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The Intestate Succession and Consequential Amendments Act

S.M. 1989-90, c. 43

Bill 48, 2nd Session, 34th Legislature

The Intestate Succession and Consequential Amendments Act

(Assented to March 15, 1990)

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

PART 1

INTESTATE SUCCESSION

Interpretation

1(1)        In this Act,

"estate" includes both real and personal property; («succession»)

"issue" means all lineal descendants of a person through all generations; («descendant»)

"successors" means the persons who are entitled to the estate of an intestate through succession under this Act. («successeurs»)

Status of adopted child

1(2)        For greater certainty, if the relationship of parent and child must be established at any generation in order to determine succession under this Act, the relationship shall be determined in accordance with the provisions of The Child and Family Services Act respecting the effect of adoption.

Kindred born after death of intestate

1(3)        Kindred of the intestate conceived before and born alive after the death of the intestate inherit as if they had been born in the lifetime of the intestate.

Kindred of the half blood

1(4)        Under this Act, kindred of the half blood inherit equally with kindred of the whole blood of the same degree of kinship to the intestate.

Share of spouse if no issue

2(1)        If an intestate dies leaving a surviving spouse and no issue, the entire intestate estate goes to the surviving spouse.

Share of spouse if all issue of both intestate and surviving spouse

2(2)         If an intestate dies leaving a surviving spouse and issue, and all of the issue are also issue of the surviving spouse, the entire intestate estate goes to the surviving spouse.

Share of spouse if issue of intestate but not surviving spouse

2(3)        If an intestate dies leaving a surviving spouse and issue, and one or more of the issue are not also issue of the surviving spouse, the share of the surviving spouse is

(a)$50,000., or one-half of the intestate estate, whichever is greater; and

(b) one-half of any remainder of the intestate estate after allocation of the share provided by clause (a).

Reduction of preferential share in cases of partial intestacy

2(4)        The maximum entitlement set out in clause (3)(a) shall be reduced by an amount equal to the value of any benefits received by the surviving spouse under a will of the deceased.

Rights of separated spouse

3           If, at the time of the intestate's death, the intestate and his or her spouse were living separate and apart from one another, and one or more of the following conditions is satisfied:

(a) during the period of separation, one or both of the spouses made an application for divorce or an accounting or equalization of assets under The Marital Property Act and the application was pending or had been dealt with by way of final order at the time of the intestate's death; or

(b) before the intestate's death, the intestate and his or her spouse divided their property in a manner that was intended by them, or appears to have been intended by them, to separate and finalize their affairs in recognition of their marriage breakdown;

the surviving spouse shall be treated as if he or she had predeceased the intestate.

Share of kindred

4(1)        The part of the intestate estate not included in the share of the surviving spouse, or the entire estate if there is no surviving spouse, shall be distributed in accordance with this section.

Shares of issue

4(2)        If there is surviving issue, the estate goes to the issue of the intestate to be distributed per capita at each generation as provided in section 5.

Neither spouse nor issue

4(3)        If there is no surviving issue, the estate goes to the parents of the intestate in equal shares or to the survivor of them.

No spouse, issue or parents

4(4)        If there is no surviving issue or parent, the estate goes to the issue of the parents of the intestate or either of them to be distributed per capita at each generation as provided in section 5.

No issue, parent, or issue of parent

4(5)        If there is no surviving issue, parent or issue of a parent, but the intestate is survived by one or more grandparents or issue of grandparents,

(a) one-half of the estate goes to the paternal grandparents in equal shares or to the survivor of them, but if there is no surviving paternal grandparent, to the issue of the paternal grandparents or either or them to be distributed per capita at each generation as provided in section 5; and

(b) one-half of the estate goes to the maternal grandparents or their issue in the same manner as provided in clause (a);

but if there is only a surviving grandparent or issue of a grandparent on either the paternal or maternal side, the entire estate goes to the kindred on that side in the same manner as provided in clause (a).

No issue, parent or issue of parent, grandparent or issue of grandparent

4(6)        If there is no surviving issue, parent, issue of a parent, grandparent or issue of a grandparent but the intestate is survived by one or more great-grandparents or issue of great-grandparents,

(a) one-half of the estate goes to the paternal great-grandparents or their issue in two equal shares, as follows:

(i) one share to the parents of the paternal grandfather in equal shares or to the survivor of them, but if there is no surviving parent of the paternal grandfather, to the issue of the parents of the paternal grandfather or either of them to be distributed per capita at each generation as provided in section 5, and

(ii) one share to the parents of the paternal grandmother or their issue in the same manner as provided in subclause (i),

but if there is only a surviving great-grandparent or issue of a great-grandparent on either the paternal grandfather's or paternal grandmother's side, one-half of the estate goes to the kindred on that side in the same manner as provided in subclause (i); and

(b) one-half of the estate to the maternal great-grandparents or their issue in the same manner as provided in clause (a);

but if there is only a surviving great-grandparent or issue of a great-grandparent on either the paternal or maternal side, the entire estate goes to the kindred on that side in the same manner as provided in clause (a).

Distribution to issue

5(1)        When a distribution is to be made to the issue of a person, the estate or the part of the estate which is to be so distributed shall be divided into as many shares as there are

(a) surviving successors in the nearest degree of kinship to the intestate which contains any surviving successors; and

(b) deceased persons in the same degree who left issue surviving the intestate.

Distribution to issue

5(2)        Each surviving successor in the nearest degree which contains any surviving successor shall receive one share, and the remainder of the intestate estate, if any, is divided in the same manner as if the successors already allocated a share and their issue had predeceased the intestate.

Survival for 15 days

6(1)        A person who fails to survive the intestate for 15 days, excluding the day of death of the intestate and of the person, shall be treated as if he or she had predeceased the intestate for purposes of succession under this Act.

Survival for 15 days

6(2)        If the death of a person who would otherwise be a successor has been established, but it cannot be established that that person survived the intestate for the period required by subsection (1), that person shall be treated as if he or she had failed to survive the intestate for the required period.

Application

6(3)        This section does not apply where its application would result in a distribution of the intestate estate to the Crown under section 7.

No successors

7           If there is no successor under this Act, the intestate estate shall go to the Crown.

Advancements

8(1)        If a person dies intestate as to all of his or her estate, property which the intestate gave to a prospective successor during the lifetime of the intestate shall be treated as an advancement against that successor's share of the estate if the property was either

(a) declared by the intestate orally or in writing at the time the gift was made; or

(b) acknowledged orally or in writing by the recipient;

to be an advancement.

Value of advancement

8(2)        Property advanced shall be valued as declared by the intestate, or acknowledged by the recipient, in writing, otherwise it shall be valued as of the time of the advancement.

Effect of advancement on recipient's issue

8(3)        If the recipient of the property advanced fails to survive the intestate, the property advanced shall not be treated as an advancement against the share of the estate of the recipient's issue unless the declaration or acknowledgement of the advancement so provides.

Determination of shares of successor

8(4)        Under this section, the shares of the successors shall be determined as if the property advanced were part of the estate available for distribution, and if the value of the property advanced equals or exceeds the share of the estate of the successor who received the advancement, that successor shall be excluded from any share of the estate, but if the value of the property advanced is less than the share of the estate of the successor who received the advancement, that successor shall receive as much of the estate as is required, when added to the value of the property advanced, to give the successor his or her share of the estate.

Onus of proof

8(5)        Unless the advancement has been declared by the intestate, or acknowledged by the recipient, in writing, the onus of proving that an advancement was made is on the person so asserting.

Estate not disposed of by will

9           That part of an estate not disposed of by will shall be distributed in accordance with this Act.

Application of Dower Act

10          The rights of a surviving spouse under this Act are in addition to the spouse's entitlement to a life estate in the homestead under The Dower Act.

Application of this Act

11          This Act applies in cases of death occuring on or after the day this Act comes into force.

Repeal

12(1)       Subject to subsection (2), The Devolution of Estates Act, R.S.M. 1987, c. D70, is repealed.

Deaths before this Act comes into force

12(2)       The Devolution of Estates Act, R.S.M. 1987, c.D70, continues in force as if unrepealed in cases of death occurring before this Act comes into force.

Reference in C.C.S.M.

13          This Part may be cited as The Intestate Succession Act and may be published in the Continuing Consolidation of the Statutes of Manitoba under that title and may be referred to as Chapter I85 of those Statutes.

PART 2

CONSEQUENTIAL AMENDMENTS TO OTHER ACTS

C.C.S.M. c. L90 amended

14          The Law of Property Act is amended by adding the following after section 17:

Liabilities of estate of an intestate

17.1        When a person dies intestate, either the real or the personal estate of the deceased, or both, except in so far as either or both may be excepted by any law or enactment, are chargeable with all legal debts, liabilities and funeral expenses.

Definition of "land"

17.2        In sections 17.3 to 17.9, "land" includes lands, messuages, tenements and hereditaments, corporeal and incorporeal, of every kind and description, whatever the estate or interest therein may be, and whether legal or equitable, together with all paths, passages, ways, watercourses, liberties, privileges, easements, mines, minerals and quarries appertaining thereto, and all trees and timber, theron and thereunder lying or being, unless any of them are specially excepted.

Descent of land after July 1, 1885

17.3(1)     From and after July 1, 1885, land in the province vested in a person without a right in any other person to take by survivorship, went and hereafter goes, notwithstanding any testamentary disposition, to the personal representative of the deceased owner in the same manner as personal estate goes.

Application of section

17.3(2)     This section applies to any land over which a person executes, by will, a general power of appointment as if it were land vested in the person.

Personal representative to hold land as trustee

17.3(3)     Subject to the powers, rights, duties, and liabilities hereinafter mentioned, the personal representative of a deceased person shall hold the land as trustee for the persons by law beneficially entitled to the land, and those persons have the same powers of requiring a transfer of land as persons beneficially entitled to personal estate have of requiring a transfer of the personal estate.

Land to be dealt with in the same way as chattels real

17.3(4)     Subject to section 36 of The Wills Act, all enactments and rules of law relating to the effect of probate or letters of administration respecting chattels real, respecting the dealing with chattels real before probate or administration, and respecting the payment of costs of administration and other matters in relation to the administration of personal estate, and the powers, rights, duties, and liabilities of the personal representative in respect of personal estate, apply to land, so far as they are applicable, as if the land were a chattel real vesting in the personal representative, except that some or one only of several joint personal representatives shall not sell or transfer land without the approval of a judge of the Court of Queen's Bench.

Land to be administered in the same way as personal estate

17.3(5)     Subject to section 36 of The Wills Act, in the administration of the assets of a deceased person, the person's land shall be administered in the same manner, subject to the same liabilities for debts, costs, and expenses, and with the same incidents, as if it were personal estate, but nothing in this subsection alters or affects the order in which real and personal assets, respectively, are now applicable in or towards the payment of funeral or testamentary expenses, debts, or legacies, or the liability of land to be charged with the payment of legacies.

Direction to personal representatives to convey, or sell

17.3(6)     At any time after the expiration of one year from the date of letters probate or administration, if the personal representative has failed, on the request of the person entitled to a conveyance of land under the terms of the will of the testator, to convey the land to the person or persons so entitled, or where the land is not specifically devised or in the case of administration, the personal representative has not within the same time sold the land, then on the request of the person or persons so entitled to a conveyance or of the majority of the persons of adult age beneficially interested in the proceeds of the sale of the land, the judge of the court from which the letters probate or of administration issued,

(a) may, after 14 days written notice, in such form as the judge may direct, to the personal representative and to all persons beneficially interested, order that a conveyance of the land specifically devised be made by the personal representative to the person or persons entitled thereto, within a time stated in the order; and

(b) in the case of land not specifically devised and of land vested in an administrator, may order that the land be sold on such terms, and within such time, as is stated in the order.

Service of notice on minors

17.3(7)     In the case of minors, a notice issued under subsection (6) shall be served on the Public Trustee in the Public Trustee's capacity as official guardian.

Issue of vesting order

17.3(8)     In default of compliance by a personal representative with an order made under clause (6)(a), the judge may issue a vesting order vesting the title to the land in the person or persons entitled as fully and completely as might have been done by a conveyance from the personal representative.

Direction for sale by master of the court

17.3(9)     In the event of the personal representative failing to carry out and execute an order under clause (6)(b) within such time as the judge considers reasonable, an order may be obtained by any person beneficially interested in the land referring the matter to the master and directing a sale of the land, and the sale so far as practicable shall be conducted, and the proceeds dealt with, according to the provisions of this Act respecting partition, and the rules of the Court of Queen's Bench, and on such terms of cash or credit or part cash and part credit as the judge may order.

Meaning of "heirs and assigns"

17.4        In the case of a person dying on or after July 1, 1885, in the interpretation of any Act of the Legislature, or in the construction of any instrument to which the deceased was a party or was interested, the expression "heirs" or "heirs and assigns" or "heirs, executors, administrators or assigns", or any expression of similar import, shall be construed to mean the person's personal representative, unless a contrary intention clearly appears.

Transactions of heirs protected in certain cases

17.5        Notwithstanding anything in this Act, all conveyances and leases made by the heir or heirs of a deceased owner of land, or of an estate or interest in land, and all proceedings taken by way of foreclosure or sale or notice of sale under mortgage, or by way of administration or partition in equity, by or against heirs of any such deceased owner, before September 4, 1885, shall be deemed to have been good and valid, and to have been as effectual to pass the title to the land as if the conveyances and releases had been executed or the proceedings taken by or against the personal representative of the deceased owner.

Service of notice where mortgagor dead

17.6        Where by or under a mortgage, whether under the new or old system as defined in The Real Property Act, and whenever made, a notice is stipulated to be given to the mortgagor or the mortgagor's heirs or assigns, the notice may be given, in cases where the mortgagor or the mortgagor's assign is dead, to the executor or administrator of the deceased person, and the notice is as effectual as if given in conformity with the stipulation.

Powers of personal representative to sell land

17.7(1)     Subject to subsection (2), a personal representative in whom land is vested under this Act may sell and convey the land.

Limitation on power of personal representative

17.7(2)     Where

(a) minors or mentally disordered persons are beneficially interested in land as heirs or devisees;

(b) there are contingent interests or interests not yet vested under a will;

(c) the heirs or persons beneficially interested are not yet determined; or

(d) adult heirs or adult devisees do not concur in the sale;

and there are no debts, no sale made under subsection (1) is valid unless the sale is made with the approval of a judge of the Court of Queen's Bench, upon such terms as the judge may prescribe.

Order to personal representative to sell

17.7(3)     At any time after the expiration of one year from the date of letters probate or administration, if the personal representative has failed to sell and dispose of land vested in the personal representative under this Act, an heir or person beneficially interested in the land may apply to a judge of the Court of Queen's Bench for an order compelling the personal representative to offer the land or any portion of it for sale on such terms and conditions as the judge may prescribe.

Notice of application to be served

17.7(4)     No order shall be made under subjection (3) unless notice of the application has first been served on the personal representative.

Opposing granting of order

17.7(5)     An heir or person beneficially interested in land mentioned in this section may attend on any application made under this section and oppose the granting of an order.

Powers of personal representative to lease minerals

17.8(1)     Subject to subsection (2), a personal representative in whom the mines and minerals in, on or under land are vested under this Act may grant or join in or consent to grants of, rights and licences to search for, mine for, drill for, take, win or gain and remove, the minerals or any specified mineral by an instrument commonly called a "lease", or otherwise.

Limitation on powers of personal representative

17.8(2)     Where

(a) minors or mentally disordered persons are beneficially interested in the mines and minerals as heirs or devisees;

(b) there are contingent interests not yet vested under a will;

(c) the heirs or persons beneficially interested are not yet determined; or

(d) adult heirs or adult devisees do not concur in the grant, consent or instrument;

no such grant or consent is valid unless it is made with the approval of a judge of the Court of Queen's Bench in which the land lies, upon such terms as the judge may prescribe.

Opposition to order

17.8(3)     An heir or person beneficially interested in the mines and minerals mentioned in this section may attend on an application made under this section and oppose the granting of an order.

No restriction on trustee

17.8(4)     Nothing in this section requires the consent of any person or the approval of a judge to a grant of a mining lease by a personal representative which the personal representative is empowered, under The Trustee Act, to grant without such consent or approval.

Confirmation of past sales

17.9        In the case of a sale of land by an executor or administrator without having had the sale approved by the proper person appointed for that purpose by an Act of the Legislature, where that approval is necessary, a judge of the Court of Queen's Bench may, if the judge thinks it proper to do so, confirm the sale upon such terms as the judge may order, and the sale, when confirmed, shall be as fully valid as if it had been approved by the proper person at the time the sale was made, and all sales previously approved by the Registrar-General are confirmed and declared valid.

Effect of secs. 17.3 and 17.7

17.10       The provisions of sections 17.3 and 17.7 which are not merely declaratory of what the law was prior to March 16, 1906 are not retroactive so as to affect any rights conferred before that date.

C.C.S.M. c. P275 amended

15          Subsection 4(5) of The Public Trustee Act is amended by striking out "The Devolution of Estates Act" and substituting "The Intestate Succession Act".

C.C.S.M. c. R30 amended

16          Subsection 168(1) of The Real Property Act is amended by striking out "The Devolution of Estates Act" and substituting "The Intestate Succession Act".

C.C.S.M. c. T160 amended

17          Section 48 of The Trustee Act is amended by striking out "The Devolution of Estates Act" where it occurs in subsections (1) and (2) and substituting "The Intestate Succession Act".

Coming into force

18          This Act comes into force on a day fixed by proclamation.