October 29, 2009

901199259/09013ph/tlc09013ph_f

E4tlc09013

Definitions and

Interpretation

Definitions and

interpretation

In this Act:

beneficiary means

a person named in a will to receive all or part of an estate, or

a person having a beneficial interest in a trust created by a will;

benefit , in relation to a benefit plan, means a benefit payable under a benefit plan on the death of a participant;

benefit plan means

any one or more of the following for the benefit of employees or former employees of an employer, agents or former agents of an employer, the dependants of any of them or a designated beneficiary:

a pension plan or retirement plan;

a welfare fund or profit-sharing fund;

iii

a trust, scheme, contract or arrangement,

a fund, trust, scheme, contract or arrangement for the payment of an annuity for life or for a fixed or variable term,

a retirement savings plan or retirement income fund registered under the Income Tax Act (Canada),

[Repealed 2025-16-22.]

a tax-free savings account within the meaning of the Income Tax Act (Canada),

a pooled registered pension plan as defined in

section 147.5 (1) of the Income Tax Act (Canada),

a first home savings account as defined in

section 146.6 (1) of the Income Tax Act (Canada), or

a prescribed fund, trust, scheme, plan, contract or arrangement,

whether it was created before, on or after this definition comes into force;

court means the Supreme Court;

descendant means all lineal descendants through all generations;

designated beneficiary means a person to whom or for whose advantage a benefit is payable by a designation;

designation means the designation of a designated beneficiary in accordance with

section 85 [designated beneficiaries] ;

estate means the property of a deceased person;

foreign grant means a grant of probate, including letters of verification issued in Quebec, or a grant of administration or other document purporting to be of the same nature issued by a court outside British Columbia;

foreign personal representative means a personal representative to whom a foreign grant has been made;

gift includes

a beneficial devise or bequest, and

an appointment affecting property other than the appointment of a person as executor of the will;

instrument includes a testamentary instrument and other legal documents, but does not include an instrument, other than a will, to which the Insurance Act applies;

intestate means a person who dies without a will;

intestate estate means the estate of a person who dies without a will;

intestate successor means a person who is entitled to receive all or part of an intestate estate;

land includes buildings and fixtures, and every right, title, interest, estate or claim to or in land;

nominee includes

a person granted power over financial affairs under the Patients Property Act ,

an attorney acting under an enduring power of attorney as described in

Part 2 [Enduring Powers of Attorney] of the Power of Attorney Act ,

a representative acting under a representation agreement made under

section 7 (1) (b) [standard provisions] of the Representation Agreement Act , and

a person appointed under

section 51 (2) [mentally incompetent Indians] of the Indian Act (Canada) or the Minister of Aboriginal Affairs and Northern Development;

participant means a person who makes a designation and, except when the context otherwise requires, includes an attorney or committee who makes a designation under

section 85 [designated beneficiaries] ;

personal property means every kind of property other than land;

property means land and personal property;

registrable charge means a charge created by an order of the court under

section 33 (2) [retention of spousal home] and made effective by registration in a land title office under

section 34 [registrable charges] ;

registrar general has the same meaning as in the Vital Statistics Act ;

representation grant means

the grant of probate of a will in British Columbia, whether made for general, special or limited purposes,

the grant of administration of the estate of a deceased person in British Columbia, with or without will annexed, whether made for general, special or limited purposes,

the resealing in British Columbia of a grant of probate of a will or a grant of administration of the estate of a deceased person,

an ancillary grant of probate or administration, or

[Not in force.]

security interest means an interest in property that secures payment or performance of an obligation;

spousal home means

a parcel of land, owned or owned in common by the deceased person and not leased to another person, that

is shown as a separate taxable parcel on a taxation roll for the current year prepared under the Taxation (Rural Area) Act or on an assessment roll used for the levying of taxes in a municipality, and

has as improvements situated on it a building assessed and taxed in the current year as an improvement, in which the deceased person and the person's spouse were ordinarily resident,

a share owned or owned in common by the deceased person in a corporation whose charter, as defined in

section 1 (1) of the Business Corporations Act , provides that a building owned or operated by the corporation must be owned and operated exclusively for the benefit of shareholders in the corporation who are occupants of the building, if the value of the share is equivalent to the capital value of a suite owned by the corporation, in which suite the deceased person and the person's spouse were ordinarily resident and which was not leased to any other person,

a manufactured home, as defined in the Manufactured Home Act , situated on land not owned by the owner of the manufactured home and in which the deceased person and the person's spouse were ordinarily resident, or

a parcel of land on Nisg̱a'a Lands or treaty lands that has as improvements situated on it a building in which the deceased person and the person's spouse were ordinarily resident,

owned or owned in common by the deceased person and not leased to another person,

held or held in common by the deceased person by way of a right to possession under Nisg̱a'a law and not leased to another person, or

iii

held or held in common by the deceased person by way of an interest under the laws of a treaty first nation and not leased to another person;

spouse has the meaning given to it in

section 2 [when a person is a spouse under this Act] ;

testamentary instrument means a will or designation or a document naming a person to receive a payment or series of payments on death under a plan or arrangement of a type similar to a benefit plan;

will means

a will,

a testament,

a codicil,

an appointment by will or by writing in the nature of a will in exercise of a power,

anything ordered to be effective as a will under

section 58 [court order curing deficiencies] , or

any other testamentary disposition except the following:

a designation under

Part 5 [Benefit Plans] ;

a designation of a beneficiary under

Part 3 [Life Insurance] or

Part 4 [Accident and Sickness Insurance] of the Insurance Act ;

iii

a testamentary disposition governed specifically by another enactment or law of British Columbia or of another jurisdiction in or outside Canada;

will-maker means a person who makes a will;

will-maker's signature includes a signature made by another person in the manner described in subsection (2).

A reference to the signature of a will-maker includes a signature made by another person in the will-maker's presence and by the will-maker's direction, and the signature may be either the will-maker's name or the name of the person signing.

If there is any conflict or inconsistency between this Act and the Trustee Act with respect to the powers and duties or office of a personal representative, this Act prevails to the extent of the conflict or inconsistency.

Fundamental Rules

Meaning of Spouse, Effect of Adoption and Construction of Instruments

When a person is a spouse under this Act

Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and

they were married to each other, or

they had lived with each other in a marriage-like relationship for at least 2 years.

Two persons cease being spouses of each other for the purposes of this Act if,

in the case of a marriage, an event occurs that causes an interest in family property, as defined in

Part 5 [Property Division] of the Family Law Act , to arise, or

in the case of a marriage-like relationship, one or both persons terminate the relationship.

2.1

For the purposes of this Act, spouses are not considered to have separated if, within one year after separation,

they begin to live together again and the primary purpose for doing so is to reconcile, and

they continue to live together for one or more periods, totalling at least 90 days.

A relevant time for the purposes of subsection (1) is the date of death of one of the persons unless this Act specifies another time as the relevant time.

Effect of adoption

0.1

In this section, pre-adoption parent means a person who, before the adoption of a child, was the child's parent.

Subject to this section, if the relationship of parent and child arising from the adoption of a child must be established at any generation in order to determine succession under this Act, the relationship is to be determined in accordance with the Adoption Act respecting the effect of adoption.

Subject to subsection (3), if a child is adopted,

the child is not entitled to the estate of the child's pre-adoption parent except through the will of the pre-adoption parent, and

a pre-adoption parent of the child is not entitled to the estate of the child except through the will of the child.

Adoption of a child by the spouse of a pre-adoption parent does not terminate the relationship of parent and child between the child and the pre-adoption parent for purposes of succession under this Act.

Construction of instruments

If this Act provides that a provision of this Act is subject to a contrary intention appearing in an instrument, that contrary intention must appear in the instrument or arise from a necessary implication of the instrument.

Extrinsic evidence of testamentary intent, including a statement made by the will-maker, is not admissible to assist in the construction of a testamentary instrument unless

a provision of the will is meaningless,

a provision of the testamentary instrument is ambiguous

on its face, or

in light of evidence, other than evidence of the will-maker's intention, demonstrating that the language used in the testamentary instrument is ambiguous having regard to surrounding circumstances, or

extrinsic evidence is expressly permitted by this Act.

Survivorship Rules

Fundamental rule — when persons die simultaneously

If 2 or more persons die at the same time or in circumstances that make it uncertain which of them survived the other or others, unless a contrary intention appears in an instrument, rights to property must be determined as if each had survived the other or others.

two or more persons hold property as joint tenants, or hold a joint account, and

both or all of them die at the same time or in circumstances that make it uncertain which of them survived the other or others,

unless a contrary intention appears in an instrument, for the purpose of determining rights to property, each person is deemed to have held the property or account as tenants in common with the other or with each of the others.

General presumption — disposition of property on simultaneous deaths

an instrument provides for the disposition of property in the event that a person named in the instrument

dies before another person,

dies at the same time as another person, or

iii

dies in circumstances that make it uncertain which of them survived the other, and

the named person dies at the same time as the other person or in circumstances that make it uncertain which of them survived the other,

for the purpose of that disposition, the event for which the instrument provides is conclusively deemed to have occurred.

General presumption — substitute personal representative

a will provides for a substitute personal representative in the event that an executor named in the will

dies before the will-maker,

dies at the same time as the will-maker, or

iii

dies in circumstances that make it uncertain which of them survived the other, and

the named executor dies at the same time as the will-maker or in circumstances that make it uncertain which of them survived the other,

for the purpose of the grant of probate, the event for which the will provides is conclusively deemed to have occurred.

Posthumous births

Descendants and relatives of an intestate, conceived before the intestate's death but born after the intestate's death and living for at least 5 days, inherit as if they had been born in the lifetime of the intestate and had survived the intestate.

Posthumous births if conception after death

8.1

A descendant of a deceased person, conceived and born after the person's death, inherits as if the descendant had been born in the lifetime of the deceased person and had survived the deceased person if all of the following conditions apply:

a person who was married to, or in a marriage-like relationship with, the deceased person when that person died gives written notice, within 180 days from the issue of a representation grant, to the deceased person's personal representative, beneficiaries and intestate successors that the person may use the human reproductive material of the deceased person to conceive a child through assisted reproduction;

the descendant is born within 2 years after the deceased person's death and lives for at least 5 days;

the deceased person is the descendant's parent under

Part 3 of the Family Law Act .

The right of a descendant described in subsection (1) to inherit from the relatives of a deceased person begins on the date the descendant is born.

Despite subsection (1) (b), a court may extend the time set out in that subsection if the court is satisfied that the order would be appropriate on consideration of all relevant circumstances.

Survival of beneficiaries

a right of a beneficiary to receive property is conditional on the beneficiary surviving another person, and

the beneficiary dies at the same time as the other person or dies in circumstances that make it uncertain which of them survived the other,

the beneficiary is conclusively deemed to have predeceased the other person.

property is left to 2 or more beneficiaries or to the surviving beneficiary or beneficiaries, and

both or all die at the same time or in circumstances that make it uncertain which of them survived the other or others,

unless a contrary intention appears in an instrument, the property must be divided into as many equal shares as there are beneficiaries, and the shares must be distributed respectively to those persons who would have been entitled to a share in the event that each of the beneficiaries had survived.

Five-day survival rule

A person who does not survive a deceased person by 5 days, or a longer period provided in an instrument, is conclusively deemed to have died before the deceased person for all purposes affecting the estate of the deceased person or property of which the deceased person was competent to give by will to another.

If 2 or more persons hold property as joint tenants, or hold a joint account, and

in the case of 2 persons, it cannot be established that one of them survived the other by 5 days,

one half of the property passes as if one person survived the other person by 5 days, and

one half of the property passes as if the other person referred to in subparagraph (

i) had survived the first person referred to in subparagraph (

i) by 5 days, and

in the case of more than 2 persons, it cannot be established that at least one of them survived the others by 5 days, the property must be divided into as many equal shares as there are joint tenants or persons holding the joint account, and the shares must be distributed respectively to those persons who would have been entitled to a share in the event that each of the persons had survived.

This

section does not apply to the appointment of a personal representative in a will.

Nothing in this

section affects the law of resulting trusts.

Priority of Insurance Act provisions

This Division does not apply to insurance money to which

section 83 [simultaneous deaths] or 130 [simultaneous deaths] of the Insurance Act applies.

Nisg̱a'a Final Agreement and First Nations' Final Agreements

Not in force. Repealed.

[Not in force. Repealed 2011-6-7.]

Will or cultural property of Nisg̱a'a citizens

In this section, cultural property has the same meaning as in paragraph 115 of the Nisg̱a'a Government

Chapter of the Nisg̱a'a Final Agreement.

As provided in paragraph 118 of the Nisg̱a'a Government

Chapter of the Nisg̱a'a Final Agreement, the Nisg̱a'a Lisims Government may commence a proceeding under this Act in respect of the will of a Nisg̱a'a citizen that provides for the devolution of cultural property.

In any judicial proceeding under this Act in which the validity of the will of a Nisg̱a'a citizen or the devolution of the cultural property of a Nisg̱a'a citizen is at issue, the Nisg̱a'a Lisims Government has standing in the proceeding as provided in paragraph 117 of the Nisg̱a'a Government

Chapter of the Nisg̱a'a Final Agreement.

In a proceeding described in subsection (2) or to which subsection (3) applies, the court must consider, among other matters, any evidence or representations in respect of Nisg̱a'a laws or customs dealing with the devolution of cultural property as provided in paragraph 119 of the Nisg̱a'a Government

Chapter of the Nisg̱a'a Final Agreement.

As provided in paragraph 120 of the Nisg̱a'a Government

Chapter of the Nisg̱a'a Final Agreement, the participation of the Nisg̱a'a Lisims Government in a proceeding described in subsection (2) of this

section or to which subsection (3) applies must be in accordance with the applicable Supreme Court Civil Rules and does not affect the court's ability to control the court's process.

Will or cultural property of treaty first nation members

In this section, cultural property , in relation to a treaty first nation, has the same meaning as in the final agreement of the treaty first nation.

If the final agreement of a treaty first nation so provides, the treaty first nation may commence and may intervene in a proceeding under this Act in respect of the will of a treaty first nation member of the treaty first nation that provides for the devolution of cultural property.

If the final agreement of a treaty first nation so provides, in any judicial proceeding under this Act in which

the validity or variation of the will of a treaty first nation member of that treaty first nation, or

the devolution of cultural property of a treaty first nation member of the treaty first nation

is at issue, that treaty first nation has standing in the proceeding.

In a proceeding described in subsection (2) or to which subsection (3) applies, the court must consider, among other matters, any evidence or representations in respect of the applicable treaty first nation's laws or customs dealing with the devolution of cultural property.

The participation of a treaty first nation in a proceeding described in subsection (2) or to which subsection (3) applies must be in accordance with the applicable Supreme Court Civil Rules and does not affect the court's ability to control the court's process.

Notice of application for representation grant respecting Nisg̱a'a citizens and treaty first nation members

If a deceased person was a Nisg̱a'a citizen, an applicant for a grant of probate or administration in respect of the estate of the Nisg̱a'a citizen must, in addition to giving notice under

section 121 (1) [notice of proposed application for grant of probate or administration] ,

mail or deliver a notice of the application to the Nisg̱a'a Lisims Government, and

if the deceased person left a will and the Nisg̱a'a Lisims Government requests a copy of it within 30 days of receiving the notice under paragraph (

a) of this subsection, mail or deliver a copy of the will to the Nisg̱a'a Lisims Government.

The court must not grant or reseal probate or administration in respect of the estate of a Nisg̱a'a citizen unless, in addition to satisfying the requirements under subsection (1),

the applicant certifies that the applicant has

mailed or delivered a notice of the application to the Nisg̱a'a Lisims Government, and

if the deceased Nisg̱a'a citizen left a will and the Nisg̱a'a Lisims Government requested a copy of it within 30 days of receiving the notice under subsection (1) (a), mailed or delivered a copy of the will to the Nisg̱a'a Lisims Government, or

the applicant's lawyer certifies that the applicant's lawyer has

mailed or delivered a notice of the application to the Nisg̱a'a Lisims Government, and

if the deceased Nisg̱a'a citizen left a will and the Nisg̱a'a Lisims Government requested a copy of it within 30 days of receiving the notice under subsection (1) (a), mailed or delivered a copy of the will to the Nisg̱a'a Lisims Government.

If the deceased person was a treaty first nation member, an applicant for a grant of probate or administration in respect of the estate of the treaty first nation member must, in addition to giving notice under

section 121 (1),

mail or deliver a notice of the application to the treaty first nation, and

if the deceased treaty first nation member left a will and the treaty first nation requests a copy of it within 30 days of receiving the notice under paragraph (

a) of this subsection, mail or deliver a copy of the will to the treaty first nation of which the deceased person was a member.

If a treaty first nation has standing under

section 14 (3) in a judicial proceeding, the court must not grant or reseal probate or administration in respect of the estate of a treaty first nation member of the treaty first nation unless, in addition to satisfying the requirements under subsection (3),

the applicant certifies that the applicant has

mailed or delivered a notice of the application to the treaty first nation, and

if the deceased treaty first nation member left a will and the treaty first nation requests a copy of it within 30 days of receiving the notice under subsection (3) (a), mailed or delivered a copy of the will to the treaty first nation, or

the applicant's lawyer certifies that the applicant's lawyer has

mailed or delivered a notice of the application to the treaty first nation, and

if the deceased treaty first nation member left a will and the treaty first nation requests a copy of it within 30 days of receiving the notice under subsection (3) (a), mailed or delivered a copy of the will to the treaty first nation.

Service on Nisg̱a'a Lisims Government or treaty first nation

A proceeding in respect of the will of a Nisg̱a'a citizen or a treaty first nation member must not be heard by the court at the instance of a party claiming the benefit of Division 6 [Variation of Wills] of

Part 4 [Wills] unless a copy of the initiating pleading has been served on the Nisg̱a'a Lisims Government or the treaty first nation, as applicable.

Not in force

17-18

[Not in force.]

Disposal of Nisg̱a'a Lands in estate

18.1

Subject to any applicable Nisg̱a'a law, if a deceased person owns a parcel of land located on Nisg̱a'a Lands or holds a right to possession under Nisg̱a'a law of a parcel of land located on Nisg̱a'a Lands and

the deceased person dies leaving a will in which the deceased person makes a gift of the parcel of land or the right to possession of the parcel of land to a beneficiary who, under Nisg̱a'a law, cannot acquire the parcel of land or the right to possession of the parcel of land by transfer, or

the deceased person dies without leaving a will and the parcel of land would be distributed to a descendant under this Act who, under Nisg̱a'a law, cannot acquire the parcel of land or the right to possession of the parcel of land by transfer,

If the Nisg̱a'a Lisims Government or a Nisg̱a'a Village Government makes an application under subsection (1), it must give notice to the personal representative of the deceased person or, if there is no personal representative, to every person who would be an intestate successor entitled to share in the estate if it were an intestate estate.

Disposal of land in treaty lands in estate

18.2

Subject to any applicable laws of a treaty first nation, if a deceased person owns a parcel of land located on treaty lands or holds an interest under laws of a treaty first nation in a parcel of land located on treaty lands and

the deceased person dies leaving a will in which the deceased person makes a gift of the parcel of land or the interest in the parcel of land to a beneficiary who, under the laws of the treaty first nation, cannot own or acquire the parcel of land or hold an interest in the parcel of land, or

the deceased person dies without leaving a will and the parcel of land would be distributed to a descendant under this Act who, under the laws of the treaty first nation, cannot own or acquire the parcel of land or hold an interest in the parcel of land,

If the treaty first nation makes an application under subsection (1), it must give notice to the personal representative of the deceased person or, if there is no personal representative, to every person who would be an intestate successor entitled to share in the estate if it were an intestate estate.

No right to acquire Nisg̱a'a Lands or treaty lands

18.3

Despite any other provision of this Act, a person, except for a person in the capacity of personal representative, does not acquire, under this Act,

ownership or a right to possession under Nisg̱a'a law of a parcel of land located on Nisg̱a'a Lands, or

ownership of or an interest under the laws of a treaty first nation in a parcel of land located on treaty lands,

if the person cannot acquire the ownership of the parcel of land or the right to possession of the parcel of land by transfer under Nisg̱a'a law, or the person cannot own or acquire the parcel of land or hold an interest in the parcel of land under the laws of the treaty first nation.

When a Person Dies Without a Will

Uniform

interpretation with laws of other provinces

This Part must be interpreted so as to effect its general purpose of making uniform the law of the provinces that enact identical or substantially the same provisions.

Distribution of Estate When There is No Will

Spouse but no descendants

If a person dies without a will leaving a spouse but no surviving descendant, the intestate estate must be distributed to the spouse.

Spouse and descendants

In this section:

household furnishings means personal property usually associated with the enjoyment by the spouses of the spousal home;

net value of an intestate estate means the value of an intestate estate after deducting from its fair market value, both inside and outside British Columbia,

the value of household furnishings distributed to a spouse under subsection (2), and

charges, debts, funeral and administration expenses, and fees under the Probate Fee Act , payable from the estate.

If a person dies without a will leaving a spouse and surviving descendants, the following must be distributed from the intestate estate to the spouse:

the household furnishings;

a preferential share of the intestate estate in accordance with subsection (3) or (4).

If all descendants referred to in subsection (2) are descendants of both the intestate and the spouse, the preferential share of the spouse is $300 000, or a greater amount if prescribed.

If all descendants referred to in subsection (2) are not common to the intestate and the spouse, the preferential share of the spouse is $150 000, or a greater amount if prescribed.

If the net value of an intestate estate is less than the spouse's preferential share under subsection (3) or (4), the intestate estate must be distributed to the spouse.

If the net value of an intestate estate is the same as or greater than the spouse's preferential share under subsection (3) or (4),

the spouse has a charge on the intestate estate for the amount of the spouse's preferential share under subsection (3) or (4), and

the residue of the intestate estate, after satisfaction of the spouse's preferential share, must be distributed as follows:

one half to the spouse;

one half to the intestate's descendants.

Two or more spouses

If 2 or more persons are entitled to a spousal share of an intestate estate, they share the spousal share in the portions to which they agree, or if they cannot agree, as determined by the court.

If 2 or more persons are entitled to apply or have priority as a spouse under this Act in respect of an intestate estate, they may agree on who is to apply or who is to have priority, but if they do not, the court may make the decision.

No spouse but intestate leaving descendants or relatives

This

section applies if a person dies without a will and without leaving a surviving spouse.

Subject to subsection (3) and

section 24, if a person dies without leaving a surviving spouse, the intestate estate must be distributed

to the intestate's descendants,

if there is no surviving descendant, to the intestate's parents in equal shares or to the intestate's surviving parent,

if there is no surviving descendant or parent, to the descendants of the intestate's parents or parent,

if there is no surviving descendant, parent or descendant of a parent, but the intestate is survived by one or more grandparents or descendants of grandparents,

an equal part to the surviving parents or parent of each of the intestate's parents, in equal shares of the part, but if a parent of the intestate has no surviving parents, that part to the descendants of those deceased grandparents, and

for the purpose of subparagraph (i), a

part is determined by dividing the estate by the number of parents of the intestate

who have a surviving parent, or

who do not have a surviving parent but whose deceased parents have a surviving descendant,

if there is no surviving descendant, parent, descendant of a parent, grandparent or descendant of a grandparent, but the intestate is survived by one or more great-grandparents or descendants of great-grandparents,

an equal part to the surviving grandparents or grandparent of each of the intestate's parents, in equal shares of the part, but if a grandparent of the intestate has no surviving parents, that part to the descendants of those deceased great-grandparents, and

for the purpose of subparagraph (i), a

part is determined by dividing the estate by the number of parents of the intestate

who have a surviving grandparent, or

who do not have a surviving grandparent but whose deceased grandparents have a surviving descendant, or

if there is no person who is entitled under paragraphs (

a) to (e), the whole intestate estate passes to the government and is subject to the Escheat Act .

For the purposes of this section, persons of the 5th or greater degree of relationship to the intestate are conclusively deemed to have predeceased the intestate, and any part of the intestate estate to which those persons would otherwise be entitled must be distributed to other descendants entitled to the estate.

Subsection (3) does not affect

the right of an intestate's descendants to inherit the intestate estate even though they are of a greater degree of relationship than the limit imposed by that subsection, or

the right of a person to apply under the Escheat Act on the basis of a legal or moral claim against the former owner of an estate that has escheated to the government as property to which no person is entitled to succeed as the owner.

For the purpose of subsection (3),

degrees of relationship are to be computed by counting upward from the intestate to the nearest common ancestor of the intestate and the intestate's relative, and then downward to the relative, and

relatives of the half kinship inherit equally with those of the whole kinship in the same degree.

Distribution to descendants

When a distribution is to be made under this Part to the descendants of a person, the property that is to be so distributed must be divided into a number of equal shares equivalent to the number of

surviving descendants, and

deceased descendants who have left descendants surviving the person,

in the generation nearest to the person that contains one or more surviving members.

Each surviving member of the generation nearest to the person that contains one or more surviving members must receive one share, and the share that would have been distributed to each deceased member if surviving must be divided among that member's descendants in the same manner as under subsection (1) and this subsection.

[Repealed 2014-9-54.]

Partial intestacy

This Division also applies to that part of an estate that is neither the subject of a gift nor otherwise disposed of by a will.

Spousal Home

Right to spousal home

This Division applies to

an intestate estate that includes a spousal home, and

an estate in respect of which the spousal home is not the subject of a gift or otherwise disposed of by a will.

If this Division applies, the surviving spouse may acquire the spousal home from the personal representative to satisfy, in whole or in part, the surviving spouse's interest in the estate in accordance with this Division.

Notice by personal representative

If this Division applies, the personal representative of a deceased person must, at the time an application for a representation grant is made, give notice to the surviving spouse of the right of the surviving spouse to acquire the spousal home in accordance with this Division.

A surviving spouse must exercise the right to acquire the spousal home during the period ending no later than 180 days after the date on which the representation grant is issued to the personal representative unless the court, before or after the expiration of that period, extends the time by which the right may be exercised.

2.1

If the spousal home is located on Nisg̱a'a Lands or treaty lands, the personal representative must, at the time an application for a representation grant is made, give notice of

section 18.3 [no right to acquire Nisg̱a'a Lands or treaty lands] to the surviving spouse in addition to the notice under subsection (1).

If the court grants an extension of the period referred to in subsection (2), a personal representative who disposes of the spousal home is not liable if the disposal is made

after 180 days from the date the representation grant is issued, and

before the notice of the right to acquire the spousal home is delivered to the personal representative under

section 29 (1) or before the court, under subsection (2) of this section, extends the time by which that right may be exercised.

Prohibition on disposing of spousal home

A personal representative must not, without the written consent of the surviving spouse, dispose of the spousal home during the 180 days after the date on which the representation grant is issued or for any period of time extended under

section 27 (2) unless assets other than the spousal home are not sufficient to pay the debts and liabilities of the estate and a mortgage or charge on the spousal home would not raise sufficient money to pay those debts and liabilities.

Notice exercising right to spousal home

A surviving spouse may exercise the spouse's right to acquire the spousal home by delivering, within the required time referred to in

section 27 (2), a written notice to

the personal representative of the deceased person, unless the surviving spouse is the personal representative,

the descendants of the deceased person entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate, and

the Public Guardian and Trustee, if one or more of the descendants of the deceased person entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate is a minor or a mentally incapable person without a nominee.

A notice under subsection (1) must contain

a statement to the effect that the surviving spouse requires the personal representative to transfer the interest in the spousal home to the surviving spouse, and

a statement of the value the surviving spouse places on the deceased person's interest in the spousal home as of the date of the deceased person's death.

Dispute over value of deceased person's interest

If the personal representative disputes the value of the deceased person's interest in the spousal home set out in a notice under

section 29, the personal representative must deliver to the surviving spouse, within a reasonable time, a written response to the notice stating the value the personal representative places on the deceased person's interest.

If the personal representative and the surviving spouse do not agree on the value of the deceased person's interest in the spousal home, the surviving spouse or the personal representative may apply to the court for an order determining the value of the deceased person's interest.

If a surviving spouse who exercises the right to acquire the spousal home is the sole personal representative of the deceased person, the surviving spouse must apply to the court for an order determining the value of the deceased person's interest in the spousal home unless

the descendants entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate, and

the Public Guardian and Trustee, if one or more of the descendants of the deceased person entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate is a minor or a mentally incapable person without a nominee,

agree in writing to the value that the surviving spouse places on the deceased person's interest.

If the surviving spouse, being the sole personal representative, does not apply to the court for an order under subsection (3) within 180 days of the date of the notice referred to in

section 29,

a descendant entitled to share in the estate or that part of the estate that is to be treated as an intestate estate, or

the Public Guardian and Trustee, if one or more of the descendants of the deceased person entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate is a minor or a mentally incapable person without a nominee,

may apply to the court for an order determining the value of the deceased person's interest in the spousal home.

Purchase of spousal home by surviving spouse

If the fair market value of the deceased person's interest in the spousal home exceeds the value of the surviving spouse's interest in the estate under

section 21 [spouse and descendants] , subject to subsection (3) of this section, the surviving spouse may purchase the remainder of the deceased person's interest from the personal representative, or from those in whom that interest beneficially vests, in accordance with the valuation of the deceased person's interest in the spousal home as determined under this Division.

The surviving spouse may purchase the deceased person's interest in the spousal home under this Division whether or not the surviving spouse is a personal representative of the deceased person and despite any rule of law concerning the purchase of trust property by a trustee.

Before a surviving spouse may make an application under

section 33, the surviving spouse must provide financial information as set out in the Supreme Court Civil Rules to

the personal representative of the deceased person, and

the descendants of the deceased person entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate.

Occupancy costs of spousal home

A surviving spouse who occupies the spousal home pending the spouse's purchase of the spousal home under this Division must pay, from the date of death of the deceased person to the date of the purchase of the spousal home,

the cost of insuring the spousal home against damage, destruction and public liability,

all applicable taxes, other than any prescribed taxes, assessed against the spousal home from the date of death of the deceased person to the date of purchase of the spousal home,

all reasonable and necessary expenses to maintain and repair the spousal home,

rates and charges for electricity, gas, fuel, oil and water consumed and similar utilities at the spousal home, and

a periodic payment that falls due under any mortgage on the spousal home and any bonus or payment of a penalty resulting from any prepayment by the surviving spouse.

Retention of spousal home

On application by a surviving spouse, the court may make an order under subsection (2) if

the surviving spouse is ordinarily resident in the spousal home at the time of the deceased person's death,

assets in the estate are not sufficient to satisfy the interests of all descendants entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate without disposing of the spousal home,

the court is satisfied that purchasing the spousal home under

section 31 would impose a significant financial hardship on the surviving spouse,

the court is satisfied that, in all the circumstances, a greater prejudice would be imposed on the surviving spouse by being unable to continue to reside in the spousal home than would be imposed on the descendants entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate by having to wait an indeterminate period of time to receive all or part of their share of the intestate estate, and

either

the surviving spouse has resided in the spousal home for a sufficient period of time to have established a connection to the spousal home, or

the surviving spouse has a sufficient connection with the community or members of the community in the vicinity of the spousal home to warrant an order under subsection (2).

The court may, subject to any terms or conditions the court considers appropriate, make an order doing one or more of the following:

vesting the same interest in the spousal home in the surviving spouse that the deceased person had;

specifying the amount of money the surviving spouse must pay to the descendants towards satisfaction of their interest in the estate;

converting the remaining unpaid interest of the descendants in the intestate estate into a registrable charge against the title to the surviving spouse's interest in the spousal home;

determining an interest rate, as that term is defined in

section 7 [interest rate] of the Court Order Interest Act , or at any other rate the court considers appropriate, for the amount the descendants are entitled to under paragraph (

c) of this subsection;

determining the value of the registrable charge referred to in paragraph (

c) to include the principal amount owing to the descendants entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate and the expected value of the future interest that will be earned under paragraph (d).

Registrable charges

A registrable charge referred to in

section 33 (2) becomes due and payable in the circumstances specified by the court, having regard to prevailing residential lending practices in Canada, but if none are specified, becomes due and payable on the earliest of the following:

twelve months after the date of death of the surviving spouse;

twelve months after the date the surviving spouse ceases residing in the spousal home;

the completion date of the sale of the spousal home.

If a registrable charge payable under subsection (1) is not paid, the owner of the registrable charge may take any action that a mortgagee of land may take under the prescribed standard mortgage terms under the Land Title Act .

A registrable charge is not enforceable until a form approved by the Director of Land Titles accompanied by a certified copy of the court order under

section 33 (2), in relation to the registrable charge, is registered under the Land Title Act .

The owner of a registrable charge, on receipt of payment of the total amount secured by the registrable charge, must deliver to the registered owner of the spousal home or to that person's representative a release of the registrable charge in the form approved by the Director of Land Titles.

A registrable charge may be released from the title to the spousal home by filing in a land title office

a release of the registrable charge executed by the owner of the registrable charge in the form approved by the Director of Land Titles, or

a certified copy of a court order releasing the registrable charge.

Circumstances when registrable charge becomes payable

In this section, charge has the same meaning as in the Land Title Act .

In addition to the circumstances described in

section 34 (1), a registrable charge also becomes due and payable if the court, on application by or on behalf of the owner of the registrable charge, orders that it should become due and payable because of the following:

the surviving spouse has not paid an amount required to be paid under or secured by a charge registered against the title of the spousal home in priority to the registrable charge;

a tax or other charge is levied against the title of the spousal home and has not been paid, unless payment has been lawfully deferred;

an action or failure to take action jeopardizes the value of the spousal home to such an extent that it no longer provides sufficient security for the total amount secured by the registrable charge;

the provisions of the registrable charge have not been complied with or an event has occurred pursuant to those provisions by which the amount secured by the registrable charge becomes due and payable.

If a registrable charge becomes payable by order of the court under subsection (2), the surviving spouse has a period of 180 days to sell the spouse's interest in the spousal home in order to pay, in full, the amount secured by the registrable charge.

After the period referred to in subsection (3), the owner of the registrable charge may take any action in respect of the registrable charge that a mortgagee of land may take under the prescribed standard mortgage terms under the Land Title Act if the surviving spouse has not sold the spouse's interest in the spousal home or the owner of the registrable charge has not been paid.

The owner of a registrable charge may, before or after it is registered in a land title office, postpone the priority of the registrable charge to other charges.

The owner of a registrable charge may sell, assign or otherwise dispose of the registrable charge before or after it is registered in a land title office in a form approved by the Director of Land Titles.

If the sale of a spousal home yields sale proceeds that are not sufficient to pay the full amount secured by a registrable charge the court may order the release of the registrable charge, but may not make any order to recover from the estate, the surviving spouse or the estate of the surviving spouse any shortfall resulting from the insufficiency of sale proceeds to pay the amount secured by the registrable charge.

Wills

Making a Will

Definitions

35.1

In this Part:

communicate means communicate using audiovisual communication technology, including assistive technology for persons who are hearing impaired or visually impaired, that enables persons to communicate with each other by hearing and seeing each other;

electronic means created, recorded, transmitted or stored in digital or other intangible form by electronic, magnetic or optical means or by any other similar means;

electronic form , in relation to an electronic will, means a form that

is recorded or stored electronically,

can be read by a person, and

is capable of being reproduced in a visible form;

electronic presence or electronically present means the circumstances in which 2 or more persons in different locations communicate simultaneously to an extent that is similar to communication that would occur if all the persons were physically present in the same location;

electronic signature means information in electronic form that a person has created or adopted in order to sign a record and that is in, attached to or associated with the record;

electronic will means a will that is in electronic form.

A record in electronic form is deemed not to be capable of being recorded, stored or reproduced if the person providing the record inhibits the recording, storage or reproduction of the record by the recipient.

Electronic presence

35.2

In this Part, except in

section 38, a requirement that a person take an action in the presence of another person, or while other persons are present at the same time, is satisfied while the persons are in each other's electronic presence.

For certainty, nothing in this

section prevents some of the persons described in subsection (1) from being physically present and others from being electronically present when the action is taken.

If a will-maker and witnesses are in each other's electronic presence when the will-maker makes a will, the will may be made by signing complete and identical copies of the will in counterpart.

Copies of a will in counterpart are deemed to be identical even if there are non-substantive differences in the format of the copies.

Electronic signature

35.3

For the purposes of sections 37, 40, 43, 62 and 77,

a reference to a signature includes an electronic signature and a reference to a statement being signed includes the statement being signed electronically, and

a requirement for the signature of a person is satisfied by an electronic signature.

Section 39 (1) [clarification of doubt about signature placement] does not apply to an electronic will.

An electronic will is conclusively deemed to be signed if the electronic signature is in, attached to or associated with the will so that it is apparent the will-maker intended to give effect to the entire will.

Who can make a will

A person who is 16 years of age or older and who is mentally capable of doing so may make a will.

A will made by a person under 16 years of age is not valid.

How to make a valid will

To be valid, a will must be

in writing,

signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as the will-maker's signature, in the presence of 2 or more witnesses present at the same time, and

signed by 2 or more of the witnesses in the presence of the will-maker.

A will that does not comply with subsection (1) is invalid unless

the court orders it to be effective as a will under

section 58 [court order curing deficiencies] ,

it is a will recognized as valid under

section 80 [validity of wills made in accordance with other laws] , or

it is valid under another provision of this Act.

The requirement under subsection (1) (

a) that a will be in writing is satisfied if the will is in electronic form.

An electronic will is a will for all purposes of this Act and any other enactment.

Will by members of military forces

A member of the Canadian Forces while placed on active service under the National Defence Act (Canada), or a member of the naval, land or air force of any member of the British Commonwealth of Nations or any ally of Canada while on active service may, regardless of the member's age, make a gift of property by will in writing, signed by the will-maker at its end or by some other person in the presence of and by the direction of the will-maker.

If the will is signed by the will-maker, there is no need for a witness to be present to witness or to sign the will as a witness.

If the will is signed by another person, the signature of that other person must be witnessed by the signature of at least one person, who must sign the will in the presence of the will-maker and of that other person.

Clarification of doubt about signature placement

A will is conclusively deemed to be signed at its end if the will-maker's signature is placed so that it is apparent on the face of the will that the will-maker intended to give effect to the will, including in, but not limited to, the following circumstances:

the will-maker's signature is placed

at or after the end of the will, or

following, under or beside the end of the will;

the will-maker's signature does not immediately follow the end of the will;

a blank space intervenes between the concluding words of the will and the will-maker's signature;

the will-maker's signature

is placed among the words of a testimonium clause or of an attestation clause,

follows or is after or under an attestation clause either with or without a blank space intervening, or

iii

follows or is after, under or beside the name of a witness who signed the will;

the will-maker's signature is on a side or page or other portion of the will on which no disposing part of the will is written above the will-maker's signature;

there appears to be sufficient space to contain the will-maker's signature on or at the bottom of the side or page or other portion of the same paper on which the will is written and preceding that on which the will-maker's signature appears.

A will-maker's signature that conforms to this

section does not give effect to

a gift or direction in the will that follows the will-maker's signature, or

a gift or direction inserted in the will after the will-maker signed the will.

Witnesses to wills

Signing witnesses to a will-maker's signature must be 19 years of age or older.

A person may witness a will even though the person may receive a gift under it, but the gift may be void under

section 43 [gifts to witnesses] .

A will is not invalid only because a witness was, at the time the will was signed by the will-maker, or afterwards became, legally incapable of proving the will, unless the witness was not 19 years of age or older at the time the will was signed by the will-maker.

Legal Effect of a Will

Property that can be gifted by will

A person may, by will, make a gift of property to which the person is entitled at law or in equity at the time of the person's death, including property acquired before, on or after the date the will is made.

Unless a contrary intention appears in a will, when a will refers to property, the will, with respect to the property, is to be interpreted as if it had been made immediately before the death of the will-maker.

A gift in a will

takes effect according to its terms, and

subject to the terms of the gift, gives to the recipient of the gift every legal or equitable interest in the property that the will-maker had the legal capacity to give.

Meaning of particular words in a will

This

section is subject to a contrary intention appearing in a will.

A gift of property in a will to persons described as "heir" or "next of kin" of the will-maker or of another person takes effect as if it had been made to the persons among whom and in the shares in which the estate of the will-maker or other person would have been divisible if the will-maker or other person had died without a will.

In a gift of property in a will

the words

"die without issue",

"die without leaving issue", or

iii

"have no issue", or

other words importing either no descendants or no descendants in a person's lifetime or at the time of the will-maker's death or a complete absence of descendants,

are deemed to refer to no descendants or no descendants in the lifetime or at the time of death of that person and not to a complete absence of descendants of that person.

A gift of property to a class of persons that

is described as a will-maker's "issue" or "descendants" or by a similar word, and

encompasses more than one generation of beneficiaries,

must be distributed as if it were part of an intestate estate to be distributed to descendants.

Gifts to witnesses

Unless a court otherwise declares under subsection (4), a gift in a will is void if it is to

a witness to the will-maker's signature or to the spouse of that witness,

a person signing the will by the will-maker's direction, or the spouse of the person signing, or

a person claiming under a person, other than the will-maker, referred to in paragraph (

a) or (b).

For the purposes of subsection (1), the relevant time for determining whether one person is the spouse of another is the time when the will was made.

If a gift is void under subsection (1), the remainder of the will is not affected.

On application, the court may declare that a gift to a person referred to in subsection (1) is not void and is to take effect, if the court is satisfied that the will-maker intended to make the gift to the person even though the person or the person's spouse was a witness to the will.

Extrinsic evidence is admissible for the purposes of establishing the will-maker's intention under subsection (4).

Residue of estate

If a will does not give or otherwise dispose of all of the will-maker's property, the property that is not the subject of a gift or otherwise disposed of in the will

must be distributed to the persons who would be entitled if that property were an intestate estate, and

if there is no person who would be entitled under paragraph (a), passes to the government and is subject to the Escheat Act .

Gift of land contemplating division

If a gift of land in a will to 2 or more beneficiaries contemplates a physical division of the parcel by subdivision or otherwise, the gift takes effect as a gift to the beneficiaries as tenants in common in proportion to their interests, unless a contrary intention appears in the will.

When gifts cannot take effect

If a gift in a will cannot take effect for any reason, including because a beneficiary dies before the will-maker, the property that is the subject of the gift must, subject to a contrary intention appearing in the will, be distributed according to the following priorities:

to the alternative beneficiary of the gift, if any, named or described by the will-maker, whether the gift fails for a reason specifically contemplated by the will-maker or for any other reason;

if the beneficiary was the sibling or a descendant of the will-maker, to their descendants, determined at the date of the will-maker's death, in accordance with

section 42 (4) [meaning of particular words in a will] ;

to the surviving residuary beneficiaries, if any, named in the will, in proportion to their interests.

If a gift cannot take effect because a beneficiary dies before the will-maker, subsection (1) applies whether the beneficiary's death occurs before or after the will is made.

Property encumbered by security interest

In this section, purchase money security interest means a security interest taken in land or in tangible personal property that

secures credit, including interest charges, provided to the will-maker to acquire, improve or preserve the land or tangible personal property, and

is registered under the Land Title Act or the Personal Property Security Act .

The interest of a beneficiary in a gift of property encumbered by a purchase money security interest is, as between the different persons claiming through the will-maker, primarily liable to pay the debt secured by the purchase money security interest to the extent that the debt is attributable to the acquisition, improvement or preservation of the property.

If a purchase money security interest applies to more than one gift of property in a will, each property is liable for payment of the purchase money security interest proportionally, to the extent that the debt is attributable to the acquisition, improvement or preservation of each property.

Subsections (2) and (3) are subject to a contrary intention appearing in the will, but a contrary intention is not signified by

a general direction in the will for the payment of debts, or

a charge of debts on the will-maker's estate,

unless the will-maker further signifies that intention by words expressly or by necessary implication referring to all or some part of the debt secured by the purchase money security interest.

Nothing in this

section affects the right of a secured party to obtain payment or satisfaction either out of other property of the deceased person or otherwise.

Relief from disposition of property

In this section, proceeds means the gross proceeds at the time of disposition, and includes

non-monetary consideration, and

in the case of a gift, the fair market value of the gift.

If property that is the subject of a gift in a will is disposed of by a nominee, the beneficiary of the gift is entitled to receive from the will-maker's estate an amount equivalent to the proceeds of the gift as if the will had contained a specific gift to the beneficiary of that amount.

Subsection (2) does not apply if

the disposition is made to carry out instructions given by the will-maker at a time when the will-maker was legally capable of giving instructions, or

a contrary intention appears in the will.

Will exercising a power of appointment

A will made in accordance with this Act is, as to form, a valid execution of a power of appointment by will, even if it has been expressly required that a will in exercise of the power be made in some form other than that in which it is made.

Rules if assets are not sufficient

This

section is subject to a contrary intention appearing in a will.

If a will-maker's estate is not sufficient to satisfy all debts and gifts, the debts and gifts must be satisfied or reduced in accordance with this section.

Land charged by the will-maker with payment of debts or pecuniary gifts, or both, is primarily liable for the debts and gifts, despite a failure of the will-maker to expressly exonerate the personal property.

Land and personal property must be reduced together.

Subject to subsection (3), assets are reduced in the following order:

property specifically charged with a debt or left on trust to pay a debt;

property distributed as an intestate estate and residue;

general, demonstrative and pecuniary legacies;

specific legacies;

property over which the will-maker had a general power of appointment.

Gifts of unowned property

Subject to subsection (2),

a gift of property that the will-maker does not own is void, and

the rights of a beneficiary are not affected by the purported gift by the will-maker of property owned by the beneficiary.

A will-maker may make a gift of property that is conditional on the disposition by the beneficiary of property owned by the beneficiary.

Undue influence

In a proceeding, if a person claims that a will or any provision of it resulted from another person

being in a position where the potential for dependence or domination of the will-maker was present, and

using that position to unduly influence the will-maker to make the will or the provision of it that is challenged,

and establishes that the other person was in a position where the potential for dependence or domination of the will-maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person in the position where the potential for dependence or domination of the will-maker was present did not exercise undue influence over the will-maker with respect to the will or the provision of it that is challenged.

Abrogation of Common Law Rules

Common law presumptions abrogated

The presumption of law that a gift by a will-maker made during the will-maker's lifetime to a child of the will-maker or to a person to whom the will-maker stands in place of a parent is an advancement of a portion that is intended to revoke a gift in the will-maker's will in favour of the child or person is abrogated and the gift in the will takes effect according to its terms.

The presumption of law that a legacy is revoked by a gift in the same amount as the legacy made by the will-maker during the will-maker's lifetime is abrogated and the legacy takes effect according to its terms.

The presumption of law that a debt owed by a will-maker is satisfied by a legacy to the creditor equal to or greater than the debt is abrogated and the debt continues to be a claim against the will-maker's estate.

The presumption of law that a binding promise by a person to make a gift to advance a child in life is satisfied to the extent of the benefit promised by a gift in the person's will to the child is abrogated and the promise remains binding on the person and the person's estate.

The abrogation of a presumption set out in any of subsections (1) to (4) is subject to a contrary intention appearing in the will or otherwise and extrinsic evidence is admissible to prove the contrary intention.

Altering, Revoking and Reviving Wills

How to alter will

To make a valid alteration to a will other than an electronic will, the alteration must be made in the same way that a valid will is made under

section 37 [how to make a valid will] .

Subject to subsection (4), an alteration to a will is valid if the signature of the will-maker to the alteration, and the witnesses to that signature of the will-maker, are made

in the margin or in some other part of the will opposite to or near to the alteration, or

at the end of or opposite to a memorandum referring to the alteration and written in some part of the will.

An alteration to a will that is not made by the will-maker in accordance with this

section is ineffective

except to invalidate a word or provision that the alteration makes illegible, unless the court reinstates the original word or provision under

section 58 (4) [court order curing deficiencies] , or

unless the court orders the alteration to be effective under

section 58.

An alteration to a will that does not comply with subsection (2) is valid if

the alteration

does not substantively alter the effect of the will, and

is in respect of form, style or numbering or is a typographical error, or

there is evidence to establish that the alteration was made before the will was executed, if the alteration substantively alters the effect of the will.

How to alter electronic will

54.1

A will-maker seeking to make an alteration to an electronic will must make a new will in accordance with

section 37 [how to make a valid will] .

For certainty,

section 54 does not apply to an electronic will.

How to revoke will

A will other than an electronic will or a part of a will other than an electronic will is revoked only in one or more of the following circumstances:

by another will made by the will-maker in accordance with this Act;

by a written declaration of the will-maker that revokes all or part of a will made in accordance with

section 37 [how to make a valid will] ;

by the will-maker, or a person in the presence of the will-maker and by the will-maker's direction, burning, tearing or destroying all or part of the will in some manner with the intention of revoking all or part of it;

by any other act of the will-maker, or another person in the presence of the will-maker and by the will-maker's direction, if the court determines under

section 58 that

the consequence of the act of the will-maker or the other person is apparent on the face of the will, and

the act was done with the intent of the will-maker to revoke the will in whole or in part.

A will is not revoked in whole or in part by presuming an intention to revoke it because of a change in circumstances.

How to revoke electronic will

55.1

An electronic will or part of an electronic will is revoked only in one or more of the following circumstances:

by the will-maker, or a person in the presence of the will-maker and by the will-maker's direction, deleting one or more electronic versions of the will or of part of the will with the intention of revoking it;

by the will-maker, or a person in the presence of the will-maker and by the will-maker's direction, burning, tearing or destroying all or part of a paper copy of the will in some manner, in the presence of a witness, with the intention of revoking all or part of the will;

the circumstances described in

section 55 (1) (

a) and (b) [how to revoke will] ;

by any other act of the will-maker, or another person in the presence of the will-maker and by the will-maker's direction, if the court determines under

section 58 [court order curing deficiencies] that

the consequence of the act of the will-maker or the other person is apparent, and

the act was done with the intent of the will-maker to revoke the will in whole or in part.

A written declaration made in accordance with

section 55 (1) (

b) may be in electronic form and signed with an electronic signature.

For certainty, an inadvertent deletion of one or more electronic versions of a will or part of a will is not evidence of an intention to revoke the will.

Revocation of gifts

This

section is subject to a contrary intention appearing in a will.

If a will-maker

makes a gift to a person who was or becomes the spouse of the will-maker,

appoints as executor or trustee a person who was or becomes the spouse of the will-maker, or

confers a general or special power of appointment on a person who was or becomes the spouse of the will-maker,

and after the will is made and before the will-maker's death the will-maker and the will-maker's spouse cease to be spouses under

section 2 (2) [when a person is a spouse under this Act] , the gift, appointment or power of appointment is revoked and the gift must be distributed as if the spouse had died before the will-maker.

Despite

section 2 (2.1), the operation of subsection (2) of this

section is not affected by a subsequent reconciliation of the will-maker and the spouse.

For the purposes of subsection (2), the relevant time for determining whether a person

was the spouse of a will-maker is at the time the will was made, or

became the spouse of the will-maker is at any time after the will was made and before the spouses ceased to be spouses under

section 2 (2).

Revival of will

A will other than an electronic will or a part of a will other than an electronic will that has been revoked is revived only by a will that shows an intention to give effect to the revoked will or the part that was revoked.

Unless a contrary intention appears in the will that revives a will under subsection (1), if a will that has been partly revoked and afterwards wholly revoked is revived, the revival does not extend to the part that was revoked before the revocation of the whole.

If a will has been revived by a codicil or has, by a codicil, been re-signed in the presence of 2 witnesses, the will is deemed to have been made at the time it was revived or re-signed.

A will or part of a will that has been revoked may not be revived except

by an order of the court under

section 58 if the court is satisfied that the will-maker intended to give effect to the will or part of the will that was revoked, or

in accordance with any other provision of this Act that recognizes the revival of a will.

Curing Deficiencies and Rectification of Wills

Court order curing deficiencies

In this section, record includes data that

is recorded or stored electronically,

can be read by a person, and

is capable of reproduction in a visible form.

On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents

the testamentary intentions of a deceased person,

the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or

the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made

as the will or part of the will of the deceased person,

as a revocation, alteration or revival of a will of the deceased person, or

as the testamentary intention of the deceased person.

If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.

Rectification of will

On application for rectification of a will, the court, sitting as a court of construction or as a court of probate, may order that the will be rectified if the court determines that the will fails to carry out the will-maker's intentions because of

an error arising from an accidental slip or omission,

a misunderstanding of the will-maker's instructions, or

a failure to carry out the will-maker's instructions.

Extrinsic evidence, including evidence of the will-maker's intent, is admissible to prove the existence of a circumstance described in subsection (1).

An application for rectification of a will must be made no later than 180 days from the date the representation grant is issued unless the court grants leave to make an application after that date.

If the court grants leave to make an application for rectification of a will after 180 days from the date the representation grant is issued, a personal representative who distributes any part of the estate to which entitlement is subsequently affected by rectification is not liable if, in reasonable reliance on the will, the distribution is made

after 180 days from the date the representation grant is issued, and

before the notice of the application for rectification is delivered to the personal representative.

Subsection (4) does not affect the right of any person to recover from a beneficiary any part of the estate distributed in the circumstances described in that subsection.

Variation of Wills

Maintenance from estate

Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court's opinion, make adequate provision for the proper maintenance and support of the will-maker's spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker's estate for the spouse or children.

Time limit and service

A proceeding commenced by a person claiming the benefit of this Division must not be heard by the court unless

the proceeding is commenced within 180 days from the date the representation grant is issued in British Columbia,

a copy of the initiating pleading has been served on the executor of the will no later than 30 days after the expiry of the 180 day period referred to in paragraph (

a) unless the court, before or after the expiration of the 30 days, extends the time for service, and

if there are minor children of the will-maker, or if the spouse or a child of the will-maker is mentally incapable, a copy of the initiating pleading has been served on the Public Guardian and Trustee.

A proceeding in respect of the will of a Nisg̱a'a citizen or a treaty first nation member must not be heard by the court at the instance of a party claiming the benefit of this Division unless a copy of the initiating pleading has been served on the Nisg̱a'a Lisims Government or the treaty first nation, as applicable.

If the Public Guardian and Trustee is served with a copy of the initiating pleading under subsection (1), the Public Guardian and Trustee is entitled to appear, to be heard and to any costs that the court orders.

If a proceeding has been commenced on behalf of a person under this Division, it may be treated by the court as, and so far as regards the question of limitation is conclusively deemed to be, a proceeding on behalf of all persons who might apply.

Within 10 days from the date of the issue of the initiating pleading, a plaintiff in a proceeding under this Division may register, in the land title office in which the title to land sought to be affected is registered, a certificate of pending litigation against the land in a form approved under the Land Title Act .

Evidence

In a proceeding under

section 60, the court may accept the evidence it considers proper respecting the will-maker's reasons, so far as may be determined,

for making the gifts made in the will, or

for not making adequate provision for the will-maker's spouse or children,

including any written statement signed by the will-maker.

In estimating the weight to be given to a statement referred to in subsection (1), the court must have regard to all the circumstances from which an inference may reasonably be drawn about the accuracy or otherwise of the statement.

Court may make order subject to conditions

The court may

attach to an order under this Division any conditions that it thinks appropriate, or

refuse to make an order in favour of a person whose character or conduct, in the court's opinion, disentitles the person to the benefit of an order under this Division.

Lump sum or periodic payments, transfer of property or trust

In making an order under this Division the court may, if it thinks it is appropriate, order that

the provision for the will-maker's spouse or children is to consist of a lump sum, a periodic or other payment or a transfer of property, or

a trust be created in favour of the will-maker's spouse or children.

Payments fall rateably on estate

Unless the court otherwise determines, the incidence of the payments ordered by the court under this Division falls rateably on the will-maker's estate.

If the authority of the court does not extend or cannot, directly or indirectly, be made to extend to the whole estate, subsection (1) applies to as much of the estate as is located in British Columbia.

Power to suspend administration and exempt from order

The court may, subject to any terms or conditions the court considers appropriate, make one or both of the following orders:

suspending, in whole or in part, the administration of the will-maker's estate;

exempting any part of the will-maker's estate from the effect of an order under

section 60 [maintenance from estate] .

Power of court to allow commutation

The court may make an order that a periodic payment or lump sum is to be paid by a beneficiary to represent, or in commutation of, the proportion of the sum ordered to be paid that falls on the part of the estate in which the beneficiary is interested, and that the

part is released from further liability.

In making an order under subsection (1), the court may give directions concerning the security and disposition of the periodic payment or lump sum under subsection (1).

Effect of order

On an order being made under this Division, the part of the estate comprised in it or affected by it must be held subject to the provisions of the order, but the order does not bind land unless the order is registered, in the land title office in which the title to the land is registered, as a charge against the land affected.

Registration of title

Title to property distributed by gift in a will to a beneficiary must not be registered in a land title office except after the time set out in

section 155 [distribution of estate] unless

the beneficiaries entitled under the will consent to the registration, or

a court approves the registration.

A registration under subsection (1) is subject to the liability of being subject to an order under this Division.

Mortgage in anticipation of order invalid

A person for whom provision is made under this Division must not anticipate that provision.

A mortgage, charge or assignment of any kind of or over a provision referred to in subsection (1) is of no effect if it is made before the order of the court is made.

A mortgage, charge or assignment made after an order of the court referred to in subsection (2) is made is of no effect unless it is made with the court's permission.

Court may cancel or vary order

If the court has ordered periodic payments, or that a lump sum be invested for the benefit of a person, the court may

inquire whether, at any subsequent date, changes in the circumstances of the person in whose favour the order was made have resulted, in whole or in part, in the person's entitlement to adequate provision separate from the order, and

cancel, vary or suspend its order, or make another order.

Appeal to Court of Appeal

A person who considers themselves prejudicially affected by an order under this Division may appeal to the Court of Appeal.

Registration of Notice of Will

Filing of notice of will

If a person makes a will, a notice of will may be filed with the registrar general in a form satisfactory to the registrar general.

Filing of notice of revocation

If a will is revoked, whether or not a notice was filed under

section 73, a notice of revocation in a form satisfactory to the registrar general may be filed with the registrar general.

Filing notice of change of place of will

If a notice has been filed under

section 73 and the will is no longer located at the place mentioned in the notice, notice of the change in a form satisfactory to the registrar general may be filed with the registrar general.

Registrar general's records

The registrar general must maintain, in a system that the registrar general believes facilitates access to information by those who require it, a record of every notice filed under this Division.

Search of records

A lawyer or a member of the Society of Notaries Public of British Columbia may, on application in a form satisfactory to the registrar general, ascertain from the registrar general whether or not a notice has been filed under this Division.

A person other than a lawyer or a member of the Society of Notaries Public of British Columbia may, on written application accompanied either by a certificate of the death of the person named in the application or by a signed statement proving to the satisfaction of the registrar general that the person named in the application has died, ascertain from the registrar general if the person named in the application has filed a notice under this Division.

The registrar general must

issue to an applicant under subsection (1) or

(2) the search results for the person named in the application, and

a certificate showing the contents of the last notice that is relevant to the application, and

permit the applicant, or the agent of the applicant, to inspect the notices.

The registrar general may provide a lawyer or member of the Society of Notaries Public of British Columbia who is an applicant under subsection (1) with

a copy of a notice filed under this Division, or

access by computer or otherwise to information contained in a notice filed under this Division.

Except as provided in this section, the registrar general must not provide to any person information regarding notices filed under this Division or information about whether or not a notice has been filed.

A person who knowingly provides information that is false or misleading with respect to a material fact contained in a signed statement under subsection (2) commits an offence.

A person who produces or relies upon a signed statement given by another person under subsection (2) while knowing the signed statement to be false or misleading with respect to a material fact contained in that signed statement commits an offence.

Validity of will or revocation not affected

The validity of a will and the validity of a revocation of a will are not affected by filing or not filing a notice under this Division.

Conflict of Laws

Interpretation

In this Division, a reference to the law of a place other than British Columbia is a reference to the internal law only of that place and does not include its conflict of laws rules.

A requirement of the law of a place other than British Columbia that

certain formalities must be observed by will-makers of a particular description when making a will, or

witnesses to wills must have certain qualifications

is a formal requirement only that does not affect the essential validity of the will.

Validity of wills made in accordance with other laws

A will is valid as to the formal requirements for making the will and is admissible to probate if it is made in accordance

with the law of the place where the will is made,

with the law of the will-maker's domicile, either at the date the will is made or at the date of the will-maker's death,

with the law of the will-maker's ordinary residence, either at the date the will is made or at the date of the will-maker's death,

with the law of a country of which the will-maker was a citizen, either at the date the will is made or at the date of the will-maker's death,

with the law of British Columbia, but the will is made outside British Columbia,

with the law of the place where the will-maker's property is situated at the date the will is made or at the date of the will-maker's death,

in the case of a will made on board a vessel or aircraft of any description, with the law of the place with which, having regard to the registration, if any, of a vessel or aircraft, the vessel or aircraft is most closely connected, or

to the extent that the will exercises a power of appointment, with the law governing the essential validity of that power.

If a will is not valid under subsection (1), it is deemed to be valid if a subsequent amendment to the law of the relevant jurisdiction before the deceased person's death would have validated the will.

The formal validity of a will that revokes

a will that would be treated as formally valid under this Division, or

a provision of a will that would be treated under this Division as a formally valid provision,

may be determined by reference to any law under which the revoked will or provision of the will would be treated as formally valid and that is relevant for that purpose under this Division.

Resort to other aids to construction

In the construction of a will to which this Division applies, the court may resort to the law of the place where the will-maker was domiciled or was ordinarily resident at the time the will was made.

Interest in an immovable

If the value of personal property consists mainly or wholly in its use in connection with an interest in an immovable by the owner or occupier of the personal property, the right to an interest in the personal property under a will is governed by the law of the place where the immovable is located.

In subsection (1), interest in an immovable includes any estate or interest in land whether the estate or interest is real property or personal property, and includes a leasehold estate.

Adoption of Convention Providing a Uniform Law on the Form of an International Will

Convention adopted

In this section, convention means the Convention Providing a Uniform Law on the Form of an International Will set out in

Schedule 2 to this Act.

The convention

is in force in British Columbia, and

The following are persons authorized to act in connection with an international will:

lawyers;

members of the Society of Notaries Public of British Columbia.

Nothing in this

section detracts from or affects the validity of a will that is valid under the laws in force in British Columbia other than this section.

Section 58 [court order curing deficiencies] applies to a will purporting to be signed or witnessed, or both, in accordance with the convention.

This

section applies to wills made before, on or after the date this

section comes into force if the will-maker has not died before that date.

Benefit Plans

Application of Part

This Part applies whether or not a benefit plan gives a person entitled to a benefit under the plan the right to make a designation.

If a benefit plan provision is inconsistent with this Part, this Part prevails unless the benefit plan provision that is inconsistent is authorized under another enactment of British Columbia or Canada.

This Part does not apply to a contract of insurance or to a declaration to which

Part 3 [Life Insurance] or

Part 4 [Accident and Sickness Insurance] of the Insurance Act applies.

If this

Part conflicts or is inconsistent with another enactment of British Columbia or Canada, the other enactment prevails.

Designation Requirements

Designated beneficiaries

A participant may

designate another person or persons to whom or for whose advantage the benefit is payable as a designated beneficiary, and

unless the designation is irrevocable under

section 87, alter or revoke the designation.

A designation, alteration or revocation under this

section

is only effective if the designation, alteration or revocation

is in writing,

is not altering or revoking a previous designation that is irrevocable under

section 87, and

iii

is signed by either of the following persons:

the person making it;

another person in the presence and at the direction of the person making it, in which case the signature may be in the name of the person making it or of the person signing,

may be made in a will, but if it is,

the designation is only effective if it relates expressly to a benefit plan, either generally or specifically, and

Division 3 [Designated Beneficiaries in a Will] of this Part applies to the designation, and

is subject to

section 89 [when designations may not be changed] .

A person granted power over an adult's financial affairs under

Part 2 of the Power of Attorney Act , or

the Patients Property Act

may make, alter or revoke a designation under this

section only if expressly authorized to do so by the court and the designation is not made in a will.

Several designated beneficiaries

If 2 or more designated beneficiaries are designated other than alternatively, but no division is made of the benefit payable under the benefit plan on the participant's death, the benefit is payable to the designated beneficiaries in equal shares.

Irrevocable designations

A participant may make an irrevocable designation.

An irrevocable designation has effect as an irrevocable designation only if, during the lifetime of the participant, it is filed with an office in Canada specified for that purpose by the benefit plan administrator.

If a person

makes an irrevocable designation by will, or

makes an irrevocable designation that is not filed in accordance with subsection (2),

the designation takes effect as a revocable designation.

Effect of irrevocable designation

While a designated beneficiary of an irrevocable designation is living, the participant may not alter or revoke the designation without the consent of the designated beneficiary.

A benefit that is the subject of an irrevocable designation

is not subject to the control of the participant or the participant's creditors, and

does not form part of the participant's estate.

Other Benefit Plan Provisions

When designations may not be changed

If the amount or duration of a payment under a benefit plan is determined having regard to the person entitled to a benefit under a benefit plan, unless otherwise permitted under the terms of the plan, the person or persons named as designated beneficiary or designated beneficiaries may not be changed after the payments start.

Maintaining previous designations

Subject to subsection (2), a new designation of the same designated beneficiary may be made, other than by will, by a representative of the participant, including by one of the following:

a person granted power over financial affairs under the Patients Property Act ;

an attorney acting under an enduring power of attorney as described in

Part 2 [Enduring Powers of Attorney] of the Power of Attorney Act ;

a representative acting under a representation agreement made under

section 7 (1) (b) [standard provisions] of the Representation Agreement Act ;

a person appointed under

section 51 (2) [mentally incompetent Indians] of the Indian Act (Canada) or the Minister of Aboriginal Affairs and Northern Development.

Subsection (1) operates only if the designation renews, replaces or converts a similar instrument made by the participant while capable.

If a benefit plan administrator acts in accordance with a new designation described in subsection (1), the benefit plan administrator is entitled to rely on that designation and is discharged in respect of that benefit.

Designated beneficiary dying before participant

If a designated beneficiary dies before the participant, and no disposition of the share of the deceased designated beneficiary is provided for in the designation, the share is payable

to the surviving designated beneficiary,

if there is more than one surviving designated beneficiary, to the surviving designated beneficiaries in equal shares, or

if there is no surviving designated beneficiary, to the participant's personal representative.

Trustee for designated beneficiary

A participant may, in the same manner as a designation, appoint or alter or revoke the appointment of a trustee for a designated beneficiary.

A payment made by a benefit plan to the trustee for a designated beneficiary discharges the benefit plan administrator to the extent of the payment.

Enforcing payment of benefit

If a designation is in effect when a participant dies, a designated beneficiary or trustee entitled to a benefit under the designation may enforce payment of the benefit.

A benefit plan administrator may set up any defence that would have been available had the claim to enforce payment been brought by the participant or the participant's personal representative.

Benefit plan administrator discharged of liability

If a benefit plan administrator transfers a benefit in accordance with the benefit plan to a designated beneficiary or to the trustee appointed under

section 92, the benefit plan administrator is discharged in respect of that benefit even if the benefit plan administrator later receives a notice of change of designated beneficiary.

Benefit not part of estate

A benefit payable to a designated beneficiary or to a trustee appointed under

section 92 under a benefit plan on the death of a participant does not form part of the participant's estate and is not subject to the claims of the participant's creditors.

Designated Beneficiaries in a Will

Alteration or revocation of designation in will

A designation in a will may be altered or revoked by a later designation that is not in a will.

Designation in will

A revocation in a will of a designation revokes a designation that is not in a will only if the revocation in the will relates to the designation, either generally or specifically, and the designation is not irrevocable.

The revocation of a will revokes a designation in the will.

Revocation of a designation does not revive an earlier designation.

Effect of designation in purported wills

A designation or revocation of a designation contained in a purported will is not invalid merely because the instrument is invalid as a will.

A designation in a purported will is revoked by an event that would have the effect of revoking the instrument if it had been a valid will.

Effect of revival of will on designation

Revival of a will by codicil does not revive a revoked designation in a will unless the codicil expressly provides for revival.

Effective date of designation and revocation

Unless a designation is irrevocable, a designation or revocation of a designation in a will is effective from the time the will is made.

Administration of Estates

Application of this Part and Vesting of Property

Application

This Part applies to the following:

a personal representative or other person acting or intending to act in British Columbia under a will or a representation grant, wherever the will is made or the representation grant is issued;

the administration of the estate of a deceased person who was ordinarily resident or domiciled in British Columbia at the date of the person's death;

the estate situated in British Columbia of a deceased person who was not ordinarily resident or domiciled in British Columbia at the date of the person's death.

Vesting of property on death

On the death of a person, the deceased person's estate vests in the court if

the estate is an intestate estate, or

an executor is not named in the deceased person's will.

The estate of a deceased person vests in the person's personal representative when the personal representative assumes or is appointed to that office.

Administration pending legal proceedings

The court may appoint a person as the administrator of the estate of a deceased person pending a proceeding

in which the validity of the will of the deceased person is in issue, or

to obtain or revoke a representation grant.

The administrator of an estate

has all the rights, powers and duties of a personal representative, other than the right to distribute the estate,

is subject to the control of the court and must act under its direction, and

is entitled to reasonable compensation under the Trustee Act or as otherwise determined by the court.

Renunciation of executorship

A person named as executor in a will may renounce the person's appointment as executor.

The renunciation of executorship, unless a court otherwise orders, terminates the executorship of the person renouncing it, and the administration of the estate passes as if the person had never been appointed executor.

Forfeiture of executorship

If an executor

survives the will-maker and dies without being granted probate, or

is required to take probate and does not appear,

the appointment of the executor terminates and the administration of the estate passes as if the person had not been appointed as executor.

Opposition to issue of representation grant

A person may, in accordance with the Supreme Court Civil Rules, oppose the issue of a representation grant.

Executor not joining an application

If an executor does not join an application for a grant of probate or administration with will annexed, the executor is not liable in respect of assets of the estate coming into the hands of a co-executor, an alternative executor or an administrator with will annexed, whether or not power is reserved to the executor to apply for a subsequent representation grant.

Requirement to accept executorship or to explain

If an executor named in a will does not apply for a grant of probate of a will, any person interested in the estate may, in accordance with the Supreme Court Civil Rules, require the executor to

accept or renounce probate of the will, or

explain why administration of the deceased person's estate should not be granted to the executor or to another person who is willing to act as personal representative.

Not in force

109-120

[Not in force.]

Application for Grant of Probate or Administration

Notice of proposed application for grant of probate or administration

An applicant for a grant of probate or administration must give notice of the proposed application to the persons referred to in the Supreme Court Civil Rules.

An applicant or personal representative who, in accordance with the Supreme Court Civil Rules, makes reasonable efforts to discover the existence, identity or whereabouts of persons to whom the notice under subsection (1) is required to be given, but is unsuccessful, is not liable for any loss or damage arising from not giving the required notice except for claims to recover property or enforce an order under Division 6 [Variation of Wills] of

Part 4 [Wills] .

a) and (b

[Not in force. Repealed 2011-6-34.]

Application for grant of probate or administration — disclosure

An applicant for a grant of probate or administration must

make a diligent search and inquiry to find the property and liabilities of the deceased person, and

disclose information as required under the Supreme Court Civil Rules concerning the property of the deceased person, irrespective of its nature, location or value, that passes to the applicant in the applicant's capacity as the deceased person's personal representative, unless

the deceased person was not domiciled or ordinarily resident in British Columbia at the time of death,

the property is situated outside British Columbia, and

iii

the property has been, is being, or will be administered by a foreign personal representative or otherwise under the law of a foreign jurisdiction.

For the purposes of subsection (1), foreign personal representative may include the applicant.

The applicant for a grant of probate or administration must file with a registrar of the court a form as set out in the Supreme Court Civil Rules with respect to complying with the requirements of this section.

Production of documents and property

The court may order a person having control or possession of the following to produce and bring all or any of them to the court or place directed by the court:

a testamentary instrument or purported testamentary instrument, including a record as defined in

section 58 (1) [court order curing deficiencies] ;

a document relating to an estate;

property belonging to an estate;

a representation grant.

If there are reasonable grounds to believe that a person has knowledge of anything referred to in paragraphs (

a) to (

d) of subsection (1), the court may order the person to attend for examination.

Opportunity for Public Guardian and Trustee to comment

If the Public Guardian and Trustee has, in accordance with the Supreme Court Civil Rules, been given notice of an application for a representation grant, the court must not issue the representation grant unless

the applicant provides to the court the written comments of the Public Guardian and Trustee, or

the court is satisfied, in an additional application made with reasonable notice to the Public Guardian and Trustee, that it is necessary or appropriate to issue the representation grant before the Public Guardian and Trustee gives written comments.

The applicant must, with respect to an application for a representation grant under subsection (1), provide a copy of the representation grant to the Public Guardian and Trustee within 45 days after it is issued.

Direction by Public Guardian and Trustee — sealed applications

The Public Guardian and Trustee may, whenever the Public Guardian and Trustee considers it appropriate to do so, direct that an application by the Public Guardian and Trustee for grant of probate or administration be sealed by a registrar of the court.

On receipt of a direction under subsection (1), the registrar of the court must

seal the court file respecting the application and related material specified by the Public Guardian and Trustee, and

prohibit access to the file except as permitted

by the Public Guardian and Trustee, or

by the court.

The sealing of a court file under subsection (2) does not prohibit the disclosure that there is an application for grant of probate or administration or the date of death of the deceased person.

An application and file to which this

section relates must be sealed and remain confidential for 180 days from the date the application was filed with the registrar of the court, unless the Public Guardian and Trustee or the court authorizes all or part of the court file to be disclosed.

A person may apply to unseal a file that has been sealed under subsection (2) and must give notice of the application to the Public Guardian and Trustee in order to provide the Public Guardian and Trustee with the opportunity to make submissions on the application.

The court may, on application by the Public Guardian and Trustee, direct that a file to which this

section applies remain sealed for one or more additional periods not exceeding in total 18 months.

A person who, without the consent of the Public Guardian and Trustee or the court, knowingly discloses any information that the person knows or reasonably ought to know is information in a sealed file, commits an offence and is liable to a fine of not more than $10 000 or to imprisonment for not more than 12 months, or to both.

This

section applies despite any enactment to the contrary.

Public Guardian and Trustee to pay beneficiaries and intestate successors directly

The Public Guardian and Trustee must distribute an estate directly to any beneficiary or intestate successor to whom all or part of the estate is to be distributed, as the case may be, unless the Public Guardian and Trustee otherwise decides.

Subsection (1) does not apply to a distribution of an estate to a guardian of a minor, or guardian or committee of a person incapable of managing their affairs.

Subsection (1) applies despite any direction, authorization, power of attorney, agreement, assignment of rights or otherwise to the contrary.

Immunity for Public Guardian and Trustee

Subject to subsection (2), no legal proceeding for damages lies or may be commenced or maintained against the Public Guardian and Trustee or an officer or employee of the Public Guardian and Trustee because of anything done or omitted

in the performance or intended performance of any duty under

section 125 or 126, or

in the exercise or intended exercise of any power under

section 125 or 126.

Subsection (1) does not apply to a person referred to in that subsection in relation to anything done or omitted by that person in bad faith.

Security for administration of estates

No security for the administration of an estate is required to be provided by an applicant for a grant of administration unless

a minor or a mentally incapable person without a nominee who has authority to represent the mentally incapable person in estate matters is interested in the estate, or

the court, on application by a person interested in the estate, requires security.

1.1

If security is required under subsection (1), the applicant for a grant of administration must apply to the court to determine the security required and the court may, on that application, do one or both of the following:

accept any form or amount of security;

impose a restriction on the powers of the proposed administrator that may be exercised without prior approval of the court or the Public Guardian and Trustee.

If the court is satisfied that a condition of any security of an assignable nature provided under subsection (1) has been breached, the court may order that the registrar of the court or the person to whom the security has been given assign the security to a person named in the order.

A person to whom security is assigned under subsection (2) or the personal representative of that person

may sue in that person's own name or as the personal representative, as the case may be, and

is entitled to the amount recoverable for a breach of a condition of the security as trustee for all persons interested.

Grant of Probate or Administration

Grant of probate or administration

The court may grant probate of a will or administration of an estate for general, special or limited purposes on proof

of the validity of the deceased person's will or that the deceased person died without a will, and

that the deceased person was ordinarily resident or domiciled

in British Columbia at the time of the person's death,

outside British Columbia at the time of the person's death and left property in British Columbia, or

iii

outside British Columbia at the time of the person's death and the personal representative will be a party to a proceeding commenced in British Columbia.

The court may grant probate of a will or administration of an estate even though the deceased person was not ordinarily resident or domiciled in British Columbia at the person's death and left no property in British Columbia.

The registrar of the court may grant probate of a will or administration of an estate for general, special or limited purposes in the circumstances described in subsections (1) and (2) if the application for the grant of probate or administration is

unopposed, and

made in accordance with the applicable Supreme Court Civil Rules.

Priority among applicants — intestate estate

If a person dies without a will, the court may grant administration of the deceased person's estate to one or more of the following persons in the following order of priority:

the spouse of the deceased person or a person nominated by the spouse;

a child of the deceased person having the consent of a majority of the children of the deceased person;

a person nominated by a child of the deceased person if that person has the consent of a majority of the deceased person's children;

a child of the deceased person not having the consent of a majority of the deceased person's children;

an intestate successor other than the spouse or child of the deceased person, having the consent of the intestate successors representing a majority in interest of the estate, including the intestate successor who applies for a grant of administration;

e.1

a person, other than the spouse or child of the deceased person, nominated by an intestate successor of the deceased person if that person has the consent of the intestate successors representing a majority in interest of the estate, including the intestate successor who nominated the person to apply for a grant of administration;

an intestate successor other than the spouse or child of the deceased person, not having the consent of the intestate successors representing a majority in interest of the estate, including the intestate successor who applies for a grant of administration;

f.1

in the case of a deceased person whose estate would pass to the government and would be subject to the Escheat Act , a person nominated by the government;

any other person the court considers appropriate to appoint, including, without limitation, and subject to the Public Guardian and Trustee's consent, the Public Guardian and Trustee.

Priority of applicants — administration with will annexed

If a person dies leaving a will, and the executor named in the will renounces executorship or is unable or unwilling to apply for a grant of probate, or if no executor is named in the will, the court may grant administration with will annexed to one or more of the following persons in the following order of priority:

a beneficiary who applies having the consent of the beneficiaries representing a majority in interest of the estate, including the applicant;

a.1

a person nominated by a beneficiary if that person has the consent of the beneficiaries representing a majority in interest of the estate, including the beneficiary who nominated the person to apply for a grant of administration with will annexed;

a beneficiary who applies not having the consent of the beneficiaries representing a majority in interest of the estate;

any other person the court considers appropriate to appoint, including, without limitation, and subject to the Public Guardian and Trustee's consent, the Public Guardian and Trustee.

Special circumstances

Despite sections 130 and 131, the court may appoint as administrator of an estate any person the court considers appropriate if, because of special circumstances, the court considers it appropriate to do so.

The appointment of an administrator under subsection (1) may be

conditional or unconditional, and

made for general, special or limited purposes.

Administration of partial intestacy

If a person dies leaving a will and the will does not give away or otherwise dispose of all of the deceased person's estate, the grant of probate of the will or the grant of administration with will annexed also operates as a grant of administration of the part of the estate that is not given away or disposed of by the will.

Administration if sole executor a minor

If a minor is named the sole executor under a will,

the court must grant administration with will annexed

to the guardian of the minor, on application by the guardian,

if the guardian does not apply, to another person the court considers appropriate until the minor reaches 19 years of age, or

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in special circumstances, to another person if the court considers it appropriate, and

when the minor reaches 19 years of age, the court may revoke the grant to the guardian or other person and grant probate of the will to the former minor.

Administration granted under subsection (1) may be

conditional or unconditional, and

made for general, special or limited purposes.

Effective date of grant for intestate estate

The personal representative of a person who dies leaving an intestate estate is conclusively deemed to be the personal representative from the date of death of the deceased person.

Despite subsection (1), a personal representative is not liable for any loss or damage to the estate that occurred before the effective date of the representation grant unless the personal representative would have been liable for the loss or damage despite the existence of a representation grant.

Effect of representation grant

A representation grant, whether or not power is reserved to another person to apply for a subsequent representation grant, gives to the personal representative exclusive authority to administer the estate or that part of the estate to which the representation grant applies in accordance with its terms.

Reliance on representation grant

A person who, relying on a representation grant and before having notice of any revocation of the representation grant, pays or transfers property of the estate or releases or provides any document or information concerning an estate is, despite any defect or irregularity in the grant or revocation of it,

not liable for loss or damage to any person as a result of the payment or transfer of property or the release or provision of documents or information, and

discharged as against the personal representative to the extent of the value of any payment or transfer.

Foreign Personal Representatives, Resealing Foreign Grant and Ancillary Grant

Resealing foreign grant and ancillary grants

On application by a foreign personal representative, the court may reseal a foreign grant made in another province or in a territory of Canada or in another prescribed jurisdiction.

A foreign personal representative who applies for the resealing of a foreign grant must

give notice of the application in accordance with the Supreme Court Civil Rules,

disclose information as required under the Supreme Court Civil Rules concerning the property of the deceased person situated in British Columbia that the foreign personal representative seeks to administer, and

if the application relates to a foreign grant of administration with or without will annexed and security is required to be provided under

section 128 [security for administration of estates] , provide security in an amount approved by the court.

On a resealing with the seal of the court, the foreign grant

has the same effect in British Columbia as if it were issued by the court, and

is, with respect to property situated in British Columbia, subject to any order of the court to which a representation grant issued by the court with respect to the same property would be subject.

3.1

The registrar of the court may reseal a foreign grant in the circumstances described in subsection (1) if the application to reseal the foreign grant is

unopposed, and

made in accordance with the applicable Supreme Court Civil Rules.

If a foreign grant cannot be resealed under this section, the court may make an ancillary grant of probate or administration to the foreign personal representative.

Limited grant to attorney of foreign personal representative

In this section, attorney means a person who is appointed as the representative of a foreign personal representative under a power of attorney.

On application by an attorney of a foreign personal representative, the court may grant probate or administration to the attorney, limited to the deceased person's estate situated in British Columbia.

Curing deficiencies in foreign wills

The court may make an order under

section 58 [court order curing deficiencies] in relation to any will for which an application for grant of probate or administration may be made.

Revocation of Grant of Probate or Administration

Revocation of grant of probate or administration

The court must not revoke a grant of probate or administration on the sole ground that a notice could not be given to

a person described in the Supreme Court Civil Rules who could not be discovered, identified or found, or

a person to whom notice was not required to be given under the Supreme Court Civil Rules.

If a grant of probate or administration is revoked, the authority to act passes as if the person had never been appointed executor.

Personal Representatives — Powers, Duties and Liabilities

Personal representatives — general authority

A personal representative has the same authority over the estate in respect of which the personal representative is appointed as the deceased person would have if living, subject to

a contrary intention appearing in the will of the deceased person, and

this or any other enactment.

A personal representative must exercise authority to

administer and distribute the estate in respect of which the personal representative is appointed,

account to beneficiaries, creditors and others to whom the personal representative has at law a duty to account, and

perform any other duties imposed on the personal representative by the will of the deceased person or by law.

Application of Trustee Act to personal representatives

Sections 86 [application for directions] , 89 [application for remuneration] and 96 [jurisdiction of court to relieve trustee of breach of trust] of the Trustee Act apply to a personal representative.

Subject to

section 153 [distribution of minor's interest] of this Act,

section 40 [payment by trustees] of the Trustee Act applies to a personal representative.

Subsections (1) and (2) apply whether or not a personal representative is also a trustee.

If a person is both a personal representative and a trustee with respect to all or part of the same estate,

subject to subsections (1) to (3), this Act applies to that person in respect of a matter relating to the office, duties, powers, appointment, discharge, removal or substitution of that person as a personal representative, and

the Trustee Act applies to that person in respect of a matter relating to the office, duties, powers, appointment, discharge, removal or substitution of that person as a trustee.

Abolition of rule in Allhusen v. Whittel

Unless the will of a deceased person contains an express direction to the contrary,

the personal representative of the deceased person, in paying the debts, funeral and testamentary expenses, estate, legacy, succession and inheritance taxes or duties, legacies o