The County Court Rules 1981

ORDER 48FAMILY PROVISION

Interpretation

1.  In this Order—

“the Act of 1973” means the Matrimonial Causes Act 1973;

“the Act of 1975” means the Inheritance (Provision for Family and Dependants) Act 1975;

“the deceased” means, in the case of an application under section 36 of the Act of 1973, the deceased party to the agreement to which the application relates and, in the case of an application under section 1 of the Act of 1975, the person to whose estate the application relates.

Mode of application

2.—(1) An application to a county court under section 1 of the Act of 1975 for provision to be made out of the estate of a deceased person shall be made by originating application stating—

(a)the name of the deceased, the date of his death and his country of domicile at that date;

(b)the relationship of the applicant to the deceased or other qualification of the applicant for making the application;

(c)the date on which representation with respect to the deceased's estate was first taken out and the names and addresses of the personal representatives;

(d)that to the best of the applicant's knowledge and belief the value of the deceased's net estate does not exceed the sum for the time being fixed under section 22(1) of the Act of 1975;

(e)whether the disposition of the deceased's estate effected by his will or the law relating to intestacy was such as to make any provision for the applicant and, if it was, the nature of the provision;

(f)to the best of the applicant's knowledge and belief, the persons or classes of persons interested in the deceased's estate and the nature of their interests;

(g)particulars of the applicant's present and foreseeable financial resources and financial needs and any other information which he desires to place before the court on the matters to which the court is required to have regard under section 3 of the Act of 1975;

(h)where appropriate, a request for the court's permission to make the application notwithstanding that the period of six months has expired from the date on which representation in regard to the estate of the deceased was first taken out, and the grounds of the request; and

(i)the nature of the provision applied for.

(2) An application to a county court under section 36 of the Act of 1973 for the alteration of a maintenance agreement after the death of one of the parties shall be made by originating application giving the information which would be required to be stated in a supporting affidavit if the application were made to the High Court and also, in the case of an application by the surviving party to the agreement, stating that to the best of the applicant's knowledge and belief the value of the deceased's net estate does not exceed the sum for the time being fixed under section 22(1) of the Act of 1975.

Filing of application

3.—(1) An application to which rule 2(1) or (2) relates shall be filed—

(a)in the court for the district in which the deceased resided at the date of his death, or

(b)if the deceased did not then reside in England or Wales, in the court for the district in which the respondent or one of the respondents resides or carries on business or the estate or part of the estate is situate, or

(c)if neither of the foregoing sub-paragraphs is applicable, in the court for the district in which the applicant resides or carries on business.

(2) The applicant shall file with his originating application—

(a)an official copy of the grant of representation to the deceased's estate and of every testamentary document admitted to proof, and

(b)in the case of an application under section 36 of the Act of 1973, a copy of the agreement to which the application relates.

(3) Unless the court otherwise directs, the return day of the originating application shall be a day fixed for the pre-trial review of the proceedings.

Parties

4.—(1) Without prejudice to its powers under Orders 5 and 15, the court may, at any stage of the proceedings, direct that any person be added as a party to the proceedings or that notice of the proceedings be served on any person.

(2) Order 5, rule 6, shall apply to an application under section 1 of the Act of 1975 or section 36 of the Act of 1973 as it applies to the proceedings mentioned in that rule.

Answer

5.  Every respondent shall, within 21 days after service of the originating application on him, file an answer, which, if the respondent is a personal representative, shall state to the best of his ability—

(a)full particulars of the value of the deceased's net estate, as defined by section 25(1) of the Act of 1975;

(b)the persons or classes of persons beneficially interested in the estate, giving the names and (in the case of those who are not already parties) the addresses of all living beneficiaries, and the value of their interests so far as ascertained;

(c)if such be the case, that any living beneficiary (naming him) is a minor or a mental patient; and

(d)in the case of an application under section 1 of the Act of 1975, any facts known to the personal representative which might affect the exercise of the court's powers under that Act.

Subsequent application

6.  Where an order has been made on an application under section 1 of the Act of 1975, any subsequent application, whether made by a party to the proceedings or by any other person, shall be made in those proceedings in accordance with Order 13, rule 1.

Hearing

7.  Any application under section 1 of the Act of 1975 or section 36 of the Act of 1973 may be heard and determined by the registrar and may, if the court thinks fit, be dealt with in chambers.

Endorsement of memorandum on grant

8.  On the hearing of an application under section 1 of the Act of 1975, the personal representative shall produce to the court the grant of representation to the deceased's estate and, if an order is made under the Act, the proper officer shall send a sealed copy thereof, together with the grant of representation, to the principal registry of the Family Division for a memorandum of the order to be endorsed on, or permanently annexed to, the grant in accordance with section 19(3) of the Act of 1975.

Transfer to High Court

9.—(1) The court in which an application under section 36 of the Act of 1973 or section 1 of the Act of 1975 is pending may order the transfer of the application to the High Court where the transfer appears to the court to be desirable.

(2) In considering whether an application should be transferred under paragraph (1) from a county court to the High Court, the court shall have regard to all relevant considerations, including the nature and value of the property involved, the relative expense of proceeding in the High Court and the county court and the limit for the time being of the jurisdiction of county courts under section 22 of the Act of 1975.

(3) Any order of transfer shall state whether it is desired that the proceedings be assigned to the Chancery Division or to the Family Division of the High Court.