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The Succession Duty Act

S.M. 1988-89, c. 42

Bill 5, 1st Session, 34th Legislature

The Succession Duty Act

Enacted by S.M. 1988-89, c. 2, Schedule E

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

Definitions

1           In this Act

"aggregate net value of property of a deceased" means the aggregate net value of the property of the deceased

(a) as determined in accordance with sections 3, 4 and 5 after making the deductions required under section 6 and not prohibited under section 7, and

(b) as valued in accordance with the provisions of this Act; («valeur globale nette des biens du défunt»)

"amount" means any money, right or thing expressed

(a) in the case of money in terms of the amount of money, or

(b) in the case of a right or thing, in terms of the value in terms of money of the right or thing; («montant» ou «somme»)

"assessment" includes a re-assessment; («cotisation»)

"charitable organization" means

(a) an organization that, at the time of the death of a deceased from whose property it received a succession or within two years thereafter, was a registered Canadian charitable organization as that expression was, at the time of the death, defined in paragraph 110(8)(c) of the Income Tax Act (Canada) other than a trust exempt from tax under Part I of that Act by paragraph 149(1)(f) or (h) of that Act, or

(b) any organization that, at the time of the death of a deceased from whose property it received a succession or within two years thereafter, was prescribed as a charitable organization under the regulations; («oeuvre de charité»)

"child" where used in referring to the child of a person means

(a) a legitimate child of that person, or

(b) an adopted child of that person, or

(c) an illegitimate child of that person, or

(d) the child of a child of that person, or

(e) any other person in respect of whom that person stands, or stood before that other person reached majority, in loco parentis; («enfant»)

"collateral successor" where used with reference to a deceased means a successor to property of the deceased who is

(a) the spouse of a brother or sister of the deceased, or

(b) the child of a brother or sister of the deceased, or

(c) the brother or sister of a parent of the deceased, or

(d) the child of a brother or sister of the parent of the deceased, or

(e) the spouse of any person described in clause (b), (c) or (d), and in this clause "brother" includes a half-brother and "sister" includes a half-sister; («successeur collatéral»)

"co-operating province" means another province of Canada that has been prescribed as a co-operating province under the regulations; («province participante»)

"corporation controlled by the deceased" means a corporation that, at the time in respect of which the expression is being applied, was controlled, whether directly or indirectly and whether through holding a majority of the shares of the corporation or of any other corporation or in any other manner whatever, by the deceased or by any other person on behalf of the deceased; («corporation contrôlée par le défunt»)

"deceased" includes any deceased person whether or not any duty is payable under this Act in respect of the death of that person and whether or not that person was domiciled or resident within the province immediately before his death; («défunt»)

"disposition" includes any arrangement or ordering in the nature of a disposition, whether by one transaction or a number of transactions effected for the purpose or in any other manner whatever; («disposition»)

"duty" means duty payable under this Act; («droit»)

"employee" includes an officer; («employé»)

"employer" in relation to any employee, means the person from whom the employee received his remuneration, and, where the employer is a corporation, includes any parent, subsidiary or other related corporation; («employeur»)

"executor" where used in referring to the executor of a deceased includes an executor of the will of the deceased, an administrator of the estate of the deceased, and an executor de son tort of any property of the deceased; («exécuteur testamentaire» ou «exécuteur»)

"general power" includes any power or authority enabling the donee or other holder thereof either alone or jointly with or with the consent of any other person to appoint, appropriate or dispose of property as he sees fit, whether exercisable by instrument inter vivos or by will, or both, but does not include

(a) any power exercisable in a fiduciary capacity under a disposition not made by him except to the extent that having regard to the fiduciary restrictions imposed upon him under the disposition it is reasonable to regard the donee or holder of the power as capable of conferring the property or any part thereof upon himself for his own benefit, or

(b) any power exercisable as a mortgagee, or

(c) any power exercisable jointly with, or with the consent of, any other person

(i) who has a substantial interest in the property to which the power relates, and

(ii) whose interest in that property would be adversely affected by the exercise of the power in favour of the donee or holder; («pouvoir général»)

"gift" means a transfer, assignment or other disposition of property (whether situated within or outside the province) by way of gift and, includes

(a) the creation of a trust of, or an interest in, property by way of gift, and

(b) a transaction or transactions whereby a person disposes of property directly or indirectly by way of gift; («don»)

"government" means Her Majesty the Queen acting for the province; («gouvernement»)

"interest in expectancy" includes an estate or interest in remainder or reversion and any other future interest whether vested or contingent, but does not include a reversion expectant on the determination of a lease; («droit en expectative», «intérêt en expectative» ou «droit à jouissance différée»)

"minister" means the Member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; («ministre»)

"municipality" means a corporation comprising the inhabitants of a locality and includes a local government district and a public school board; («municipalité»)

"officer" means the holder of a position entitling the holder to a fixed or ascertainable stipend or remuneration and includes a director of a corporation and the holder of a judicial office, office of a Minister of the Crown, Member of the Senate or House of Commons of Canada, Member of a Legislative Assembly or Senator or Member of a Legislative or Executive Council and any other office the incumbent of which is elected by popular vote or is elected or appointed in a representative capacity; («fonctionnaire» ou «détenteur de poste»)

"parent" where used in referring to the parent of a person means

(a) the parent of that person if that person is a legitimate child, or

(b) an adoptive parent of that person, or

(c) the mother of that person if that person is an illegitimate child, or

(d) another person who stands, or stood before that person reached majority, in loco parentis in respect of that person, or

(e) a parent of a parent of that person, other than a parent of a person who is a parent by reason of clause (d); («parent»)

"preferred successor" where used with reference to a deceased means a successor to property of the deceased who is

(a) the spouse of the deceased, or

(b) a child of the deceased, or

(c) a parent of the deceased, or

(d) the spouse of a child of the deceased; («successeur privilégié»)

"prescribed" in the case of a form or the information to be given on a form, means prescribed by the minister, and, in any other case, means prescribed by the regulations; («prescrit»)

"property" means property of every description whatever, whether real or personal, movable or immovable, or corporeal or incorporeal, and without restricting the generality of the foregoing, includes

(a) any estate or interest in any such property, a right of any kind whatever and a chose in action, and

(b) money; («bien»)

"property of the deceased" means all property the value of which is included in computing the aggregate net value of the property of the deceased for the purposes of this Act, and includes any property acquired by the executor of the deceased by one or more transactions effecting one or more substitutions; («biens du défunt»)

"real property" includes any estate, interest or right to or in land; but does not include a mortgage secured by real property; («bien réel»)

"resident" means a person who resides in the province at the time of the death of the deceased in respect of whose death the residence of the person is material, but where a person has more than one place of residence at that time, he shall not be regarded as residing within the province unless his principal residence is within the province and "resident" where used in reference to a resident of any other province, state or country has a corresponding meaning in respect of that other province, state or country; («résident»)

"settlement" includes

(a) any trust, whether expressed in writing or otherwise, in favour of any person, and, if contained in a deed or other instrument effecting the settlement, whether or not the deed or other instrument was made for valuable consideration as between the settlor and any other person, and

(b) any deed or other instrument under or by virtue of which a usufruct or substitution is created or any real property stands limited to any persons by way of succession; («constitution»)

"shareholder" includes any member or person who is entitled to receive payment of a dividend from or in respect of a share in the capital stock of a corporation; («actionnaire»)

"sibling successor" where used with reference to a deceased means a successor to property of the deceased who is a brother, sister, half-brother or half-sister of the deceased; («successeur collatéral privilégié»)

"spouse" where used in referring to the spouse of a deceased includes a person who establishes to the satisfaction of the minister that for not less than five consecutive years immediately prior to the death of the deceased

(a) he or she had resided with the deceased, and

(b) the deceased had represented him or her as the spouse of the deceased; («conjoint»)

"succession" means,

(a) the property of the deceased to which a successor becomes beneficially entitled, or

(b) the acquisition by a successor of any property of the deceased by reason of the death of the deceased or a successor's becoming beneficially entitled to property of a deceased by reason of the death of the deceased; («succession»)

"successor" in relation to any property of the deceased includes any person who, at any time before or on or after the death of the deceased became or becomes beneficially entitled to any property of the deceased

(a) by virtue of, or conditionally or contingently on, the death of the deceased, or

(b) by virtue of the exercise of any general power of which the deceased was the donee or other holder, or

(c) in any case, under any disposition made by the deceased during his lifetime, or

(d) by virtue of the application in respect of the death of the deceased of any law of Canada or a province providing for relief of dependants of deceased persons, and includes

(e) any person beneficially entitled to any property of the deceased in default of the exercise of any general power of which the deceased was the donee or other holder,

(f) any person as the donee or other holder of any general power created by the deceased in respect of any property of the deceased, and

(g) any trustee, guardian, committee, curator or other similar representative of any person mentioned in this clause, in his capacity as trustee, guardian, committee, curator or other representative; («successeur»)

"value"

(a) in relation to any income right, annuity, term of years, life or other similar estate or interest in expectancy, means the fair market value thereof ascertained in a manner and in accordance with rules and standards, including standards as to mortality and interest, prescribed by the regulations, and

(b) in relation to any other property means the fair market value of the property, computed in each case as of the date of the death of the deceased in respect of whose death the value is relevant, or as of such other date as is specified or provided for in this Act, without regard to any increase or decrease in the value after that date for any reason. («valeur»)

Persons connected by blood relationship

2(1)        For the purposes of this Act

(a) persons are connected by blood relationship if one is a lineal descendant of the other or one is the brother or sister of the other;

(b) persons are connected by marriage if one is married to the other or to a person who is connected by blood relationship to the other; and

(c) persons are connected by adoption if one has been adopted as the child of the other or as the child of a person who is connected by blood relationship (otherwise than as a brother or sister) to the other.

Property under control of executor

2(2)         A reference in this Act to any property under the control of the executor of a deceased shall be construed as a reference to the property of the deceased that came within the possession or under the control of the executor in his capacity as executor of the deceased.

Duty applicable to any property

2(3)        A reference in this Act to the part of any duty payable or duty otherwise payable that is applicable to any part of the property of the deceased shall be construed as a reference to that part of the total duty payable by the successor on or in respect of all the property of the deceased to which he is a successor that bears the same proportion to the total duty so payable as the value of that part of the property of the deceased bears to the value of all the property of the deceased to which he is the successor.

Duty otherwise payable

2(4)        A reference in any provision of this

Act to duty otherwise payable shall be construed as meaning the duty payable under this Act without giving effect or having regard to the provision in which the reference occurs.

Corporation as successor

2(5)        Where a corporation which is not resident in the province, other than a corporation without share capital, by reason of the death of a deceased acquires or becomes beneficially entitled to property of the deceased,

(a) the corporation shall be deemed not to be the successor of the property except to the extent that the value of the shares of the shareholders of the corporation is not increased in value by the corporation acquiring or becoming beneficially entitled to the property; and

(b) each of the shareholders of the corporation shall be deemed to be a successor of property of the deceased to the extent of the amount by which the value of his shares in the corporation is increased by the corporation acquiring or becoming beneficially entitled to the property.

Arm's length

2(6)        For the purposes of this Act, persons shall be deemed to be dealing at arm's length when each stands upon the strict letter of his rights and conducts his business in a formal manner without trusting to the other's fairness or integrity and without being subject to the other's control or overmastering influence.

Property of the deceased

3           For the purposes of this Act, the aggregate net value of the property of the deceased shall include the value of

(a) all property of which the deceased was, immediately prior to his death, competent to dispose;

(b) property disposed of at any time by the deceased as a donatio mortis causa;

(c) property disposed of by the deceased under a disposition operating or purporting to operate as an immediate gift inter vivos, whether by delivery, transfer, declaration of trust or otherwise, made within three years prior to his death to the extent of the value of that property at the time of the disposition;

(d) property disposed of by the deceased under a disposition whenever made, of which actual and bona fide possession and enjoyment was not, at least three years prior to the death of the deceased,

(i) assumed by the person to whom the disposition was made or by a trustee or agent for that person, and

(ii) thereafter retained to the entire exclusion of the deceased and to the entire exclusion of any benefit to him, whether by contract or otherwise;

(e) property comprised in a settlement whenever made, whether by deed or any other instrument not taking effect as a will, whereby

(i) any interest (other than a contingent interest unless the contingency has arisen before the death of the deceased or arises by reason of the death of the deceased) in or income from the property for life or any other period determinable by reference to death is reserved either expressly or by implication to the deceased as settlor, or

(ii) the deceased has reserved to himself the right by the exercise of any power, to restore to himself or to reclaim the absolute interest in the property, or

(iii) any trustees charged with administering the settlement have been given power, expressly or by implication, to restore the absolute interest in the property to the deceased;

(f) property held jointly by the deceased and one or more other persons to the extent of that part of the full value of the property arrived at by dividing the full value thereof by the number of joint owners or holders alive immediately before the death of the deceased;

(g) property disposed of by the deceased under any disposition made within three years prior to his death for partial consideration in money or money's worth paid or agreed to be paid to him, to the extent that the value of the property as of the date of the disposition exceeds the amount of the consideration so paid or agreed to be paid;

(h) property disposed of by the deceased to any person under an arrangement or understanding, whenever entered into (except property so disposed of to a person under an agreement made in the ordinary course of a business carried on by that person whose business included the selling of annuities), whereby the person to whom the disposition was made undertook to purchase or provide for or for the use or benefit of the deceased an annuity or other periodic payment for life or any other period determinable by reference to death;

(i) property transferred to or acquired by a purchaser or transferee, under an agreement made by the deceased or any condition or restriction attaching to the transfer or acquisition of any property owned by the deceased or over which he had a general power that provided for the transfer or acquisition of the property on or after his death, to the extent that the value of the property exceeds the value of the consideration, if any, in money or money's worth paid to the deceased thereunder at any time prior to his death;

(j) any annuity or right to income purchased or provided by the deceased, either alone or in concert or by arrangement with any other person, to the extent of the beneficial interest therein arising or accruing by survivorship or otherwise on the death of the deceased;

(k) any superannuation, pension or death benefit payable or granted

(i) out of or under any fund or plan established for -the payment of superannuation, pension or death benefits to recipients, or

(ii) out of the revenue of Her Majesty in right of Canada or a province or under or subject to any Act of the Parliament of Canada or of the Legislature of a province, on or after the death of the deceased in respect of his death;

(l) property disposed of by any person on or after the death of the deceased

(i) under any disposition made voluntarily in recognition of services rendered by the deceased as an employee of that person or as an employee of any other person, or

(ii) under the terms of any agreement made by the deceased for valuable consideration given by him providing for the disposition of the property on or after his death, whether or not the agreement is or was enforceable according to its terms by the person to whom the property was so disposed of;

(m) any amount payable by reason of the death of the deceased under a policy of insurance whether life insurance or any other kind of insurance (whether or not to a preferred beneficiary within the meaning of any statute or law relating to insurance applicable to the policy), where the policy was, immediately prior to the death of the deceased

(i) owned,

(A) by the deceased, or

(B) by a person as a trustee under any trust, the terms of which trust were subject to alteration by the deceased, or

(C) by a corporation controlled by the deceased, the whole or any part of the amount payable under which policy was payable to the spouse or child of the deceased, the estate of the deceased, or any person in trust exclusively or otherwise for the benefit of the spouse or child of the deceased or the estate of the deceased, or

(ii) owned, either alone or jointly or in common with any other person except the deceased or a person described in sub-sub-clause (B) of sub-clause (i), by a corporation controlled by the deceased, the whole or any part of the amount payable under which policy was payable to the corporation and no part of the amount payable under which policy was payable as described in sub-sub-clause (C) of sub-clause (i) in which case there shall be included only that part of the amount so payable to the corporation that exceeds

(A) the income of the corporation from a business carried on by it (other than a business, or that part of a business, that is of an investment or financial nature and that was not the making of loans, trading or dealing in stocks, bonds, mortgages, hypothecs, bills, notes or other similar property, or trading or dealing in land) for the last complete fiscal period of the corporation prior to the death of the deceased and for each of the four immediately preceding fiscal periods of the corporation during which it carried on any such business, minus

(B) any losses sustained by the corporation in any of the fiscal periods of the corporation referred to in sub-sub-clause (A) from any such business or such part of a business carried on by it;

(n) any amount payable under a policy of insurance (other than a policy of insurance owned as described in clause (m)) effected on the life of the deceased that was effected on the condition, expressed or otherwise, of the purchase from the insurer of an annuity, to the extent of the lesser of

(i) the amount paid for the annuity minus the aggregate of all annuity payments made thereunder by the insurer prior to the death of the deceased, and

(ii) the amount payable under the policy;

(o) property transferred to or settled upon any person by the deceased within three years prior to the death of the deceased in consideration of marriage;

(p) property agreed to be transferred to or settled upon any person by the deceased, under an agreement made at any time in consideration of marriage, to the extent that the property agreed to be transferred or settled was actually transferred or settled within three years prior to or on or after the death of the deceased;

(q) any property that is the subject matter of a transfer, settlement or agreement made at any time in consideration of marriage, where any interest in or income from the property for life or any other period determinable by reference to death is reserved either expressly or by implication to the deceased;

(r) any estate in dower or by the curtesy in any property of the deceased, to which, on the death of the deceased, his spouse became entitled, and any property disposed of to the spouse of the deceased under a disposition made within three years prior to his death, in consideration of a release of any right or interest of the spouse of the deceased in any estate in dower or by the curtesy, to which, on the death of the deceased, the spouse might otherwise have become entitled; and

(s) any amount payable or property transferable to the estate of the deceased by reason of the death of the deceased.

Competence to dispose

4(1)        For the purposes of section 3 and this section

(a) a person shall be deemed to have been competent to dispose of any property if he had such an estate or interest therein or such general power as would, if he were sui juris, have enabled him to dispose of the property;

(b) a disposition taking effect out of the interest of any person shall be deemed to have been made by him, whether or not the concurrence of any other person was required;

(c) property in which a person had an estate as tenant in tail, whether in possession or otherwise, shall be deemed to be property of which that person was competent to dispose;

(d) any money that a person had a general power to charge on property shall be deemed to be property of which that person was competent to dispose; and

(e) notwithstanding anything in this section or section 3, the expression in clause 3(a) "property of which the deceased was, immediately prior to his death, competent to dispose" does not include the share of the spouse of the deceased in any community of property that existed between the deceased and the spouse immediately prior to the death of the deceased.

Gift inter vivos

4(2)        For the purposes of clause 3(c)

(a) the artificial creation by a person or with his consent during his lifetime of a debt or other right enforceable against him personally or against property of which he was or might be competent to dispose, or to charge or burden for his own benefit, shall be deemed to be a disposition by that person operating as an immediate gift inter vivos made by him at the time of the creation of the debt or right, and, in relation to any such disposition, the expression "property" in this Act includes the benefit conferred by the creation of the debt or right;

(b) the extinguishment by a person or with his consent, whether during his lifetime or upon his death, of a debt or other right enforceable by him shall be deemed to be a disposition by that person operating as an immediate gift inter vivos made by him immediately prior to the extinguishment of the debt or right, and, in relation to any such disposition the expression "property" in this Act includes the benefit conferred by the extinguishment of the debt or right; and

(c) a debt or other right that, by virtue of the operation of any statute or law limiting the time for bringing action thereon, became unenforceable by the deceased during his lifetime, and was unenforceable at the time of the death of the deceased, as against any other person or property of any other person with whom, at the time the debt or right became unenforceable, the deceased was not dealing at arm's length, shall, to the extent of the value of the debt or right immediately before becoming unenforceable (determined without reference to the effect of the statute or law), be deemed to be property disposed of by the deceased under a disposition operating as an immediate gift inter vivos made to that other person at the time the debt or right became unenforceable unless that other person pays or acknowledges the debt within six months after the death of the deceased.

Covenant as consideration

4(3)        For the purposes of clause 3(i), a covenant by a person whereby that person agrees to provide for the transfer or acquisition, either contingently or otherwise, of any property on or after his death shall be deemed not to be money's worth.

Interest in annuity

4(4)        For the purpose of clause 3(j), where any annuity or right to income was purchased or provided by the deceased, either by himself alone or in concert or by arrangement with any other person, the extent of the beneficial interest therein arising or accruing by survivorship or otherwise on the death of the deceased shall be ascertained without regard to any interest in expectancy that the successor to the annuity or right to income may have had therein immediately prior to the death of the deceased.

Insurance proceeds

4(5)        For the purposes of clause 3(k), any amount payable in respect of the death of the deceased under any life, accident or sickness insurance policy (other than a policy of insurance owned as described in clause 3(m) which was at the date of the death of the deceased, owned or maintained

(a) by an employer or former employer of the deceased; or

(b) by any corporation associated with the employer or former employer of the deceased as a subsidiary or parent corporation to the employer or former employer; or

(c) by any fund or plan established for the payment of superannuation, pension or death benefits to recipients, or by a trustee for any such fund or plan; or

(d) by any association of which the deceased was at the time of his death or formerly a member; or

(e) by the deceased jointly or in common with any person, fund, plan, trustee or association mentioned in clauses (a) to (d); except any part of that amount that was payable under the policy to

(f) that or a subsequent employer of the deceased; or

(g) an individual other than an individual connected with the deceased by blood relationship, marriage or adoption; or

(h) a corporation other than a corporation that was controlled, whether directly or indirectly and whether through holding a majority of the shares of the corporation or of any other corporation or in any other manner whatever, by the deceased, by one or more individuals connected with the deceased by blood relationship, marriage or adoption, by the deceased and such one or more individuals, or by any other person on his or their behalf; shall be deemed to be a death benefit payable in respect of the death of the deceased out of or under a fund or plan established for the payment of death benefits to recipients.

Insurance included in property

4(6)        For the purposes of clause 3(m), a reference to a policy of insurance owned by any person includes a reference to a policy of insurance in which that person had such an estate or interest or in relation to which he had such a general power as would, if he were sui juris, have enabled him either alone, or jointly or in concert or by arrangement with any other person

(a) to change the beneficiary; or

(b) to charge or pledge the policy as security for any purpose; or

(c) to borrow from the insurer on the security of the policy; or

(d) to cancel, surrender or otherwise terminate the policy; or

(e) to assign the policy or revoke any assignment thereof; or to do any two or more of those things, but does not include a policy of insurance in which that person had that estate or interest or in relation to which he had that general power only as trustee or as one of two or more trustees under a settlement not made by him in which he had no beneficial interest and the terms of which were not capable of being varied in such a way as to give him a beneficial interest in the policy.

Other dispositions

4(7)        For the purposes of this Act

(a) the exercise by a person during his lifetime of any general power of which he was the donee or other holder shall be deemed to be a disposition made by him at the time of the exercise of the power, and in relation to the disposition, the expression "property" in this Act includes the benefit conferred by the exercise of the power;

(b) a disposition made by a corporation controlled by the deceased to or for the benefit of any person connected with the deceased by blood relationship, marriage or adoption shall be deemed to be a disposition made by the deceased to or for the benefit of that person, and, in relation to the disposition, any act or thing done or effected by that corporation shall be deemed to have been done or effected in all respects as though that corporation were the deceased; and

(c) a disposition made by a person taking effect out of any community of property that existed between him and his spouse at the time of the making of the disposition and not taking effect as a will shall be deemed to have been made by each of them according to the respective share of each in that community, and in relation to the disposition any act or thing done or effected by one of them shall, in so far as the act or thing had effect in relation to the share of the other in that community, be deemed to have been done or effected by the one as the agent of the other.

Property not included

5(1)        Notwithstanding section 3, there shall not be included in computing the aggregate net value of the property of a deceased the value of any property acquired pursuant to a bona fide purchase made from the deceased for a consideration in money or money's worth paid or agreed to be paid to the deceased for his own use or benefit unless the purchase was made otherwise than for full consideration in money or money's worth paid or agreed to be paid to the deceased for his own use or benefit, in which case there shall be included in computing the aggregate net value of the property of the deceased in respect of the property so acquired only the amount by which the value of the property so acquired computed as of the date of its acquisition exceeds the amount of the consideration actually so paid or agreed to be paid.

Annuity as consideration

5(2)        For the purposes of subsection (1), where any property has been disposed of by the deceased under an arrangement or understanding described in clause 3(h), the property shall be deemed to have been acquired pursuant to a bona fide purchase made from the deceased for a consideration in money or money's worth paid or agreed to be paid to the deceased for his own use or benefit; but

(a) if the yearly amount of the annuity or other periodic payment referred to in clause 3(h) does not exceed 5% of the value of the property so disposed of, the amount of the consideration shall be deemed to be nil; and

(b) if the yearly amount of the annuity or other periodic payment exceeds 5% of the value of the property disposed of, the amount of the consideration shall be deemed to be that amount which is calculated in accordance with the formula set out in Schedule II.

Agreement to transfer

5(3)        For the purposes of this section, property transferred to or acquired by a purchaser or transferee under the terms of an agreement described in clause (i) of section 3 shall, notwithstanding anything in this section, be deemed not to have been acquired pursuant to a bona fide purchase made as described in this section.

Provision against lapse

5(4)        Notwithstanding section 3, there shall not be included in computing the aggregate net value of the property of the deceased the value of any property comprised in a devise or bequest made to the deceased by a testator that, by virtue of a provision against lapse contained in any applicable statute or law relating to wills or the succession to property of a testator, is regarded as having taken effect as though the deceased had died after the death of the testator, notwithstanding the death of the deceased before that time.

Canada pension benefits

5(5)        Notwithstanding section 3, there shall not be included in computing the aggregate net value of the property of a deceased the amount of any benefit paid under the Canada Pension Plan or a provincial pension plan as defined in section 3 of the Canada Pension Plan to any person in respect of, by reason of, or after, the death of the deceased.

Deductions from aggregate net value

6(1)        There may be deducted in computing the aggregate net value of the property of the deceased

(a) the value of

(i) any debts incurred by the deceased, and

(ii) any encumbrances created by him, bona fide and for full consideration paid or agreed to be paid to the deceased for his own use or benefit, to the extent that the debts and encumbrances were outstanding immediately prior to his death; and

(b) reasonable funeral expenses and surrogate, probate and other like court fees in respect of the death of the deceased, but not including solicitors' charges or the expenses of administering property or executing any trust or settlement created by the deceased.

Debt or obligation created by statute

6(2)        For the purposes of this section, a debt or other obligation of the deceased that was created or imposed by or under authority of a statute shall, to the extent that it was outstanding immediately prior to his death, be deemed to be a debt incurred by the deceased as described in clause (l)(a).

Amounts not deductible

7(1)        Notwithstanding section 6, no deduction shall be made under that section

(a) for any debt incurred or encumbrance created to the extent that the debt or encumbrance cannot, by due process of law, be realized out of property of the deceased; or

(b) for any debt incurred or encumbrance created arising out of an agreement made by the deceased at any time in consideration of marriage, to transfer property to or settle property upon any person; or

(c) for any debt incurred or encumbrance created arising out of a disposition made by the deceased within three years prior to his death in consideration of a release described in clause 3(r); or

(d) more than once for the same debt or encumbrance charged upon different portions of the property of the deceased; or

(e) for any debt incurred in respect of which there exists a right to reimbursement from any other person, unless it can be established that the reimbursement cannot in fact be obtained; or

(f) for any debt incurred that became unenforceable, either before or after the death of the deceased, as a result of the operation of any statute or law limiting the time for bringing action thereon or making the debt, or any contract under which the debt was incurred, void or unenforceable, and that has not been actually and bona fide paid.

Exclusion for certain family property

7(2)        Notwithstanding any other provision of this Act, where the deceased, at the time of his death, was married and the spouse of the deceased survives the deceased, the property of the deceased, for the purposes of this Act, does not include any property or interest therein

(a) which devolves upon the spouse or to which the spouse succeeds by reason of the death of the deceased; and

(b) which, in aggregate, does not exceed in value an amount which is calculated in accordance with the following formula:

FORMULA

Amount = 1/2 (F + H) - S

In this formula

F

is the value, at the time of the death of the deceased, of the family property of the deceased and the spouse of the deceased;

H

is the value, at the time of the death of the deceased, of the homestead (as defined in The Dower Act) of the deceased unless that homestead was, at the time of the death of the deceased, wholly owned by the spouse of the deceased, in which case H is zero; and

S

is the value, at the time of the death of the deceased, of that portion of the family property of the deceased and the spouse of the deceased which, at the time of the death of the deceased, was property of the spouse of the deceased and would have been treated as such, under this Act, if the spouse had died, unmarried, at the time of the death of the deceased.

Family property

7(3)        In this section "family property" means the assets which, immediately before death of a deceased, were owned, either jointly or severally, by the deceased and the spouse of the deceased and which were acquired by them while married and cohabiting but excluding

(a) the homestead (as defined in The Dower Act) of the deceased;

(b) articles of personal apparel;

(c) any gift, inheritance or trust benefit conferred upon the deceased, or the spouse of the deceased, with the express or implied intention of benefiting the deceased or the spouse of the deceased, as the case may be, exclusively;

(d) any income that was derived from any asset described in clause (c), where the asset is conferred with the express or implied intention that the income therefrom should benefit the recipient exclusively;

(e) any amount received as a damage award or settlement in tort in favour of the deceased or the spouse of the deceased, except to the extent that the award or settlement is compensation for loss to both;

(f) the proceeds of any insurance claim of the deceased or the spouse of the deceased for damages, except to the extent that the proceeds are compensation for loss to both;

(g) the cash surrender value of any insurance policy, the premiums of which were paid by some person other than the deceased or the spouse of the deceased as a gift in favour of the deceased or the spouse of the deceased, as the case may be, with the express or implied intention of benefiting the deceased or the spouse of the deceased, as the case may be, exclusively;

(h) any asset that prior to the death of the deceased had been shared by the deceased and the spouse of the deceased in equal, or approximately equal, shares.

Section suspended

7(4)        Subsections (2) and (3) do not apply to or in respect of property of a deceased who dies after October 15, 1978 or to or in respect of the assessment of duty payable under this Act in respect of property of the deceased who dies after October 15, 1978.

Duty on property in province

8(1)        Subject as hereafter otherwise provided, duty shall be paid on all property of a deceased that is situated, at the time of the death of the deceased, within the province.

Duty on resident successor

8(2)        Subject as hereafter otherwise provided, where property of a deceased was situated outside the province at the time of the death of a deceased and the successor to any of the property of the deceased was a resident at the time of the death of the deceased, duty shall be paid by the successor in respect of that property to which he is the successor.

Payment of duty to minister

9           Each successor to any property of a deceased on which duty is payable under subsection 8(1) and each successor liable to pay duty under subsection 8(2) shall pay the duty to the minister for the raising of a revenue for provincial purposes.

Rate of duty

10          Subject as herein otherwise provided, the duty payable by each successor to any property of a deceased shall be calculated by multiplying the value of the property of the deceased to which he is the successor by the applicable rate established in accordance with the formula set out in Schedule I.

Estates under $75,000

11(1)       Where the aggregate net value of the property of a deceased does not exceed $75,000., no duty is payable on or in respect of any of the property of the deceased.

Reduction of duty

11(2)       Where the duty otherwise payable on or in respect of the property of a deceased exceeds one-half of the difference between the aggregate net value of the property of the deceased and $75,000., the duty shall be reduced to an amount equal to one-half of that difference; and the reduction shall be apportioned among the successors to the property of the deceased by whom duty is payable pro rata on the basis of the relative values of the successions of the property of the deceased to which they are successors.

Successions under $2,000

12(1)       Where the value of the succession to property of a deceased of a single successor does not exceed $2,000., no duty is payable on or in respect of that succession.

Reduction of duty

12(2)       Where the duty otherwise payable on or in respect of a succession to property of a deceased of a single successor exceeds one-half of the difference between the value of the succession and $2,000., the duty shall be reduced to an amount equal to one-half of that difference.

Exemption for preferred successors

13(1)       Where the total value of all successions of property of a deceased to which preferred successors of the deceased are successors does not exceed $250,000., no duty is payable on or in respect of those successions.

Sharing preferred exemption

13(2)       Where the total value of all successions of property of a deceased to which preferred successors of the deceased are successors exceeds $250,000., the duty otherwise payable on or in respect of those successions shall be reduced by an amount equal to the duty that would be payable on or in respect of $250,000. of the property of the deceased calculated at the applicable rate for property of the deceased established in accordance with the formula set out in Schedule I; and the reduction shall be apportioned among the preferred successors to property of the deceased by whom duty is payable pro rata on the basis of the relative values of the successions of the property of the deceased to which they are successors.

Special exemption for spouse

13(3)       Where the value of the succession to property of a deceased to which a spouse of the deceased is successor does not exceed $50,000.

(a) no duty is payable on or in respect of the succession;

(b) for the purposes of subsections (1) and (2) and section 14, the value of that succession shall not be included in the total value of all successions of property of the deceased to which the preferred successors of the deceased are successors; and

(c) for the purposes of an apportionment of a reduction of duty under subsection (2), the spouse shall be deemed not to be a preferred successor.

Reduction of duty for spouse

13(4)       Where the value of the succession to property of a deceased to which the spouse of the deceased is successor exceeds $50,000.,

(a) the duty otherwise payable on or in respect of the succession shall be reduced by an amount equal to the duty that would be payable on or in respect of $50,000. calculated at the applicable rate for property of the deceased established in accordance with the formula set out in Schedule I;

(b) for the purposes of subsections (1) and (2) and section 14, an amount equal to $50,000. shall be deducted from the total value of all successions of property of the deceased to which preferred successors of the deceased are successors; and

(c) for the purposes of an apportionment of a reduction in duty under subsection (2), the value of the succession of the spouse shall be reduced by $50,000.

Special exemption for infirm child

13(5)       Where the value of the succession to property of a deceased to which an infirm child of the deceased is successor does not exceed that infirm child's exemption,

(a) no duty is payable on or in respect of the succession;

(b) for the purposes of subsections (1), (2), (11) and (12) and section 14, the value of that succession shall not be included in the total value of all successions of property of the deceased to which preferred successors of the deceased are successors; and

(c) for the purposes of an apportionment of a reduction of duty under subsection (2), the infirm child shall be deemed not to be a preferred successor.

Reduction of duty for infirm child

13(6)       Where the value of the succession to property of a deceased to which an infirm child of the deceased is successor exceeds that infirm child's exemption,

(a) the duty otherwise payable on or in respect of the succession shall be reduced by an amount equal to the duty that would be payable on or in respect of that infirm child's exemption calculated at the applicable rate for property of the deceased established in accordance with the formula set out in Schedule I;

(b) for the purposes of subsections (1), (2), (11) and (12) and section 14, an amount equal to that infirm child's exemption shall be deducted from the total value of all successions of property of the deceased to which preferred successors of the deceased are successors; and

(c) for the purposes of the apportionment of a reduction in duty under subsection (2), the value of the succession of the infirm child shall be reduced by the amount of that infirm child's exemption.

Definitions

13(7)       In subsections (5) and (6)

"infirm child" where used in referring to an infirm child of a deceased means a child of the deceased who, at the time of the death of the deceased was wholly dependent upon the deceased or the spouse of the deceased, or both, for support by reason of being infirm. ("enfant infirme")

"infirm child's exemption" where used in respect of an infirm child of a deceased means an amount equal to the product obtained when $1,500. is multiplied by the number of full years in the period commencing on the day of the death of the deceased and ending on the day the child will, if ever, become 71 years of age. ("exemption d'enfant infirme")

Special exemption for dependent child

13(8)       Where the value of the succession to property of a deceased to which a dependent child of the deceased is successor does not exceed that dependent child's exemption

(a) no duty is payable on or in respect of the succession;

(b) for the purposes of subsections (1), (2), (11) and (12) and section 14, the value of that succession shall not be included in the total value of all successions of property of the deceased to which preferred successors of the deceased are successors; and

(c) for the purposes of an apportionment of a reduction of duty under subsection (2), the dependent child shall be deemed not to be a preferred successor.

Reduction of duty for dependent child

13(9)       Where the value of the succession to property of a deceased person to which a dependent child of the deceased is successor exceeds that dependent child's exemption

(a) the duty otherwise payable on or in respect of the succession shall be reduced by an amount equal to the duty that would be payable on or in respect of that dependent child's exemption calculated at the applicable rate for property of the deceased established in accordance with the formula set out in Schedule I;

(b) for the purposes of subsections (1),(2), (11) and (12) and section 14, an amount equal to that dependent child's exemption shall be deducted from the total value of all successions of property of the deceased to which the preferred successors of the deceased are successors; and

(c) for the purposes of an apportionment of the reduction in duty under subsection (2), the value of the succession of the dependent child shall be reduced by the amount of that dependent child's exemption.

Definitions

13(10)      In subsections (8) and (9) and this subsection

"dependent child" where used in referring to a dependent child of a deceased, notwithstanding the definition of child means

(a) a legitimate child of the deceased, or

(b) an adopted child of the deceased, or

(c) an illegitimate child of the deceased, or

(d) any other person in respect of whom the deceased, at any time prior to his death, stood in loco parentis, and who, at the time of the death of the deceased, was under the age of 18 years. ("enfant à charge ")

"dependent child's exemption" where used in respect of a dependent child of a deceased means

(a) where the deceased is survived by a spouse, an amount equal to the product obtained when $2,000. is multiplied by the number of full years in the period commencing on the day of the death of the deceased and ending on the day the dependent child will, if ever, become 18 years of age, and

(b) where the deceased is not survived by a spouse, an amount equal to the product obtained when $4,000. is multiplied by the number of full years in the period commencing on the day of the death of the deceased and ending on the day the dependent child will, if ever, become 18 years of age. ("exemption d'enfant à charge")

Exemption for sibling successor

13(11)      Where the total value of all successions of property of a deceased to which sibling successors of the deceased are successors does not exceed the lesser of

(a) $100,000.; or

(b) $250,000. minus the total value of all successions of property of the deceased to which preferred successors of the deceased are successors; no duty is payable on or in respect of the successions to those sibling successors.

Sharing sibling successor exemption

13(12)      Where the total value of all successions of property of a deceased to which sibling successors of the deceased are successors exceeds the lesser of

(a) $100,000.; or

(b) $250,000. minus the total value of all successions of property of the deceased to which preferred successors of the deceased are successors; the duty otherwise payable on or in respect of the successions of those sibling successors shall be reduced by an amount equal to the duty, calculated at the applicable rate for property of the deceased established in accordance with the formula set out in Schedule I, that would be payable on or in respect of an amount of the property of the deceased equal to the lesser of

(c) $100,000.; or

(d) $250,000. minus the total value of all successions of property of the deceased to which preferred successors of the deceased are successors; and the reduction shall be apportioned among the sibling successors to property of the deceased by whom duty is payable pro rata on the basis of the relative values of the successions of the property of the deceased to which they are successors.

Exemption for collateral successors

14(1)       Where the total value of all successions of property of a deceased to which collateral successors of the deceased are successors does not exceed the lesser of

(a) $35,000.; or

(b) $250,000. minus

(i) the total value of all successions of property of the deceased to which preferred successors of the deceased are successors, and

(ii) the total value, but not exceeding $100,000. in aggregate, of all successions of property of the deceased to which sibling successors of the deceased are successors; no duty is payable on or in respect of the successions to those collateral successors.

Sharing collateral exemptions

14(2)       Where the total value of all successions of property of a deceased to which collateral successors of the deceased are successors exceeds the lesser of

(a) $35,000.; or

(b) $250,000. minus

(i) the total value of all successions of property of the deceased to which preferred successors of the deceased are successors, and

(ii) the total value, but not exceeding $100,000. in aggregate, of all successions of property of the deceased to which sibling successors of the deceased are successors; the duty otherwise payable on or in respect of the successions to those collateral successors shall be reduced by an amount equal to the duty, calculated at the applicable rate for property of the deceased established in accordance with the formula set out in Schedule I, that would be payable on or in respect of an amount of the property of the deceased equal to the lesser of

(c) $35,000.; or

(d) $250,000. minus

(i) the total value of all successions of property of the deceased to which preferred successors of the deceased are successors, and

(ii) the total value, but not exceeding $100,000. in aggregate, of all successions of property of the deceased to which sibling successors of the deceased are successors; and the reduction shall be apportioned among the collateral successors to property of the deceased by whom duty is payable pro rata on the basis of the relative values of the successions of the property of the deceased to which they are successors.

Absolute exemptions

15(1)       No duty is payable on or in respect of successions of property of a deceased where the succession is, at the time of the death of the deceased or within two years thereafter, absolute and indefeasible, and the successor is

(a) the Crown in right of Canada; or

(b) the Crown in right of a province of Canada; or

(c) a municipality in Canada; or

(d) a charitable organization if the succession is by way of a gift made by the deceased prior to his death other than a donatio mortis causa.

Charitable exemptions

15(2)       Where the total value of all successions of property of a deceased to which charitable organizations are successors, other than successions exempt from duty under clause (l)(d), and which are, at the time of the death of the deceased or within two years thereafter, absolute and indefeasible, does not exceed the greater of

(a) 20% of the aggregate net value of the property of the deceased; or

(b) $250,000. minus the total value of all successions of property of the deceased to which preferred successors of the deceased are successors; no duty is payable on or in respect of those successions.

Sharing charitable exemptions

15(3)       Where the total value of all successions of property of a deceased to which charitable organizations are successors, other than successions exempt from duty under clause (l)(d), and which are, at the time of the death of the deceased or within two years thereafter, absolute and indefeasible, exceeds the greater of

(a) 20% of the aggregate net value of the property of the deceased; or

(b) $250,000. minus the total value of all successions of property of the deceased to which preferred successors of the deceased are successors; the duty otherwise payable on or in respect of those successions shall be reduced by an amount equal to the duty, calculated at the applicable rate for property of the deceased established in accordance with the formula set out in Schedule I, that would be payable on or in respect of an amount of the property of the deceased equal to the greater of

(c) 20% of the aggregate net value of the property of the deceased; or

(d) $250,000. minus the total value of all successions of property of the deceased to which preferred successors are successors; and the reduction shall be apportioned among those charitable organizations by which duty is payable pro rata on the basis of the relative values of the successions of the property of the deceased to which they are successors.

Maximum duty for charity

15(4)       Notwithstanding any other provision of this Act, where a charitable organization is the successor to property of a deceased, the duty on the succession to the charitable organization shall not exceed an amount equal to the product obtained when one-half the value of the succession is multiplied by the applicable rate for property of the deceased established in accordance with the formula set out in Schedule I.

Residents of co-operating province

16(1)       Where the successor to any property of a deceased that is situated at the time of the death of the deceased within the province is a resident of a co-operating province at that time, no duty is payable on any of that property of the deceased to which he is successor that is not real property.

Real property in co-operating province

16(2)       Where the successor to real property of a deceased that is situated in a co-operating province is a resident of this province at the time of the death of the deceased, there shall be deducted from the duty otherwise payable by the successor in respect of that real property the lesser of

(a) the duty otherwise payable in respect of that real property; or

(b) the amount of any succession duty payable under the laws of the co-operating province on or in respect of that real property.

Credit for death taxes

17          Where the successor to any property of a deceased that is not situated at the time of the death of the deceased within the province or within a co-operating province is a resident, there shall be deducted from the duty otherwise payable by him on that property the lesser of

(a) any duty otherwise payable on that property; or

(b) the amount of any estate, death, inheritance, or succession tax or duty payable on that property under the laws of the jurisdiction in which the property is situated at the time of the death of the deceased.

Certain benefits exempt

18(1)       Where at the time of his death the deceased was not a resident, and the property of the deceased includes any property described in clauses 3(j), (k), (1), (m) or (n), if the successor to the property so described is not a resident at the time of the death of the deceased, no duty is payable on the property so described regardless of where it is situated at the time of the death of the deceased.

Exemption

18(2)       Where

(a) property of a deceased, other than real property, is situated within the province;

(b) the deceased, at the time of his death was neither a resident of the province nor domiciled in the province; and

(c) the successor to the property is neither a resident of the province nor domiciled in the province; no duty is payable on that property.

Redaction for gift tax

19(1)       Where any part of the property of a succession to a successor was a gift on which gift tax was payable under Part IV of the Income Tax Act (Canada) as it was before January 1, 1972, or under The Gift Tax Act (now repealed), or under an Act of any other province of Canada imposing tax on gifts, the duty otherwise payable on the succession shall be reduced by the lesser of

(a) the duty payable on or in respect of that part of the succession calculated at the applicable rate for property of the deceased established in accordance with the formula set out in Schedule I; or

(b) the gift tax paid or payable on or in respect of the gift.

Refund where gift tax exceeds duty

19(2)       Where any part of the property of a succession to a successor was a gift on or in respect of which gift tax was paid under The Gift Tax Act (now repealed), and the gift tax paid on or in respect of the gift exceeds the duty otherwise payable on or in respect of the succession, the minister shall refund to the successor an amount equal to the difference between the gift tax paid on or in respect of the gift and the duty otherwise payable on or in respect of the succession.

No allowance for income taxes

20(1)       For the purposes of this Act, in determining the value of any income right, annuity, term of years, life or other similar estate or interest in expectancy, that is part of the property of the deceased no allowance or deduction shall be made for or on account of income tax that may be or become payable on or in respect thereof.

Income tax not to be considered

20(2)       Where property of a deceased includes securities, or any business or any interest in any business, in valuing the security or the business or the interest in the business for the purposes of this Act, the fact that tax under the Income Tax Act (Canada) or any similar tax may be or become payable by reason of, or in respect of, the payment or distribution of any accumulated surplus or other property shall not be taken into consideration unless, and to the extent only that, the payment or distribution is necessary and made for the purpose of raising money to pay duty under this Act.

Listed securities

21(1)       For the purposes of this Act, except as hereinafter otherwise provided, the value of any security that is listed on a stock exchange, or in the case of any security not so listed, on which a price or quotation is obtainable from a recognized financial journal or financial report or from a registered broker, shall be presumed to be the closing price or quotation of that security on the day as of which the value is required to be computed, or, if there was no closing price or quotation on that day, on the last preceding day on which there was a closing price or quotation.

Application

21(2)       Subsection (1) does not apply in determining the value of any security on which no closing price or quotation is obtainable as provided in subsection (1), or in determining the value of

(a) any share in or in the capital stock of; or

(b) any other security in the nature of an interest in or right to any of the proceeds, profits, capital assets or other assets of; any corporation, association, partnership or syndicate that, immediately prior to the death of the deceased, was controlled, whether through holding a majority of the shares thereof or other voting interest therein or in any other manner whatever, by the deceased, by the deceased and one or more persons connected with him by blood relationship, marriage or adoption or by any other person on his or their behalf.

Definition of "security"

21(3)       In this section "security" includes a bond, debenture, guaranteed investment, share, stock, debenture stock, syndicate unit, right to subscribe for or purchase shares or stocks and right to royalties, but does not include a mortgage or hypothec.

Shares of minority shareholder

22(1)       Where, immediately prior to the death of a deceased, there belonged to the deceased and one or more persons connected with him by blood relationship, marriage or adoption, or deemed to be connected with him by virtue of subsection (2), shares in the capital stock of a corporation sufficient in number to control the corporation, under such circumstances that the shares in the capital stock of the corporation that belonged to the deceased alone were not sufficient in number to control the corporation, the value of each of the shares in the capital stock of the corporation that belonged at that time to the deceased shall, unless it is established that the deceased and such one or more other persons were persons dealing with each other at arm's length, be determined for the purposes of this Act as though each such share so belonging to the deceased formed part of a group of shares that, at that time, belonged to the deceased and were sufficient in number to control the corporation.

Corporation as connected person

22(2)       For the purposes of subsection (1), a corporation (hereinafter in this subsection called "the first corporation") that, immediately before the death of the deceased was controlled, whether directly or indirectly and whether through holding a majority of the shares of the first corporation or of any other corporation, or in any other manner whatever

(a) by the deceased; or

(b) by one or more persons connected with the deceased by blood relationship, marriage or adoption; or

(c) by any other corporation that was, immediately before the death of the deceased, controlled, whether directly or indirectly and whether through holding a majority of the shares of that other corporation or any other corporation, or in any other manner whatever, by the deceased or by one or more persons connected with him by blood relationship, marriage or adoption, or by the deceased and such one or more other persons or by any other person on his or their behalf; or

(d) by the deceased and such one or more other persons and corporations described in clause (c), or by the deceased and any combination of such persons and corporations, or by any other person for or on his or their behalf; and any subsidiary controlled corporation, as that expression is defined in subsection 248(1) of the Income Tax Act (Canada) of the first corporation, shall be deemed to be a person connected with the deceased.

Debts owing by certain persons

23(1)       Where, immediately prior to the death of a deceased, there remained outstanding a debt owing to the deceased

(a) by any person connected with him by blood relationship, marriage or adoption; or

(b) by any corporation that, at that time, was controlled, whether directly or indirectly and whether through holding a majority of the shares of the corporation or of any other corporation or in any other manner whatever, by the deceased, by one or more persons connected with him by blood relationship, marriage or adoption, by the deceased and such one or more other persons or by any other person on his or their behalf; the value of the debt shall, unless it is established that at the time of the creation of the debt the deceased and the debtor were persons dealing with each other at arm's length, be determined for the purposes of this Act as though the amount thereof outstanding immediately prior to the death of the deceased had, at that time, become due and payable to him.

Definition of "debt"

23(2)       In this section, "debt" means a debt of any kind whatever, whether secured or unsecured and whether under seal or otherwise, and includes a bill of exchange or promissory note, whether negotiable or otherwise.

Property disposed of inter vivos

24          Where any property has been disposed of by a deceased under any disposition described in clause 3(b) or (d) made to any person, and at a subsequent time during the lifetime of the deceased the property or a part of the property has been disposed of by that person, whether by the exchange or substitution of other property therefor or in any other manner whatever, the value of the property or the part thereof, as the case may be, so disposed of by that person shall, for all purposes of this Act relevant to the death of the deceased, be deemed to be the value thereof determined as of that subsequent time; and, for the purposes of this section, any part of the property not otherwise so disposed of by that person during his lifetime shall be deemed to have been disposed of by him immediately prior to his death.

Value of stock dividends

25          Where any shares of a corporation have been disposed of by a deceased under any disposition described in clause 3(b) or (d) made to any person, and, at a subsequent time during the lifetime of the deceased, the corporation has paid a stock dividend to that person or granted to that person rights or warrants to purchase further shares of the corporation, or made both such a payment and such a grant, computed by reference to the number or value of those shares, the value of those shares shall, for all purposes of this Act relevant to the death of the deceased, be deemed to be the value thereof otherwise determined under this Act plus the value, similarly so determined, of the stock dividend or of the rights or warrants to purchase further shares, or of both the dividend and the rights or warrants as the case may be.

Property transferred under agreement

26          The value of any property included in computing the aggregate net value of the property of the deceased by virtue of clause 3(i) shall, for the purposes of this Act, be determined without regard to any condition or restriction attaching to the transfer or acquisition of the property that became or becomes effective at a time determinable by reference to the death of the deceased.

Shares of controlled corporation

27          Where, by virtue of clause 3(k) or (m), there has been included in computing the aggregate net value of the property of a deceased an amount payable under a policy of insurance to a corporation that, immediately prior to the death of the deceased, was a corporation controlled, whether directly or indirectly and whether through holding a majority of the shares of the corporation or of any other corporation or in any other manner whatever, by the deceased, by one or more persons connected with him by blood relationship, marriage or adoption, by the deceased and such one or more other persons or by any other person on his or their behalf, the value of any shares in the capital stock of the corporation that are part of the property of the deceased shall, for the purposes of this Act, be determined without taking into account the amount included in computing the aggregate net value of the property of the deceased by virtue of clause 3(k) or (m).

Property disposed of by gift

28          Notwithstanding any other provision of this Act, the value of any property that comprises a gift made by the deceased prior to his death and that is part of the property of the deceased shall be deemed to be the aggregate of its value otherwise determined under this Act and the amount of tax, if any, under Part IV of the Income Tax Act (Canada) as it was prior to January 1, 1972, or under The Gift Tax Act (now repealed), or under an Act of any other province of Canada imposing tax on gifts, that was paid by the deceased, or that was payable by him at the time of his death, in respect of the gift.

Valuing property in quick succession

29          Where, in respect of the death of a deceased, any duty under this Act has become payable on or in respect of particular property of the deceased, and, in respect of the death, within one year after the death of the deceased, of a successor to that property, any duty under this Act again becomes payable on or in respect of that property or any part thereof or any property that can be identified as having been exchanged or substituted for that property or part thereof, the value of that property or part thereof or the property that can be so identified shall, for all purposes of this Act relevant to the second death, be deemed to be 50% of the value thereof as otherwise determined under this Act.

Return

30(1)       Every successor who is required to pay duty, and every executor of a deceased who has at any time under his control property of the deceased that is situated within the province or to which a resident is the successor, shall, without any demand therefor, file a return with the minister within six months after the death of the deceased.

Demand for return

30(2)       Whether or not he is liable to pay any duty under this Act in respect of property of a deceased, and whether or not a return has been filed under subsection (1), every person shall, on demand by registered letter from the minister, file a return with the minister within such time as is specified in the demand.

Dispensing with return

30(3)       Where a return in respect of the property of a deceased has been filed with the minister under subsection (1), the minister may dispense with the filing of a return in respect of the property of that deceased by any or all other persons required to file a return under subsection (1).

Form of return

31          A return required under section 30 shall be in a form prescribed by the minister and shall contain information prescribed by the minister.

Estimate of duty

32          Every person filing a return with the minister under this Act shall, in the return, estimate to the best of his knowledge and ability the amount of duty payable under this Act.

Extension of time for filing return

33(1)       The minister may, for any reason satisfactory to him, extend for such reasonable time as is specified by him, the time for filing any return required under this Act to be filed with him.

Appeal for extension of time

33(2)       Where the minister refuses to extend the time for filing a return required to be filed by any person under this Act, or the person required to file a return under this Act is not satisfied with an extension of time granted by the minister under subsection (1), the person required to file the return may apply to the judge of the Court of Queen's Bench to extend the time or to extend further the time as the case may be, for filing the return, and the judge may, as he thinks reasonable,

(a) refuse to extend the time, or extend further the time, for filing the return; or

(b) extend the time, or extend further the time, for filing the return for such period as he may fix.

Failure to file return

33(3)       Every person required to file a return under section 30 who fails to file the return within the time fixed or allowed for the filing of the return is liable to a penalty, to be assessed by the minister, not exceeding $10. for each day during which the failure continues.

Assessment

34(1)       The minister shall examine each return filed with him relating to the property of a deceased and assess the amount of duty, interest and penalties, if any, payable under this Act on or in respect of the property of the deceased on or in respect of which duty is payable under this Act and the amount of duty, interest and penalties payable by each person liable for the payment of duty under this Act.

Assessment where no return filed

34(2)       Notwithstanding that a return has not been filed in respect of the property of a deceased, the minister may assess the amount of duty, interest and penalty, if any, payable under this Act on or in respect of any property of the deceased and the amount of duty, interest and penalties payable by any person liable for the payment of duty under this Act.

Notice of assessment

35(1)       After making an assessment under section 34, the minister shall send a notice of assessment

(a) to each person liable to pay any duty, interest or penalties under this Act; and

(b) where the executor of the estate of the deceased filed a return, to the executor of the estate of the deceased.

Notice to executor

35(2)       Where the minister sends a notice of assessment to an executor of the estate of a deceased, he shall be deemed to have sent a notice of assessment to each of the executors, where there is more than one executor, and to each person liable to pay any amount as duty under this Act on or in respect of any property of the deceased under the control of the executor.

Other assessments disclosed in notice

35(3)       A notice of assessment in respect of any property of a deceased may set out the assessments of duty payable by all or any number of the successors to property of the deceased.

Effect of assessment

36          Liability for duty, interest and penalties under this Act is not affected by an incorrect or incomplete assessment or by the fact that no assessment has been made.

Re-assessment

37(1)       The minister may, at any time, assess duty, interest or penalties under this Act, or notify in writing any person by whom any return has been filed that no duty is payable on or in respect of the property of the deceased or any part thereof or any succession thereto, and may

(a) at any time, if the person by whom a return is filed

(i) has made any misrepresentation that is attributable to neglect, carelessness or wilful default, or has committed any fraud, in filing any return or in supplying any information under this Act, or

(ii) has filed with the minister a waiver in prescribed form either before or within four years after the day of mailing of the notice of an original assessment or of a notification that no amount is payable as duty under this Act on or in respect of the property of the deceased, and

(b) within four years from

(i) the day referred to in sub-clause (a)(ii), or

(ii) the day any property is disposed of under a disposition or agreement described in clause 3(1), in any other case; re-assess or make additional assessments, or assess duty, interest or penalties under this Act, as the circumstances require.

Where amounts not included

37(2)       Notwithstanding subsection (1), for the purposes of a re-assessment, additional assessment, or assessment of duty, interest and penalties payable by a successor to property of a deceased that is made under subsection (1) after the expiration of four years from the day referred to in sub-clause (l)(a)(ii), there shall not be included in computing the aggregate net value of the property of the deceased, or in computing the value of a succession to the successor, any amount that was not included for the purposes of an assessment of duty, interest and penalties payable by the successor that was made before the expiration of four years from that day and

(a) in respect of which the successor establishes that the failure to include the amount did not result

(i) from any misrepresentation that is attributable to his neglect, carelessness or wilful default, or any fraud committed by him, in filing a return or supplying any information under this Act, or

(ii) where the successor did not file a return, from any misrepresentation that is attributable to the neglect, carelessness or wilful default of the executor of the deceased or of any other person who filed a return on behalf of the successor, or any fraud committed by the executor of the deceased or such other person, in filing a return or supplying information under this Act; or

(b) that the successor establishes that the failure to include the amount cannot reasonably be regarded as relating to a matter specified in a waiver filed by him with the minister within the time referred to in sub-clause (l)(a)(ii).

Additional property discovered

37(3)       Where the minister is made aware of property of a deceased (in this subsection referred to as "new property") that was not disclosed as property of the deceased in returns filed by the executor of the deceased or by successors of property of the deceased, or information provided to the minister, on the basis of which the minister made any previous assessments, notwithstanding subsections (1) and (2), the minister may at any time within two years after being made aware of the new property, re-assess, or made additional assessments of, or assess, duty, interest and penalties payable under this Act by the successor to the new property.

Minister not bound by return

38          The minister is not bound by a return or information supplied by or on behalf of any person and may, notwithstanding any return or information supplied, or if no return has been filed, make the assessment contemplated under this Act.

Validity of assessment

39          An assessment shall, subject to being varied or vacated on an objection or appeal, if any, in accordance with this Act, and subject to re-assessment, be deemed to be valid and binding notwithstanding any error, defect or omission therein or in any proceeding under this Act relating thereto.

Annuitant dying within four years

40(1)       Where there has been included in computing the aggregate net value of the property of a deceased an amount in respect of an income right, annuity, term of years, life or other similar estate or interest in expectancy (hereinafter in this section referred to as a "terminable interest"), the value of which was ascertained in accordance with the prescribed standards as to interest and mortality of any person, and, at any time within four years after the death of the deceased, an event has occurred, whether the death or marriage of that person or otherwise, as a result of which the terminable interest has terminated, notwithstanding section 37, the minister shall, upon application in prescribed form made to him within one year after the occurrence of that event, in any case where

(a) the duty payable by a successor to property of the deceased; exceeds

(b) the duty that would be payable by that successor if the value of that terminable interest had been ascertained in accordance with a duration of life of that person that assumed the death of that person at the time of the occurrence of the event resulting in the termination of the interest; re-assess the duty payable by that successor at the amount determined under clause (b).

Power exercised within two years

40(2)       Where there has been included in computing the aggregate net value of the property of a deceased an amount in respect of property that is

(a) subject to a general power; or

(b) subject to a power in favour of a person to appoint the donee thereof; and, at any time within two years after the death of the deceased, the power was exercised so that the property or the beneficial interest therein is absolutely and indefeasibly given to one or more persons, the minister shall, upon application in prescribed form made to him within one year after the exercise of the power re-assess the duty payable under this Act or in respect of the property that was subject to the power as though the persons to whom the property or beneficial interest therein is so given by the exercise of the power were the successors of the property without any intermediate successor, and for the purposes of this Act, the persons to whom the property or beneficial interest therein was given absolutely and indefeasibly by the exercise of the power shall be deemed to be the successors of that property or interest.

Objection to assessment

41(1)       Where an executor of a deceased, or a successor to any property of the deceased, objects to an assessment of the duty payable on any succession, he may, within 90 days after the day of mailing the notice of assessment sent by the minister under section 35, serve on the minister a notice of objection to the assessment in duplicate and in prescribed form, setting out the reasons for the objection and all facts relevant thereto.

Service of notice

41(2)       A notice of objection under this section shall be served by registered mail addressed to the minister.

Reconsideration

41(3)       Upon receiving a notice of objection, the minister shall with all due dispatch reconsider the assessment to which the objection is made and vacate, confirm or vary the assessment or re-assess, and the minister shall thereupon, by registered mail, notify the person by whom the objection was taken of his action.

Validity of re-assessment

41(4)       A re-assessment made by the minister under subsection (3) is not invalid by reason only of not having been made within four years from the day of mailing of a notice of an original assessment or of a notification described in section 37.

Appeal

42(1)       Where a person has, under section 41, served on the minister a notice of objection to an assessment, he may, after

(a) the minister has confirmed or varied the assessment or re-assessed; or

(b) 180 days have elapsed after service of the notice of objection and the minister has not notified him that he has vacated, confirmed or varied the assessment or has re-assessed; appeal the assessment or re-assessment to the Court of Queen's Bench by way of originating notice of motion.

Time limit for appeal

42(2)       No appeal under subsection (1) shall be instituted by any person after 90 days from the day notice was mailed to that person by the minister under subsection 41(3).

Powers of court

42(3)       On an appeal under subsection (1), the Court of Queen's Bench may confirm, set aside or vary the assessment in respect of which the appeal is instituted.

Irregularities

43          An assessment shall not be set aside or varied on appeal by reason only of any irregularity, informality, omission or error on the part of any person in the observance of any directory provision of this Act.

Application for extension of time

44(1)       Where no objection to an assessment under section 41, or appeal to the Court of Queen's Bench under section 42, has been made or instituted within the time limited by section 41 or 42, as the case may be, for doing so, an application may be made to a judge of the court, with notice to the minister, for an order extending the time within which a notice of objection may be served or an appeal instituted, and the judge may, if in his opinion the circumstances of the case are such that it is just and equitable to do so, make an order extending the time and may impose such terms and conditions as he deems just.

Reasons for delay

44(2)       An application made under subsection (1) shall set out the reasons why it was not possible to serve the notice of objection or institute the appeal within the time otherwise limited by this Act for so doing.

When order not to be made

44(3)       No order shall be made under subsection (1)

(a) unless the. application is made within one year of the expiration of the time for the extension of which the application is made;

(b) unless a judge of the Court of Queen's Bench has not previously made an order extending the time; and

(c) unless the judge hearing the application is satisfied that

(i) but for the circumstances mentioned in subsection (1), an objection or appeal would have been made or instituted within the time limited,

(ii) the application was made as soon as circumstances permitted, and

(iii) there are reasonable grounds for objecting to or appealing from the assessment.

Effect of objection or appeal

45(1)       Liability to pay any duty within the time specified in this Act for payment thereof is not affected by the fact that an objection to or appeal from any assessment by the minister is outstanding.

Defeating payment

45(2)       Where, in the opinion of the minister, a person is attempting to defeat, hinder or delay payment of any amount payable by him as duty, the minister may direct that all duty be paid forthwith upon assessment thereof.

Consent to transfer

46(1)       Unless the consent in writing of the minister is first obtained, no person shall, after the death of the deceased, pay, deliver, assign or transfer, or permit the payment, delivery, assignment or transfer, of any property of a deceased situated within the province other than property on or in respect of which no duty is payable by reason of subsection (1) of section 18.

Registrars' duties

46(2)       Unless the consent in writing of the minister is filed or registered prior thereto or at the same time, no transfer of, assignment of, or agreement to sell real property of a deceased shall be filed or registered in a Land Titles Office or Registry Office, or received by a registrar or district registrar for filing or registration in a Land Titles Office or Registry Office.

Saving clause respecting pensions

46(3)       Notwithstanding subsection (1), any property of the deceased, not exceeding $11,500. in value or amount in the case of any single payor, deliverer, assignor, or transferor, may be paid, delivered, assigned or transferred to any person resident in the province without the consent of the minister if notice of the payment, delivery, assignment or transfer is forthwith given to the minister and the property comes within any of the following classes:

(a) Money as or on account of any superannuation, pension or death benefit payable or granted on or after the death of the deceased in respect of his death.

(b) Money payable in respect of the death of the deceased

(i) by an insurer under one or more policies of life, accident or sickness insurance, or

(ii) by any person under one or more annuity contracts.

(c) Any policy of insurance or annuity contract in which the deceased had, immediately prior to his death, a beneficial or other interest.

Saving re. deposits

46(4)       Notwithstanding subsection (1), any property of the deceased not exceeding $2,500. in value or amount in the case of any single payor, deliveror, assignor, or transferor, may be paid, delivered, assigned, or transferred to any person resident in the province without the consent of the minister if notice of the payment, delivery, assignment or transfer is forthwith given to the minister and the property comes within any of the following classes:

(a) Money deposited with any bank, trust company, insurance company, loan company or other similar institution.

(b) Money payable by an insurer in respect of the death of the deceased under any policy or contract of insurance other than life, accident or sickness insurance.

(c) Money deposited with any past employer of the deceased.

(d) Money payable by any past employer of the deceased as or on account of salary, wages or other remuneration owed to the deceased, or payable by any person as or on account of commissions for services rendered by the deceased.

(e) Money held by any person in trust for the deceased.

Saving re. insurance policy

46(5)       Notwithstanding anything in this section, any amount payable in respect of the death of a deceased under a policy of life, accident or sickness insurance may be paid, delivered, or transferred to any person resident in the province without the consent of the minister and without notice thereof to him, where the total amount payable under the policy does not exceed $900.

Offence and penalty

46(6)       Every person who violates any provision of this section is guilty of an offence and liable to a fine of not less than $100. and not more than $1,000. and, in addition, an amount not exceeding the aggregate value of the property paid, delivered, assigned or transferred in violation of this section.

Defence

46(7)       No person is guilty of an offence under this section if he establishes that the violation complained of occurred through ignorance on his part of the death of the deceased or of any interest of the deceased in the property paid, delivered, assigned or transferred in violation of this section.

Consent to open safety deposit box

47(1)       Unless the consent in writing of the minister is first obtained, no person, shall, after the death of the deceased,

(a) open or remove any safe, compartment, or vault or safety deposit box, situated within the province, or permit the same to be opened or removed in any case where the depository was held by or had in the name of the deceased, either alone or jointly with one or more other persons, or contains any negotiable instrument, stock or bond certificate, deed or other evidence of title, insurance policy or any other property belonging to the deceased or included in the property of the deceased, or withdraw or permit to be withdrawn from the depository any such property; or

(b) deliver up or part with the possession of any property of the deceased situated within the province that was, at the time of his death, held by the person for safekeeping or as collateral or security.

Notice of opening or delivery

47(2)       Notice in writing of an intention to open any depository mentioned in clause (l)(a) or to remove the same or withdraw anything therefrom or to deliver up or part with the possession of any property held as described in clause (l)(b) shall be served on the minister, or his representative, at least ten days, or such other number of days as may be specified by the minister in the circumstances, before the opening, removal, withdrawal, delivery or parting with possession is to take place; and the minister, or his representative, may attend at the time and place specified in the notice and make such examination of the contents of the depository or of the property held as described in clause (l)(b), as the case may be, as he deems necessary, and, thereupon may give the consent in writing to the minister thereto, or the minister may give the consent without so attending or examining the same.

Exemption

47(3)       Notwithstanding anything in this section, there may be removed from any depository mentioned in clause (l)(a) at any time with the consent of the minister or his representative, the will or other testamentary writings of the deceased, any birth certificate or marriage licence, any title deed, lease, agreement for sale or deed of mortgage or hypothec, relating to real property, or any deed, record, or other document required in connection with the burial of the deceased.

Offence and penalty

47(4)       Every person who contravenes this section is guilty of an offence and liable

(a) where the offence relates to the removal of any depository or of anything therefrom, to a fine of not less than $100. and not more than $1,000., and, in addition, an amount not exceeding the aggregate value of any property mentioned in clause (l)(a) contained in the depository so removed or withdrawn from the depository; and

(b) in any other case, to a fine of not less than $25. and not more than $1,000.

Defence

47(5)       No person is guilty of an offence under this section if he establishes that the violation complained of occurred through ignorance on his part of the death of the deceased or of any interest of the deceased in the depository or property in respect of which the violation complained of occurred.

Executor to deduct duty

48(1)       No executor, trustee or person acting in a fiduciary capacity, having property of a deceased under his control shall pay, deliver, assign or transfer to or for the benefit of a successor any of that property under his control unless

(a) he deducts therefrom any duty, interest and penalties payable by the successor on or in respect of the property; or

(b) he collects from the successor any duty, interest and penalties payable by the successor on or in respect of the property; or

(c) the minister has consented to the payment, delivery, assignment or transfer of the property to the successor; or

(d) he is satisfied from evidence produced to him that any duty, interest and penalties payable on or in respect of the property has been paid.

Remittance of the duty by executor

48(2)       Every executor, trustee or person acting in a fiduciary capacity who has deducted or collected duty, interest and penalties under subsection (1), or who receives any duty, interest and penalties on or in respect of property of a deceased, shall forthwith remit the duty, interest and penalties to the minister; and, for the purpose of the deduction, collection, receipt, and remittance of duty, the executor, trustee or person acting in a fiduciary capacity is a revenue officer within the meaning of The Financial Administration Act.

Offence and penalty

48(3)       Every person who violates subsection (1) or (2) is guilty of an offence and liable to a fine equal to 50% of the amount of duty, interest and penalties payable on the property paid, delivered, assigned or transferred to or for the benefit of the successor or of the money he failed to remit.

Defence

48(4)       No person is guilty of an offence for violation of subsection (1) or (2) if he deducts or collects, and remits, an amount of duty, interest and penalties on or in respect of property paid, delivered, assigned or transferred, set out in a notice of assessment of duty, interest and penalties payable on or in respect of the property sent by the minister under section 35.

Terms and conditions of consent

49          Where the minister consents to anything requiring his consent under this Act, he may make the consent subject to terms and conditions, including, without limiting the generality of the foregoing, the requirement of a deposit of security for the payment of duty, interest and penalties and any person

(a) who does anything for which that consent is required under this Act; or

(b) who receives payment or delivery of any property or who accepts the assignment or transfer of any property with respect to which the consent was given, with knowledge of the consent; is personally liable for compliance with the terms and conditions of the consent, which compliance with the terms and conditions may be enforced by the minister in any court of competent jurisdiction, and, in addition, is liable to a fine of not more than $2,500.

Time for payment of duty

50(1)       Unless the minister directs or demands under subsection 45(2) or subsection 60(1) that duty payable on or in respect of property of a deceased be payable at an earlier time, duty on or in respect of the property of a deceased is payable within six months of the date of death of the deceased.

Time for payment of penalties

50(2)       Penalties assessed under this Act are payable 30 days after the date on which notice of assessment therefor is sent by the minister under section 35.

Time for payment of interest

50(3)       Interest on duty payable under this Act is payable as it accrues.

Election to defer duty

51(1)       Notwithstanding any provision of this Act respecting the time within which payment shall be made of duty, interest and penalties payable by a successor, except subsection 45(2), all or any of the duty, interest and penalties payable by a successor may, if the successor so elects, be paid by him in such number, not exceeding 10, of equal consecutive annual instalments as is specified by him in his election, the first of which shall be paid within six months after the death of the deceased, and each subsequent instalment of which shall be paid on or before the next following anniversary of the expiration of that time.

Form of election

51(2)       Every election made by a successor under this section shall be made by him in prescribed form and in prescribed manner, and on condition of payment by the successor of interest on the amount the payment of which is thereby deferred, at such rate as is prescribed by the regulations at the time of the making of the election, calculated from the time the payment would otherwise have become due to the time of the making of the payment and compounded annually.

Effect on liability

51(3)       Where a successor has elected under this section to pay in annual instalments all or any of the duty payable by him, unless he defaults in the payment of an instalment, he is not liable to pay any amount of the duty payable by an instalment before the date on which the instalment is due.

Effect on other successors

51(4)       Where a successor to property of a deceased has elected under this section to pay by annual instalments all or any of the duty payable by him, that election does not affect the liability of any other successor to property of the deceased to pay duty or affect the time within which duty payable by any other successor to property of the deceased is required to be paid.

Election re. future interests

52(1)       Notwithstanding any other provision of this Act respecting the time within which payment of duty, interest and penalties shall be made by a successor to property of a deceased,

(a) where the property to which he is successor includes

(i) any income right, annuity, term of years or life or other similar estate, or

(ii) any property not described in sub-clause (i) that is an interest in expectancy, all or any of the part of the duty payable on or in respect of the property so included may, if the successor so elects, be paid by him in such number, not exceeding 10, of equal consecutive annual instalments as is specified by him in his election, the first of which shall be paid within nine months after the death of the deceased, and each subsequent instalment of which shall be paid on or before the next following anniversary of the expiration of that time; and

(b) where the property to which he is a successor includes any interest in expectancy, the part of the duty payable on or in respect of that interest in expectancy may, if the successor so elects, be paid by him at any time not later than 90 days after the falling into possession of that interest, or, if the interest in expectancy itself consists of any income right, annuity, term of years or life or other similar estate, in 10 equal consecutive annual instalments, the first of which shall be paid within 90 days after the falling into possession of that interest in expectancy and each subsequent instalment of which shall be paid within 90 days after the next following anniversary of the falling into possession of that interest in expectancy.

Form and condition of election

52(2)       Every election made by a successor under this section shall be made by him in prescribed form and in prescribed manner and

(a) in the case of an election made under clause (l)(a) in respect of any property described in sub-clause (l)(a)(ii), on condition of payment by the successor of interest on the amount the payment of which is thereby deferred, at such rate as is prescribed by the regulations at the time of the making of the election, calculated from the time the payment would otherwise have become due to the time of the making of the payment and compounded annually; and

(b) in the case of an election made under clause (l)(b), on condition of payment by the successor of interest on the amount the payment of which is thereby deferred, at such rate, not exceeding 5% per year, as is specified by the minister calculated from the time the payment would otherwise have become due to the time of the making of the payment or the falling into possession of the interest in expectancy referred to in that paragraph, whichever is the sooner, and compounded annually.

Deferment for hardship

53          Notwithstanding the provisions of this Act respecting the time within which payment of duty, interest and penalties shall be made, where the minister is satisfied that payment of duty, interest and penalties cannot, without undue hardship or excessive sacrifice, be made within the time within which payment thereof is required to be made, the minister may defer the time for payment thereof, or any part thereof, for such period, on such terms and on payment of such interest, not exceeding 5% per annum, as to him seems equitable and proper.

Interest

54          Where duty or a penalty payable by a successor is not paid within the time specified in this Act for payment thereof, interest

(a) at the rate of 9% per year; or

(b) at such other rate per year as the Lieutenant Governor in Council may prescribe by regulations under The Financial Administration Act; calculated from the time when the payment became due and compounded annually, shall be paid by the successor on the amount from time to time unpaid, but, where the Lieutenant Governor in Council prescribes a rate of interest, the rate shall not be effective until at least seven days after the date on which the rate is prescribed.

Penalty for evasion

55          Every person who wilfully, in any manner, evades or attempts to evade payment of duty payable is liable to a penalty to be fixed by the minister of not less than 25% and not more than 50% of the amount of duty evaded or sought to be evaded.

Penalty for omissions in returns

56(1)       Every person who, knowingly, or under circumstances amounting to gross negligence in the carrying out of any duty or obligation imposed by or under this Act, has made, or has participated in, assented to or acquiesced in the making of, a statement or omission in a return of information, statement or answer filed or made as required by or under this Act, or the regulations, as a result of which the duty that would have been payable if the duty had been assessed on the basis of the information provided in the return, statement or answer is less than the duty payable, is liable to a penalty of 25% of the amount by which the duty that would so have been payable is less than the duty payable in addition to any duty, interest or penalty otherwise provided in this Act.

Saving provision

56(2)       Where a person is liable to a penalty under subsection (1) in respect of any statement or omission in a return, or in any statement or answer filed or made as required by or under this Act or regulation, he is not liable to any penalty under section 55 in respect of the same statement or omission.

Refunds

57(1)       The minister, upon proof to his satisfaction that an overpayment of duty has been made by any person

(a) may, at any time, whether or not application has been made by that person; and

(b) shall, if application therefor has been made in writing within four years after the later of

(i) the day the overpayment arose, or

(ii) the day on or before which payment of the duty in respect of which the overpayment arose was required to be made; refund the amount of the overpayment.

Interest on overpayments

57(2)       Where an amount in respect of an overpayment is refunded, interest at 1/2 of the rate fixed or prescribed under section 54 shall be paid or applied thereon for the period commencing with the latest of

(a) the day the overpayment arose; or

(b) the day on or before which the payment of the duty in respect of which the overpayment arose was required to be made; or

(c) the day on which the time fixed under subsection 30(1) for filing a return of information relating to the deceased expired; and ending with the day the refund was made.

Refund after variation of assessment

57(3)       Where, by any decision of the minister under section 41, or any decision of a court, it is finally determined that the amount payable by any person as duty is less than the amount assessed by the assessment to which the objection was made or from which the appeal was taken and the decision makes it appear that there has been an overpayment of duty, the interest payable under subsection (2) on the amount of that overpayment shall be computed at the rate prescribed for the purposes of section 54.

Definition of "overpayment"

57(4)       In this section "overpayment" means the aggregate of all amounts paid by a person as duty or as interest or penalties, less the aggregate of all amounts payable by that person as duty, interest or penalties, or any amount so paid where no amount is so payable.

Debt to the government

58          All duty, interest, penalties, costs and other amounts payable under this Act are debts due to Her Majesty in right of the province and are recoverable as such in any court of competent jurisdiction or in any other manner provided under this Act.

Certification of debt

59(1)       Any amount due and payable under this Act that has not been paid, or such part of any amount due and payable under this Act as has not been paid may be certified by the minister

(a) where there has been a direction of the minister under subsection 45(2), forthwith after the direction; and

(b) otherwise, upon the expiration of 90 days after the day of mailing of any notice of assessment sent by the minister pursuant to section 35.

Judgment

59(2)       On production to the registrar of the Court of Queen's Bench, a certificate issued under this section shall be registered in the court and entered as judgment thereof and, when so registered and so entered has the same force and effect, and all proceedings may be taken thereon, as if the certificate were a judgment obtained in the court in favour of the government for a debt of the amount specified in the certificate plus interest to the date of payment as provided in this Act.

Costs

59(3)       All reasonable costs and charges attendant upon the registration of a certificate under subsection (2) are recoverable in like manner as if they had been certified and the certificate had been registered under this section.

Person leaving province

60(1)       Where the minister has reason to suspect that a person by whom duty, interest or penalties are payable or will become payable is about to leave the province or that a person outside the province by whom any duty, interest or penalties are payable or will become payable is about to remove or cause to be removed from the province property of a deceased, he may, before the day otherwise fixed for payment, by notice served on, or sent by registered mail addressed to, that person, demand payment of duty, interest and penalties payable by that person, and the same is payable forthwith notwithstanding any other provision of this Act.

Seizure of property

60(2)       Where a person fails to pay any duty, interest or penalties demanded under subsection (1) as required, the minister may direct that the property other than real property of that person be seized.

Sale of seized property

60(3)       Property seized under subsection (2) shall be kept for a period of 20 days or such further period as may be specified by the minister, at the cost and charges of the owner, and if the owner does not pay the duty, interest and penalties payable by him, together with such costs and charges as are incurred in the seizure and keeping of the property, within that period or extended period the property seized shall, unless otherwise ordered by the minister, be sold by public auction.

Notice of sale

60(4)       Except in the case of perishable goods, notice of the sale, setting forth the time and place thereof together with a general description of the property to be sold, shall, at a reasonable time before the goods are sold, be published at least once in one or more newspapers of general local circulation.

Surplus

60(5)       Any surplus resulting from sale under this section after deduction of duty, interest and penalties owing and all costs and charges incurred in the seizing, keeping and sale of the property shall, as soon as possible after the sale, be paid to the owner of the property seized.

Exempt property

60(6)       Any property of any person in default that would be exempt from seizure under a writ of execution issued out of a court of the province is exempt from seizure and sale under this section.

Lien for duty

61          Any amount payable as duty, interest or penalties under this Act by a person is a lien in favour of the government against all the property of the deceased to which that person is the successor other than real property, and the lien may be enforced by seizure and subsections (60)(2) to (6) apply with such modifications as the circumstances require to the seizure.

Lien on real property

62(1)       Where duty, interest or penalties are payable by any person under this Act, the minister may file or cause to be filed in the proper Land Titles Office or Registry Office a certificate of lien in prescribed form against real property of which that person is the registered owner setting out a description of the real property and the amount of duty, interest and penalties owing by that person, and upon the certificate being filed the interest of that person in the land described therein is subject to a lien in favour of the government for the amount owing, subject to any other interests or encumbrances filed prior thereto, and the lien may be enforced in the same manner as a judgment of the Court of Queen's Bench in respect of which a certificate of judgment has been filed.

Consent as withdrawal of lien

62(2)       Notwithstanding subsection (1), the consent of the minister under section 46 to the transfer of any real property upon which a lien exists under subsection (1) shall be deemed to be a discharge and withdrawal of the lien against that real property; and upon application therefor made to the minister in any case where subsequent to the filing of any certificate of lien under subsection (1), the lien is discharged or withdrawn, whether by payment in full of the amount thereof or in any other manner, the minister shall issue to the person by whom the application is made a certificate of discharge or withdrawal of the lien.

Security for payment

63          The minister may, if he considers it advisable in a particular case, accept security for payment of duty, interest or penalties under this Act by way of a mortgage or other charge on property of the person by whom the duty, interest or penalties are payable, or on property of any other person, in the form of a guarantee from any other person or in any other form prescribed by the regulations.

Liability

64          No executor, trustee or person acting in a fiduciary capacity, having property of a deceased under his control, is liable for any duty payable on that property by reason of his position of executor or trustee or his fiduciary capacity; but nothing in this section exempts any executor, trustee or person acting in a fiduciary capacity, who is a successor to any property of the deceased from payment of any duty payable by him as the successor thereto or from complying with section 48.

Action against executors

65          No action lies against any person for withholding, deducting or remitting any amount under the authority of or in compliance with this Act.

Where succession increased by duty

66          Where a deceased, whether by will or otherwise,

(a) provides or directs that the duty payable on a succession of property of the deceased is to be paid otherwise than from the succession or by the successor, or

(b) provides that a succession of property of the deceased to a successor is to be

(i) free of duty, or

(ii) of a particular value after duty, the provision does not affect the liability of the successor to pay duty and, if duty is paid otherwise than by the successor, for the purposes of calculating the duty payable on or in respect of the succession, the value of the succession shall be deemed to be the amount which after deducting the duty that would be payable on or in respect of that deemed amount at the rate applicable to successions of property of the deceased would leave a remainder equal to the actual value of the succession.

Appointment of evaluators

67          The minister may appoint or retain any person to make or assist in the making of any evaluation required for the purposes of this Act, and may fix and authorize the payment of the compensation to be paid to the person in respect thereof.

Administration of oaths

68          Any officer or servant employed in connection with the administration or enforcement of this Act, if he is designated by the minister for the purpose may, in the course of his employment, administer oaths and take and receive affidavits, declarations and affirmations for the purposes of or incidental to the administration or enforcement of this Act or the regulations; and every officer or servant so designated has for those purposes all the powers of a commissioner for oaths under The Manitoba Evidence Act.

Inspection

69(1)       Any person so authorized in writing by the minister, for any purpose relating to the administration or enforcement of this Act, may, at any reasonable time, enter any premises or place and inspect and examine any property, including any books, records, writings or other documents, kept therein and

(a) require the owner, occupier or person in charge of the premises or place to give him all reasonable assistance in connection with his inspection or examination and to answer all proper questions relating to the inspection or examination, and, for that purpose, require the owner, occupier or person in charge of the premises or place to attend at the premises or place with him; and

(b) if, during the course of the inspection or examination it appears to him that an offence under this Act has been committed, seize and take away any books, records, writings or other documents and retain them until their production in any court proceedings is required.

Requirement of additional information

69(2)       The minister may, for any purpose relating to the administration or enforcement of this Act, by registered letter or by demand served on the person, require a person, within such reasonable time as is stipulated in the letter or demand,

(a) to provide any information or additional information, or to submit any return or supplementary return to the minister; or

(b) to produce to the minister any book, record, writing or other document.

Inquiry

69(3)       The minister may, for any purpose relating to the administration or enforcement of this Act, authorize any person, whether or not he is an officer employed under the minister, to make any such inquiry as the minister deems necessary with reference to anything relating to the administration or enforcement of this Act.

Copies as evidence

69(4)       Where any book, record, writing or other document is seized, inspected, examined or produced in accordance with this section, the person by whom it is seized, inspected or examined or to whom it is produced, or any officer employed under the minister, may make or cause to be made one or more copies thereof and shall, upon request by the person from whom the original document was seized or by whom it was produced, in any case where a copy thereof has been made pursuant to this section, send a copy thereof to the person or, if no copy thereof has been made pursuant to this section, allow the person at any reasonable time to have access to the document so seized or produced, and a document purporting to be certified by the minister or a person so authorized by him to be a copy made pursuant to this section is admissible in evidence and has the same probative force as the original document would have if it had been proven in the ordinary way.

Prohibition

69(5)       No person shall hinder, molest or interfere with any person doing anything that he is authorized by or pursuant to this section to do, or prevent or attempt to prevent any person doing any such thing, and, notwithstanding any other act or law, every person shall, unless he is unable to do so, do everything he is required by or under this section to do.

Powers of person making inquiry

69(6)       For the purpose of any inquiry made under subsection (3) the person authorized to make the inquiry has all the powers and authorities conferred on a commissioner appointed under Part V of The Manitoba Evidence Act, but sections 85 and 86 of that Act do not apply to the person.

Right to counsel and to cross-examine

69(7)       In an inquiry being made under subsection (3), any successor to property of a deceased whose succession or liability for duty is the subject of the inquiry, and any witness called to give evidence in the inquiry, may be represented by counsel and the successor may, personally or through counsel, cross-examine any witness called to give evidence in the inquiry.

Communication of information

70(1)       Except as authorized by this section, no official or authorized person shall

(a) knowingly communicate or knowingly allow to be communicated to any person any information obtained by or on behalf of the minister for the purposes of this Act; or

(b) knowingly allow any person to inspect or to have access to any book, record, writing, return or other document obtained by or on behalf of the minister for the purposes of this Act.

Officials not compellable

70(2)       Notwithstanding any other Act or law, except subsection (3), but subject to subsection (3), no official or authorized person shall be required, in connection with any legal proceedings

(a) to give evidence relating to any information obtained by or on behalf of the minister for the purposes of this Act; or

(b) to produce any book, record, writing, return or other document obtained by or on behalf of the minister for the purposes of this Act.

Exceptions for legal proceedings

70(3)       Subsections (1) and (2) do not apply in respect of

(a) criminal proceedings under any Act of the Parliament of Canada; or

(b) proceedings in respect of the trial of any person for an offence under an Act of the Legislature; or

(c) proceedings relating to the administration or enforcement of this Act or the collection or assessment of duty.

Exception for internal administration

70(4)       An official or authorized person may, in the course of his duties in connection with the administration or enforcement of this Act,

(a) communicate or allow to be communicated to an official or authorized person employed by the government in the administration or enforcement of any laws relating to the raising of revenues for provincial purposes any information obtained by or on behalf of the minister for the purposes of this Act; and

(b) allow an official or authorized person employed by the government in the administration or enforcement of any laws relating to the raising of revenues for provincial purposes to inspect or have access to any book, record, writing, return or other document obtained by or on behalf of the minister for the purposes of this Act.

Exception for objection or appeals

70(5)       Notwithstanding anything in this Act, the minister may permit a copy of any book, record, writing, return or other document obtained by him or on his behalf for the purposes of this Act to be given to

(a) the person from whom such book, record, writing, return or other document was obtained; or

(b) any person

(i) for the purposes of any objection or appeal that has been or may be taken by that person under this Act arising out of any assessment of duty, interest or penalties under this Act in respect of property of the deceased in connection with whose property the book, record, writing, return or other document was obtained, or

(ii) by whom any amount payable under this Act in respect of the property of the deceased is payable or has been paid; or the legal representative of any person mentioned in clause (a) or (b) or the agent of any such person authorized in writing in that behalf.

Exception for enforcement

70(6)       Notwithstanding anything in this section, the minister may permit information or a copy of any book, record, writing, return or other document obtained by him or on his behalf for the purposes of this Act to be given to

(a) a minister of the Government of Canada or any officer or employee employed under a minister of the Government of Canada for the purposes of administration of any Act of the Parliament of Canada imposing any tax or duty; or

(b) a minister of the government of any province of Canada or officer or employee employed under that minister, for the purposes of administering and enforcing an Act of the legislature of that province imposing any tax or duty; if the minister of the Government of Canada or the minister of the government of another province is permitted to give to the minister information or copies of any book, record, writing, return or other document obtained by or on behalf of the minister of the Government of Canada, or the minister of the government of that other province, as the case may be, in the administration or enforcement of that Act for the purposes of the administration of this Act.

Procedure and evidence

71          The provisions of The Income Tax Act (Manitoba) relating to procedure, evidence and other matters provided therein are applicable with such modifications as the circumstances require to this Act.

Agreements with other governments

72(1)       With the approval of the Lieutenant Governor in Council, the government may enter into agreements with the Government of Canada and the government of any other province of Canada

(a) respecting the administration of this Act and the collection of duty, interest and penalties payable under this Act by the Government of Canada and officials thereof and the remitting of duty, interest and penalties so collected to the government and the remuneration to be paid to the Government of Canada with respect thereto;

(b) respecting the obtaining of information and copies of books, records, writings, returns and other documents relating to the property of deceased persons and the valuation of property from other sources and the release of information and copies of books, records, writings, returns and other documents obtained by or on behalf of the minister for the purposes of this Act to the Government of Canada or the governments of other provinces of Canada or both;

(c) respecting reciprocal arrangements whereby notwithstanding the other provisions of this Act the government of this province will allow a reduction of or deduction from the duty payable under this Act to the extent of any corresponding reduction of or deduction from succession duty payable under the laws of the reciprocating province in respect of certain classes of property and certain classes of successors.

Transfer of powers and duties

72(2)       Where an agreement is entered into under subsection (1) between the government and the Government of Canada respecting the administration and collection of duty, interest and penalties, the minister of the Government of Canada who under the agreement is authorized to act for the Government of Canada in the administration of this Act and the collection of duty, interest and penalties may employ and exercise all the power and perform all the duties of the minister under this Act.

Powers of deputy minister

72(3)       Where an agreement is entered into under subsection (1) between the government and the Government of Canada respecting the administration of this Act and the collection of duty, interest and penalties the deputy of the minister of the Government of Canada who, under the agreement, is authorized to act for the Government of Canada in the administration of this Act and the collection of duty, may

(a) employ and exercise all the powers and perform all the duties of the minister that the minister of the Government of Canada mentioned in subsection (2) may employ, exercise or perform under this Act; and

(b) designate officers of his department to carry out such functions, duties and powers as are similar to those that are exercised by them on his behalf under laws enacted by the Parliament of Canada imposing tax and delegate those functions, duties and powers to those officers of his department.

False statements

73(1)       Every person who

(a) makes, or assents to or acquiesces in the making of a false or deceptive statement in a return, certificate, statement or answer filed or made as required by or under this Act or the regulations;

(b) to evade payment of any amount of duty, interest, or penalties under this Act, destroys, alters, mutilates, hides or otherwise disposes of any book, record or other document;

(c) makes, or assents to or acquiesces in the making of, a false or deceptive entry in, or omits or assents to or acquiesces in the omission to enter a material particular in, any book, record or other document;

(d) wilfully, in any manner, evades or attempts to evade compliance with this Act or the payment of duty, interest or penalties payable under this Act; or

(e) conspires with any person to commit an offence described in clauses (a) to (d); is guilty of an offence and is liable in addition to any penalty otherwise provided in this Act, except section 74, to a fine of not less than $100. and not more than $10,000. or to imprisonment for a term not exceeding two years, or to both.

Saving provision

73(2)       Where a person has been convicted under this section of wilfully in any manner, evading or attempting to evade the payment of duty, he is not liable to pay a penalty under section 55 or 56 for the same evasion or attempt unless he was assessed for that penalty or that penalty was demanded from him before the information or complaint giving rise to the conviction was laid or made.

Offences and penalties

74          Every person who fails to comply with or contravenes any provision of this Act or the regulations is guilty of an offence and, if no other penalty is provided therefor, is liable to a fine not exceeding $5,000. or to imprisonment for a term not exceeding six months, or to both such fine and such imprisonment.

Defence

75          Where a person does anything or omits to do anything in respect of property of a deceased which is a failure to comply with or a contravention of any provision of this Act or the regulations and which, if a deceased had not died, would not be a failure to comply with or a contravention of the provision of this Act or the regulations, if it is established that he was ignorant of the death of the deceased, he is not guilty of the offence.

Officer of corporation

76          Where a corporation commits an offence under this Act, any officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and liable, on summary conviction, to the penalty provided for the offence whether or not the corporation has been or is prosecuted for or convicted of the offence.

Regulations

77(1)       For the purposes of carrying out the provisions of this Act according to their intent, the Lieutenant Governor in Council may make such regulations and orders as are ancillary thereto and are not inconsistent therewith; and every regulation or order made under, and in accordance with the authority granted by, this section has the force of law and, without restricting the generality of the foregoing, the Lieutenant Governor in Council may make such regulations and orders,

(a) prescribing anything that by this Act is to be prescribed or is to be determined or regulated by regulation;

(b) prescribing the nature of the evidence required to establish facts relevant to assessments under this Act;

(c) authorizing any designated officer or class of officers to exercise powers or perform duties of the minister under this Act;

(d) requiring any class of persons to make returns respecting any class of information required in connection with assessments under this Act, or to supply a copy of the return or of a prescribed portion thereof to a person or persons in respect of whose liability under this Act the return or portion thereof relates.

Effect of Regulations Act

77(2)       Notwithstanding The Regulations Act, and notwithstanding that the regulation is not filed under The Regulations Act, a regulation made under subsection (1) has force and effect on, from and after the date it is made, or such other date as is specified in the regulation.

Retroactive regulations

77(3)       Notwithstanding any other law, a regulation made under subsection (1) may be made effective retroactively to a date not earlier than January 1, 1972.

Application of Act

78(1)       Subject as otherwise provided herein, this Act applies

(a) in the case of the death of a deceased who dies after December 31, 1971, and before October 11, 1977;

(b) to and in respect of property of a deceased who dies after December 31, 1971, and before October 11, 1977; and

(c) to and in respect of successors to property of a deceased who dies after December 31, 1971, and before October 11, 1977.

Non-application of Act

78(2)       This Act does not apply

(a) in the case of the death of a deceased who dies on or after October 11, 1977; or

(b) to or in respect of property of a deceased who dies on or after October 11, 1977; or

(c) to or in respect of successors to property of a deceased who dies on or after October 11, 1977.

SCHEDULE I Formula for Establishing the Applicable Rate of Duty on Successions of Property of a Deceased

The applicable rate of duty on successions of property of a deceased is the percentage equal to the result obtained by dividing

(a) the amount calculated in accordance with Table I for the aggregate net value of the property of the deceased; by

(b) the aggregate net value of the property of the deceased.

TABLE I

$ 7,000 on first 50,000 of aggregate net value +

18% on next 10,000 of aggregate net value 8,800 on 60,000 + 21% on next 20,000 of aggregate net value 13,000 on 80,000 + 24% on next 20,000 of aggregate net value 17,800 on 100,000 + 27% on next 30,000 of aggregate net value 25,900 on 130,000 + 30% on next 30,000 of aggregate net value 34,900 on 160,000 + 35% on next 40,000 of aggregate net value 48,900 on 200,000 + 40% on next 50,000 of aggregate net value 68,900 on 250,000 + 45% on next 50,000 of aggregate net value 91,400 on 300,000 + 50% on excess over $300,000 of aggregate net value

(Note: Example for Schedule I)

Where the property of the deceased has an aggregate net value of $220,000, the applicable rate of duty on any dutiable succession of the property of the deceased would be calculated as follows;

(a)

— = applicable rate (b)

(a) is the amount calculated in accordance with Table I for the aggregate net value of the property of the deceased. This is calculated as follows:

$48,900 on $200,000 + 40% of excess over $200,000 $48,900 + (.40 x 20,000) = $48,900 + $8,000 = $56,900.

(b) is the aggregate net value of the property of the deceased.

Therefore the formula (a)

— = applicable rate

(b) is calculated as 56,900/220,000= .2586 or 25.86%.

SCHEDULE II

Formula for calculating amount of consideration for purposes of clause 5(2)(b)

y - (multiplier x .05 x y) =

(multiplier x annuity) - (multiplier x .05 x value of property disposed of)

In this formula

(a) y is the amount of consideration referred to in clause 5(2)(b);

(b) annuity is the annual amount of the annuity of periodic payment referred to in clause 3(h);

(c) the value of the property disposed of is the value of the property disposed of under the arrangement or understanding referred to in clause 3(h); and

(d) the multiplier is the present value, as determined in accordance with the regulations, of an annuity of $1. per year on the life of a person of the same sex as the deceased and of the same age as the deceased was at the time the property was disposed of under the arrangement or understanding referred to in clause 3(h).

(Note: Example for Schedule II)

A male person disposes of property of value of $80,000. under an arrangement to receive an annuity of $6,000. for his life. The disposition took place when he was 85 years of age. If the present value of an annuity of $1. per year for a male person aged 85 is 3.52 the formula can be expressed as follows:

y - (3.52 x .05 x y) = (3.52 x 6000) - (3.52 x .05 x 80,000)

y-(.1760y) = (21120- 14080) .8240 y = 7040 y =7040

.8240

y = 8,543.69

The consideration paid for the property disposed of is $8,543.69.