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The Homesteads, Marital Property Amendment and Consequential Amendments Act

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If you need an official copy, contact Statutory Publications.

S.M. 1992, c. 46

The Homesteads, Marital Property Amendment and Consequential Amendments Act

(Assented to June 24, 1992)

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

PART 1

THE HOMESTEADS ACT

INTERPRETATION AND APPLICATION

Definitions

1           In this Act,

"assurance fund" means the assurance fund under The Real Property Act; («Fonds d'indemnisation»)

"attorney" means a person authorized to act for another person under a power of attorney; («procureur»)

"committee" means a committee under The Mental Health Act; («curateur»)

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

"disposition" means a disposition of land by the owner and includes

(a) a grant, transfer, sale, agreement for sale, grant of an option to purchase or a right of first refusal to purchase, lease for more than three years, or other disposition during the owner's lifetime,

(b) a devise or other disposition made by will,

(c) a legal or equitable mortgage, and

(d) an encumbrance, charge or lien other than

(i) a certificate of judgment under The Judgments Act,

(ii) a lien or charge on land created by the recording or registration of a certificate of judgment, or

(iii) a lien under The Builders' Liens Act; («aliénation»)

"district registrar" means a district registrar under The Real Property Act and includes a registrar under The Registry Act; («registraire de district»)

"election" means an election by an owner's spouse under section 8; («choix»)

"homestead" means

(a) in the case of a residence in a city, town or village occupied by the owner and the owner's spouse as their home, the residence and the land on which it is situated, consisting of

(i) not more than six lots or, if the block is not subdivided into lots, one block, as shown on a plan registered in a land titles office, and

(ii) not more than one acre, if the land is not described by registered plan,

(b) in the case of a residence outside a city, town or village occupied by the owner and the owner's spouse as their home, the residence and the land on which it is situated, consisting of not more than 320 acres or a half section, subject to the following conditions:

(i) if the land exceeds 320 acres in the same section, the homestead shall be the quarter section on which the residence is located, and such other lands in that section as the owner or the owner's personal representative so designates, to a maximum of 320 acres or one half section,

(ii) if the land is in more than one section, river lot or parish lot, the homestead shall be the quarter section, river lot or parish lot on which the residence is located, and such other lands adjacent thereto or across a road or highway from the land on which the residence is located, as the owner or the owner's personal representative so designates, to a maximum of 320 acres or one half section,

(c) a unit and common interest within the meaning of The Condominium Act, occupied by the owner and the owner's spouse as their home; («propriété familiale»)

"land titles office" means a land titles office for a land titles district established under The Real Property Act and includes a registry office established under The Registry Act; («bureau des titres fonciers»)

"owner" means a married person who is an owner of a homestead; («propriétaire»)

"personal representative" means an executor, an administrator or an administrator with will annexed; («représentant personnel»)

"release" means a release by an owner's spouse of rights in a homestead under section 11; («renonciation»)

"will" means a will as defined in The Wills Act. («testament»)

One homestead only

2           A person may have only one homestead at any one time.

Application of Act to persons under 18

3           This Act applies to all married persons whether or not they are under the age of 18 years, and anything done under or by virtue of this Act by a married person under the age of 18 years is deemed to have been done by an adult.

DISPOSITION PROHIBITED WITHOUT CONSENT

Disposition prohibited without consent

4           No owner shall, during his or her lifetime, make a disposition of his or her homestead unless

(a) the owner's spouse consents in writing to the disposition;

(b) the disposition is in favour of the owner's spouse;

(c) the owner's spouse has released all rights in the homestead in favour of the owner under section 11;

(d) the owner's spouse has an estate or interest in the homestead in addition to rights under this Act and, for the purpose of making a disposition of the spouse's estate or interest, is a party to the disposition made by the owner and executes the disposition for that purpose; or

(e) the court has made an order dispensing with the consent of the owner's spouse under section 10.

Proof of non-application of Act

5(1)        Proof as to

(a) whether a person who executes a document or instrument respecting a disposition is or is not married;

(b) whether a person who consents to a disposition is the owner's spouse; or

(c) whether land is or is not a homestead;

may be made by affidavit, statutory declaration or a statement authorized under section 194 of The Real Property Act.

Affidavit, statutory declaration, etc.

5(2)        An affidavit, statutory declaration or statement under subsection (1) shall be made by the person who executes the document or instrument respecting the disposition or by his or her attorney or, if the person is not mentally capable, by his or her committee.

No duty to inquire

5(3)        When proof is given in accordance with this section, no person acquiring an interest under the disposition, and no district registrar, is bound to inquire as to the truth of a matter alleged as fact in the affidavit, statutory declaration or statement.

Validity of documents

5(4)        When proof is given in accordance with this section, no document or instrument respecting the disposition is invalid except against a person who, at the time he or she acquired an interest under the disposition,

(a) had actual knowledge of the untruth of a matter alleged as fact in an affidavit, statutory declaration or statement under subsection (1); or

(b) participated or colluded in fraud in respect of the disposition.

Onus of proof

5(5)        The onus of proving actual knowledge or fraud under this section is on the person alleging it.

Disposition without consent may be set aside

6           If an owner has made a disposition to a person described in clause 5(4)(a) or (b) and that person has not made a further disposition to a bona fide purchaser for value, the court shall, on application by the owner's spouse, set aside the disposition.

DURATION OF HOMESTEAD

Change of residence does not change homestead

7           Even if an owner changes his or her residence, the homestead of the owner continues to be his or her homestead until

(a) the owner's spouse consents in writing in the prescribed form to the change of homestead;

(b) the owner's spouse releases his or her rights in the homestead in favour of the owner under section 11; or

(c) the homestead is sold in accordance with this Act.

Election after death of owner

8(1)        If an owner and his or her spouse had, at the time of the owner's death, left the homestead and occupied another residence as their home without the spouse's written consent to a change of homestead, the spouse may elect that the residence occupied at the time of death shall be the homestead.

When election must be made

8(2)        No election shall be made after the earlier of

(a) six months after the granting of letters probate or letters of administration for the estate of the owner; or

(b) one month after notice is served on the spouse by the owner's personal representative requiring the spouse to make an election under this section.

Election must be in writing

8(3)        An election shall be made in writing in the prescribed form and be signed by the owner's spouse.

Effect of election

8(4)        On the registration of an election in the appropriate land titles office, the land in respect of which the election is made is deemed to have been the homestead of the owner at the time of his or her death.

If surviving spouse does not elect

8(5)        When, in a case to which subsection (1) applies,

(a) the owner's spouse does not make an election within the time referred to in subsection (2); or

(b) the owner's spouse notifies the owner's personal representative in writing that he or she does not wish to make an election;

the spouse is not entitled to a life estate in the residence occupied by the owner and the owner's spouse at the time of the owner's death.

Discharge or vacating of election

8(6)        An election registered in a land titles office may be

(a) discharged by the registration of a discharge as provided under The Real Property Act; or

(b) vacated by the district registrar in the circumstances described in clauses 20(2)(a), (d) and (e).

CONSENTS

Consent to disposition or change of homestead

9(1)        A consent to a disposition or a change of homestead shall be made in writing in the prescribed form.

Form of consent to disposition

9(2)        A consent to a disposition shall be contained in or attached to the instrument by which the disposition is effected.

Persons before whom consent made

9(3)        A consent to a disposition or a change of homestead shall be made before a person authorized to take affidavits under The Manitoba Evidence Act.

Consent to include acknowledgment by spouse

9(4)        The form of consent to a disposition or a change of homestead shall include an acknowledgment by the owner's spouse, made apart from the owner,

(a) that the spouse is aware that The Homesteads Act gives the spouse a life estate in the homestead and the right to prevent disposition of the homestead by withholding consent;

(b) that the spouse is aware that the effect of the consent is to give up, to the extent necessary to give effect to the disposition or change of homestead, his or her life estate in the homestead; and

(c) that the spouse executes the consent freely and voluntarily without any compulsion on the part of the owner.

Consent registered in L.T.O.

9(5)        A consent to a disposition or a change of homestead shall be registered in the appropriate land titles office.

Consent as conclusive evidence

9(6)        A consent made in accordance with this section is conclusive proof of the truth of the statements contained in it and of the fact that the spouse who executed it was at the date of execution the spouse of the owner named in it, except against a person acquiring an interest under the disposition who has actual knowledge to the contrary or who participated or colluded in fraud in respect of the disposition.

Court may dispense with consent

10(1)       If an owner wishes to dispose of the homestead and the owner's spouse

(a) has been living separate and apart from the owner for six months or more; or

(b) is mentally incapable of giving consent;

the court may, on application by any person interested in the disposition, make an order dispensing with the consent of the owner's spouse if it appears fair and reasonable under the circumstances to do so.

Application by personal representative

10(2)       An application under subsection (1) may be made by the personal representative of a deceased owner.

Terms and conditions

10(3)       The court may make an order under subsection (1) subject to any terms and conditions relating to notice, payment to the owner's spouse, or otherwise, that the court considers appropriate.

RELEASES

Spouse may release rights

11(1)       An owner's spouse may, in writing in the prescribed form and for valuable consideration, release in favour of the owner all rights under this Act in respect of the homestead.

Persons before whom release made

11(2)       A release shall be made before a person authorized to take affidavits under The Manitoba Evidence Act.

Release to include acknowledgment by spouse

11(3)       The form of release shall include an acknowledgment by the owner's spouse, made apart from the owner,

(a) that the spouse is aware that The Homesteads Act gives the spouse a life estate in the homestead and the right to prevent disposition of the homestead by withholding consent;

(b) that the spouse is aware that the effect of the release is to give up the life estate in the homestead; and

(c) that the spouse executes the release freely and voluntarily without any compulsion on the part of the owner.

Release as conclusive evidence

11(4)       A release made in accordance with this section is conclusive proof

(a) of the truth of the statements contained in the release;

(b) of the fact that the spouse who executed the release was at the date of execution the spouse of the owner named in it; and

(c) that the spouse received valuable consideration for giving the release;

except against a person acquiring an interest under a disposition who has actual knowledge to the contrary.

Effect of registration of release in L.T.O.

12          On the registration of a release in the appropriate land titles office, the land described in the release ceases to be a homestead, and the owner's spouse ceases to have any rights under this Act in the land described in the release.

Consent to terminate release

13          An owner and the owner's spouse may terminate a release by each of them signing a written consent to terminate in the prescribed form, and on the registration of the consent in the appropriate land titles office, the land to which the consent relates is again the homestead, subject to any rights that have arisen since the giving of the release.

Order terminating release

14(1)       The court may, on application by either an owner or an owner's spouse, make an order terminating a release and directing the district registrar to discharge the release if the court is satisfied that

(a) the release was given without adequate valuable consideration;

(b) the release was given by reason of the spouses having been separated;

(c) the spouses have reconciled and resumed cohabitation; and

(d) the rights or interests of any third party will not be adversely affected by a termination of the release.

Effect of court order

14(2)       An order made under subsection (1) has the same effect as a consent given under section 13.

Discharge of release registered in L.T.O.

15          The district registrar shall discharge a release registered in the land titles office upon the registration of

(a) a consent to terminate the release given under section 13; or

(b) an order of the court made under subsection 14(1) directing the district registrar to discharge the release.

REMEDY OF SPOUSE

Liability for fraudulent disposition

16(1)       An owner who makes a fraudulent or wrongful disposition of the homestead by failing to obtain

(a) the consent of his or her spouse as required by this Act; or

(b) an order dispensing with the spouse's consent under section 10;

is liable to the spouse in an action for damages.

Action against district registrar

16(2)       Where recovery is or may be sought against the assurance fund, an action brought against an owner under subsection (1) shall also be brought against the district registrar, but the notice requirement in section 186 of The Real Property Act does not apply.

Action against owner's personal representative

16(3)       An action under this section may be commenced or continued against the personal representative of a deceased owner, but the liability of the personal representative is limited to the assets of the estate that are undistributed at the time notice of the action is served on the personal representative.

Limitation period

16(4)       No action shall be commenced under this section after the earlier of

(a) six years from the discovery by the owner's spouse of the disposition; or

(b) six months from the date of death of the owner.

Damages

16(5)       The court may, in its discretion, determine the amount of a spouse's damages under this section, subject to such terms and conditions as the court considers appropriate.

Claim on assurance fund

17          If

(a) an owner's spouse recovers damages under section 16 which cannot be satisfied in whole or in part out of the property of the owner; and

(b) the requirements of subsection 16(2) have been met;

the provisions of The Real Property Act respecting actions against district registrars and recovery from the assurance fund apply, with necessary modifications.

Registration of judgment

18          If an owner's spouse recovers a judgment against the owner under section 16 and the judgment has been fully paid,

(a) the owner's spouse ceases to have any rights under this Act in any land registered or to be registered in the owner's name; and

(b) the owner may make a disposition of any such land if the owner attaches to the disposition a certified copy of the judgment and proof satisfactory to the district registrar that the judgment has been fully paid.

HOMESTEAD NOTICES

Right to register homestead notice

19(1)       An owner's spouse who is entitled to rights in a homestead under this Act may register a homestead notice in the prescribed form in the appropriate land titles office claiming an interest in the homestead.

Effect of notice

19(2)       On the registration of a homestead notice, the district registrar shall not complete the registration of a disposition of the homestead described in the notice unless the notice is vacated or discharged.

Discharge of notice

20(1)       A homestead notice may be discharged by the registration in the appropriate land titles office of a discharge in the form prescribed under The Real Property Act.

Vacating of notice

20(2)       A homestead notice shall be vacated by the district registrar

(a) on the registration of a consent by the owner's spouse to a disposition that disposes of all of the owner's interest in the entire homestead;

(b) on the registration of a consent by the spouse to a change of the homestead;

(c) on the registration of a release by the spouse, in favour of the owner, of the spouse's rights in respect of the homestead;

(d) on the filing of proof, satisfactory to the district registrar, of the death of the spouse;

(e) on the filing of an order of the court under section 10 dispensing with the consent of the spouse to a disposition of the homestead;

(f) on the filing of proof, satisfactory to the district registrar, that the spouses are divorced; or

(g) on registration of a transfer or conveyance to complete a sale of the homestead by a disposition to which the spouse has consented.

Effect of consent where homestead notice registered

20(3)       Notwithstanding that a homestead notice has been registered, if

(a) the owner's spouse has consented to a disposition of the homestead that does not dispose of all of the owner's interest in the entire homestead; or

(b) the court has made an order under section 10 dispensing with the consent of the spouse to a disposition of the homestead that does not dispose of all of the owner's interest in the entire homestead;

the district registrar may complete registration of the disposition free of the homestead notice, but the notice is not thereby vacated or made ineffective in respect of any legal or equitable title or interest of the owner in the homestead that is not affected by the disposition.

LIFE ESTATE IN HOMESTEAD

Life estate on death of owner

21(1)       When an owner dies leaving a surviving spouse, the spouse is entitled to a life estate in the homestead as fully and effectually as if the owner had by will left the spouse a life estate in the homestead.

Disposition subject to life estate

21(2)       Any disposition of a homestead by the owner's will is subject to the spouse's entitlement to a life estate in that homestead under subsection (1).

Consent to disposition after death of owner

22(1)       An owner's spouse may consent to a disposition of his or her interest in the homestead after the death of the owner.

Form and execution of consent

22(2)       A consent under subsection (1) shall be in the prescribed form and be executed by the owner's spouse in the presence of a witness who shall

(a) verify the signature of the spouse by an affidavit of execution; or

(b) if the witness is a person described in subsection 72(4) of The Real Property Act, comply with the requirements of that subsection.

GENERAL PROVISIONS

Authority of spouse's attorney

23(1)       A consent to a disposition, a consent to a change of homestead or a release may be executed by an attorney on behalf of an owner's spouse if the power of attorney expressly authorizes the attorney to execute a consent or release under this Act.

Owner cannot be attorney

23(2)       Despite subsection (1), an owner shall not execute a consent, a release, a consent to terminate a release or a discharge of homestead notice as attorney for his or her spouse.

Spouse's acknowledgment of power by attorney apart from owner

23(3)       An owner's spouse who appoints an attorney to give a consent or release under this Act shall, when executing the power of attorney, acknowledge apart from the owner

(a) that the spouse is executing the power of attorney freely and voluntarily without any compulsion on the part of the owner; and

(b) that the spouse is aware of the nature and effect of the power of attorney.

Form of acknowledgment

23(4)       An acknowledgment shall be a certificate in the prescribed form which shall be endorsed on or attached to the power of attorney.

Acknowledgment by attorney

23(5)       When a consent or release is executed by an attorney or a committee of an owner's spouse, the acknowledgment required under subsection 9(4) or 11(3) need not form part of the consent or release, but the attorney or committee shall execute the consent or release in the presence of a witness who shall

(a) verify the signature of the attorney or committee by an affidavit of execution; or

(b) if the witness is a person described in subsection 72(4) of The Real Property Act, comply with the requirements of that subsection.

Owner cannot be attorney

24          An owner shall not execute a disposition referred to in clause 4(d) (spouse as a party to a disposition) as attorney for his or her spouse.

Authority of spouse's committee

25          The committee of a spouse may for the purpose of this Act, without an order of the court,

(a) consent to a disposition;

(b) consent to a change of homestead;

(c) release rights in the homestead in favour of the owner;

(d) consent to terminate a release;

(e) make an election; or

(f) discharge a homestead notice.

Definition of "document"

26(1)       In this section, "document" means a consent to a disposition, a consent to a change of homestead or a release.

Order validating defective document

26(2)       The court, on application, may make an order validating a document that lacks any formality required by this Act if the court is satisfied that

(a) the document was executed voluntarily of the spouse's own free will and without compulsion on the part of the owner;

(b) the spouse was aware of the nature and effect of the document; and

(c) any consent or release required under subsection 9(4) or 11(3) was given by the spouse apart from the owner.

Defect in form not to invalidate proceedings

27          No proceeding taken and no act, matter, or thing done or purporting to be done under this Act is invalid by reason only of a defect in form, a technical irregularity or a lack of formality.

Contracting out

28          Nothing in this Act prohibits a person, for valuable consideration, from releasing or contracting out of his or her rights under this Act, either before or after marriage.

Regulations

29          The Lieutenant Governor in Council may make regulations prescribing forms for the purpose of this Act.

Transitional

30(1)       In this section, "former Act" means The Dower Act, R.S.M. 1988, Cap. D100.

Deaths before this Act comes into force

30(2)       The provisions of the former Act respecting a spouse's entitlement to a life estate in the homestead continue in force as if unrepealed in respect of the death of a spouse occurring before this Act comes into force.

Dispositions

30(3)       The provisions of the former Act concerning the execution of documents or instruments respecting dispositions apply with respect to dispositions executed before this Act comes into force.

Caveats and dower notices

30(4)       A caveat or a dower notice registered under the former Act is deemed to be a homestead notice registered under this Act.

C.C.S.M. reference

31          This Part may be cited as The Homesteads Act and referred to as chapter H80 of the Continuing Consolidation of the Statutes of Manitoba.

PART 2

AMENDMENTS TO THE MARITAL PROPERTY ACT

C.C.S.M. c. M45 amended

32          The Marital Property Act is amended by this Part.

33          The preamble is amended by adding "or the death of a party to the marriage," after "breakdown of the marriage".

34          Subsection 1(1) is amended by adding the following definitions in alphabetical order:

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

"personal representative" means an executor, an administrator or an administrator with will annexed; («représentant personnel»)

35          Subsection 2(4) is amended by striking out "This Act does not apply" and substituting "The provisions of this Act respecting an application for an accounting and equalization of the assets of spouses during the lives of the spouses do not apply".

36          Subsection 4(4) is amended by striking out "a court" and substituting "the court".

37(1)       Subsection 6(1) is amended

(a) by striking out "Part II" and substituting "this Act"; and

(b) by striking out "a court made under Part III" and substituting "the court under Part III or IV".

37(2)       Subsection 6(4) is amended

(a) by adding "or IV" after "Part III"; and

(b) by striking out "Part II" and substituting "this Act".

37(3)       Clause 6(7)(b) is amended by striking out "applies to a court under Part III" and substituting "makes application to the court under this Act".

37(4)       Clause 6(8)(b) is amended by striking out "a court under Part III" and substituting "the court under this Act".

37(5)       Clause 6(9)(c) is amended by striking out "a court under Part III" and substituting "the court under this Act".

37(6)       Subsection 6(10) is amended

(a) by striking out "upon a division of assets under Part II" and substituting "upon an equalization of assets under this Act"; and

(b) by striking out "upon the division, may be made from the transferee of the asset by application to a court under Part III" and substituting "upon the equalization, may be made from the transferee of the asset by application to the court".

38          Clause 9(1)(b) is amended by striking out "section 15" and substituting "this Act".

39(1)       Subsection 11(1) is amended by striking out "In any accounting under Part II" and substituting "In an accounting under this Act".

39(2)       Subsection 11(2) is amended by striking out "a court upon an application under Part III" and substituting "the court upon an application under Part III or IV".

40          Section 12 is amended by striking out "division under Part II" and substituting "equalization of assets under this Act".

41          Section 13 is repealed and the following is substituted:

Right to accounting and equalization of assets

13          Spouses each have the right upon application to an accounting and, subject to section 14, an equalization of assets in accordance with this Part.

42          Section 14 is amended

(a) in subsections (1) and (2) by striking out "A court" and substituting "The court";

(b) in the French version of subsection (1), by striking out "compensaton" and substituting "compensation"; and

(c) in the French version of subsection (2), by striking out "conclue" and substituting "conclut".

43          Subsection 15(1) is amended

(a) in that part preceding clause (a), by striking out "Part" and substituting "Act"; and

(b) in clause (b),

(i) by adding ", where the application for an accounting is not under Part IV," after "equal shares or", and

(ii) by striking out "a court" and substituting "the court".

44          Clause 16(b) is amended by striking out "a court" and substituting "the court".

45          That part of section 17 following clause (c) is amended

(a) by striking out "a court" and substituting "the court"; and

(b) by striking out "Part III" and substituting "this Act".

46          Subsection 18(2) is amended by striking out "A court hearing an application under this section" and substituting "At the hearing of an application under this section, the court".

47          Section 19 is repealed and the following is substituted:

Limitation period after divorce

19(1)       Subject to subsection (3), no application for an accounting and equalization of assets under this Act may be made after 60 days from the day a decree absolute of divorce is granted in respect of the marriage, or 60 days from the day on which the divorce takes effect.

Limitation period after decree of nullity

19(2)       Subject to subsection (3), no application for an accounting and equalization of assets under this Act may be made after 60 days from the day any appeal against a decree of nullity is completed, or from the day the time for appeal expires.

Extension of time

19(3)       The court may extend the limitation period referred to in subsection (1) or (2) by such length of time as it considers appropriate where a person fails to make an application within the limitation period because of

(a) a lack of knowledge

(i) that a divorce became absolute or took effect,

(ii) that a decree of nullity was granted, or

(iii) of the date of the divorce or decree of nullity; or

(b) circumstances beyond the control of the person.

48          Subsections 20(1) and (2) are amended by striking out "a court" and substituting "the court".

49          Subsections 21(1) and (2) are amended by striking out "a court" and substituting "the court".

50          Section 24 and the heading "PART IV GENERAL" preceding it are repealed.

51          The following is added after section 24:

PART IV

ACCOUNTING AND EQUALIZATION OF ASSETS ON THE DEATH OF A SPOUSE

Application of Part on death of spouse

25          The provisions of this Part relating to an accounting and equalization of assets on the death of a spouse apply in respect of spouses or parties described in subsections 2(1) to (3) immediately before the death of one of the spouses, but only where the death occurs on or after the day this Part comes into force.

Application of Parts I to III

26          Subject to this Part, Parts I to III apply with necessary modifications in respect of an accounting and equalization of assets after the death of a spouse.

Effect of division of assets before death of spouse

27(1)       Subject to subsections (2) and (3), this Part does not apply in respect of spouses who, before one of them dies, divide their assets under a spousal agreement or this Act.

Assets acquired during reconciliation

27(2)        Where spouses resume cohabitation after a division of assets under Part III or a spousal agreement and one of them dies, the surviving spouse has, subject to this Act, the right to an accounting and equalization of assets acquired by the spouses during the period of resumed cohabitation, whether or not the spouses are cohabiting at the time the spouse dies.

Effect of spousal agreement on equalization

27(3)       Notwithstanding section 5, where spouses enter into a spousal agreement before this Part comes into force and one of them dies after this Part comes into force, the surviving spouse has, subject to this Act, the right to an accounting and equalization of assets under this Part, unless the surviving spouse specifically waived or released his or her rights under The Dower Act or this Part in the spousal agreement.

Surviving spouse may make application

28(1)       Subject to this Part, a surviving spouse may make an application under this Part for an accounting and equalization of assets, but the personal representative of a deceased spouse may not make such an application.

Continuation of application after death of spouse

28(2)       Where either spouse makes application for an accounting and equalization of assets under this Act and one or both of the spouses die before the accounting and equalization of assets is completed, the application may be continued by the surviving spouse or the personal representative of the estate of a spouse who dies.

Limitation period for making application

29(1)       Subject to subsection (2), a surviving spouse may not make application for an accounting and equalization of assets under this Part in respect of the estate of the deceased spouse after six months from the grant of letters probate of the will or of letters of administration.

Extension of time

29(2)       The court may, upon application by the surviving spouse, extend the limitation period referred to in subsection (1) by such time as it considers appropriate in respect of the portion of the estate remaining undistributed at the date notice of the application for an extension of time is served on the personal representative, if the court is satisfied that the surviving spouse failed to make application for an accounting and equalization of assets within the limitation period for any of the following reasons:

(a) the surviving spouse did not know of the death of the other spouse until after the limitation period expires;

(b) the personal representative of the estate of the deceased spouse did not serve notice on the surviving spouse in accordance with section 31;

(c) circumstances occur that are beyond the control of the surviving spouse;

(d) after the limitation period expired, assets are discovered that are or might be subject to equalization under this Act.

Suspended payment of asset to third party

30          A surviving spouse may make application to the court for an order directing a person who holds an asset of the deceased spouse referred to in subsection 35(1) to suspend the payment or transfer of the asset to a person other than the surviving spouse for such time and to such extent as the court directs, and the court may make such an order where it is satisfied that the estate of the deceased spouse might not be sufficient to pay the amount payable to the surviving spouse on an equalization of assets under this Part.

Personal representative to serve notice

31          Except where the surviving spouse has made or is continuing an application for an accounting and equalization of assets under this Part, the personal representative of a deceased spouse shall within one month after the grant of letters probate or letters of administration serve the surviving spouse, in accordance with the rules of the court, with a notice in the following form:

To (name of surviving spouse).

In the matter of the estate of (name of deceased spouse).

TAKE NOTICE that as the surviving spouse of (name of deceased spouse) you could have rights under The Marital Property Act to an accounting and equalization of assets. If you wish to make an application under that Act, you must do so within six months from (date), the day on which (letters probate or letters of administration) were granted. That is, you must make application before (date), unless you apply to the court for and are granted an extension of time. You should consult a lawyer with respect to your rights since The Marital Property Act could, in some circumstances, entitle you to a greater share of your spouse's estate than you are otherwise entitled to, whether or not your spouse left a will.

_________            ____________________

   Date                    Personal Representative

When personal representative may distribute estate

32(1)       The personal representative of the estate of a deceased spouse shall not proceed with the distribution of the estate until

(a) subject to subsection (3), the surviving spouse consents in writing to the proposed distribution;

(b) the time within which the surviving spouse may make application for an accounting and equalization of assets under this Part has expired and no such application has been made within that time; or

(c) an application made or continued under this Part for an accounting and an equalization of assets is disposed of.

Liability of personal representative

32(2)       If a personal representative distributes a portion of the estate of a deceased spouse contrary to this section and a payment is ordered by the court to be made out of the estate pursuant to an accounting and equalization of assets, the personal representative is personally liable to the surviving spouse for any loss suffered by the surviving spouse as a result of the distribution.

Certain distribution agreements subject to approval

32(3)       An agreement or proposed agreement in settlement of an application for an accounting and equalization of assets made or continued under this Part or of a right to make or continue such an application is not valid unless approved by the court, where a beneficiary of the estate

(a) is a minor whose interest in the estate is affected by the distribution under the agreement or proposed agreement; or

(b) does not consent in writing to the distribution of assets under the agreement or proposed agreement.

Statement of assets and liabilities

33          A personal representative of a deceased spouse who continues an application for an accounting and equalization of assets under this Part, or a surviving spouse, whether or not he or she makes or continues such an application,

(a) may, within the time set out in or extended under section 29, or while an application under this Part is pending, request the other to provide a sworn statement disclosing the liabilities and assets of the surviving spouse or the estate of the deceased spouse, as the case may be, whether or not the assets are subject to an accounting and equalization under this Part; and

(b) shall, on receiving a request under clause (a), provide the statement to the other person within 14 days after receiving the request.

Closing and valuation dates after death of spouse

34          In an accounting after the death of a spouse, the closing date for the inclusion of assets and liabilities in the accounting, and the valuation date for each asset and liability is

(a) where the spouses were cohabiting with each other on the day of the death, the date of death; or

(b) where the spouses were not cohabiting with each other on the day of the death, the date on which the spouses last cohabited with each other.

Value of assets to be included in estate

35(1)       Where spouses were cohabiting with each other on the day one of them died, the value of each of the following shall be included, together with assets subject to an accounting under Part II, as an asset of the deceased spouse for the purpose of an accounting and equalization of assets under this Part, to the extent that the deceased spouse did not receive adequate consideration in respect of the asset:

(a) a gift mortis causa by the deceased spouse to a person other than the surviving spouse;

(b) subject to subsection (3), property that, at the time of the death of the deceased spouse, was held by the deceased spouse and a person other than the surviving spouse, with a right of survivorship;

(c) a retirement savings plan, retirement income fund or annuity, or a pension, retirement, welfare or profit-sharing fund, trust, scheme, contract or arrangement for the benefit of employees or former employees, payable to a person other than the surviving spouse on the death of the deceased spouse;

(d) where a life insurance policy owned by the deceased spouse is payable to a person other than the surviving spouse, the cash surrender value of the life insurance policy immediately before the death of the deceased spouse;

(e) the proceeds of a life insurance policy payable to the estate;

(f) any other payment to the estate by reason of the death of the deceased spouse.

Where life insurance is not asset of estate

35(2)       The proceeds of a life insurance policy payable on the death of a spouse are not an asset of the deceased spouse for the purpose of an accounting and equalization of assets under this Part where the life insurance policy

(a) is for a purpose referred to in subsection 1(3) (insurance for business purposes);

(b) is in compliance with a court order made under the Divorce Act (Canada) or clause 10(1)(i) of The Family Maintenance Act; or

(c) is in compliance with a maintenance agreement between the deceased spouse and a person other than the surviving spouse.

Interest of deceased spouse in joint asset

35(3)       Where a deceased spouse at the time of his or her death held real property, or funds in a bank account, jointly with a person other than the surviving spouse, the real property or funds shall be included in the inventory of assets of the deceased spouse

(a) in the case of funds in a bank account, to the extent that the funds were the property of the deceased spouse immediately before the funds were deposited; and

(b) in the case of real property, to the extent of the ratio of the contribution of the deceased spouse to the contribution of other parties, multiplied by the fair market value of the property on the day the spouse died.

Onus of proof respecting joint asset

35(4)       In a proceeding under this Part respecting an accounting and equalization of assets after the death of a spouse, the onus of proving the extent of the interest of the deceased spouse in a bank account or real property held jointly with a person other than the surviving spouse is on the surviving spouse.

Funeral and testamentary expenses

36          Notwithstanding subsection 11(1), the funeral and testamentary expenses of the estate of the deceased spouse shall not be included in the calculation of an equalization payment under this Part.

Assets of surviving spouse exempt from accounting

37          The following assets of a surviving spouse are not subject to an accounting for the purpose of an equalization of assets under this Part:

(a) an asset owned jointly with the deceased spouse where the surviving spouse has a right of survivorship;

(b) life insurance payable on the death of the other spouse;

(c) a retirement savings plan, retirement income fund or annuity, or a pension, retirement, welfare or profit-sharing fund, trust, scheme, contract or arrangement for the benefit of employees or former employees payable to the surviving spouse on the death of the other spouse.

Entitlement under Intestate Succession Act

38          Where a surviving spouse is entitled to a share of the estate of the deceased spouse under The Intestate Succession Act, the amount of an equalization payment payable to the surviving spouse from the estate under this Act shall be reduced by the amount of the entitlement of the surviving spouse under The Intestate Succession Act.

Deduction of certain gifts to surviving spouse

39          Subject to section 43, the value of a bequest, gift or devise to which a surviving spouse is entitled under the will of the deceased spouse, including any bequest, gift or devise renounced by the surviving spouse, and any gift mortis causa made to the surviving spouse by the deceased spouse, shall be deducted from any amount payable to the surviving spouse from the estate of the deceased spouse under this Act.

No court discretion to alter equalization

40          An amount shown by an accounting to be payable under this Part shall not be altered by the court under section 14 or otherwise.

Priority of equalization payment

41(1)       Where a surviving spouse is entitled under this Act to an equalization payment from the estate of a deceased spouse, the equalization payment is deemed to be a debt of the deceased spouse, is payable after the other liabilities of the estate, and has priority over

(a) a bequest, gift or devise contained in a will of the deceased spouse;

(b) an obligation to pay maintenance under a maintenance agreement or an order of a court binding the estate of the deceased spouse; and

(c) an order of a court under The Dependants Relief Act.

Payment to be made from certain assets

41(2)       Where the estate of a deceased spouse does not have funds sufficient to satisfy the amount of an equalization payment under this Part, the deficit shall be paid by the persons entitled to the assets referred to in subsection 35(1) in proportion to the value of their respective interests in those assets, less the value of any consideration provided by those persons to or on behalf of the deceased spouse.

Payment from other assets

41(3)       Where the amounts payable under subsection (2) are not sufficient to satisfy the equalization payment, the deficit shall be paid by persons other than the surviving spouse who are beneficiaries of the estate in proportion to the value of their respective interests in the estate, unless the will of the deceased spouse specifically provides for the manner in which the interests of the beneficiaries are to be used to satisfy an equalization payment, in which case the provisions of the will apply.

Variation of trust in will for equalization payment

41(4)       For the purpose of subsection (3), the court may on application vary the terms of a trust, that is established under the terms of the will of a deceased spouse and that is an asset of the deceased spouse for the purpose of an accounting and equalization of assets under this Part, in order to satisfy the share of the surviving spouse on an equalization of assets under this Part, and section 59 of The Trustee Act applies with necessary modifications to any such variation or proposed variation.

Satisfaction of equalization payment

41(5)       The amount that a beneficiary or a person entitled to an asset of a deceased spouse is required to pay to satisfy an equalization payment payable to a surviving spouse may be made

(a) by payment of the amount in a lump sum or by instalments;

(b) by the transfer, conveyance or delivery of an asset or assets in lieu of the amount; or

(c) by a combination of clauses (a) and (b);

as may be agreed or, in the absence of agreement, as the court may order upon the application of the surviving spouse, beneficiary or person.

Application to court to settle question

42          An application to the court under subsection 18(1) may be made by the surviving spouse, the personal representative of the estate of the deceased spouse, or a person who is or might be a beneficiary of the estate.

Rights of surviving spouse under will

43          Nothing in this Act affects the right of a surviving spouse to take under the will of the deceased spouse and not under this Act.

Rights in addition to Homesteads Act

44          The rights given under this Act are in addition to and not in substitution for or in derogation of the rights given under The Homesteads Act.

Application of Dower Act

45          The Dower Act continues in force as if unrepealed in respect of the death of a spouse occurring before this Act comes into force.

PART 3

CONSEQUENTIAL, REPEAL AND COMING INTO FORCE

CONSEQUENTIAL AMENDMENTS

The Builders' Liens Act

52          Subsection 71(2) of The Builders' Liens Act, C.C.S.M. c. B91, is amended by striking out everything after "of any kind".

The Court of Queen's Bench Act

53          Clause (g) in the definition "family proceeding" in section 41 of The Court of Queen's Bench Act, C.C.S.M. c. C280, is repealed and the following is substituted:

(g) The Homesteads Act,

The Dependants Relief Act

54          Section 18 of The Dependants Relief Act, C.C.S.M. c. D37, is repealed and the following is substituted:

Act subject to Homesteads and Marital Property Act

18(1)        The rights of a surviving spouse under

(a) The Homesteads Act; and

(b) Part IV of The Marital Property Act respecting the equalization of assets after the death of a spouse;

have priority over the rights of a dependant under this Act.

Marital Property Act right does not preclude application

18(2)       A surviving spouse who is entitled to a equalization of assets after the death of a spouse under Part IV of The Marital Property Act may also apply for an order of provision for maintenance and support under this Act.

The Manitoba Evidence Act

55          Section 81 of The Manitoba Evidence Act, C.C.S.M. c. E150, is amended by striking out "where an acknowledgment by a spouse under section 8 of The Dower Act is made before him, it is not necessary to their validity that he affix his seal thereto" and substituting "where a consent or release under section 9 or 11 of The Homesteads Act is made before the notary public, it is not necessary to the validity of such a document that the notary public affix his or her seal to it".

The Gas Pipe Line Act

56          Clause 26(3)(b) of The Gas Pipe Line Act, C.C.S.M. c. G50, is amended by striking out "The Dower Act" and substituting "The Homesteads Act".

The Intestate Succession Act

57          Section 10 of The Intestate Succession Act, C.C.S.M. c. I85, is amended by striking out "Dower Act" in the section heading and in the section and substituting "Homesteads Act".

The Law of Property Act

58(1)       The Law of Property Act, C.C.S.M. c. L90, is amended by this section.

58(2)       Section 9 is amended by striking out "The Dower Act" and substituting "The Homesteads Act."

58(3)       Section 10 is amended by striking out "The Dower Act" and substituting "The Homesteads Act".

58(4)       Subsection 19(2) is amended by striking out "Dower Act" in the section heading and in the section and substituting "Homesteads Act".

58(5)        Section 24 is amended

(a) by striking out "dower" in the section heading and substituting "homestead";

(b) by striking out "The Dower Act" and substituting "The Homesteads Act"; and

(c) by striking out "any right or claim of dower" and substituting "any right or claim under The Homesteads Act".

The Legal Aid Services Society of Manitoba Act

59          Subsection 17.1(4) of The Legal Aid Services Society of Manitoba Act, C.C.S.M. c. L105, is amended by striking out "The Dower Act" and substituting "The Homesteads Act".

The Limitation of Actions Act

60          Schedule A to The Limitation of Actions Act, C.C.S.M. c. L150, is amended by adding the following after item 26:

27. The Homesteads Act

The Married Women's Property Act

61          Section 8 of The Married Women's Property Act, C.C.S.M. c. M70, is amended by striking out "Dower Act" in the section heading and in the section section and substituting "Homesteads Act".

The Mortgage Act

62          Subsection 13(7) of The Mortgage Act, C.C.S.M. c. M200, is amended by striking out "Dower Act" in the section heading and in the section and substituting "Homesteads Act".

The Pipe Line Act

63          Clause 15(3)(b) of The Pipe Line Act, C.C.S.M. c. P70, is amended by striking out "The Dower Act" and substituting "The Homesteads Act".

The Real Property Act

64(1)       The Real Property Act, C.C.S.M. c. R30, is amended by this section.

64(2)       Subsection 35(3) and the section heading preceding it are amended by striking out "Dower Act" wherever it appears and substituting "Homesteads Act".

64(3)       Subsection 72(1) is amended by striking out "The Dower Act" and substituting "The Homesteads Act".

The Registry Act

65          Clauses 30(1)(b) and (c) of The Registry Act, C.C.S.M. c. R50, are repealed and the following is substituted:

(b) take any affidavit authorized or required by The Homesteads Act to be made by a party to the instrument or by a witness to the execution of a consent or release under that Act contained in or attached to the instrument.

The Wills Act

66          Section 59 of The Wills Act, C.C.S.M. c. W150, is repealed and the following is substituted:

Act subject to Homesteads and Marital Property Acts

59          This Act is subject to The Homesteads Act and Part IV of The Marital Property Act respecting the equalization of assets after the death of a spouse.

Repeal

67          The Dower Act, R.S.M. 1987, c. D100, is repealed.

Coming into force

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