Skip to main content
The Dower Act
This is an unofficial archived version of The Dower Act
as enacted by SM 1988-89, c. 1 on October 19, 1988.

R.S.M. 1988, c. D100

The Dower Act

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

Definitions.

1

In this Act,

"attorney" means a person authorized to act for and oh behalf of another person under a valid written power of attorney ; ("procureur")

"committee" means a person appointed, under The Mental Health Act, by the Court of Queen's Bench to whom the custody and management of the estate of a mentally disordered person is committed, including the Public Trustee where, he has been so appointed, or is, under The Mental Health Act, the committee of the estate of a mentally disordered person; ("curateur")

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

"disposition" includes every grant, transfer, sale, agreement of sale, grant of an option to purchase, mortgage (legal or equitable), encumbrance, charge, lien, lease for more than three years, and every other disposition of the homestead by Act inter vivos, and every devise or other disposition thereof made by will; but does not include a registered certificate of judgment within the meaning of The Judgments Act, or the lien or charge on lands created by the recording or registration of a certificate of judgment; or a lease made for a period not exceeding three years, or a lien under The Builders' Liens Act; ("aliénation")

"executor" includes an administrator with will annexed; ("exécuteur testamentaire")

"homestead" means

(a) a dwelling house in a city, town, or village, occupied by the owner thereof and his wife as their home, and the lands and premises appurtenant thereto, consisting of not more than six lots or one block (where the block is not subdivided into lots) as shown on a plan duly registered in the proper land titles office, or registry office, and not more than one acre where the land is described otherwise than by registered plan;

(b) a dwelling house outside a city, town, or village, occupied by the owner thereof and his wife as their home, and the lands and premises appurtenant thereto, consisting of not more than 320 acres; but where the lands and premises of the owner consist of 320 acres not in a block, any part thereof in the same section or across a road or highway from that portion thereof on which the dwelling house is situated shall for the foregoing purposes be appurtenant to that portion; and if the lands and premises of the owner exceed 320 acres in the same section the homestead shall be the 160 acres on which the dwelling house is situated and such other 160 acres, being a quartersection, in that section as the owner designates; ("domicile familial")

"insurance policies on the life of the testator" includes

(a) contracts of life insurance within the meaning of Part V of The Insurance Act effected by the testator on his own life;

(b) contracts of group insurance within the meaning of Part V of The Insurance Act, whereby the life of a testator is insured; and (c) any contracts or plans entered into by the testator or maintained, under statute or otherwise, by his employer or former employer or by Her Majesty or any other person, whereby on his death or at a fixed or determinable time payments by way of annuity, superannuation, pension, or death benefits, become payable; ("polices d'assurance sur la vie du testateur")

"mentally disordered person" has the meaning given to that expression in The Mental Health Act; ("personne atteinte de troubles mentaux")

"net estate" means all the net real and personal property of a testator, together with all moneys paid or payable after the testator's death under or by virtue of insurance policies on the life of the testator to or for the benefit of the wife or any child of the testator, and together with any property owned at the time of the testator's death by the wife for her own use or then held in trust for her, and which is property (or the proceeds or investments of property) that the testator had during his life after marriage conveyed to the wife or for her benefit as a gift or by way of advancement; ("succession nette")

"net real and personal property" means all the real and personal property wheresoever situated (including the homestead) belonging to a testator at the time of his death and the proceeds or realizations of every part thereof, after all debts, funeral and testamentary expenses, probate fees, succession duties, and inheritance taxes or other charges of a similar nature, and costs of administration, have been paid, provided for, or taken into account; ("biens réels et personnels nets")

"probate" includes a probate of a will granted in this province and a probate of a will granted elsewhere (or exemplification thereof) that has been sealed in this province under the provisions of The Court of Queen's Bench Surrogate Practice Act, and includes a grant of letters of administration with will annexed; ("homologation")

"will" has the meaning given to it by The Wills Act. ("testament")

CONSENT OR RELEASE TO DISPOSITION OF HOMESTEAD

Consent of wife to disposition.

2

Except as hereinafter otherwise provided, every disposition by Act inter vivos of any interest in the homestead of a married man made at any time after the coming into force of this Act, shall be invalid and ineffective in so far as the homestead is concerned unless

(a) his wife consents in writing to the disposition; or

(b) the disposition is in favour of his wife; or

(c) she has released in favour of her husband all her rights in the homestead as hereinafter provided; or

(d) having an estate or interest in the homestead in addition to her rights under this Act, she is, for the purpose of making a disposition of her estate or interest, a party to the disposition made by her husband, and execute it for that purpose.

Husband forbidden to act as attorney.

3

A husband shall not execute, as attorney for his wife, a disposition to which reference is made in clause 2(d).

Consent of wife to change of homestead.

4(1)

The homestead of a married man continues to be his homestead, notwithstanding that the married man may have changed his home, unless and until the wife consents in writing to the change of homestead, or releases in favour of her husband all her rights in the homestead, or until the homestead is sold in accordance with this Act.

Only one homestead.

4(2)

The rights of a married woman under this Act in respect of a homestead do not apply to more than one homestead at any one time.

Change of home without consent.

4(3)

Where the home of a married man is changed without the consent in writing of the wife to the change, or without such a release being given, no dwelling house subsequently occupied by the married man as his home and lands and premises appurtenant thereto becomes the homestead within the meaning of this Act unless and until such a consent in writing to the change is given, or such a release is given, or until the former homestead is sold in accordance with this Act.

Election after death of husband.

4(4)

Where, by reason of a husband and wife leaving the homestead and taking up residence in another dwelling house without the consent in writing of the wife to a change of homestead, the dwelling house in which they resided at the time of death of the husband was not the homestead of the husband, his widow may elect

(a) before the expiry of six months after the granting of letters probate of his will or letters of administration of his estate; or

(b) before the expiry of one month after notice has been served upon her by the executor requiring her to make an election under this subsection;

that the dwelling house in which she and her husband resided at the time of death of her husband and the appropriate lands and premises appurtenant thereto, shall be his homestead; and upon the filing in the proper land titles office of an election in writing to that effect, signed by her, that dwelling house and the appropriate lands and premises appurtenant thereto and no other shall be deemed to have been the homestead of the husband at the time of his death.

Form of election.

4(5)

An election made under subsection (4) shall be in writing signed by the widow or her executor and may be in the following form or words to the same effect:

In the matter of the estate of I hereby elect that the land hereinafter described, being the dwelling house in which my husband and I resided at the time of his death, and the appropriate lands and premises appurtenant thereto, be the homestead of my husband at the time of his death. The land herein referred to is described as follows: A.B.

Where widow does not wish to elect.

4(6)

Where, in a case to which subsection (4) applies,

(a) the widow does not make an election within the time mentioned in clause (a) or (b) of that subsection; or

(b) the widow notifies the executor in writing that she does not wish to elect that the dwelling house in which she and her husband resided at the time of his death and the appropriate lands and premises appurtenant thereto, be his homestead;

she is not entitled to make an election under that subsection or to a life interest under this Act in that dwelling house and those lands and premises; and the notice to which reference is made in clause (b) may be in the following form or words to the same effect:

In the matter of the estate of I do not wish to make an election under subsection (4) of section 4 of The Dower Act. A. B.

Written consent to be filed in L.T.O.

5(1)

A consent required for the disposition by Act inter vivos of a homestead or for the purpose of evidencing a change of homestead under this Act shall, in order that any disposition of the homestead may be effectual, be produced and filed in the proper land titles office or registry office in that behalf.

Form.

5(2)

A consent to a disposition of the homestead may be in Form A or Form B in the Schedule or to the like effect, and a consent to a change of homestead may be in Form D in the Schedule or to the like effect.

Release of rights in favour of husband.

6(1)

A wife may at any time during her life, for valuable consideration, in writing, release in favour of her husband all her rights under this Act in respect of any particular homestead described in the release; and, subject to subsection (3), thereafter the wife has no rights under this Act as against the homestead so released, and it ceases to be a homestead under this Act.

Form.

6(2)

Such a release may be in the Form E in the Schedule or to the like effect.

Termination of release.

6(3)

A husband and wife may terminate a release given under subsection (1) respecting a homestead by each of them signing a written consent thereto; and thereupon the property 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.

6(4)

Notwithstanding subsections (1) and (3), a judge of the County Court for the County Court district in which the homestead is situated, on application by either the husband or wife, made at any time, if he is satisfied

(a) that the release was given without adequate valuable consideration having been given therefor;

(b) that the release was given by reason of the husband and wife having been separated;

(c) that the husband and wife have effected a reconciliation by reason of which they have resumed cohabitation; and

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

and, if he deems it otherwise just and reasonable, may make an order terminating the release, and the order has the same effect as a consent given under subsection (3).

Filing of caveat.

6(5)

Where a release has been terminated under this section, the husband or wife may file a caveat or dower notice as provided in section 27.

Withdrawing release filed in L.T.O.

6(6)

Where a release given under subsection (1) has been filed or registered in a land titles office, upon the filing of

(a) a consent to the termination of the release given under subsection (3); or

(b) an order made under subsection (4) terminating the release;

the district registrar shall withdraw the release.

Consent or release by attorney.

7

A consent or release under this Act may be executed, on behalf of a wife, by her attorney, duly appointed by power of attorney under the hand and seal of the wife and expressly authorized by the power of attorney to execute any consent or release under this Act; but a husband shall not execute, as attorney for his own wife, any such consent or release.

Acknowledgment of consent or release.

8(1)

Where a wife executes in person a consent or release under this Act, she shall acknowledge apart from her husband that the same was voluntarily executed by her of her own free will and accord and without any compulsion on the part of her husband, and that she is aware of the nature and effect of the same, and also, in the case of a release to which reference is made in section 6, that she has received valuable consideration for the giving of the release.

Acknowledgment of power of attorney.

8(2)

Where the wife appoints an attorney authorized to give a consent or release under this Act, she shall, at the time of executing the power of attorney, acknowledge apart from her husband that the same was voluntarily executed by her of her own free will and accord and without any compulsion on the part of her husband, and that she is aware of the nature and effect of the same.

Persons who may take acknowledgments.

8(3)

Subject to section 9, such an acknowledgment may be made before any person authorized by The Manitoba Evidence Act to take affidavits; and a certificate in Form F in the Schedule or to the like effect shall be endorsed on or attached to any consent or release or power of attorney executed by a wife under this Act.

Certificate is conclusive evidence.

8(4)

Every certificate of acknowledgment in Form F in the Schedule or to the like effect, duly signed by any authorized person as aforesaid, is conclusive proof of the truth of the statements therein contained, and of the fact that the woman who executed the consent or release or power of attorney, as the case may be, was at the date of the certificate the wife of the man therein named, (and, in the case of a release, is also conclusive proof that the wife received valuable consideration for the giving of the release), except as against any person who, at the time when he acquired any alleged right, title, or interest in the lands thereby affected, had actual knowledge of the untruth of the statements or any of them, or that the woman was not at that date the wife of the man named in the certificate (and, in the case of a release, had actual knowledge that valuable consideration had not been given).

Proof of marriage.

8(5)

Proof as to whether a person who executes a document or instrument affecting land is or is not married, or as to whether the woman who consents to a disposition is the wife of that person, and as to whether the land or any part thereof is or is not his homestead within the meaning of this Act, may be by affidavit or statutory declaration in Form G or Form H in the Schedule or to the like effect, made by that person or by his attorney or, where he is a mentally disordered person, by his committee, or if the land is under the new system, may be by such other evidence or proof as is satisfactory to the district registrar of the district in which the land is situated.

Making of affidavit

8(6)

Subject to section 9, such an affidavit or statutory declaration may be made before any person authorized to take an acknowledgment under this Act.

Where no inquiry need be made.

8(7)

Where proof has been taken by affidavit or statutory declaration as set out in subsection (5), no person acquiring any right, title, or interest in land under or by virtue of a document or instrument in respect of which such an affidavit or statutory declaration has been made, and no district registrar, is bound to make inquiry as to the truth of any of the matters therein alleged as facts; and no such document or instrument is invalid, except as against any person who, at the time when he acquired any alleged right, title, or interest in the lands therein mentioned, had actual knowledge of the untruth of any of such matters, or unless the transaction was tainted with fraud in which that person participated or colluded.

Onus of proof.

8(8)

The onus of proving such actual knowledge, or of proving such fraud, is upon the person alleging it.

Acknowledgment where a mineral interest

9(1)

Where a wife, as provided in section 5, consents to a disposition of a mineral interest as that expression is defined in The Securities Act, the acknowledgment required under subsection 8(1) shall be made before a barrister duly admitted and entitled to practise as such in the province or before a notary public.

Affidavit as to mineral interest.

9(2)

In the case of a disposition of a mineral interest as that expression is defined in The Securities Act, the affidavit or statutory declaration required under subsection 8(5) shall be sworn, affirmed, or declared before a barrister duly admitted and entitled to practise as such in the province or before a notary public.

Acknowledgment by attorney.

10

Where a consent or release is executed

(a) by an attorney for the wife duly appointed under this Act; or

(b) in the case of a wife who is a mentally •incompetent by her committee;

no such acknowledgment or certificate of acknowledgment is necessary as provided in section 8, but the attorney's signature to the consent or release shall be verified by the usual affidavit of execution.

Mortgage encumbrance.

11(1)

No consent by a married woman to a document or instrument intended to have the effect of a mortgage, encumbrance, charge, lien, or other security upon a homestead or any part thereof and no order of a judge dispensing with such a consent shall operate to any greater extent than is necessary to give full effect to the rights of the mortgagee, encumbrancer, chargee, or grantee, under the document or instrument.

Wife to receive one-half of surplus.

11(2)

Where a homestead or any part thereof is sold under any mortgage, encumbrance, charge, lien, or other security, or under any legal process based thereon, the wife of the owner of the homestead is entitled, subject to subsection (3), to a one-half share of any surplus of the purchase money arising from the sale after satisfaction in full of the claim and costs of the mortgagee, encumbrancer, chargee, or grantee, and of any other person having any right, title, or interest in the homestead in priority to any right of the wife under this Act.

Order respecting wife living apart

11(3)

A judge of the court is situated, on application made to him by any person interested, if he finds that the wife of the owner of the homestead has left him with the intention of living separate and apart from him, may by his order direct that the wife shall not have the benefit of subsection (2); and on such an order being made that subsection does not apply to the wife, and she has no right under this Act to any share in the proceeds of the sale.

Order validating defective consent.

12

A judge of the court upon being satisfied that the wife of the owner thereof has executed a consent to the disposition thereof, or to a change thereof, or has executed a release thereof in favour of her husband, or has given an acknowledgment in respect of such a consent or release, voluntarily of her own free will and accord, without any compulsion on the part of her husband and being aware of its nature and effect, and, in the case of an acknowledgment, that it was given apart from her husband, notwithstanding that the proof of the execution of the consent or release or the giving of the acknowledgment is not as required under this Act, or that the consent, release, or acknowledgment lacks some formality required under this Act, may make an order validating the consent, release, or acknowledgment, as the case may be, and thereupon it is as valid as though it were executed or given in every way in accordance with the requirements of this Act.

COURT DISPENSING WITH CONSENT

Where homestead may be sold on order.

13(1)

Where the wife of the owner of a homestead

(a) has been living apart from him for six months or more; or

(b) is a mentally disordered person;

and the owner is desirous of making a disposition of the homestead or any part thereof free from his wife's rights under this Act, a judge of the court may, on application made to him by any person interested, upon such evidence as to him may seem meet, make an order dispensing with the consent of the wife upon such terms and conditions as may appear just.

Charge upon the homestead.

13(2)

The judge may, in his discretion, by the order dispensing with the consent of the wife, direct that an amount, to be fixed by him, shall be paid to or applied for the wife's benefit as he may deem best, or remain a charge upon the homestead, or be otherwise secured for the benefit of the wife.

Provision for wife made by husband.

13(3)

Where it is shown, upon the application, that the husband has made a provision for his wife by marriage settlement, gift inter vivos or otherwise, the judge may take the provision into account in fixing the terms and conditions of the order.

Effect of order.

13(4)

After the making of the order a disposition of the homestead or any part thereof by the husband is, subject to the terms and conditions mentioned in the order, valid and effectual without the consent of the wife in the same manner and to the same extent as if this Act had not been passed.

LIFE ESTATE IN HOMESTEAD

Wife to have life estate.

14(1)

Subject to subsection 4(4), upon the death of a married man whose wife survives him, the wife is entitled to an estate for her natural life in his homestead as fully and effectually, and to the same effect, and under the same conditions, as if he had left her by will such a life estate in the homestead; and every disposition by will of a married man of his homestead, is subject to the life estate of the wife.

Consent by widow.

14(2)

The widow may consent to a disposition of her interest in the homestead of her deceased husband made by the executor of his will or the administrator of his estate.

Form and execution of consent.

14(3)

A consent given under subsection (2) shall be in Form C in the Schedule, or to the like effect; and it shall be executed in the presence of a witness who shall sign his name thereto and verify the signature of the widow by the usual affidavit of execution; but no acknowledgment or certificate of acknowledgment is necessary as provided in section 8.

WIDOW'S SHARE OF ESTATE

Widow to have one-half.

15(1)

Notwithstanding anything contained in The Wills Act, the widow of every testator who by his will has not left her property or otherwise provided for her to the value of at least one-half of the value of his net real and personal property, is entitled to receive from his executor such share of his net real and personal property as, together with all moneys paid or payable under or by virtue of any insurance policies on the life of the testator to her or for her benefit and for her own use, and together with any property owned at the time of the testator's death by her for her own use or then held in trust for her, and which is property (or the proceeds or investments of property) which the testator had during his life after marriage conveyed to her or for her benefit as a gift or by way of advancement, and together with any benefit that the widow had received from the testator during his life under The Marital Property Act or had become entitled to receive from the testator by virtue of a division of assets made during his life under The Marital Property Act, shall equal in value one-half of the testator's net estate, and in addition, is entitled to the life estate in her husband's homestead under the provisions of this Act hereinbefore set out.

Computation of capital value.

15(2)

Where periodic payments become payable to a widow of a testator on the death of her husband, by way of annuity, superannuation allowance, pension, or other death benefits, that are payable to her or for her benefit under insurance policies on the life of the testator, for the purpose of computing the value of the net estate of the testator the capital value of those periodic payments at the date of the death of the testator shall be computed on the basis

(a) of the life expectancy of the widow according to the mortality tables in use at the date of the death of the testator for the purchase of individual life annuities under the Government Annuities Act (Canada) as fixed under that Act; and

(b) of the interest rate in use at the date in respect of the purchase of the annuities to which reference is made in clause (a), as fixed under the Government Annuities Act (Canada).

Exception.

16

Section 15 does not apply to any of the following cases:

(a) where the testator has provided an annual income for his wife during her life of not less than $15,000, whether the provision be by settlement (before or after marriage) or trust deed, or by the will of the testator, or by insurance policies on the life of the testator, or partly by one of such methods and partly by another;

(b) where the testator has by his will left to his wife, or for her benefit and for her own use, property of the value of not less than $250,000 over and above any encumbrances;

(c) where the testator, during his lifetime, has conveyed after marriage to his wife or for her benefit, and for her own use as a gift or by way of advancement, property of which (or of the proceeds or investments of which) she is at the time of his death the legal or equitable owner, and which property or proceeds or investments is or are then of the value of not less than $250,000 over and above any encumbrances thereon;

(d) where the testator has by his will left to his wife, or for her benefit and for her own use, certain property and had also during his lifetime conveyed after marriage to her, or for her benefit and for her own use, as a gift or by way of advancement, property of which (or of the proceeds or investments of which) she is at the time of his death the legal or equitable owner, and the aggregate value of the property left by the will and such other property, proceeds, and investments is not less than $250, 000 over and above any encumbrances thereon;

(e) where the wife receives, or is to receive, for her own benefit under or by virtue of insurance policies on the life of her husband an amount of not less than $250,000, whether payable in instalments or otherwise;

(f) where, at the time of the death of the testator, any two or more of the following;

(i) moneys which the wife of the testator receives, or is to receive, for her own benefit, under or by virtue of any insurance policy or policies on the life of the testator, whether payable in instalments or otherwise;

(ii) property left by the will of the testator to his wife or for her benefit and for her own use;

(iii) property (or the investments or proceeds thereof) which during the lifetime of the testator, after marriage, he conveyed to his wife, or for her benefit and for her own use, as a gift or by way of advancement, and of which she is at the time of his death the legal or equitable owner;

aggregate in value not less than $250,000 over and above any encumbrances;

(g) where, at the time of the death of the testator, any one or more of the following;

(i) moneys which the wife of the testator receives, or is to receive, for her own benefit, under or by virtue of any insurance policy or policies on the life of the testator, whether payable in instalments or otherwise;

(ii) property left by the will of the testator to his wife, or for her benefit and for her own use;

(iii) property (or the investments or proceeds thereof) which during the lifetime of the testator, after marriage, he conveyed to his wife, or for her benefit or for her own use, as a gift or by way of advancement, and of which she is at the time of his death the legal or equitable owner;

is or are in the aggregate of the value of not less than $150,000 over and above any encumbrances, and in addition, the testator has provided an annual income for his widow during her life of not less than $10, 000, whether the income be provided by settlement (before or after marriage) or trust deed, or by the will of the testator, or by insurance policies on the life of the testator, or partly by one of such methods and partly by another.

ELECTION BY WIDOW

Election where husband left will.

17(1)

Subject to subsection (8) and to section 29, in a case to which section 15 applies, the widow shall elect

(a) before the expiry of three months after notice has been served upon her by the executor of the will requiring her to elect; or

(b) where she herself is an executrix, before the expiry of three months after probate of the will has been granted; or

(c) where clause (a) or (b) does not apply, before the expiry of five years after probate of the will has been granted;

whether she desires to take under this Act or the will; and, if within such time no election is made by her, or if within such time she elects to take under the will, she shall be deemed to be a consenting party to the provisions of the will; and the will shall be in all respects in full force and effect and the provisions thereof be carried out in the same manner, and to the like effect, as if this Act had not been passed; and the widow has no rights except as given her under the will.

Form of election.

17(2)

An election as aforesaid to be made by a widow shall be in writing signed by the widow or her executor or administrator and may be in the form following, or words to that effect, namely:

(a) (if election is to take under the will) In the matter of the estate of I hereby elect to take under my husband's will. A.B.

(b) (if election is to take under this Act) In the matter of the estate of I hereby elect to take under The Dower Act, and not under my husband's will. A.B.

Election shall be filed.

17(3)

Subject to section 29, such an election shall be filed within the time aforesaid and not thereafter in the Court; and the registrar of the Court shall give to any person applying therefor a certificate under his hand and the seal of the court showing what election, if any, has been made pursuant to this Act.

Where notice to elect not given.

17(4)

Where notice to which reference is made in subsection (1) has not been given by the executor within one year from the granting of probate, except where the widow herself is an executrix, any person interested in the estate may, on notice to the widow and to the executor, apply to the judge of the court for an order directing the widow to elect within such time as the judge may direct.

Effect of failure to comply.

17(5)

Failure to comply with the terms of the order shall in all respects have the same effect as non-compliance with a notice served upon the widow by the executor as provided in subsection (1).

Procedure where widow fails to elect.

17(6)

Where a widow has failed to elect in writing within the time hereinbefore stated, the executor or any person interested in the estate of the testator may apply to the judge of the court for an order declaring that the widow has failed to elect as required under this Act.

Procedure in case of dispute.

17(7)

Where a dispute or doubt arises as to whether a widow has duly elected or failed to elect to take under the will or under this Act, it shall be determined by order of a judge of the court on application made to him by any person interested.

Effect of section.

17(8)

Nothing in this section deprives a widow of the benefit of section 14.

Death of widow before election.

18

Where the widow dies before she has elected in writing under section 17, the remaining time in which an election could have been made by her had she continued to live does not run against her personal representative until probate of her will or letters of administration of her estate have been granted; and the executor or administrator of the widow has the same power of election as the widow would have had had she continued to live; but, if the widow was herself the executrix of her husband's estate, her executor or administrator must, in any event, elect within six months after her death, or within such further time as the judge of the court may order under section 29.

Consequence of election under this Act.

19

If a widow, in pursuance of the provisions hereinbefore contained, elects to take under this Act and not under her husband's will, except as hereinafter otherwise expressly provided, every bequest, gift, or devise made or given to her or for her benefit in the will is void and of no effect, and the will shall in all respects be treated and construed as if every such bequest, gift, or devise were not contained therein.

Declaration as to life insurance.

20

Notwithstanding anything in this Act, where by his will a testator has made a declaration or appropriation, under The Insurance Act, of a policy of insurance on his life for the benefit of his wife, the declaration or appropriation is not affected or prejudiced if the widow elects to take under this Act and not under the will; but she is entitled, notwithstanding the election, to receive the insurance moneys pursuant to the declaration or appropriation.

Priority of widow's share.

21

Where a widow becomes entitled to receive under section 15 from her husband's executor the share of his net real and personal property for which provision is made in that section, that share shall, in so far as the beneficiaries under the will are concerned, be considered and construed as if it were a debt of the testator at the time of his death, and is payable next after all the debts of the deceased, and has priority over all bequests, gifts, and devises contained in the will.

WIFE LIVING APART

Rights of wife living apart.

22(1)

Where a wife at the time of her husband's death had left her husband with the intention of living separate and apart from him, she has no right under this Act either to a life estate in the homestead or to any share in her husband's estate unless a judge of the court, on application made to him, otherwise directs by order.

Settlement of dispute by judge.

22(2)

Where a dispute or doubt arises as to whether a wife, at the time of her husband's death, had left her husband with the intention of living separate and apart from him, it shall be determined by order of the judge.

Order as to wife's rights.

22(3)

If a judge in which either the husband or wife resides finds that the wife has left her husband with the intention of living separate and apart from her husband, the judge may, upon application of the husband, make an order declaring that such is the case; and, subject to subsection (4), after the making thereof the wife has no right under this Act either to a life estate in the homestead or to any share in the estate of her husband unless the judge otherwise directs by the order.

Effect of resumption of cohabitation.

22(4)

If, after an order is made under subsection (3), the wife resumes cohabitation with her husband, the order, from that time, ceases to have effect; and if there is a dispute or doubt as to whether the wife has resumed cohabitation, it shall be determined by order of a judge of the court in which the order was given.

Procedure before judge.

22(5)

An order under this section may be made on the application of the widow, or of any person interested in the estate of her husband, or of the executor or administrator of the husband, or, in the case of an order under subsection (3) or (4), on the application of the husband or the wife, upon such evidence as to the judge may seem meet.

Costs where application fails.

22(6)

Where a widow fails to succeed in an application under subsection (4), the judge may in his discretion direct the costs of the widow to be paid out of the estate of the deceased.

GENERAL

Release of rights.

23

Nothing in this Act prohibits or restricts a wife from, either before or after the marriage, and for valuable consideration, releasing, or contracting out of, her rights under this Act other than those that may be released under section 6.

Wife may release or elect although not 18.

24(1)

A wife may give a valid consent or release or make an election under this Act notwithstanding the fact that she has not attained the age of 18 years.

Actions of committee for wife.

24(2)

Where a wife is a mentally disordered person her committee may, without order of a judge, on her behalf

(a) consent to a disposition; or

(b) consent to a change of homestead; or

(c) release her rights in the homestead in favour of her husband; or

(d) make an election; or

(e) execute any consent, release, or election; or

(f) make any affidavit or declaration;

under this Act, upon such terms, as he may deem expedient.

Effect of defects of form.

25

No proceeding, act, matter, or thing done, or purporting to be done, under this Act shall be held invalid for a formal defect or omission.

No consent after previous consent given.

26(1)

Where a consent to a disposition, or proof relative to a disposition, has been given in writing in the form prescribed by this Act, no further consent or proof is necessary under this Act in respect of any instrument required to be executed pursuant to, or in performance of, the disposition.

Consent in another document.

26(2)

A consent to a disposition of a homestead, or a consent to a change of homestead, or a release of all rights in a homestead in favour of the husband, or an election, under this Act

(a) may be embodied in, or endorsed on, another instrument or document that sufficiently identifies the lands and premises intended to be affected; or

(b) may be a separate document if it sufficiently identifies the lands and premises intended to be affected and, in the case of a consent to a disposition sufficiently identifies the disposition;

and, where it is a separate document, it may be filed in a land titles office or a registry office attached to another document affecting the land or as a separate document.

Right to file.

27(1)

Every wife entitled to dower rights in a homestead under this Act may,

(a) in the case of lands under The Real Property Act, file with the district registrar of the proper land titles district a caveat claiming an interest under this Act in the lands comprising the homestead; and

(b) in the case of old system lands, register in the proper registry office a dower notice in Form I in the Schedule.

Withdrawal before registration.

27(2)

Subject to subsection (6), upon the filing of a caveat as provided in clause (l)(a), the district registrar shall not complete the registration of any disposition of the homestead described in the caveat unless the caveat is withdrawn, vacated, or discharged.

Attestation of notice.

27(3)

Every notice of the kind mentioned in clause (l)(b) shall be supported by the affidavit or statutory declaration in Form J in the Schedule of the person giving the notice, and an affidavit or statutory declaration of execution by the witness.

Manner of withdrawing.

27(4)

Any such caveat may be withdrawn or vacated in the manner in which a caveat under The Real Property Act may be withdrawn or vacated; and any such dower notice may be discharged by the registration in the proper land titles office of a discharge in Form K in the Schedule signed by the person who registered the notice.

Discharge.

27(5)

The district registrar shall discharge a dower notice or vacate a caveat filed under this Act in respect of a homestead

(a) upon the registration of a consent by the wife to any disposition that disposes of all the legal and equitable title and interests of her husband in the whole of the land and premises comprising the homestead; or

(b) upon the registration of a consent by the wife to a change of the homestead; or

(c) upon the registration of a release by the wife in favour of her husband, of her rights in respect of the homestead; or

(d) upon filing of proof, satisfactory to the district registrar, of the death of the wife; or

(e) upon the filing of an order made by a judge

(i) under section 13 dispensing with the consent of the wife to a disposition that disposes of all the legal and equitable title and interests of the husband in the whole of the land and premises comprising the homestead, or

(ii) under subsection 22(2), determining that the wife at the time of the death of her husband had left her husband with the intention of living separate and apart from him; or

(f) upon the filing of proof, satisfactory to the district registrar, that the husband and wife are divorced; or

(g) upon registration of a transfer or conveyance to complete a sale of the lands and premises comprising the homestead under rights arising out of a disposition to which the wife has consented.

Effect of consent where caveat filed.

27(6)

Notwithstanding that a caveat has been filed under subsection (1), in respect of a homestead, where

(a) the wife has consented to a disposition of the homestead other than a disposition to which reference is made in clause (5)(a); or

(b) a judge has made an order under section 13 dispensing with the consent of the wife to a disposition of the homestead other than a disposition to which reference is made in clause (5)(a);

the district registrar may complete registration of the disposition free of the caveat; but the caveat is not thereby vacated or made ineffective in respect of any legal or equitable title and interests of the husband in the homestead that are not affected by the disposition; and subsection 11(1) applies to any such consent or order.

Judge to determine certain questions.

28

All questions in dispute or of doubt as to value mentioned in sections 14, 15, or 16, or as to the value or amount of the net estate, or of the net real and personal property, of a testator, or as to a matter requiring determination under sections 15 and 16, or as to the lands and premises comprising a homestead, or comprising a dwelling house and the lands and premises appurtenant thereto that a widow is entitled to elect as the homestead of her deceased husband under subsection 4(4), or as to any matter or question requiring determination under this Act for which provision is not otherwise made, shall be determined by order of the judge of the court upon application made to him by any person interested.

Extension of time for election.

29

If in the circumstances of the case he deems it just to do so, a judge of the court, on application made by the widow or by any person interested, and made before the expiry of the period within which

(a) the widow is required to make an election under subsection 4(4), or subsection 17(1); or

(b) the executor of the will of the widow or the administrator of her estate is required to make an election under section 18;

or before the expiry of any extension of such a period under this section, may extend the period for such further period and upon such terms and conditions as he deems reasonable.

Dispensing with notice of application.

30(1)

A judge to whom an application under any provision of this Act is made, may, where he thinks it proper, dispense with service of notice of the application.

Service of notice of application.

30(2)

Subject to subsection (1), notice of an application shall be served upon such persons and in such manner, including service by mail or by public advertisement, as the judge directs or subsequently approves.

Service on committee.

30(3)

Where any person who is required to be served by a notice of any application or hearing under this Act is a mentally disordered person, the notice may be served upon his committee who may in person or by counsel appear at and take a part in the application or hearing.

Effect of orders.

31(1)

The production of a final judgment, order, or determination of a judge made under this Act, or of a certified copy thereof under the hand of the judge and the seal of the court, is sufficient proof as to the matters therein determined.

Filing judgments.

31(2)

Every final judgment, order, or determination made by a judge under this Act shall be filed in the court.

Appeal.

32

Every judgment, order, or determination made by a judge of the court under this Act is subject to appeal as in the case of any other judgment, order, or determination of a judge.

Rights in wife's homestead.

33(1)

Where a married woman owns the homestead, her husband has the same rights in respect thereof under this Act as a married woman has in respect of the homestead owned by her husband; and the husband's consent to a disposition of the homestead or any part thereof, or consent to a change of home where the homestead is owned by the wife, is required in like manner as is provided in this Act with respect to the consent of a married woman where the homestead is owned by the husband.

Rights in wife's estate.

33(2)

Every married man, on the death of his wife, is entitled to the same interest in the estate of his wife as that to which, by this Act, a married woman becomes entitled in the estate of her husband on his death; and in this Act the word "testator" includes a married woman, the words "married woman" are interchangeable with "married man", the word "husband" with "wife", the word "widow" with "widower", and the word "her" with "his".

Forms I and K.

34

The Forms I and K in the Schedule for the purpose of being registered, and when registered under this Act, are instruments under The Registry Act as if expressly included in the definition of "instrument" therein.

SCHEDULE

FORM A

(Section 5)

CONSENT TO DISPOSITION (IF EMBODIED IN OR ENDORSED UPON A DISPOSITION)

I, , wife of , (the grantor, transferor, mortgagor, lessor, etc., or as the case may be) named in the (deed, transfer, mortgage, encumbrance, lease, etc., or as the case may be) above written (or "within written", as the case may be) hereby consent to the making of the same by him.

DATED this day of , 19 .

A.B.

FORM B

(Section 5)

CONSENT TO DISPOSITION (BY SEPARATE DOCUMENT)

I, , wife of , (the grantor, transferor, mortgagor, lessor, etc., or as the case may be) named in a certain (deed, transfer, mortgage, encumbrance, lease, etc., or as the case may be), dated day of , 19 , and made between my husband and with respect to the lands and premises described as follows, namely:

hereby consent to the said disposition of the said lands and premises by my husband.

DATED this day of , 19 .

A.B.

FORM C

(Section 14)

CONSENT BY WIDOW TO DISPOSITION BY PERSONAL REPRESENTATIVE

I, , wife of , late of , deceased, being entitled to a life estate in the land (hereinafter described or described in the deed, transfer, mortgage, encumbrance, lease, etc., or as the case may be above written or within written, as the case may be) that was the homestead of my late husband at the time of his death, hereby consent to the disposition by the (executor of his will) (administrator of his estate) of my life estate in the said land, (which is described as follows):

DATED at this day of , 19 .

A.B.

FORM D

(Section 5)

CONSENT TO CHANGE OF HOMESTEAD

I, , wife of , hereby consent to the change of homestead of my husband from the property described as follows namely: (here describe both properties).

DATED this day of , 19 .

A.B.

FORM E

(Section 6)

RELEASE TO HUSBAND

I, , wife of , for valuable consideration, do hereby release in favour of my husband all my rights under The Dower Act in respect of the homestead described as follows, namely: (here describe property).

DATED this day of , 19 .

A.B.

FORM F

(Section 8)

CERTIFICATE OF ACKNOWLEDGMENT BY WIFE TO CONSENT, RELEASE OR POWER OF ATTORNEY, AS THE CASE MAY BE

The above (or within or attached as the case may be) consent or release or power of attorney (as the case may be) was acknowledged before me by , wife of , apart from her husband, to have been voluntarily executed by her of her own free will and accord, and without any compulsion on the part of her husband. She has further acknowledged that she is aware of the nature and effect of the same.

(If the acknowledgment is given to a release add: "She has further acknowledged that she has received valuable consideration for the giving of the said release").

DATED at this day of , 19 .

A Commissioner for Oaths (or as the case may be).

C.D.

FORM G

(Section 8)

AFFIDAVIT BY MAKER OF INSTRUMENT (OR HIS ATTORNEY, ETC.)

(Where the maker is unmarried, or where the consent of his wife is embodied in or endorsed upon a disposition, or where no part of the land is the homestead).

I, , of , in the Province of , make oath and say:

1. That I am the (grantor, transferor or mortgagor, or as the case may be) named in the instrument above (or within) written (or hereto annexed).

2. That I have (or that has) no wife.

or

3. That the woman who consents as wife to the instrument above (or within) written (or hereto annexed) is the wife of the (grantor, transferor or mortgagor, or as the case may be).

or

4. That no part of the land referred to in the instrument above (or within) written (or hereto annexed) is the homestead of the (grantor, transferor or mortgagor, or as the case may be) within the meaning of The Dower Act. (or where the grantors, transferors, or mortgagors are husband and wife).

5. That my (co-grantor, co-transferor or co-mortgagor, or as the case may be) is the husband or one of the (grantors, transferors or mortgagors, or as the case may be).

6. That my (co-grantor, co-transferor or co-mortgagor, or as the case may be) is the wife of one of the (grantors, transferors or mortgagors, or as the case may be).

Sworn before me at in the Province of this day of , 19 .

A Commissioner for Oaths, A Notary Public

(or as the case may be)

(If a statutory declaration is made instead of an affidavit above form is to be altered accordingly).

FORM H

(Section 8)

AFFIDAVIT BY MAKER OF INSTRUMENT (OR HIS ATTORNEY, ETC.)

(Where land is the homestead, and the wife consents or releases by a separate document).

I, , of in the Province of , make oath and say:

1. That I am the (grantor, transferor, or mortgagor, or as the case may be) named in the instrument above (or within) written (or hereto annexed).

2. That the person who has executed the (consent or release) dated the day of , 19 , (attached hereto or registered in the land titles office as No. ) is the wife of me, the (grantor, transferor or mortgagor or as the case may be).

Sworn before me at , in the Province of , this day of ,19.

A Commissioner for Oaths, A Notary Public

(or as the case may be)

(If a statutory declaration is made instead of an affidavit above form is to be altered accordingly).

FORM I

(Section 27)

DOWER NOTICE

To the District Registrar of

Take notice that I, A.B. (insert name of claimant and name of husband, or wife, as the case may be) claim dower rights in the homestead of my said (husband or wife) under The Dower Act, the said homestead being the lands and premises described as follows: (Insert legal description of land)

and I claim priority to any instrument affecting those dower rights unless the instrument be expressed to be subject thereto.

DATED at this day of , 19 .

Witness:

A.B.

FORM J

(Section 27)

AFFIDAVIT IN SUPPORT OF DOWER NOTICE

I, A.B., make oath and say (or solemnly declare) as follows:

1. I am the wife (or husband, as the case may be) of C.D.

2. The within described lands are the homestead of the said C.D.

3. This dower notice is not being registered for the purpose of delaying or embarrassing any person interested in or proposing to deal with the said lands.

Sworn before me, etc.

(Add affidavit or declaration of witness to execution).

FORM K

(Section 27)

DISCHARGE OF NOTICE OF DOWER RIGHTS

To the District Registrar of

I, A.B., (insert name of claimant and name of husband or wife, as the case may be) hereby withdraw my claim to dower rights under The Dower Act in the lands and premises described as follows:

DATED at this day of , 19 .

(Add affidavit or declaration of witness to execution).