QUICK FACTS!
DO YOU KNOW OF THE FDPA?
AN OVERVIEW OF THE FAMILY AND DEPENDANTS PROVISION ACT 1990
The Family Dependants Provisions Act (FDPA 1990) is “An Act which empowers the Court to make provision out of the estate of a deceased person for the spouse, child, child of the family or dependant of that person and for matters connected therewith.”
In Guyana, a person is free to give their estate to anyone they choose. However, in some cases, the deceased’s will or application of intestacy laws may fail to make reasonable financial provisions for some of the dependents of the deceased. To this end, the FDPA is a statute empowered by Parliament to alter the deceased’s estate to make an order for reasonable financial provision for specific categories of persons.
- Pre-conditions to Jurisdiction
Before the court’s jurisdiction can be invoked to hear a matter under the FDPA, three preconditions must be satisfied:
The applicant must fall within one of the categories of applicants set out in the Act, as seen below. Secondly, the application must be laid within a year after the will is probated. In the case of the letters of administration, it must be made within one year from the grant of letters of administration. Thirdly, it must be established that the deceased died domiciled in Guyana. Domicile means a person’s permanent, principal or true home.
- When can the Act be used?
The Act can only be used when no reasonable financial provision was made to an eligible person under the act from the deceased’s estate, either by will or the law of intestacy or a combination of the will and the law.
- Who can apply for financial provisions under the Act?
There are four (4) categories of persons who may apply to the Court for an order:
Section 3(1) of FDPA outlines these persons:
- The wife or husband of the deceased – This includes married couples and common-law unions. Common law unions refer to persons who have been residing with each other for five years and more. Thus the act stipulates that:
- “a wife shall include a reference to a single woman living together with a single man in a common law union for five years immediately preceding the date of his death; (ii) a husband shall include a reference to a single man living together with a single woman in a common law union for five years immediately preceding the date of her death.”
- A child of the deceased – child in this context shall include a child in respect of whom an adoption order has been made under the Adoption of Children Act and a child born out of wedlock.
- A child treated as a child of the family – any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage.
- A dependant – any person (not being a person included in the foregoing points) who, immediately before the death of the deceased, was being maintained, either wholly or partly, by the deceased through substantial contribution in money or money’s worth towards the reasonable needs of that person and otherwise than for full valuable consideration or money.
It is important to note that for category 1, the parties must be single while living together, and the union must immediately precede the deceased’s death. Further, the section also states that a spouse will also include a person who, in good faith, has entered into a void or an illegal marriage.
In relation to category four, maintenance of a person by the deceased during their lifetime could result in an obligation that maintenance is continued after the deceased’s death.
- What is a reasonable financial provision?
Reasonable financial provision means financial provision as it would be reasonable in all the circumstances for the applicant to maintain themself in a manner suitable to the individual circumstance.
However, reasonable provision for a spouse means such financial provision for a husband or wife to receive, whether or not the provision is required for his or her maintenance. Thus, the test is different for the spouse than for any other applicant. It should also be noted that no provision at all can be reasonable, depending on the circumstances.
- What ground must be established?
The applicant must satisfy the court on the sole ground that no reasonable financial provision was made for him. There are two (2) questions the court must answer.
- Whether the deceased’s estate failed to make reasonable financial provisions for the applicant?
If the answer is No- then the application ends there.
If the answer is Yes- then the court must move on to STAGE 2
- Where the Court finds that there was a failure, the second question is, should the court, in the exercise of its discretion, make an order for financial provision?
- Matters the Court must consider
The court considers various general and specific guidelines established in Section 5 of the Act to determine the answers to the questions in stages 1 and 2.
- General Guidelines
These general guidelines apply to every category of applicant.
- The means of the applicant, along with any other applicant and any beneficiary under the will or laws of intestacy, as at the date of the hearing. The courts also consider the applicant’s means in the foreseeable future. They do so by evaluating the earning capacity, minus liabilities and obligations of the applicant, and compare that to any obligation or responsibility that the spouse, child, dependant, and any other beneficiary might have.
- The obligation and responsibilities which the deceased had towards any applicant or beneficiary. In Re Callaghen [1984] 3 ALL ER 790, the deceased treated the claimant as a child of the family. He took care of him until his death. It was held that the deceased had an obligation and responsibility to make reasonable financial provisions for the applicant. The applicant was therefore granted a lump sum award of money.
- The size and nature of the net estate.
Although an estate may be small, the failure to make reasonable financial provisions may not be justified. Nevertheless, the court considers the size and nature of the estate compared to the number of persons requiring reasonable financial provision from it and the status of those persons. Where the estate is particularly small, an application made to gain reasonable financial provision is usually discouraged: Re Coventry [1973] 3 All ER 815.
d) Any physical or mental disability of the applicant, any other applicant, or beneficiary
The Courts consider the physical or mental disability of the applicant against other applicants and beneficiaries to determine whether they deserve reasonable financial provision from the estate. The court generally frowns on the applications of able-bodied men, even if that person is a child of the deceased. The approach was seen in Re Coventry (supra), where the application of a 47-year-old, able-bodied child of the deceased who is capable of full-time employment failed on the account that such a claim by such a person was not included in the intention of Parliament when the Act was created.
e) Any other matter, including the conduct (good or bad) of any person
The applicant may be eligible, but when their conduct is considered, it may have been concluded that there was no failure to make reasonable financial provisions for them. A prime example of conduct is seen in Re Coventry (supra), where the son of the deceased had mistreated his mother, and he was trying to claim under the Act. The court considered his conduct, and his application failed.
- Specific guidelines
The court must also consider specific guidelines for each type of applicant along with the general guidelines stated above.
Surviving spouses – Section 5(2) provides that the court must consider the applicant’s age because the younger the spouse, the higher the chances of remarrying, and the courts will factor this in. See (Re Bunning [1984] Ch. 480). Secondly, the duration of the marriage and the contribution made by the applicant by looking after the home and family of the deceased. The underlying consideration is what the spouse might reasonably have expected to receive had the marriage been terminated by death or by a decree of divorce.
Children – Section 5(3) outlines the specific guideline for the child of the deceased and a child of the family. The courts consider the manner in which the applicant was being or should likely be educated and trained in the future. Further, concerning the child of the family, the courts assess whether the deceased had assumed any responsibility for the applicant’s maintenance, the extent and basis of the assumption of the responsibility, and the length of time that the deceased discharged responsibility. Moreover, the courts must determine that the deceased discharged the responsibility knowing that the child was not their child and the liability of any other person to maintain the applicant.
Dependants – Section 5(4) states that a specific guideline to be considered for dependants is the extent to which and the basis upon which the deceased assumed the responsibility for the maintenance of the applicant and the length of time for which the deceased discharged that responsibility.
- Possible Orders
Once the court determines that no reasonable financial provision has been made, it has extensive powers under the Act to make Orders as it sees fit. Section 4(1) empowers the court to make the orders from the deceased’s net estate, such as periodical payments, a lump sum order to the applicant, an order for the sale of the property, and then a division of proceeds inter alia.
- Time Limit
Section 6 stipulates that an application for an order under section 4 shall not, except with the Court’s permission, be made after the end of one year from the date the grant of the deceased’s estate is first taken out.
- Conclusion
Testamentary freedom is an important principle that is respected by the law. Still, in some instances, deserving persons who are entitled to financial provision do not obtain the same, whether by a deceased person not making provision under their will or as a result of the rules of intestacy.
The FDPA sought to remedy this gap in the law. The Act is useful, and persons contemplated by the act, who are disadvantaged by the failure of a deceased person or the laws of intestacy to make reasonable financial provision for them, should take advantage of this statutory enactment.
