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Home → Legislative Business → Bills → 41-4

Status of bills in this Session.

4th Session, 41st Legislature

This HTML version is provided for ease of use and is based on the bilingual version that was distributed in the Legislature after First Reading.

Bill 226

THE PRESUMPTION OF DEATH AND DECLARATION OF ABSENCE ACT AND AMENDMENTS TO THE INSURANCE ACT

Table of Contents

Bilingual version (PDF)

Explanatory Note

(Assented to )

WHEREAS it may become necessary to deal with the property of a person who has disappeared for a prolonged time period without explanation;

AND

WHEREAS the preservation and distribution of that property may provide some measure of closure for those affected by the person's prolonged disappearance;

AND

WHEREAS it is appropriate to establish a judicial process for presuming a person to be dead or declaring a person to be absent for the purposes of preserving and distributing that property;

THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

INTRODUCTORY PROVISIONS

Definitions

The following

definitions apply in this Act.

"applicant" means a person who applies for an order. (« requérant »)

"committee" means a committee appointed under a declaration of absence order. (« curateur »)

"court" means the Court of Queen's Bench. (« tribunal »)

"declaration of absence order" means an order made under

section 5. (« ordonnance de déclaration d'absence »)

"interested person" means a person who may apply for an order under

section 3, and includes a person who is directed to be served with an application as provided for in subclause 3(2)(a)(ii). (« personne intéressée »)

"presumption of death order" means an order made under

section 4. (« ordonnance de présomption de décès »)

Application of Queen's Bench Rules

Except as otherwise provided in this Act, the Queen's Bench Rules apply to an application made under this Act.

ORDERS

Who may apply for an order?

3(1)

The following persons may apply to the court for a presumption of death order or a declaration of absence order:

(

a) in respect of the person who is the subject of the application for an order,

(

i) their spouse or common-law partner,

(ii) their child, parent or sibling,

(iii) any person who is in possession of their property, or

(iv) the insurer of a contract of insurance to which

Part V or VI of The Insurance Act applies if their life is insured under that contract;

(

b) the Public Guardian and Trustee when acting as authorized under The Public Guardian and Trustee Act in respect of

(

i) the person who is the subject of the application for an order, or

(ii) a person who is or would be affected by an order;

(

c) any other person who could be affected by the making of an order.

Notice of application

3(2)

At least 10 days before the hearing of an application, the applicant must

(

a) serve notice of the application on

(

i) all other interested persons of whom the applicant is aware, and

(ii) any other person as directed by the court; and

(

b) give public notice of the application by publishing a notice in a newspaper having general circulation in the area where the person who is the subject of the application was last known to reside.

Status of person directed to be served

3(3)

A person directed by the court to be served is deemed to be an interested person and may intervene in and make representations at the hearing.

Presumption of death order

4(1)

The court may make an order declaring that a person is presumed to be dead if the court is satisfied that

(

a) the person has been absent and the applicant has not heard from them or of them, and, to the knowledge of the applicant, no other person has heard from them or of them, since a day named;

(

b) the applicant has no reason to believe that the person is living; and

(

c) reasonable grounds exist for supposing that the person is dead.

Date of presumed death

4(2)

The presumption of death order must state the date on which the person is presumed to have died.

Scope of order

4(3)

The presumption of death order applies for all purposes unless the court determines that the order applies only for certain purposes and specifies those purposes in the order.

Order is proof of death

4(4)

The presumption of death order or a certified copy of the order is proof of the person's death for the purposes for which it applies.

Alternative order

4(5)

If the court is not satisfied that there is sufficient evidence to justify the making of a presumption of death order, the court may make a declaration of absence order instead.

Declaration of absence order

5(1)

The court may make an order declaring that a person is absent and appointing a committee to administer the person's property if the court is satisfied that

(

a) the person has been absent and the applicant has not heard from them or of them, and, to the knowledge of the applicant, no other person has heard from them or of them, since a day named;

(

b) there is insufficient evidence to justify a presumption of death order;

(

c) the person has property in Manitoba; and

(

d) it is advisable that a committee be appointed to manage the person's property.

Contents of order

5(2)

When appointing a committee under this section, the court may

(

a) appoint the applicant or any other person the court considers suitable, including the Public Guardian and Trustee; and

Powers and duties of committee

5(3)

Powers of committee to expend money out of estate

5(4)

Changing or confirming an order

6(1)

An interested person may, with leave, apply to the court for an order to vary, amend, confirm or revoke a presumption of death order or a declaration of absence order.

Court may give directions

6(2)

The court may give any directions it considers appropriate when making an order under this section, including an order under

section 10 respecting the preservation and return of property or the return of proceeds of an insurance policy.

Appeal

7(1)

An interested person may appeal an order or decision made under this Act to the Court of Appeal within 30 days after the order or decision is made.

Notice of appeal

7(2)

To appeal an order made under this Act, the interested person must

(

a) file a notice of appeal; and

(

b) serve a copy of the notice on all other persons who were served with the application concerning the order or decision being appealed.

Powers of Court on appeal

7(3)

On hearing the appeal, the Court of Appeal may

(

a) make any finding or order that in its opinion ought to have been made in accordance with this Act; or

(

b) dismiss the appeal.

ACTIONS UNDER AN ORDER

Duty of personal representative

8(1)

A personal representative or committee acting under an order must not take any further steps to administer the estate or property of the person who is the subject of the order if they have reasonable grounds to believe that

(

a) the person is not in fact dead; or

(

b) if applicable, the person is no longer absent or has since been heard from or of.

Duty of trustee of insurance proceeds

8(2)

A trustee for a beneficiary regarding a contract of insurance on the life of a person who is the subject of a presumption of death order must not take any further steps respecting the proceeds of the contract of insurance that they hold if they have reasonable grounds to believe that the person is not in fact dead.

Confirmation order required

8(3)

To take any further steps, the personal representative, committee or trustee must first have the order confirmed under

section 6.

Status of property if person is in fact alive or found

9(1)

A distribution of a person's property made in accordance with an order is deemed to be a final distribution of the property and the person, even if in fact alive or no longer absent, is not entitled to recover any of their property that has been so distributed.

Insurance proceeds used by trustee

9(2)

Proceeds from a contract of insurance on the life of a person who is the subject of a presumption of death order that are received by a trustee and expended in accordance with the terms of the trust are considered to be finally distributed, and no one is entitled to recover them even if the person whose life was insured is found to be alive.

Exception

9(3)

This

section does not apply in respect of a distribution or expenditure that is made when

section 8 applies.

Court retains jurisdiction to order return of property or proceeds

10(1)

Despite subsections 9(1) and 9(2), and subject to subsection (2), the court may, if it is of the opinion that it would be just to do so, make an order requiring

(

a) any person to whom property of the person presumed to be dead or declared to be absent was distributed to reconvey all or part of it, or to pay a specified amount, to the person if the person is found to be alive or no longer absent; or

(

b) the recipient of proceeds of a life insurance policy to pay some or all of the proceeds into court, to be dealt with as ordered by the court, if the person insured is found to be alive.

Order

10(2)

The court may make an order under this

section on application made by the person who is found to be alive or no longer absent or by any other interested person, and only if it is of the opinion it is just to do so considering all the circumstances, including any inconvenience or hardship that would be experienced by the person ordered to reconvey property or make a payment.

Status of property if person is in fact dead

If a person who is presumed to be dead is, in fact, dead, any of the person's property that has been distributed in reliance on a presumption of death order is deemed to be a final distribution and to be the property of the person to whom it has been distributed as against any person who would otherwise be entitled if the declaration had not been made.

PRESUMPTION OF DEATH ORDER MADE

OUTSIDE MANITOBA

Order made in Canada

12(1)

An order declaring a person to be presumed dead that is made in another Canadian jurisdiction must be recognized in Manitoba if the requirements of The Enforcement of Canadian Judgments Act are satisfied.

Order made outside Canada

12(2)

An order declaring a person to be presumed dead that is made outside Canada must be recognized in Manitoba if the order is made in accordance with legislation substantially similar to this Act.

AMENDMENTS TO INSURANCE ACT

C.C.S.M. c. I40 amended

13(1)

The Insurance Act is amended by this section.

13(2)

Section 183.1 is repealed.

13(3)

Subsection 184(2) is replaced with the following:

Exception when presumption of death

184(2)

Subject to subsection (5), if a presumption of death order has been made under The Presumption of Death and Declaration of Absence Act , an action or proceeding referred to in subsection (1) must be commenced not later than two years after the date the order was made.

13(4)

Section 186 is amended by striking out "

section 187 " and substituting " subsection 4(1) of The Presumption of Death and Declaration of Absence Act".

13(5)

Section 187 is repealed.

13(6)

Subsection 188(1) is amended by striking out " or 187 " and substituting " or a declaration under subsection 4(1) of The Presumption of Death and Declaration of Absence Act".

13(7)

Section 189 is amended by striking out " or 187 " and substituting " or

section 3 of The Presumption of Death and Declaration of Absence Act".

13(8)

Section 190 is amended by striking out "

section 186, 187 or 188 " and substituting "

section 186 or 188 ".

13(9)

Section 191 is amended by adding " under The Presumption of Death and Declaration of Absence Act" after " established ".

13(10)

Section 230.2 is repealed.

13(11)

Subsection 230.3(2) is replaced with the following:

Exception when presumption of death

230.3(2)

Subject to subsection (5), if a presumption of death order has been made under The Presumption of Death and Declaration of Absence Act , an action or proceeding referred to in subsection (1) must be commenced not later than two years after the date the order was made.

13(12)

Subsection 230.4(2) is amended by striking out "

section 230.5 " and substituting " subsection 4(1) of The Presumption of Death and Declaration of Absence Act".

13(13)

Section 230.5 is repealed.

13(14)

Subsection 230.6(1) is amended by striking out " or 230.5 " and substituting " or a declaration under subsection 4(1) of The Presumption of Death and Declaration of Absence Act".

13(15)

Section 230.7 is amended by striking out " or 230.5 " and substituting " or

section 3 of The Presumption of Death and Declaration of Absence Act".

13(16)

Section 230.8 is amended by striking out "

section 230.4, 230.5 or 230.6 " and substituting "

section 230.4 or 230.6 ".

13(17)

Section 230.9 is amended by adding " under The Presumption of Death and Declaration of Absence Act" after " established ".

CONSEQUENTIAL AMENDMENTS

Consequential amendment, C.C.S.M. c. M50

Subsection 23(1) of The Marriage Act is amended by adding " (now repealed) or The Presumption of Death and Declaration of Absence Act" after " under The Presumption of Death Act".

Consequential amendment, C.C.S.M. c. T160

The following is added after subsection 83(1) of The Trustee Act :

Interpretation: "statutory limitation"

83(1.1)

For certainty, subsection 9(2) of The Presumption of Death and Declaration of Absence Act is a "statutory limitation", as that term is used in subsection (1).

REPEAL, C.C.S.M. REFERENCE

AND COMING INTO FORCE

Repeal

The Presumption of Death Act , R.S.M. 1987, c. P120, is repealed.

C.C.S.M. reference

This Act may be cited as The Presumption of Death and Declaration of Absence Act and referred to as

chapter P120 of the Continuing Consolidation of the Statutes of Manitoba .

Coming into force

This Act comes into force on the day it receives royal assent.

Explanatory Note

This Bill replaces The Presumption of Death Act with The Presumption of Death and Declaration of Absence Act . The key changes are as follows.

If certain conditions are met, the court may order that a person is presumed to be dead or declare that a person is absent.

An affected person, an insurance company or the Public Guardian and Trustee may apply for an order. Interested persons must be notified about the application and may participate in the hearing.

The court may appoint a personal representative or committee to deal with the property of a person who is presumed dead or declared absent.

If the personal representative or committee becomes aware that the person is not dead or absent, then no further steps to administer the person's property or estate may be taken.

The distribution of a person's property to others is final even if the person is later found to be alive or no longer absent. The court may, if just to do so, order the property be returned or the person be compensated.

A presumption of death order from another jurisdiction may be recognized in Manitoba.

The Bill also amends The Insurance Act . A presumption of death order is sufficient proof for the purpose of a life insurance contract.

Consequential amendments are made to The Marriage Act and The Trustee Act .

Document details

Collection	Manitoba — Debates (Hansard)
Citation	41-4 b226e.php
Type	bill
Volume / chapter	41 4 b226e.php
Language	en
Format	html
Source	PROVINCIAL
Identifier	074e9233b687ece9955dc0e14a6c04ceb4aeffd4

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