- A Testators' Family Maintenance Act application cannot be brought after six months from the grant of probate (or administration with will annexed), unless the time is extended.
- A judge can suspend administration of the estate while a claim is dealt with.
- Who qualifies and what a judge weighs are questions to confirm with a lawyer early, because the clock starts at the grant, not at the death.
Finding out that a will leaves you little or nothing can be upsetting, especially if you relied on the person who died. Nova Scotia has a statute, the Testators' Family Maintenance Act, that exists for situations like this. It is a separate route from simply disagreeing with the will.
This article explains how the time limit works, how a claim fits with the probate process, and what other deadlines may run alongside it. Whether you can bring a claim, and what a judge would consider, depends on your own circumstances and is worth confirming with a lawyer.
This article covers the law of Nova Scotia.
What a family maintenance claim is
A family maintenance claim is an application to the court under the Testators' Family Maintenance Act. It is aimed at wills, which is why it is tied to the court's grant of probate. It is different from a dispute over whether the will is valid.
The details of who may apply and how a judge decides what is fair depend on the Act and on the facts of your family and the estate. Because those details matter a great deal, a lawyer can tell you whether your situation is likely to qualify before you spend time and money on an application.
The six-month time limit
The key rule is the deadline. An application under the Act cannot be brought after six months from the grant of probate, or from the grant of administration with will annexed. That rule is in section 14(1) of the Act, and it is subject to an extension under subsection (2).
The clock runs from the grant, not from the date of death. A grant is the court's approval that gives the executor legal authority to deal with property in the deceased's name. If you are not sure whether a grant has been issued, the estate records are kept at the Registrar of Probate's office in the district.
An extension is not something to count on. Treat the six months as firm and ask a lawyer about it right away if you may already be close to the end.
How a claim fits with the rest of the estate
A judge may suspend administration of the estate, which is the court's way of pausing things while a claim is considered. How this applies to a family maintenance claim depends on your situation, so it is worth confirming with a lawyer before any assets are handed out.
Some timing in the estate process may help you notice what is happening:
- After a grant is issued, the personal representative must serve notice of the grant on each person who is or may be entitled to share in the estate within 30 days, and proof of service is due within 60 days.
- The Royal Gazette advertisement runs six months, after which the estate can move to distribution.
- If you receive a notice of the grant, note the date and think about the six-month limit straight away.
Contested matters in the Probate Court go to a judge rather than the registrar. A contentious application starts with a Notice of Application (Form 45) and an affidavit (Form 46). Which process applies to a family maintenance claim is worth confirming with a lawyer.
Other deadlines that may run at the same time
A family maintenance claim is not the only possible right, and the deadlines are often similar. Here is how some of them compare.
| Right or step | Time limit |
|---|---|
| Testators' Family Maintenance Act application | Not after six months from the grant of probate or administration with will annexed |
| Surviving spouse's application to divide matrimonial assets | Within six months after probate or administration is granted |
| Creditor's Notice of Claim (Form 32) | Within the six-month advertising period |
| Appeal from a registrar's decision | Started not later than 30 days after the decision or order |
For a surviving spouse, the right to apply to divide matrimonial assets is in addition to rights on intestacy or under the will. The court may extend that time if the survivor did not know of the grant or lacked adequate opportunity, but a late application reaches only undistributed assets.
What to do next
If you think you were left out or underprovided for, act early. The earlier a lawyer sees the will and the estate details, the more options you are likely to have.
- Find out whether a grant of probate has been issued, and on what date, by checking with the Registrar of Probate in the district.
- Write down the date of any notice of the grant you received.
- Get a copy of the will and any information about the size and make-up of the estate.
- Keep a list of your own relationship to the person who died and your financial needs.
- Ask a lawyer whether you qualify under the Act and whether the six-month limit has started or can be extended.
- Do not assume the executor will wait; raise your concern in writing and in good time.
Frequently asked questions
What is the deadline for a Testators' Family Maintenance Act claim in Nova Scotia?
An application cannot be brought after six months from the grant of probate, or from the grant of administration with will annexed. The time can be extended under subsection (2) of section 14. Do not rely on an extension.
Does the six months start on the date of death?
No. The limit runs from the grant of probate or of administration with will annexed, not from the death. Check with the Registrar of Probate for the district to learn when a grant was issued.
Can the estate keep being distributed while I make a claim?
A judge may suspend administration of the estate. How early distribution affects an executor during a family maintenance claim depends on the situation, so it is worth confirming with a lawyer. A lawyer can tell you how to raise this with the court.
Who can apply and what will the judge consider?
That depends on the Act and on your circumstances, including the family relationships and the estate. A lawyer can review the will and the facts and tell you whether a claim is realistic.
Sources
- Courts of Nova Scotia – Probate Court — courts.ns.ca
- Probate Court Practice, Procedure and Forms Regulations — novascotia.ca
- Testators' Family Maintenance Act, RSNS 1989, c 465, s. 14 — nslegislature.ca
- Matrimonial Property Act, RSNS 1989, c 275 — nslegislature.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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