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This Report attempts to review all of Manitoba's succession legislation, with the intention of ensuring its integrity and relevance and that, as a whole, the legislation operates as effectively and harmoniously as possible. The Report focuses primarily on The Wills Act but also includes an examination of relevant provisions of The Law of Property Act, The Intestate Succession Act, The Marital Property Act, The Dependants Relief Act, The Trustee Act, and the Court of Queen's Bench Rules.
Although the Executive Summary normally provides an overview of all the recommendations contained in a Report, we have felt that, in view of the nature and length of this particular report and the number of recommendations made, we should concentrate on those recommendations which we believe are of the greatest importance, particularly in the section regarding the most important legislation, The Wills Act.
Like the wills legislation of many other common law jurisdictions, Manitoba's Wills Act is based on the English Wills Act 1837, which was an attempt to rationalize and simplify the law as it then stood. Over time, however, it became apparent that the legislation also required simplification and rationalization, and numerous reviews have been undertaken, and recommendations made, in Manitoba and elsewhere with respect to the Wills Act 1837 and its progeny.
The Commission makes several recommendations relating to the requirements for execution of a will so as to reduce the likelihood of part or all of a will being ruled invalid on technical grounds.
In the Commission's opinion, so-called "privileged wills" (i.e., those available only to military personnel, seamen, and mariners) ought to be abolished (albeit not retroactively) as they are obsolete in light of current technology and practice and other legislative provisions.
In light of the sophistication of today's youth, the Commission believes that the age at which a valid will may be executed should be reduced from 18 to 16. It also recommends that the definition of "handwriting" be extended to include mouthwriting, footwriting, and similar kinds of writing. The question of whether videotape, cinematographic, and electronic wills should be admissible to probate is a vexing one, but the Commission considers that, on balance, they should not be and, accordingly, proposes that the Act be amended to clarify that position.
Handwritten postscripts to holograph wills have not been valid since amendments to the Act in 1983, but the Commission believes that they should be. The Act provides that publication of a will is not necessary to its validity; the Commission recommends that it also expressly provide that testimonium and attestation clauses are similarly unnecessary to formal validity.
The Act's provisions dealing with the ademption of gifts are, in the Commission's opinion, inadequate, and should be amended in certain respects. One amendment would prevent the ademption of gifts in certain specified situations; another would prevent ademption of the proceeds of sale of property, as long as they could be traced. These amendments would bring the Act more into line with similar legislation in Ontario and other provinces.
The conflict of law rules set out in the Act reflect the principle of scission, providing different choice of law rules depending on whether a gift is a gift of an interest in movables or an interest in land. Most academic commentators have recommended that the distinction should be abolished. The Commission is similarly of the opinion that the distinction is no longer warranted, and recommends that a single set of conflict of law rules be adopted, based on the Hague Convention, attached as Appendix B.
Whether or not the recommendation regarding the Hague Convention is adopted, the Commission recommends several additional amendments to clarify the terminology used in the conflict of law sections of the Act. For example, the Act presently distinguishes between an "interest in movables" and an "interest in land," rather than an "interest in immovables," a situation which should be rectified. In addition, the Commission recommends that the conflict of laws rules should deal with the capacity of the testator, something presently outside the scope of those rules. The Commission also believes that the same single set of conflict of law rules should apply to the destruction of wills as to their creation.
Still under the heading of conflict of law rules, the Commission notes that the common law is unclear about what law applies to the revocatory effect of a subsequent divorce on testamentary provisions dealing with immovables. The Commission recommends that, with respect to both movables and immovables, the effect of divorce or annulment of marriage should be determined by the testator's domicile at the time of the decree.
Finally, the common law provides that in construing a will a court should initially attempt to give effect to the testator's intention without reference to rules and presumptions of law. If it must refer to law, the court should, if possible, refer itself to the law intended by the testator. Additional steps should only be taken if necessary. The Commission recommends that these common law rules should be codified in their entirety in the Act, instead of only partially as at present.
The Commission has also considered the "absolute and remainder gift conundrum". When a testator words a gift in absolute terms and adds words that apparently give a remainder estate to someone else, the outcome will differ according to which of two interpretations regularly applied by Canadian courts is adopted. According to one interpretation, the first phrase prevails and the remainder estate is invalid because it is repugnant to the initial absolute gift; under the other interpretation, the subsequent wording limits the initial gift to a mere life estate. The Commission considers that a statutory rule of construction is necessary to remove the existing uncertainty in the law. Having decided that a statutory rule is required, we have struggled with the question of what that rule should be. We considered a number of options but were unable to reach a consensus, a problem reminiscent of many judicial decisions on this point. The majority of the Commission considers, in the end, that the rule should provide that the first gift is absolute, notwithstanding the purported remainder gift.
As befits the single most important piece of succession legislation in Manitoba, the Commission has made many additional recommendations for amendments to The Wills Act. These range from the inclusion of a complete, consolidated listing of the formal requirements for a valid will, through permitting the revival of a will that was revoked through destruction, to reversing the common law presumption that an inter vivos gift from a parent to a child is presumed to be an advancement.
When a will does not contain a provision designating assets of the estate to be used to pay debts, funeral expenses, and the costs of administering the estate, or to the extent that the assets designated are insufficient, the common law of abatement applies. The provisions in The Law of Property Act that are intended to supersede the common law of abatement are unnecessarily verbose and unclear, and the Commission recommends that they be rewritten, and amended to permit a testator to override them. The Commission also recommends that The Wills Act be amended so that other common law distinctions between the treatment of real and personal property on an intestacy are abolished.
Finally, there is no reason why different statutorily prescribed rules of abatement should apply to the satisfaction of debts, funeral expenses, and costs of administration on a testacy, the satisfaction of equalization payments under The Marital Property Act, and orders under The Dependants Relief Act; accordingly, the Commission recommends that these be harmonized.
The Commission recommends amending The Intestate Succession Act to make it explicit that great-great grandparents and their issue, and other more remote relatives, are not entitled to inherit under the Act. The Commission also recommends amendments to the provision that deals with advancements, so that it applies both to whole and partial intestacies, and so that it applies regardless of when the deceased declares a gift to be an advancement.
At common law, two different choice of law rules apply to intestate succession: the lex situs governs immovables, and the lex domicilii governs movables. As it did with The Wills Act, the Commission recommends the adoption of a single choice of law rule in the Act as it applies to both movables and immovables, based on the provisions of the Hague Convention. Also in line with its recommendation regarding The Wills Act, the Commission recommends that successors be required to survive the deceased by 30 days in order to maintain their entitlement under the Act.
The Commission recommends that the two sections in The Marital Property Act that deal with the waiver of rights under the Act ought to be amended to be consistent with one another. The section dealing with the interaction between the Act and The Intestate Succession Act ought also to be amended to clarify exactly how it is intended to operate.
Because the sole purpose of The Dependants Relief Act is to make reasonable provision for the maintenance and support of dependants of testators, the Commission is of the opinion that personal representatives of deceased dependants ought to be permitted to apply, or continue an application, for relief under the Act.
The Act permits a dependant to apply to the court to suspend the administration of a deceased's estate. The definition of a "dependant" in the Act does not, however, include an adult child who is not actually dependent on the deceased at the time of death but could later be in need; the Commission recommends that the Act be amended to permit an application by such a person.
The court is empowered by the Act to allow late applications under certain specified circumstances. The Commission believes that those circumstances are unduly narrow, and recommends that the court be given greater latitude to allow late applications.
The Commission believes that the Act would be more helpful to personal representatives if it expressly informed them that distribution of an estate is stayed for the duration of the six month limitation period within which dependants may commence an application under the Act.
As well, the Commission believes that a dependant's financial responsibilities for his or her own dependants should be considered in the calculation of the amount required for that person's maintenance and support and, accordingly, that the Act should expressly direct the court to take such responsibilities into account.
For the reasons cited earlier in the discussion of The Wills Act and The Intestate Succession Act, the Commission considers that the provisions of the Act dealing with conflicts of laws ought to be amended to bring it into line with well established conflict of laws rules. The Act ought also to codify the case law that provides that a dependant does not have to be either a resident or domiciliary to have status to apply for relief under the Act.
On occasion, dependants will enter into a contractual arrangement under which they are foreclosed from making an application under the Act. Although there are reasons why such arrangements ought to be enforced by the court, the Commission considers that it is most appropriate for the court merely to consider an agreement as one factor to be weighed in the balance. The Act should be amended to make it clear to all parties that this is the approach that will be taken by the court.
Persons may also from time to time enter into contractual agreements to dispose of certain property under their will in a particular way. The Commission is of the opinion that, to the extent such agreements are entered into for adequate consideration, the property so disposed of ought not to be available for an order under the Act.
The lack of a general anti-avoidance provision in the Act similar to that found in The Marital Property Act can defeat a claim by a surviving spouse with an entitlement to additional relief under the Act. The Commission recommends that the Act be amended to include such a provision.
Finally, it has been suggested that The Dependants Relief Act ought to be amended to empower the court to award relief to dependants who have provided services to the deceased in expectation of payment, or who have significantly assisted the deceased in the acquisition or maintenance of his or her estate. The Commission is opposed to the notion of empowering the courts to make such morality-based awards.
The law of Manitoba is unclear about what happens in circumstances where an executor dies before completing the administration of an estate, and the will does not appoint a succeeding executor. The Commission recommends that The Trustee Act be amended to ensure that the succeeding executor is likely to have been known to the deceased.
The Commission recommends that the provision in the Court of Queen's Bench Rules that deals with "suspicious circumstances" that could prevent the probate of a will should be amended to clarify the types of circumstances to which it applies.
Report #108,
March, 2003
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