This report was undertaken as part of ALRI’s studies on the reform of family law. The Family Relief Act provides for an award from an estate for the maintenance of the surviving spouse and a limited class of children. The maintenance must come from the net estate after payment of claims against the deceased. An eligible dependant may apply to the court within six months of the grant of probate or administration. There is provision for late application, but only in regard to that part of the estate that remains undistributed. The court will determine whether the will or The Intestate Succession Act has made “adequate provision for the proper maintenance and support” of the dependant.
The report concludes that the present policy of The Family Relief Act should be preserved. Testamentary freedom should remain unimpaired provided that the deceased has made adequate provision for the proper maintenance and support of persons standing in a certain familial relationship. This involves reliance upon broad judicial discretion to determine whether relief will be granted as well as the amount of that relief. With regard to the surviving spouse, the report concludes that a forced share would not provide appropriate economic protection. Protection to dependants accorded by this statute should be as effective as is possible. Measures are recommended that will provide dependents with effective protection against disinheritance.