|This is an unofficial archived version of The Devolution of Estates Act|
as enacted by SM 1987-88, c. 9 on July 17, 1987.
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R.S.M. 1987, c. D70
The Devolution of Estates Act
|Table of Contents|
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act, "land" include lands, messuages, tenements and hereditaments, corporeal and incorporeal, of every kind and description, whatever the estate or interest therein may be, and whether legal or equitable, together with all paths, passages, ways, watercourses, liberties, privileges, easements, mines, minerals and quarries appertaining thereto, and all trees and timber, thereon and thereunder lying or being, unless any of them are specially excepted.
All the provisions of this Act are subject to The Dower Act.
When any person dies intestate, either the real or the personal estate of the deceased or both, except in so far as either or both may be excepted by any law or enactment, are chargeable with all legal debts, liabilities and funeral expenses.
In sections 5 to 15,
"estate" includes both real and personal property; ("succession") and
"issue" includes all lawful lineal descendants of the ancestor. ("descendant")
Where the estate of an intestate who dies leaving a widow and issue does not exceed the value of $50,000. the whole of his estate shall go to the widow.
Where the estate of an intestate who dies leaving a widow and issue exceeds the value of $50, 000. the widow is entitled
(a) to $50,000. and has a charge upon the estate for that amount, without interest; and
(b) to one-half of the residue remaining after . deducting the $50,000.
If a child has died leaving issue and the issue is alive at the date of the intestate's death, the widow shall take the same share of the estate as if the child had been living at that date.
If an intestate dies leaving issue, his estate shall be distributed, subject to the rights of the widow, if any, per stirpes among the issue.
If an intestate dies leaving a widow, but no issue, his estate shall go to his widow.
If an intestate dies leaving no widow or issue, his estate shall go to his father and mother in equal shares if both are living; but if either of them is dead the estate shall go to the survivor.
If an intestate dies leaving no widow, issue, father or mother, his estate shall go to his brothers and sisters in equal shares, and if any brother or sister is dead, the children of the deceased brother or sister shall take the share their parent would have taken if living.
If an intestate dies leaving no widow, issue, father, mother, brother or sister, his estate shall go to his nephews and nieces in equal shares and in no case shall representation be admitted.
If an intestate dies leaving no widow, issue, father, mother, brother, sister, nephew or niece, his estate shall be distributed equally among the next-of-kin of equal degree of consanguinity to the intestate and in no case shall representation be admitted.
For the purposes of this Act, degrees of kindred shall be computed by counting upward from the intestate to the nearest common ancestor and then downward to the relative; and the kindred of the half-blood shall inherit equally with those of the whole-blood in the same degree.
Descendants and relatives of the intestate, begotten before his death but born thereafter, shall inherit as if they had been born in the lifetime of the intestate and had survived him.
If any child of a person who has died wholly intestate has been advanced by the intestate by portion, the portion shall be reckoned, for the purposes of this section only, as part of the estate of the intestate distributable according to law; and, if the advancement is equal to or greater than the share of the estate which the child would be entitled to receive as above reckoned, the child and his descendants shall be excluded from any share in the estate; but if the advancement is not equal to the share, the child and his descendants shall be entitled to receive so much only of the estate of the intestate as is sufficient to make all the shares of the children in the estate and advancement equal as nearly as can be estimated.
The value of any portion advanced shall be deemed to be that which has been expressed by the intestate or acknowledged by the child in writing, otherwise the value is the value of the portion when advanced.
The onus of proving that a child has been maintained or educated, or has been given money, with a view to a portion, shall be upon the person so asserting, unless the advancement has been expressed by the intestate, or acknowledged by the child, in writing.
All such estate as is not disposed of by will shall be distributed as if the testator had died intestate and had left no other estate.
Where a person dies leaving a widow and issue and leaves property to his widow under a will, if there is property in the estate of the deceased that is not disposed of by will, any amount that goes to the widow under section 5, or the $50,000. to which the widow is entitled and for which she has a charge upon the estate under subsection 6(1), out of the property that is not disposed of by will, shall be reduced by the value at the date of death of the property left to her under the will of the deceased; and the balance of the property that is not disposed of by will after paying the widow the reduced amount mentioned above shall be distributed as provided in clause 6(1)(a) or (b), as the case may be, and in subsections 6(2) and (3).
Where a person dies leaving a widow and issue, and the widow receives a portion of the estate under this Act or under the provisions of a will, if the widow is entitled to share in the distribution of any property under section 34 of The Wills Act by reason of the deceased dying before a testator who leaves property to the deceased, any amount that goes to the widow under section 5, or the $50,000. to which the widow is entitled and for which she has a charge upon the estate under subsection 6(1), from and out of property being distributed under section 34 of The Wills Act, shall be reduced by the value at the date of death of the property which she received under this Act or under the provisions of the will of the deceased; and the balance of the property to be distributed under section 34 of The Wills Act after paying the widow the reduced amount mentioned above shall be distributed as provided in clause 6(l)(a) or (b) and in subsections 6(2) and (3).
The estate of a woman dying intestate shall be distributed in the same proportions and in the same manner as the estate of a man so dying.
From and after July 1, 1885, land in the province, whatever the estate or interest therein, vested in any person without a right in any other person to take by survivorship, went and hereafter goes, notwithstanding any testamentary disposition thereof, to the personal representatives of deceased owners thereof in the same manner as personal estate goes.
This section applies to any land over which a person executes, by will, a general power of appointment as if it were land vested in him.
Subject to the powers, rights, duties, and liabilities hereinafter mentioned, the personal representatives of a deceased person shall hold the land as trustees for the persons by law beneficially entitled thereto, and those persons have the same powers of requiring a transfer of land as persons beneficially entitled to personal estate have of requiring a transfer of the personal estate.
All enactments and rules of law relating to the effect of probate or letters of administration, as respects chattels real, and as respects the dealing with chattels real before probate or administration, and as respects the payment of costs of administration and other matters in relation to the administration of personal estate, and the powers, rights, duties, and liabilities of personal representatives, in respect of personal estate, apply to land, so far as they are applicable, as if that land were a chattel real vesting in them or him, save that some or one only of several joint personal representatives shall not, without the authority of the Registrar-General, sell or transfer land.
In the administration of the assets of a deceased person his land shall be administered in the same manner, subject to the same liabilities for debts, costs, and expenses, and with the same incidents, as if it were personal estate; but nothing herein alters or affects the order in which real and personal assets, respectively, are now applicable in or towards the payment of funeral or testamentary expenses, debts, or legacies, or the liability of land to be charged with the payment of legacies.
At any time after the expiration of one year from the date of letters probate or administration, as the case may be, if the personal representative has failed, on the request of the person entitled to a conveyance of land under the terms of the will of the testator, to convey the land to the person or persons so entitled, or where the lands are not specifically devised, and in the case of administration, the personal representative has not within this same time sold the lands, then, on the request of the person or persons so entitled to a conveyance or of the majority of the persons of adult age beneficially interested in the proceeds of the sale of the lands, the judge of the court whence the letters probate or of administration issued,
(a) may, after 14 days written notice, in such form as he may direct, to the personal representative and to all persons beneficially interested, order that a conveyance of the lands so specifically devised be made by the personal representative to the person or persons entitled thereto, within a time stated in the order; and
(b) in the case of lands not specifically devised and of lands vested in an administrator as such, may order that the lands be sold on such terms, and within such time, as is stated in the order.
In the case of infants a notice issued under subsection (6) shall be served on the Public Trustee in his capacity as official guardian.
In default of compliance by a personal representative with an order made under clause (6)(a), the judge may issue a vesting order vesting the title to the lands in the person or persons entitled thereto as fully and completely as might have been done by a conveyance thereof from the personal representative.
In the event of the personal representative failing to carry out and execute an order under clause (6)(b) within such time as the judge may deem reasonable, an order may be obtained by any person beneficially interested in the lands referring the matter to the master or local master and directing a sale of the lands; and the sale so far as practicable shall be conducted, and the proceeds thereof dealt with, according to The Law of Property Act respecting partition, and the rules of the Court of Queen's Bench, and on such terms of cash or credit or part cash and part credit as the judge may order.
In the case of a person dying on or after July 1, 1885, in the interpretation of any Act of the Legislature, or in the construction of any instrument to which the deceased was a party or in which he was interested, the expression "heirs" or "heirs and assigns", or "heirs, executors, administrators or assigns", or any expression of similar import, shall be construed to mean his personal representative, unless a contrary intention clearly appears.
Notwithstanding anything in this Act, all conveyances and leases made by the heir or heirs of a deceased owner of lands, or of an estate or interest therein, and all proceedings taken by way of foreclosure or sale or notice of sale under mortgage, or by way of administration or partition in equity, by or against heirs of any such deceased owner, before September 4, 1885, shall be deemed to have been good and valid, and to have been as effectual to pass the title to the lands as if the conveyances and releases had been executed or the proceedings taken by or against the personal representatives of the deceased owner.
Where, by or under a mortgage, whether under the new or old system as defined in The Real Property Act, and whenever made, a notice is stipulated to be given to the mortgagor, his heirs or assigns, the notice may be given, in cases where the mortgagor or his assign is dead, to the executor or administrator of the deceased person; and the notice is as effectual as if given in conformity with the stipulation.
Subject to subsection (2), a personal representative in whom land is vested under this Act may sell and convey the land.
(a) infants or mentally disordered persons are beneficially interested in the land, as heirs or devisees; or
(b) there are contingent interests or interests not yet vested under a will; or
(c) the heirs or persons beneficially interested are not yet determined; or
(d) adult heirs or adult devisees do not concur in the sale;
and there are no debts, no sale made under subsection (1) is valid unless the sale is made with the approval of the Registrar-General, or a judge of the Court of Queen's Bench upon such terms as he may prescribe.
At any time after the expiration of one year from the date of letters probate or administration, as the case may be, if the personal representative has failed to sell and dispose of land vested in him under this Act, an heir or person beneficially interested in the land may apply to a judge of the Court of Queen's Bench for an order compelling the personal representative to offer the land, or any portion thereof, for sale on such terms and conditions as he may prescribe.
No order shall be made under subjection (3) unless notice of the application has first been served on the personal representative.
An heir or person beneficially interested in land mentioned in this section may attend on any application made under this section and oppose the granting of an order.
Subject to subsection (2), a personal representative in whom the mines and minerals in, on, or under land are vested under this Act may grant, or join in, or consent to, grants of, rights and licences to search for, mine for, drill for, take, win or gain and remove, the minerals or any specified mineral by instrument commonly called a "lease" or otherwise.
(a) infants or mentally disordered persons are beneficially interested in the mines and minerals as heirs or devisees; or
(b) there are contingent interest or interests not yet vested under a will; or
(c) the heirs or persons beneficially interested are not yet determined; or
(d) adult heirs or adult devisees do not concur in the grant, consent or instrument;
no such grant or consent is valid unless it is made with the approval of a judge of the Court of Queen's Bench in which the land lies, upon such terms as he may prescribe.
An heir or person beneficially interested in the mines and minerals mentioned in this section may attend on any application made under this section and oppose the granting of an order.
Nothing in this section requires the consent of any person or the approval of a judge to a grant of a mining lease by a personal representative which the personal representative is empowered, under The Trustee Act, to grant without such consent or approval.
In case of a sale of land by an executor or administrator without having had the sale approved by the proper person appointed for that purpose by an Act of the Legislature, where that approval is necessary, the Registrar-General may, if he thinks proper to do so, confirm any such sale upon such terms as he may order; and the sale, when so confirmed, shall be as fully valid as if it had been approved by the proper person at the time the sale was made; and all such sales heretofore approved by the Registrar-General are hereby confirmed and declared valid.
Such of the provisions of sections 16 and 20 as are not merely declaratory of what the law was prior to March 16, 1906, are not retroactive so as to affect any rights conferred before that date.
For the purposes of this Act, the Registrar-General has, and shall be deemed always to have had, all the powers conferred upon a district registrar by clauses 22(1)(b) and (c) of The Real Property Act.