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S.M. 2001, c. 46

THE BANK OF NOVA SCOTIA TRUST COMPANY AND NATIONAL TRUST COMPANY ACT


Table of Contents

(Assented to July 6, 2001)

WHEREAS National Trust Company and The Bank of Nova Scotia Trust Company have applied for special legislation to provide for the transfer of the personal trusteeship and personal agency business of National Trust Company to The Bank of Nova Scotia Trust Company;

AND WHEREAS the applicants represent that The Bank of Nova Scotia acquired all of the voting shares of National Trustco Inc. on August 14, 1997 and thereby acquired all of the shares of National Trust Company, a wholly-owned subsidiary of National Trustco Inc.;

AND WHEREAS the applicants represent that The Bank of Nova Scotia Trust Company, a wholly-owned subsidiary of The Bank of Nova Scotia, proposes to acquire the personal trusteeship and personal agency business of National Trust Company, and for such purpose The Bank of Nova Scotia Trust Company must be appointed as successor trustee to National Trust Company;

AND WHEREAS the applicants further represent that it would be impractical, given the number of trusts and estates comprising the personal trusteeship and personal agency business of National Trust Company to apply to the Court of Queen's Bench of Manitoba under section 9 of The Trustee Act to have The Bank of Nova Scotia Trust Company appointed as successor trustee for each such trust and estate;

AND WHEREAS National Trust Company and The Bank of Nova Scotia Trust Company have by their petition prayed that it be enacted as hereinafter set forth and it is expedient to grant the prayer of the petition;

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

Definition

1(1)        In this Act, "effective date" means the date on which The Bank of Nova Scotia Trust Company completes the transaction to acquire the personal trusteeship and personal agency business of National Trust Company.

Notice of effective date

1(2)        The Bank of Nova Scotia Trust Company shall publish a notice in The Manitoba Gazette setting out the effective date and advising that the provisions of this Act take effect as of that date, and shall cause a copy of such notice to be filed with the Clerk of the Legislative Assembly.

Successor Trustee

2(1)        Subject to section 7 of this Act, on the effective date National Trust Company is removed and The Bank of Nova Scotia Trust Company is appointed as successor trustee in or in respect of every personal trust, trust deed, declaration of trust, trust agreement, instrument of creation, deed of appointment, settlement, assignment, will, codicil or other testamentary document, and every letters testamentary, letters probate, letters of administration, judgment, decree, order, direction, pension plan, benefit plan trust, investment management account, investment administration account, agreement, contract, appointment of any court, judge or other constituted authority, and every other document or trust howsoever created, in each case for the benefit of or that relates to a person, including every incomplete, inchoate or bare trust, and in every conveyance, mortgage, assignment, appointment or other writing, wherein or whereby, or of which National Trust Company is named as executor, administrator, trustee, personal representative, bailee, escrow agent, committee, tutor, assignee, liquidator, receiver, custodian, guardian, curator, agent or other similar fiduciary, or is named to any other office or position whatsoever by virtue of which any property, interest or right is vested in, administered or managed by, or put in charge of National Trust Company, in trust, or in the custody, care or control of National Trust Company, in each case for the benefit of or that relates to a person.

Successor Trustee

2(2)        Subsection (1) applies to every document and trust described in that subsection even if the real or personal property held by National Trust Company under the document or trust is situate outside Manitoba.

Successor Trustee

2(3)        Where an instrument specified or described in subsection (1) names National Trust Company to any office or position described in that subsection and the instrument takes effect after the effective date, The Bank of Nova Scotia Trust Company shall be deemed to be named in the instrument in the place of National Trust Company.

Real and personal property

3(1)        Subject to section 7, all real and personal property and every interest therein that is granted to, held by or vested in National Trust Company, whether by way of security or otherwise, in trust, or in the custody, care or control of National Trust Company, for or for the benefit of any other person or purpose, pursuant to or in respect of a document or trust to which section 2 applies, and whether in the form in which it was originally acquired by National Trust Company, or otherwise, is vested on the effective date in The Bank of Nova Scotia Trust Company, according to the tenor of and at the time indicated or intended by the document or trust, upon the same trusts, and with the same powers, rights, immunities, and privileges, and subject to the same obligations and duties as are thereby provided, granted or imposed.

Registration of Act not required

3(2)        Subject to section 7, for the purposes of every Act affecting the title to property, both real and personal, the vesting of title in The Bank of Nova Scotia Trust Company of every property affected by subsection (1) is effective without the registration or filing of this Act, or of any other instrument, document or certificate showing the change of title, in any public office whatsoever within the jurisdiction of the Province of Manitoba.

Legal Proceedings

4(1)        No proceeding being carried on and no power or remedy being exercised by or against National Trust Company as executor, administrator, trustee, personal representative or in any other capacity referred to in subsection 2(1) in any court of Manitoba, or before any tribunal or agency of the Province of Manitoba, pursuant to or in respect of a document or trust to which section 2 applies, shall be discontinued or affected on account of this Act but, despite the Rules of the Court of Queen's Bench of Manitoba, may be continued in the name of The Bank of Nova Scotia Trust Company, which shall have the same rights, shall be subject to the same liabilities and shall pay or receive the same costs and awards as if the proceeding had been commenced or defended in the name of The Bank of Nova Scotia Trust Company.

Legal Proceedings

4(2)        A proceeding or a power, right, remedy or right of distress that might have been brought or exercised by or against National Trust Company as executor, administrator, trustee, personal representative or in any other capacity referred to in subsection 2(1) pursuant to or in respect of a document or trust to which section 2 applies, may be brought or exercised by or against The Bank of Nova Scotia Trust Company, which shall have the same rights and shall be subject to the same liabilities in respect thereof as those which National Trust Company would have had or been subject to if this Act had not been enacted.

Legal Proceedings

4(3)        In a proceeding that has been continued or commenced in the name of The Bank of Nova Scotia Trust Company under subsection (1) or (2), National Trust Company and its officers and employees shall be deemed to have been acting on behalf of The Bank of Nova Scotia Trust Company in performing any act, whether before or after this Act comes into force, involving the administration of a document or trust to which section 2 applies, and for purposes of examination for discovery or production of documents in relation to any such proceeding, National Trust Company and its officers or employees shall be subject to the same obligations as if this Act had not been enacted.

Rights of third parties

5           Nothing in this Act affects the rights of any person having a claim against National Trust Company in respect of a document or trust to which section 2 applies, or releases, modifies or affects the liability of National Trust Company to any such person, but all such rights as may be enforceable in Manitoba may be asserted against The Bank of Nova Scotia Trust Company, which shall be responsible for all debts, liabilities and obligations of National Trust Company in respect of any such document or trust.

Notice

6(1)        Where a person is under an obligation to make payments in relation to property that is vested in The Bank of Nova Scotia Trust Company by subsection 3(1), the person may make the payments to National Trust Company until The Bank of Nova Scotia Trust Company gives or causes to be given notice in writing to the person that payment shall be made to The Bank of Nova Scotia Trust Company, and thereupon the person's obligation is owed to The Bank of Nova Scotia Trust Company.

Instruments dealing with property

6(2)        Any instrument dealing with property that is vested in The Bank of Nova Scotia Trust Company by subsection 3(1), but that remains registered in the name of National Trust Company or any predecessor trust or loan company of National Trust Company, in any public office of the Province of Manitoba or in respect of which National Trust Company is shown by a document of title as having legal ownership thereof, may be executed by The Bank of Nova Scotia Trust Company and may contain a recital referring to the vesting under this Act.

Instruments dealing with property

6(3)        An instrument executed by The Bank of Nova Scotia Trust Company containing the recital permitted by subsection (2) may be accepted for registration by any public office within the jurisdiction of the Province of Manitoba without further proof of the accuracy of the recital, and every such instrument shall be deemed to be effective in passing title to the property described in the instrument despite any inaccuracy contained in the recital.

Security interests in personal property

6(4)        In order to show the vesting in The Bank of Nova Scotia Trust Company by subsection 3(1) of any interest in personal property that constitutes a security interest within the meaning of The Personal Property Security Act and for which National Trust Company is shown as the secured party in any financing statement registered under that Act, a document completed in accordance with the regulations made under that Act may be registered under that Act in respect of the vesting as if National Trust Company had assigned its interest to The Bank of Nova Scotia Trust Company.

Property and trusts not affected

7(1)        This Act does not apply to the following property and trusts:

(a) real or personal property owned or held by, vested in or granted to National Trust Company, and that is held by National Trust Company exclusively for its own use and benefit, and not in trust for or for the benefit of any other person or purpose;

(b) real or personal property held by National Trust Company under a document or trust to which section 2 would otherwise apply, that is situate outside Manitoba, and any power, right, immunity, privilege or right of action that may be exercised by or against National Trust Company under any such document or trust with respect to that property;

(c) trusts relating to money received for guaranteed investment and any real or personal property held in trust with respect to any such guaranteed investment of which National Trust Company is trustee, including, without limitation, trusts with respect to any registered home ownership savings plan, registered retirement savings plan, retirement income fund, deferred profit sharing plan or income averaging annuity contract, as those terms are defined in the Income Tax Act (Canada), or other registered or unregistered deferred income or employee benefit plan;

(d) any real or personal property granted to or held by or vested in National Trust Company pursuant to or in respect of

(i) any trust indenture or other indenture to which section 2 would otherwise apply wherein National Trust Company is or may be a trustee and by virtue of which bonds, debentures or other evidences of indebtedness, warrants or rights have been or may be issued, and

(ii) any document or trust to which section 2 would otherwise apply pursuant to which National Trust Company acts as manager, advisor, registrar or transfer agent.

Exception — property and trusts affected

7(2)        Despite clause (1)(b), this Act does apply to

(a) all real or personal property situate outside Manitoba for which National Trust Company has been appointed, or is entitled to be appointed, by a court of Manitoba as personal representative of a deceased person, whether as executor, administrator or otherwise, and The Bank of Nova Scotia Trust Company may, upon application to that court, be appointed personal representative in the place of National Trust Company with respect to that property; and

(b) all real or personal property situate outside Manitoba not coming within clause (a), but held by National Trust Company under a document or trust to which section 2 applies, for which the Court of Queen's Bench of Manitoba has jurisdiction under section 9 of The Trustee Act to make an order for the appointment of a new trustee, and The Bank of Nova Scotia Trust Company may, upon application to that court, be appointed trustee in the place and stead of National Trust Company with respect to that property, and such appointment has for all purposes of the laws of Manitoba the same effect as if it had been made under section 9 of The Trustee Act.

Exception — property and trusts affected

7(3)        Sections 4 and 5 apply to every document and trust in respect of which an appointment is made under subsection (2).

Commencement

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

 

 


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