under a maintenance agreement which provided for the continuation of payments under the agreement after the death of the deceased, then, in the proceedings on that application, the Court shall have power, if an application is made under this section by that person or by the estate representative of the deceased, to vary or revoke that agreement.

(2) In exercising the powers conferred by this section the Court shall have regard to all the circumstances of the case, including any or der which the Court proposes to make under section 14 or section 17 and any change (whether resulting from the death of the deceased or otherwise) in any of the circumstances in the light of which the agree ment was made.

(3) If a maintenance agreement is varied by the Court under this section the like consequences shall ensue as if the variation had been made immediately before the death of the deceased by agreement between the parties and for valuable consideration.

(4) In this section "maintenance agreement", in relation to a deceased person, means any agreement made, whether in writing or not and whether before or after 8 January 1988, by the deceased with any person with whom he entered into a marriage, being an agreement which contained provisions governing the rights and liabilities towards one an other when living separately of the parties to that marriage (whether or not the marriage has been dissolved or annulled) in respect of the mak ing or securing of payments or the disposition or use of any property, in cluding such rights and liabilities with respect to the maintenance or ed ucation of any child, whether or not a child of the deceased or a person who was treated by the deceased as a child of the family in relation to that marriage.

Availability of Court's powers under this Part

23F (1) Where —

(a) a person against whom a secured periodical payments order was made under the Matrimonial Causes Act 1974 [title 27 item 3] has died and an application is made un der section 35(6) of that Act for the variation or dis charge of that order or for the revival of the operation of any provision thereof which has been suspended, or

(b) a party to a maintenance agreement within the meaning of section 38 of the Matrimonial Causes Act 1974 [title 27 item 3] has died, the agreement being one which pro vides for the continuation of payments thereunder after the death of one of the parties, and an application is made under section 40(1) of that Act for the alteration of the agreement under section 39 thereof,

the Court shall have power to direct that the application made under section 35(6) or 40(1) of that Act, shall be deemed to have been accom panied by an application for an order under section 14 of this Act.

(2) Where the Court gives a direction under subsection (1) it shall have power, in the proceedings on the application under section 35(6) or 40(1) of the Matrimonial Causes Act 1974 [title 27 item 3], to make any order which the Court would have had power to make under this Act if the application under section 35(6) or 40(1) of the Matrimonial Causes Act 1974 [title 27 item 3], as the case may be, had been made jointly with an application for an order under section 14 of this Act; and the Court shall have power to give such consequential directions as may be necessary for enabling the Court to exercise any of the powers avail able to the Court under this Part in the case of an application for an or der under section 14 of this Act.

(3) Where an order made under section 23C(1) is in force with respect to a party to a marriage, the Court shall not give a direction un der subsection (1) with respect to any application made under section 35(6) or 40(1) of the Matrimonial Causes Act 1974 [title 27 item 3] by that party on the death of the other party.

Effect, duration and form of orders

23G (1) Where an order is made under section 14 then for all pur poses 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 be deemed to have had effect as from the deceased's death subject to the provisions of the order.

(2) Any order made under section 14 or 17 in favour of —

(a) an applicant who was the former spouse of the deceased; or

(b) an applicant who was the husband or wife of the de ceased in a case where the marriage with the deceased was the subject of a decree of judicial separation and at the date of death the decree was in force and the sepa ration was continuing,

shall, in so far as it provides for the making of periodical payments, cease to have effect on the remarriage of the applicant, except in relation to any arrears due under the order on the date of the remarriage.

(3) Two copies of every order made under this Part other than an order made under section 23C(1), shall be sent to the Registrar for entry and filing, (one copy in probate and administration and the other copy in the book of wills), and a memorandum of the order shall be en dorsed on, or permanently annexed to the probate or letters of adminis tration under which the estate is being administered.

Estate representative

23H (1) Section 53 of the Administration of Estates Act 1974 [title 26 item 12] applies to this Part; however, this Part shall not render the estate representative of a deceased person liable for having distributed any part of the estate of the deceased, after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out, on the ground that be ought to have taken into account the possibility —

(a) that the Court might permit the making of an applica tion for an order under section 14 after the end of that period, or

(b) that, where an order has been made under section 14, the Court might exercise in relation thereto the powers conferred on it by section 18,

but this subsection shall not prejudice any power to recover, by reason of the making of an order under this Part, any part of the estate so dis tributed.

(2) When the estate representative of a deceased person pays any sum directed by an order under section 17 to be paid out of the de ceased's net estate, he shall not be under any liability by reason of that estate not being sufficient to make the payment, unless at the time of making the payment he has reasonable cause to believe that the estate is not sufficient.

(3) Where a deceased person entered into a contract by which he agreed to leave by his will any sum of money or other property to any person or by which he agreed that a sum of money or other property would be paid or transferred to any person out of his estate, then, if the estate representative of the deceased has reason to believe that the de ceased entered into the contract with the intention of defeating an appli cation for financial provision under this Part, he may, notwithstanding anything in that contract, postpone the payment of that sum of money or the transfer of that property until the expiration of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out or, if during that period an application is made for an order under section 14, until the determination of the proceedings on that application.

Admissibility as evidence of statements made by deceased

23J In any proceedings under this Part a statement made by the de ceased, whether orally or in a document or otherwise, is admissible un der section 27B of the Evidence Act 1905 [title 8 item 10] as evidence of any fact stated therein in like manner as if the statement were a state ment falling within section 27B(1) of that Act; and any reference in that Act to a statement admissible, or given or proposed to be given, in evi dence under section 27B thereof or to the admissibility or the giving in evidence of a statement by virtue of that section or to any statement falling within section 27B(1) of that Act shall be construed accordingly.

Determination of date when representation was first taken out

23K In considering for the purposes of this Part when representation with respect to the estate of a deceased person was first taken out, a grant limited to trust property shall be left out of account and a grant limited to real estate or to personal estate shall be left out of account unless a grant limited to the remainder of the estate has previously been made or is made at the same time.

Effect of this Part on section 5(1), case 8

23L Section 5(1), Case 8, in so far as it provides for the devolution of property on the Government as bona vacantia shall have effect subject to this Part.

PART IV
MISCELLANEOUS AND GENERAL

Rules

24 (1) The power of the Chief Justice to make rules under section 62 of the Supreme Court Act 1905 [title 8 item 1] shall extend to the making of rules regulating the procedure and practice to be followed in applications to the Court under this Act.

(2) Section 6 of the Statutory Instruments Act 1977 [title 1 item 3] shall not apply to rules made by the Chief Justice under this Act.

Savings

25 Save as otherwise expressly provided, this Act shall not derogate from the Matrimonial Proceedings (Magistrates' Courts) Act 1974 [title 27 item 5], the Legitimacy Act 1933 [title 27 item 23], the Matrimonial Causes Act 1974 [title 27 item 3] or the Adoption of Children Act 1963 [title 27 item 22].

Application of Act

26 Save as otherwise expressly provided, this Act does not apply in any case where the death occurred before 1 September 1974.

Repeals

27 [omitted]

Commencement

28 [

Bermuda Consolidated Legislation

Succession Act 1974