Enlarging Estate For Maintenance Purposes

What is the situation when the estate cannot provide maintenance for all those entitled to it?

 

In this situation the court has discretion to regard property which the deceased owned but gave without full payment/contribution during his lifetime as part of the estate.

Will every transfer of property that the deceased gave in his lifetime be regarded as part of his estate if the latter is not big enough to provide maintenance for all those entitled to it?

 

No – only those for which he did not receive a favourable contribution.

Can the court include gifts and contributions that the deceased used to give in general, in order to enlarge the estate for maintenance purposes?

 

No!

 

How far back will the court look at transfers made during the deceased's lifetime when considering whether to enlarge the estate for maintenance purposes?

 

Up to two years before the deceased's death.

What might the recipient of a transfer/gift have to return?

 

The court has discretion to obliged the recipient to return what he received or to pay maintenance equivalent to what he had at the time of the deceased's death.

What happens if a recipient of a gift sold the property to a third party and is now required to pay towards the maintenance because the court wants to use it to enlarge the deceased's estate?

 

The property will remain in the hands of the third party, and the recipient of the

gift will have to contribute to the maintenance from his own pocket.

Must the court oblige a recipient of a gift to return it to enlarge the estate for maintenance purposes?

 

No! It has discretion to do so, but is not obliged to do so.

Can the court order a recipient of a lifetime gift to the estate to return it if there is not enough property in it to bequeath to the heirs?

 

No! The court can only order a recipient of a lifetime gift to return it for the purposes of enlarging the estate so that maintenance can be paid… and for no other reason.