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The Wills Act
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This version is current as of September 23, 2016.
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C.C.S.M. c. W150

The Wills Act

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

Definitions

1           In this Act,

"common-law partner" of a testator means, except in sections 12, 13 and 14,

(a) a person who, with the testator, registers a common-law relationship under section 13.1 of The Vital Statistics Act, or

(b) a person who, not being married to the testator is cohabiting or has cohabited with him or her in a conjugal relationship, commencing either before or after the coming into force of this definition,

(i) for a period of at least three years, or

(ii) for a period of at least one year and they are together the parents of a child; (« conjoint de fait »)

"common-law relationship" means the relationship between two persons who are common-law partners of each other; (« union de fait »)

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

"will" includes a testament, a codicil, an appointment by will or by writing in the nature of a will in exercise of a power and any other testamentary disposition. (« testament »)

S.M. 2002, c. 48, s. 25.

PART I

GENERAL

Property disposable by will

2           A person may by will devise, bequeath or dispose of all real and personal property (whether acquired before or after the making of the will), to which at the time of death of the testator, the testator is entitled either at law or in equity, including

(a) estates pur autre vie, whether there is or is not a special occupant and whether they are corporeal or incorporeal hereditaments;

(b) contingent, executory or other future interests in real or personal property, whether the testator is or is not ascertained as the person or one of the persons in whom those interests may respectively become vested, and whether the testator is entitled to them under the instrument by which they were respectively created or under a disposition of them by deed or will; and

(c) rights of entry.

Writing required

3           A will is valid only when it is in writing.

Signatures required

4           Subject to sections 5 and 6, a will is not valid unless,

(a) at its end it is signed by the testator or by some other person in the presence and by the direction of the testator;

(b) the testator makes or acknowledges the signature in the presence of two or more witnesses present at the same time; and

(c) two or more of the witnesses attest and subscribe the will in the presence of the testator.

Military forces and mariners

5(1)        A member of the Canadian Forces while on active service pursuant to the National Defence Act (Canada), or a member of any other naval, land, or air force while on active service, or a mariner or a seaman when at sea or in the course of a voyage, may make a will by a writing signed at its end by the testator or by some other person in the presence and by the direction of the testator without any further formality or any requirement of the presence of, or attestation or signature by, a witness.

Certificate as to service

5(2)        For the purpose of this section a certificate signed by or on behalf of an officer purporting to have custody of the records of the force in which a person was serving at the time the will was made, setting out that the person was on active service at that time, is sufficient proof of that fact.

Other evidence of service

5(3)        For the purpose of this section if a certificate under subsection (2) is not available, a person is deemed to be on active service if the person is a member of a naval, land or air force and has taken steps under the orders of a superior officer preparatory to serving with, or being attached to, or seconded to, a component of such a force that has been placed on active service.

Holograph will

6           A person may make a valid will wholly in the person's own handwriting and signed at its end by the person, without formality, and without the presence of, or attestation or signature by a witness.

Place of signature: all wills

7(1)        A will is deemed to be signed at its end, if the signature of the testator or of the person signing for the testator, is placed at, or after, or following, or under, or beside, or opposite to, the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as the testator's will.

Special rules

7(2)        A will is not rendered invalid by the circumstances that

(a) the signature of the testator does not follow immediately the end of the will; or

(b) a blank space intervenes between the concluding words of the will and the signature of the testator; or

(c) the signature of the testator is placed among the words of a testimonium clause or of a clause of attestation or follows, or is after, or under, a clause of attestation either with or without a blank space intervening, or follows or is after or under or beside the name of a subscribing witness; or

(d) the signature of the testator is on a side or page or other portion of the paper or papers containing the will on which no clause or paragraph or disposing part of the will is written above the signature; or

(e) there appears to be sufficient space to contain the signature on, or at the bottom of, the preceding side or page or other portion of the same paper on which the will is written and preceding that upon which the signature appears.

Writing underneath signature

7(3)        The generality of subsection (1) is not restricted by the enumeration of circumstances set out in subsection (2), but a signature of the testator in conformity with section 4, 5 or 6 or this section does not give effect to a disposition or direction that is underneath the signature or that follows the signature or to a disposition or direction inserted after the signature was made.

Infants

8(1)        A will made by a person who is under the age of 18 years is not valid unless, at the time of making the will, the person

(a) is or has been married; or

(b) is a member of a component of the Canadian Forces that is referred to in the National Defence Act (Canada) as a regular force; or

(c) is a person described in section 5.

Certificate as to service

8(2)        A certificate signed by or on behalf of an officer purporting to have custody of the records of the force in which a person was serving at the time the will was made, setting out that the person was at that time a member of a regular force within the meaning of clause (1)(b) or of a naval, land or air force within the meaning of section 5, is sufficient proof of that fact.

Revocation by infants

8(3)        A person who has made a will under subsection (1) may, while under the age of 18 years, revoke the will.

Will exercising power of appointment

9           A will made in accordance with this Act is, so far as respects the execution and attestation thereof, a valid execution of a power of appointment by will notwithstanding that it has been expressly required that a will in exercise of the power be executed or attested with some additional or other form of execution or attestation or solemnity.

Publication

10          A will made in accordance with this Act is valid without other publication.

Incompetency of witness

11          Where a person who attested a will was at the time of its execution, or afterward has become, incompetent as a witness to prove its execution, the will is not on that account invalid.

Definition of "common-law partner"

12(1)       For the purpose of this section and sections 13 and 14,

"common-law partner" of a person means

(a) another person who, with the person, registers a common-law relationship under section 13.1 of The Vital Statistics Act, and who is cohabiting with the person, or

(b) another person who, not being married to the person is cohabiting with him or her in a conjugal relationship of some permanence.

Gift to attesting witness

12(1.1)     Where a will is attested by a person to whom or to whose then spouse or common-law partner, a beneficial devise, bequest, or other disposition or appointment of or affecting real or personal property, except charges and directions for payment of debt, is thereby given or made, the devise, bequest, or other disposition or appointment is void so far only as it concerns the person so attesting, or the spouse or common-law partner or a person claiming under any of them; but the person so attesting is a competent witness to prove the execution of the will or its validity or invalidity.

Attestation by two other witnesses

12(2)       Where a will is attested by at least two persons who are not within subsection (1) or where no attestation is necessary, the devise, bequest, or other disposition or appointment is not void under that subsection.

Validation of gifts to witnesses

12(3)       Where a person to whom or to whose spouse or common-law partner, a beneficial devise, bequest or other disposition or appointment of or affecting real or personal property is given or made by a will, attests the will, the court, on application, if satisfied that neither the person nor the spouse or common-law partner of the person exercised any improper or undue influence upon the testator, may order that, notwithstanding subsection (1), the devise, bequest or other disposition or appointment is valid, and thereupon, the devise, bequest or other disposition or the appointment, as the case may be, is valid and fully effective as though the will had been properly attested by other persons.

S.M. 2002, c. 48, s. 25.

Gift to persons signing for testator

13(1)       Where a will is signed for the testator by another person to whom or to whose then spouse or common-law partner, a beneficial devise, bequest, or other disposition or appointment of or affecting real or personal property, except charges and directions for payment of debt, is thereby given or made, the devise, bequest, or other disposition or appointment is void so far only as it concerns the person so signing or the spouse or common-law partner or a person claiming under any of them; but the will is not invalid for that reason.

Validation of gifts to signor of will

13(2)       Where a person to whom or to whose spouse or common-law partner a beneficial devise, bequest or other disposition or appointment of or affecting real or personal property is given or made by a will, signs the will for the testator, the court, on application, if satisfied that neither the person nor the spouse or common-law partner of the person exercised any improper or undue influence upon the testator may order that notwithstanding subsection (1), the devise, bequest or other disposition or appointment is valid, and thereupon the devise, bequest or other disposition or appointment, as the case may be, is valid and fully effective as though the will had been properly signed by the testator.

S.M. 2002, c. 48, s. 25.

Creditor as witness

14          Where real or personal property is charged by a will with a debt and a creditor or the spouse or common-law partner of a creditor whose debt is so charged attests the will, the person so attesting, notwithstanding such charge, is a competent witness to prove the execution of the will or its validity or invalidity.

S.M. 2002, c. 48, s. 25.

Executor as witness

15          A person is not incompetent as a witness to prove the execution of a will, or its validity or invalidity solely because he is an executor.

Revocation in general

16          A will or part of a will is not revoked except as provided in subsection 18(2) or (4) or

(a) subject to section 17, by the marriage of the testator; or

(b) by a later will valid under this Act; or

(c) by a later writing declaring an intention to revoke it and made in accordance with the provisions of this Act governing the making of a will; or

(d) by burning, tearing or otherwise destroying it by the testator or by some person in the presence and by the direction of the testator with the intention of revoking it.

S.M. 2002, c. 48, s. 25.

Revocation by marriage

17          A will is revoked by the marriage of the testator except where

(a) there is a declaration in the will that it is made in contemplation of the marriage; or

(a.1) there is a declaration in the will that it is made in contemplation of the testator's common-law relationship with the person the testator subsequently marries; or

(b) the will is made in exercise of a power of appointment of real or personal property which would not, in default of the appointment, pass to the heir, executor, or administrator of the testator or to the persons entitled to the estate of the testator if the testator died intestate; or

(c) the will fulfills obligations of the testator to a former spouse or common-law partner under a separation agreement or court order.

S.M. 2002, c. 48, s. 25.

No revocation by presumption

18(1)       Subject to section 17 and to subsections (2) and (4), a will is not revoked by presumption of an intention to revoke it on the ground of a change in circumstances.

Effect of divorce

18(2)       Where in a will

(a) a devise or bequest of a beneficial interest in property is made to the spouse of the testator; or

(b) the spouse of the testator is appointed executor or trustee; or

(c) a general or special power of appointment is conferred upon a spouse of the testator;

and after the making of the will and before the death of the testator, the testator's marriage to that spouse is terminated by a decree absolute of divorce or is found to be void or declared a nullity by a court in a proceeding to which the testator is a party, then, unless a contrary intention appears in the will, the devise, bequest, appointment or power is revoked and the will shall be construed as if the spouse had predeceased the testator.

Definition of "spouse"

18(3)       In subsection (2) "spouse" includes the person purported or thought by the testator to be the spouse of the testator.

Effect of termination of common-law relationship

18(4)       Where in a will

(a) a devise or bequest of a beneficial interest in property is made to the common-law partner of the testator;

(b) the common-law partner of the testator is appointed executor or trustee; or

(c) a general or special power of appointment is conferred on a common-law partner of the testator;

and after making the will and before the death of the testator, the testator's common-law relationship with his or her common-law partner is terminated

(d) where the common-law relationship was registered under section 13.1 of The Vital Statistics Act, by registration of the dissolution of the common-law relationship under section 13.2 of The Vital Statistics Act; or

(e) where the common-law relationship was not registered under section 13.1 of The Vital Statistics Act, by virtue of having lived separate and apart for a period of at least three years;

then, unless a contrary intention appears in the will, the devise, bequest, appointment or power is revoked and the will shall be construed as if the common-law partner predeceased the testator.

S.M. 2002, c. 48, s. 25.

Making alterations

19(1)       Subject to subsection (2), unless an alteration that is made in a will after the will has been made is made in accordance with the provisions of this Act governing the making of a will, the alteration has no effect except to invalidate words or meanings that it renders no longer apparent.

Execution of alterations

19(2)       An alteration that is made in a will after the will has been made is validly made when the signature of the testator and subscription of witnesses to the signature of the testator to the alteration, or, in the case of a will that was made under section 5 or 6, the signature of the testator, are or is made,

(a) in the margin or in some other part of the will opposite or near to the alteration; or

(b) at the foot or end of, or opposite to, a memorandum referring to the alteration and written in some part of the will.

Revival

20(1)       A will or part of a will that has been in any manner revoked is revived only

(a) by a will made in accordance with this Act; or

(b) by a codicil that has been made in accordance with this Act;

that shows an intention to revive the will or part that was revoked.

Partial revival

20(2)       Except when a contrary intention is shown, when a will that has been partly revoked and afterward wholly revoked is revived, the revival does not extend to the part that was revoked before the revocation of the whole.

Subsequent conveyance

21          A conveyance of, or other act relating to, real or personal property disposed of in a will made or done after the making of a will, does not prevent operation of the will with respect to any estate or interest in the property that the testator had power to dispose of by will at the time of the death of the testator.

Time of revival or re-execution

22(1)       When a will has been revived or re-executed the will shall be deemed to have been made at the time at which it was revived or re-executed.

Will speaking from death

22(2)       Except when a contrary intention appears by the will, a will speaks and takes effect as if it had been made immediately before the death of the testator with respect to the real and personal property comprised therein.

Dispensation power

23          Where, upon application, if the court is satisfied that a document or any writing on a document embodies

(a) the testamentary intentions of a deceased; or

(b) the intention of a deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will;

the court may, notwithstanding that the document or writing was not executed in compliance with any or all of the formal requirements imposed by this Act, order that the document or writing, as the case may be, be fully effective as though it had been executed in compliance with all the formal requirements imposed by this Act as the will of the deceased or as the revocation, alteration or revival of the will of the deceased or of the testamentary intention embodied in that other document, as the case may be.

S.M. 1995, c. 12, s. 2.

Property disposed of by committee or substitute decision maker

24(1)       Where the committee for a person, or the substitute decision maker for property for a person appointed under The Vulnerable Persons Living with a Mental Disability Act sells, mortgages, exchanges or otherwise disposes of any property, real or personal, of the person, the devisees, legatees and heirs of that person have, on his death, the same interest and rights in the proceeds of the sale, mortgage, exchange or disposition by the committee as they would have had in the property if it had not been sold, mortgaged, exchanged or disposed of and the proceeds, or any balance thereof, shall be deemed to be of the same nature and character as the property sold, mortgaged, exchanged or disposed of.

Application to Public Guardian and Trustee

24(2)       Subsection (1) applies where the Public Guardian and Trustee acts as committee for a person or as substitute decision maker for property for a person.

S.M. 1993, c. 29, s. 208; S.M. 2013, c. 46, s. 46.

Lapsed and void devises

25          Subject to sections 25.1 and 25.2 and except when a contrary intention appears by the will, real or personal property or an interest therein that is comprised, or intended to be comprised, in a devise or bequest that fails or becomes void by reason of the death of the devisee or donee in the lifetime of the testator, or by reason of the devise or bequest being contrary to law or otherwise incapable of taking effect, is included in the residuary devise or bequest, if any, contained, in the will.

S.M. 1989-90, c. 44, s. 2.

Devise of estate tail

25.1        Except when a contrary intention appears by the will, where a person to whom real property is devised for what would have been, under the law of England, an estate tail or in quasi entail,

(a) dies

(i) in the lifetime of the testator, or

(ii) at the same time as the testator, or

(iii) in circumstances rendering it uncertain whether that person or the testator survived the other; and

(b) leaves issue who would inherit under the entail if that estate existed;

if any such issue are living at the time of the death of the testator the devise does not lapse but creates an estate in fee simple in possession.

S.M. 1988-89, c. 13, s. 41; S.M. 1989-90, c. 44, s. 3.

When issue predecease testator

25.2        Except when a contrary intention appears by the will, where a person dies in the lifetime of a testator, either before or after the testator makes the will, and that person

(a) is a child or other issue or a brother or sister of the testator to whom, either as an individual or as a member of a class, is devised or bequeathed an estate or interest in real or personal property not determinable at or before the death of the child or other issue or the brother or sister, as the case may be; and

(b) leaves issue any of whom is living at the time of the death of the testator;

the devise or bequest does not lapse, but takes effect as if it had been made directly to the persons among whom, and in the shares in which, the estate of that person would have been divisible if that person had died intestate without leaving a spouse or common-law partner and without debts immediately after the death of the testator.

S.M. 1989-90, c. 44, s. 4; S.M. 2002, c. 48, s. 25.

Definition of issue

25.3        For the purpose of sections 25.1 and 25.2, issue conceived before the testator's death and born living thereafter shall be considered to be alive at the testator's death.

S.M. 1989-90, c. 44, s. 5.

Leaseholds in general devise

26          Except when a contrary intention appears by the will, where a testator devises

(a) land of the testator; or

(b) land of the testator in a place mentioned in the will, or in the occupation of a person mentioned in the will; or

(c) land described in a general manner; or

(d) land described in a manner that would include a leasehold estate if the testator had no freehold estate which could be described in the manner used;

the devise includes the leasehold estates of the testator or any of them to which the description extends, as well as freehold estates.

Exercise of gen'l power of appt.

27(1)       Except when a contrary intention appears by the will, a general devise of

(a) the real property of the testator; or

(b) the real property of the testator in a place mentioned in the will or in the occupation of a person mentioned in the will; or

(c) real property described in a general manner;

includes any real property or any real property to which the description extends, that the testator has power to appoint in any manner the testator thinks proper and operates as an execution of the power.

Bequest of personal property

27(2)       Except when a contrary intention appears by the will, a bequest of

(a) the personal property of the testator; or

(b) personal property described in a general manner;

includes any personal property, or any personal property to which the description extends, that the testator has power to appoint in any manner the testator thinks proper and operates as an execution of the power.

Devise without words of limitation

28          Except when a contrary intention appears by the will, where real property is devised to a person without words of limitation, the devise passes the fee simple estate in the real property or the whole of any other estate in the real property that the testator had power to dispose of by will.

Gifts to heirs

29          Except when a contrary intention appears by the will, where property is devised or bequeathed to the "heir" of the testator or of another person,

(a) the word "heir" means the person to whom the beneficial interest in the property would go under the law of the province if the testator or the other person died intestate; and

(b) where used in that law, the words "child", "issue" or "descendant" include for the purposes of this section, a person related by or through adoption to the testator or other person.

Meaning of "die without issue"

30(1)       Subject to subsection (2), in a devise or bequest of real or personal property,

(a) the words,

(i) "die without issue", or

(ii) "die without leaving issue", or

(iii) "have no issue"; or

(b) other words importing either a want or failure of issue of a person in the person's lifetime or at the time of the death of the person or an indefinite failure of the person's issue;

shall, unless a contrary intention appears by the will, be construed to mean a want or failure of issue in the lifetime or at the time of death of that person, and not an indefinite failure of that person's issue.

Exception

30(2)       Subsection (1) does not extend to cases where the words defined therein import

(a) if no issue described in a preceding gift be born; or

(b) if there are no issue who live to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to that issue.

Devise to trustees

31          Except when there is devised to a trustee expressly or by implication an estate for a definite term of years absolute or determinable or an estate of freehold, a devise of real property to a trustee or executor passes the fee simple estate in the real property or the whole of any other estate or interest in the real property that the testator had power to dispose of by will.

Unlimited devise to trustees

32          Where real property is devised to a trustee without express limitation of the estate to be taken by him and the beneficial interest in the real property or in the surplus rents and profits

(a) is not given to a person for life; or

(b) is given to a person for life but the purpose of the trust may continue beyond his life;

the devise vests in the trustee the fee simple estate in the real property or the whole of any other legal estate in the real property that the testator had power to dispose of by will and not an estate determinable when the purposes of the trust are satisfied.

33          Re-numbered as section 25.1.

34          Re-numbered as section 25.2.

All children legitimate

35(1)       In the construction of testamentary dispositions, except where a contrary intention appears by the will, a child, whether born inside or outside marriage, shall be treated as the legitimate child of the child's natural parents unless, before the will takes effect, the relationship is severed by adoption.

Relationship by adoption

35(2)       In the construction of testamentary dispositions, except where a contrary intention appears in the will, the words "child", "issue" or "descendant" where used to refer to the child, issue or descendant of the testator or a specified person include a person related by or through adoption to the testator or the specified person and other words denoting other relationships to the testator or a specified person include persons standing in that relationship to the testator or that specified person by or through adoption by another person.

Primary liability of mortgaged land

36(1)       Where a person dies possessed of, or entitled to, or under a general power of appointment by will disposes of, an interest in freehold or leasehold property which, at the time of the death of the person, is subject to a mortgage, and the deceased has not, by will, deed, or other document, signified a contrary or other intention, the interest is, as between the different persons claiming through the deceased, primarily liable for the payment or satisfaction of the mortgage debt; and every part of the interest, according to its value, bears a proportionate part of the mortgage debt on the whole interest.

Signifying contrary intention

36(2)       A testator does not signify a contrary or other intention within subsection (1) by

(a) a general direction for the payment of debts or of all debts of the testator out of his personal estate or his residuary real or personal estate; or

(b) a charge of debts upon that estate;

unless he further signifies that intention by words expressly or by necessary implication referring to all or some part of the mortgage debt.

Saving

36(3)       Nothing in this section affects a right of a person entitled to the mortgage debt to obtain payment or satisfaction either out of the other assets of the deceased or otherwise.

"Mortgage" defined

36(4)       In this section "mortgage" includes an equitable mortgage, and any charge whatsoever, whether legal, equitable, statutory or of other nature, including a lien or claim upon freehold or leasehold property for unpaid purchase money, and "mortgage debt" has a meaning similarly extended.

Executor as trustee of residue

37(1)       Where a person dies after March 11, 1936, having by will appointed a person executor, the executor is a trustee of any residue not expressly disposed of, for the person or persons, if any, who would be entitled to that residue in the event of intestacy with respect thereto, unless the person so appointed executor was intended by the will to take the residue beneficially.

Saving

37(2)       Nothing in this section affects or prejudices a right to which the executor, if this Part had not been passed, would have been entitled, in cases where there is not a person who would be so entitled.

Application of this Part

38(1)       Subject to subsections (2), (3) and (4), this Part applies only to wills made after April 16, 1964; and for the purposes of this Part a will that is re-executed or is revived by a codicil shall be deemed to be made at the time it is so re-executed or revived.

Application of anti-lapse provisions

38(2)       Where a person dies on or after April 16, 1964 but before the coming into force of this subsection, section 34 of The Wills Act, R.S.M. 1988, c. W150, notwithstanding its repeal, applies to the will of the person whether it was made before or after April 16, 1964.

Subsecs. 12(3) and 13(2) and sec. 23

38(3)       Where a person dies on or after October 1, 1983, subsections 12(3) and 13(2) and section 23 apply to the will of the person whether it was made before or after that date but subsections 12(3) and 13(2) and section 23 do not apply to the will of a person who died before that date.

Application of section 25.2

38(4)       Where a person dies on or after the day this subsection comes into force, section 25.2 applies to the will of the person whether it was made before or after that date.

S.M. 1989-90, c. 44, s. 6 to 8.

PART II

CONFLICT OF LAWS

Definitions

39          In this Part,

"interest in land" includes a leasehold estate as well as a freehold estate in land, and any other estate or interest in land whether the estate or interest is real property or is personal property; (« intérêt foncier »)

"interest in movables" includes an interest in tangible or intangible things other than land, and includes personal property other than an estate or interest in land; and (« intérêt mobilier »)

"internal law" in relation to any place excludes the choice of law rules of that place. (« droit interne »)

Application of Part

40          This Part applies to a will made either in or out of this province.

Interests in land under will

41(1)       The manner and formalities of making a will, and its intrinsic validity and effect, so far as it relates to an interest in land, are governed by the internal law of the place where the land is situated.

Interest in movables under will

41(2)       Subject to other provisions of this Part, the manner and formalities of making a will, and its intrinsic validity and effect, so far as it relates to an interest in movables, are governed by the internal law of the place where the testator was domiciled at the time of the death of the testator.

Validity re. movables

42(1)       As regards the manner and formalities of making a will of an interest in movables, a will is valid and admissible to probate if at the time of its making it complied with the internal law of the place

(a) where the will was made; or

(b) where the testator was domiciled at that time; or

(c) of the testator's habitual residence at that time; or

(d) where the testator was a national at that time if there was in that place one body of law governing the wills of nationals.

Properly made wills re. movables

42(2)       Without prejudice to subsection (1), as regards the manner and formality of making a will of an interest in movables, the following are properly made:

(a) A will made on board a vessel or aircraft of any description, if the making of the will conformed to the internal law in force in the place with which, having regard to its registration, if any, and other relevant circumstances, the vessel or aircraft may be taken to have been most closely connected.

(b) A will so far as it revokes a will which under this Part would be treated as properly made or revokes a provision which under this Part would be treated as comprised in a properly made will, if the making of the later will conformed to any law by reference to which the revoked will or provision would be treated as properly made.

(c) A will so far as it exercises a power of appointment, if the making of the will conforms to the law governing the essential validity of the power.

Change of domicile

43          A change of domicile of the testator occurring after a will is made does not render it invalid as regards the manner and formalities of its making or alter its construction.

Construction of will

44          Nothing in this Part precludes resort to the law of the place where the testator was domiciled at the time of making a will in aid of its construction as regards an interest in land or an interest in movables.

Movables related to land

45          Where the value of a thing that is movable consists mainly or entirely in its use in connection with a particular parcel of land by the owner or occupier of the land, succession to an interest in the thing under a will is governed by the law that governs succession to the interest in the land.

Formalities

46(1)       Where, whether in pursuance of this Part or not, a law in force outside this Province is to be applied in relation to a will, any requirement of that law that

(a) special formalities are to be observed by testators answering a particular description; or

(b) witnesses to the making of a will are to possess certain qualifications;

shall be treated, notwithstanding any rule of that law to the contrary, as a formal requirement only.

Curative effect

46(2)       In determining for the purposes of this Part whether or not the making of a will conforms to a particular law, regard shall be had to the formal requirements of that law at the time the will was made but this shall not prevent account being taken of an alteration of law affecting wills made at that time if the alteration enables the will to be treated as properly made.

Application of Part

47(1)       This Part applies to the will of a testator who dies after June 30, 1975, whether the will was made before, on, or after June 30, 1975.

Saving clause for old wills

47(2)       Where a will of a testator who dies after June 30, 1975 was made before July 1, 1975, if the will would have been valid in whole or in part under the law of Manitoba as it was on the date that the will was made had the testator died before that law was changed, nothing in this Part diminishes or detracts from that validity.

Effect of former Part II

47(3)       Subject to subsection (1), notwithstanding the repeal of Part II of The Wills Act, as it was set out in chapter W150 of the Revised Statutes of Manitoba, 1970, that Part II, so repealed, continues to apply to wills made on or after July 1, 1955 and before July 1, 1975, and to that extent, and for that purpose, shall be deemed to remain in full force and effect.

Effect of Part II of R.S.M., 1954

47(4)       Subject to subsection (1) and subsection 60(1), notwithstanding the repeal of Part II of The Wills Act, as it was set out in chapter 293 of the Revised Statutes of Manitoba, 1954, that Part II, so repealed, continues to apply to wills made before July 1, 1955, and to that extent, and for that purpose, shall be deemed to be in full force and effect.

PART III

INTERNATIONAL WILLS

Definitions

48          In this Part,

"convention" means the convention providing a uniform law on the form of international will, a copy of which is set out in the schedule to this Act; (« Convention »)

"international will" means a will that has been made in accordance with the rules regarding an international will set out in the Annex to the convention; (« testament international »)

"registrar" means the person responsible for the operation and management of the registration system; (« registraire »)

"registration system" means a system for the registration, or the registration and safekeeping, of international wills established under section 53 or pursuant to an agreement entered into under section 54. (« système d'enregistrement »)

Application of convention

49          On, from and after February 9, 1978, the convention is in force in the province and applies to wills as law of the province.

Rules re. international will

50          On, from and after February 9, 1978, the rules regarding an international will set out in the Annex to the convention are law in the province.

Validity under other laws

51          Nothing in this Part detracts from or affects the validity of a will that is valid under the laws in force within the province other than this Part.

Authorized persons

52          All members of The Law Society of Manitoba are designated as persons authorized to act in connection with international wills.

53          Not yet proclaimed.

54          Not yet proclaimed.

55          Not yet proclaimed.

56          Not yet proclaimed.

57          Not yet proclaimed.

Regulations

58          The Lieutenant Governor in Council may make regulations respecting the operation, maintenance and use of the registration system, and without limiting the generality of the foregoing, may make regulations

(a) prescribing forms for use in the system; and

(b) prescribing fees for searches of the registration system.

PART IV

GENERAL

Act subject to Homesteads and Family Property Acts

59           This Act is subject to The Homesteads Act and Part IV of The Family Property Act respecting the equalization of assets after the death of a spouse or common-law partner.

S.M. 1992, c. 46, s. 66; S.M 2002, c. 48, s. 25.

Application of 1913 Act

60(1)       Subject to subsections 38(2), (3) and (4) and subsection 47(1), The Manitoba Wills Act, being chapter 204 of the Revised Statutes of Manitoba, 1913, continues in force in respect of wills made before March 12, 1936.

Application of 1954 Act

60(2)       Subject to subsections 38(2), (3) and (4), Part I of The Wills Act, as it was set forth in chapter 293 of the Revised Statutes of Manitoba, 1954, continues in force in respect of wills made on or after March 12, 1936 and before April 16, 1964.

S.M. 1989-90, c. 44, s. 9.

Commencement

61          Sections 53, 54, 55, 56 and 57 come into force on a day fixed by proclamation.

SCHEDULE

CONVENTION PROVIDING A UNIFORM LAW ON THE FORM OF AN INTERNATIONAL WILL

The States signatory to the present Convention,

DESIRING to provide to a greater extent for the respecting of last wills by establishing an additional form of will hereinafter to be called an "international will" which, if employed, would dispense to some extent with the search for the applicable law;

HAVING RESOLVED to conclude a Convention for this purpose and have agreed upon the following provisions:

Article I

1. Each Contracting Party undertakes that not later than six months after the date of entry into force of this Convention in respect of that Party it shall introduce into its law the rules regarding an international will set out in the Annex to this Convention.

2. Each Contracting Party may introduce the provisions of the Annex into its law either by reproducing the actual text, or by translating it into its official language or languages.

3. Each Contracting Party may introduce into its law such further provisions as are necessary to give the provisions of the Annex full effect in its territory.

4. Each Contracting Party shall submit to the Depository Government the text of the rules introduced into its national law in order to implement the provisons of this Convention.

Article II

1. Each Contracting Party shall implement the provisions of the Annex in its law, within the period provided for in the preceding article, by designating th persons who, in its territory, shall be authorized to act in connection with international wills. It may also designate as a person authorized to act with regard to its nationals its diplomatic or consular agents abroad insofar as the local law does not prohibit it.

2. The Party shall notify such designation, as well as any modifications thereof, to the Depositary Government.

Article III

The capacity of the authorized person to act in connection with an international will, if conferred in accordance with the law of a Contracting Party, shall be recognized in the territory of the other Contracting Parties.

Article IV

The effectiveness of the certificate provided for in Article 10 of the Annex shall be recognized in the territories of all Contracting Parties.

Article V

1. The conditions requisite to acting as a witness of an international will shall be governed by the law under which the authorized person was designated. The same rule shall apply as regards an interpreter who is called upon to act.

2. Nonetheless no one shall be disqualified to act as a witness of an international will solely because he is an alien.

Article VI

1. The signature of the testator, of the authorized person, and of the witnesses to an international will, whether on the will or on the certificate, shall be exempt from any legalization or like formality.

2. Nonetheless, the competent authorities of any Contracting Party may, if necessary, satisfy themselves as to the authenticity of the signature of the authorized person.

Article VII

The safekeeping of an international will shall be governed by the law under which the authorized person was designated.

Article VIII

No reservation shall be admitted to this Convention or to its Annex.

Article IX

1. The present Convention shall be open for signature at Washington from October 26, 1973, until December 31, 1974.

2. The Convention shall be subject to ratification.

3. Instruments of ratification shall be deposited with the Government of the United States of America, which shall be the Depositary Government.

Article X

1. The Convention shall be open indefinitely for accession.

2. Instruments of accession shall be deposited with the Depositary Government.

Article XI

1. The present Convention shall enter into force six months after the date of deposit of the fifth instrument of ratification or accession with the Depositary Government.

2. In the case of each State which ratifies this Conventions or accedes to it after the fifth instrument of ratification or accession has been deposited, this Convention shall enter into force six months after the deposit of its own instrument of ratification of accession.

Article XII

1. Any Contracting Party may denounce this Convention by written notification to the Depositary Government.

2. Such denunciation shall take effect twelve months from the date on which the Depositary Government has received the notification, but such denunciation shall not affect the validity of any will made during the period that the Convention was in effect for the denouncing State.

Article XIII

1. Any State may, when it deposits its instrument of ratification or accession or at any time thereafter, declare, by a notice addressed to the Depositary Government, that this Convention shall apply to all or part of the territories for the international relations of which it is responsible.

2. Such declaration shall have effect six months after the date on which the Depositary Government shall have received notice thereof or, if at the end of such period the Convention has not yet come into force, from the date of its entry into force.

3. Each Contracting Party which has made a declaration in accordance with paragraph 1 of this Article may, in accordance with Article XII, denounce this Convention in relation to all or part of the territories concerned.

Article XIV

1. If a State has two or more territorial units in which different systems of law apply in relation to matters respecting the form of wills, it may at the time of signature, ratification, or accession, declare that this Convention shall extend to all its territorial units or only to one or more of them, and may modify its declaration by submitting another declaration at any time.

2. These declarations shall be notified to the Depositary Government and shall state expressly the territorial units to which the Convention applies.

Article XV

If a Contracting Party has two or more territorial units in which different systems of law apply in relation to matters respecting the form of wills, any reference to the internal law of the place where the will is made or to the law under which the authorized person has been appointed to act in connection with international wills shall be construed in accordance with the constitutional system of the Party concerned.

Article XVI

1. The original of the present Convention, in the English, French, Russian and Spanish languages, each version being equally authentic, shall be deposited with the Goverment of the United States of America, which shall transmit certified copies thereof to each of the signatory and acceding States and to the International Institute for the Unification of Private Law.

2. The Depositary Government shall give notice to the signatory and acceding States, and to the International Instituted for the Unification of Private Law, of:

(a) any signature;

(b) the deposit of any instrument of ratification or accession;

(c) any date on which this Convention enters into force in accordance with Article XI;

(d) any communication received in accordance with Article I, paragraph 4;

(e) any notice received in accordance with Article II, paragraph 2;

(f) any declaration received in accordance with Article XIII, paragraph 2, and the date on which such declaration takes effect;

(g) any denunciation received in accordance with Article XII, paragraph 1, or Article XIII, paragraph 3, and the date on which the denunciation takes effect;

(h) any declaration received in accordance with Article XIV, paragraph 2, and the date on which the declaration takes effect.

ANNEX TO THE CONVENTION — RULES REGARDING AN INTERNATIONAL WILL

Article 1

1. A will shall be valid as regards form, irrespective particularly of the place where it is made, of the location of the assets and of the nationality, domicile or residence of the testator, if it is made in the form of an international will complying with the provisions set out in Articles 2 to 5 hereinafter.

2. The invalidity of the will as an international will shall not affect its formal validity as a will of another kind.

Article 2

This law shall not apply to the form of testamentary dispositions made by two or more persons in one instrument.

Article 3

1. The will shall be made in writing.

2. It need not be written by the testator himself.

3. It may be written in any language, by hand or by any other means.

Article 4

1. The testator shall declare in the presence of two witnesses and of a person authorized to act in connection with international wills that the document is his will and that he knows the contents thereof.

2. The testator need not inform the witnesses, or the authorized person, of the contents of the will.

Article 5

1. In the presence of the witnesses and of the authorized person, the testator shall sign the will or, if he has previously signed it, shall acknowledge his signature.

2. When the testator is unable to sign, he shall indicate the reason therefor to the authorized person who shall make note of this on the will. Moreover, the testator may be authorized by the law under which the authorized person was designated to direct another person to sign on his behalf.

3. The witnesses and the authorized person shall there and then attest the will by signing in the presence of the testator.

Article 6

1. The signatures shall be placed at the end of the will.

2. If the will consists of several sheets, each sheet shall be signed by the testator or, if he is unable to sign, by the person signing on his behalf or, if there is no such person, by the authorized person. In addition, each sheet shall be numbered.

Article 7

1. The date of the will shall be the date of its signature by the authorized person.

2. This date shall be noted at the end of the will by the authorized person.

Article 8

In the absence of any mandatory rule pertaining to the safekeeping of the will, the authorized person, shall ask the testator whether he wishes to make a declaration concerning the safekeeping of his will. If so and at the express request of the testator the place where he intends to have his will kept shall be mentioned in the certificate provided for in Article 9.

Article 9

The authorized person shall attach to the will a certificate in the form prescribed in Article 10 establishing that the obligations of this law have been complied with.

Article 10

The certificate drawn up by the authorized person shall be in the following form or in a substantially similar form:

CERTIFICATE (Convention of October 26, 1973)

1. I, ............................... (name, address and capacity), a person authorized to act in connection with international wills.

2. Certify that on ......................... (date) at .................. (place)

3. (testator) ...................................... (name, address date and place of birth)

in my presence and that of the witnesses

4.

(a) ........................ (name, address, date and place of birth)

(b) ........................ (name, address, date and place of birth)

has declared that the attached document is his will and that he knows the contents thereof.

5.

I furthermore certify that:

6.

(a) in my presence and in that of the witnesses

(1) the testator has signed the will or has acknowledged his signature previously affixed.

*(2) following a declaration of the testator stating that he was unable to sign his will for the following reason

............................................................

I have mentioned this declaration on the will

*the signature has been affixed by

............................................................

(name, address)

7.

(b) the witnesses and I have signed the will;

8.

*(c) each page of the will has been signed by ...................... and numbered;

9.

(d) I have satisfied myself as to the identity of the testator and of the witnesses as designated above;

10.

(e) the witnesses met the conditions requisite to act as such according to the law under which I am acting;

11.

*(f) the testator has requested me to include the following statement concerning the safekeeping of his will:

.......................................................................

.......................................................................

12.                 PLACE

13.                 DATE

14.                   SIGNATURE and, if necessary,

                SEAL

* To be completed if appropriate.

Article 11

The authorized person shall keep a copy of the certificate and deliver another to the testator.

Article 12

In the absence of evidence to the contrary, the certificate of the authorized person shall be conclusive of the formal validity of the instrument as a will under this Law.

Article 13

The absence or irregularity of a certificate shall not affect the formal validity of a will under this Law.

Article 14

The international will shall be subject to the ordinary rules of revocation of wills.

Article 15

In interpreting and applying the provisions of this law, regard shall be had to its international origin and to the need for uniformity in its interpretation.

S.M. 2004, c. 42, s. 57.

NOTE: This Act was enacted as part of the roll of statutes re-enacted by SM 1988, c. 1, and designated as the Re-enacted Statutes of Manitoba, 1988. Except as otherwise provided in those Acts, they came into force on October 19, 1988 (the day that SM 1998, c. 1 received royal assent).