HONOURABLE BARRY PENNER
ATTORNEY GENERAL

BILL 10 — 2011

WILLS, ESTATES AND SUCCESSION
AMENDMENT ACT, 2011

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

SECTION 1: [Wills, Estates and Succession Act, section 1] adds the definitions of "Nisga'a Village Government" and "taxing treaty first nation" and sets out definitions relocated from another section of the Act by this Bill.

1 Section 1 (1) of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13, is amended by adding the following definitions:

"Nisga'a citizen" has the same meaning as in the Nisga'a Final Agreement;

"Nisga'a Final Agreement" has the same meaning as in the Nisga'a Final Agreement Act;

"Nisga'a Lands" has the same meaning as in the Nisga'a Final Agreement;

"Nisga'a law" has the same meaning as in the Nisga'a Final Agreement;

"Nisga'a Lisims Government" has the same meaning as in the Nisga'a Final Agreement;

"Nisga'a Village Government" has the same meaning as in the Nisga'a Final Agreement;

"taxing treaty first nation" has the same meaning as in the Treaty First Nation Taxation Act.

SECTION 2: [Wills, Estates and Succession Act, section 1] amends the definition of "nominee".

2 Section 1 (1) is amended in the definition of "nominee"

(a) in paragraph (a) by adding "granted power over financial affairs" after "Patients Property Act", and

(b) by striking out "and" at the end of paragraph (b), by adding ", and" at the end of paragraph (c) (ii), and by adding the following paragraph:

(d) a person appointed under section 51 (2) [mentally incompetent Indians] of the Indian Act (Canada) or the Minister of Indian Affairs and Northern Development; .

SECTION 3: [Wills, Estates and Succession Act, section 1] amends the definition of "participant".

3 Section 1 (1) is amended in the definition of "participant" by striking out "representative" and substituting "committee".

SECTION 4: [Wills, Estates and Succession Act, section 1] amends the definition of "small estate declaration".

4 Section 1 (1) is amended in the definition of "small estate declaration" by striking out "prescribed form" and substituting "form as set out in the Supreme Court Civil Rules".

SECTION 5: [Wills, Estates and Succession Act, section 1] amends the definition of "spousal home".

5 Section 1 (1) is amended in the definition of "spousal home"

(a) in paragraph (a) by adding ", owned or owned in common by the deceased person and not leased to another person," after "a parcel of land" and by striking out ", owned or jointly owned by the deceased person and not leased to another person",

(b) in paragraph (b) by striking out "jointly owned" and substituting "owned in common", and

(c) by striking out "or" at the end of paragraph (b), by adding ", or" at the end of paragraph (c) and by adding the following paragraph:

(d) a parcel of land on Nisga'a Lands or treaty lands that has as improvements situated on it a building in which the deceased person and his or her spouse were ordinarily resident,

(i) owned or owned in common by the deceased person and not leased to another person,

(ii) held or held in common by the deceased person by way of a right to possession under Nisga'a law and not leased to another person, or

(iii) held or held in common by the deceased person by way of an interest under the laws of a treaty first nation and not leased to another person.

SECTION 6: [Wills, Estates and Succession Act, heading to Division 3 of Part 2] adds a reference to the Nisga'a Final Agreement.

6 The heading to Division 3 of Part 2 is repealed and the following substituted:

Division 3 — Nisga'a Final Agreement and
First Nations' Final Agreements .

SECTION 7: [Wills, Estates and Succession Act, section 12] repeals definitions relocated to section 1 of the Act by this Bill.

7 Section 12 is repealed.

SECTION 8: [Wills, Estates and Succession Act, sections 13, 14, 106, 108 to 110, 121, 122, 124, 138, 141, 159, 164, 181 and 182] replaces references to "Rules of Court" with "Supreme Court Civil Rules" to accord with the new Supreme Court Civil Rules.

8 Sections 13 (5), 14 (5), 106, 108, 109 (1) (a), 110 (1) (a), 121 (1) and (2), 122 (1) (b), 124 (1), 138 (2) (a) and (b), 141 (1) (a) and (b), 159 (2), 164 (3) (a), 181 (1) and (2) (a) and 182 (1) are amended by striking out "Rules of Court" and substituting "Supreme Court Civil Rules".

SECTION 9: [Wills, Estates and Succession Act, section 16] is self-explanatory.

9 Section 16 is amended

(a) by striking out "An action" and substituting "A proceeding", and

(b) by striking out "writ of summons" and substituting "initiating pleading or petition".

SECTION 10: [Wills, Estates and Succession Act, section 17] is self-explanatory.

10 Section 17 (1) and (2) is amended by striking out "Nisga'a government" and substituting "Nisga'a Lisims Government".

SECTION 11: [Wills, Estates and Succession Act, sections 18.1 to 18.3]

11 The following sections are added to Part 2:

Disposal of Nisga'a Lands in estate

18.1  (1) Subject to any applicable Nisga'a law, if a deceased person owns a parcel of land located on Nisga'a Lands or holds a right to possession under Nisga'a law of a parcel of land located on Nisga'a Lands and

(a) the deceased person dies leaving a will in which the deceased person makes a gift of the parcel of land or the right to possession of the parcel of land to a beneficiary who, under Nisga'a law, cannot acquire the parcel of land or the right to possession of the parcel of land by transfer, or

(b) the deceased person dies without leaving a will and the parcel of land would be distributed to a descendant under this Act who, under Nisga'a law, cannot acquire the parcel of land or the right to possession of the parcel of land by transfer,

the Nisga'a Lisims Government or a Nisga'a Village Government, after one year from the date of death of the deceased person, may apply to the court for an order establishing terms and conditions in respect of the disposition of the parcel of land or the right to possession of the parcel of land within one year after the date of the court order, unless the court extends the period of time within which the parcel of land or the right to possession of the parcel of land must be disposed of.

(2) If the Nisga'a Lisims Government or a Nisga'a Village Government makes an application under subsection (1), it must give notice to the personal representative of the deceased person or, if there is no personal representative, to every person who would be an intestate successor entitled to share in the estate if it were an intestate estate.

Disposal of land in treaty lands in estate

18.2  (1) Subject to any applicable laws of a treaty first nation, if a deceased person owns a parcel of land located on treaty lands or holds an interest under laws of a treaty first nation in a parcel of land located on treaty lands and

(a) the deceased person dies leaving a will in which the deceased person makes a gift of the parcel of land or the interest in the parcel of land to a beneficiary who, under the laws of the treaty first nation, cannot own or acquire the parcel of land or hold an interest in the parcel of land, or

(b) the deceased person dies without leaving a will and the parcel of land would be distributed to a descendant under this Act who, under the laws of the treaty first nation, cannot own or acquire the parcel of land or hold an interest in the parcel of land,

the treaty first nation, after one year from the date of death of the deceased person, may apply to the court for an order establishing terms and conditions in respect of the disposition of the parcel of land or the interest in the parcel of land within one year after the date of the court order, unless the court extends the period of time within which the parcel of land or the interest in the parcel of land must be disposed of.

(2) If the treaty first nation makes an application under subsection (1), it must give notice to the personal representative of the deceased person or, if there is no personal representative, to every person who would be an intestate successor entitled to share in the estate if it were an intestate estate.

No right to acquire Nisga'a Lands or treaty lands

18.3  Despite any other provision of this Act, a person, except for a person in the capacity of personal representative, does not acquire, under this Act,

(a) ownership or a right to possession under Nisga'a law of a parcel of land located on Nisga'a Lands, or

(b) ownership of or an interest under the laws of a treaty first nation in a parcel of land located on treaty lands,

if the person cannot acquire the ownership of the parcel of land or the right to possession of the parcel of land by transfer under Nisga'a law, or the person cannot own or acquire the parcel of land or hold an interest in the parcel of land under the laws of the treaty first nation.

SECTION 12: [Wills, Estates and Succession Act, section 23] clarifies intestate inheritance at the great-grandparent level.

12 Section 23 (2) (e) is amended

(a) in subparagraph (i) by adding "parent's" after "great-grandparents on one",

(b) in subparagraph (i) (A) by striking out "one share to the great-grandparents on that side" and substituting "one share to the great-grandparents on the one grandparent's side",

(c) in subparagraph (i) (B) by striking out "on the other side" and substituting "on the other grandparent's side", and

(d) by striking out "but if there is only a surviving great-grandparent or descendant of a great-grandparent on one parent's side or the other parent's side," and substituting "but if on that parent's side there is only a surviving great-grandparent or descendant of a great-grandparent on one grandparent's side,".

SECTION 13: [Wills, Estates and Succession Act, section 24] replaces a reference to "intestate" with a reference to "person" and corrects the description of "parent".

13 Section 24 is amended

(a) in subsections (1) and (2) by striking out "intestate" and substituting "person", and

(b) in subsection (3) by striking out "an intestate's parent" and substituting "a parent of the descendants".

SECTION 14: [Wills, Estates and Succession Act, section 27] requires a personal representative to notify a surviving spouse of section 18.3 of the Act if a spousal home is located on Nisga'a Lands or treaty lands.

14 Section 27 is amended by adding the following subsection:

(2.1) If the spousal home is located on Nisga'a Lands or treaty lands, the personal representative must, at the time an application for a representation grant is made, give notice of section 18.3 [no right to acquire Nisga'a Lands or treaty lands] to the surviving spouse in addition to the notice under subsection (1).

SECTION 15: [Wills, Estates and Succession Act, section 29] requires notice to the Public Guardian and Trustee of exercising a right to the spousal home if one of the descendants is a minor or a mentally incapable person without a nominee.

15 Section 29 (1) is amended by striking out "and" at the end of paragraph (a), by adding ", and" at the end of paragraph (b) and by adding the following paragraph:

(c) the Public Guardian and Trustee, if one or more of the descendants of the deceased person entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate is a minor or a mentally incapable person without a nominee.

SECTION 16: [Wills, Estates and Succession Act, section 30] requires agreement by the Public Guardian and Trustee in respect of the value of the spousal home if one of the descendants is a minor or a mentally incapable person without a nominee.

16 Section 30 is amended

(a) in subsection (3) by striking out everything after "unless" and substituting the following:

(a) the descendants entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate, and

(b) the Public Guardian and Trustee, if one or more of the descendants of the deceased person entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate is a minor or a mentally incapable person without a nominee,

agree in writing to the value that the surviving spouse places on the deceased person's interest. , and

(b) by repealing subsection (4) and substituting the following:

(4) If the surviving spouse, being the sole personal representative, does not apply to the court for an order under subsection (3) within 180 days of the date of the notice referred to in section 29,

(a) a descendant entitled to share in the estate or that part of the estate that is to be treated as an intestate estate, or

(b) the Public Guardian and Trustee, if one or more of the descendants of the deceased person entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate is a minor or a mentally incapable person without a nominee,

may apply to the court for an order determining the value of the deceased person's interest in the spousal home.

SECTION 17: [Wills, Estates and Succession Act, section 31] replaces a reference to a prescribed form with a reference to the Supreme Court Civil Rules.

17 Section 31 (3) is amended by striking out "in the prescribed form" and substituting "as set out in the Supreme Court Civil Rules".

SECTION 18: [Wills, Estates and Succession Act, section 32] adds a regulation-making power to exclude taxes.

18 Section 32 is amended

(a) by striking out "the purchase of the spousal home" and substituting "the purchase of the spousal home," and

(b) by repealing paragraph (b) and substituting the following:

(b) all applicable taxes, other than any prescribed taxes, assessed against the spousal home from the date of death of the deceased person to the date of purchase of the spousal home, .

SECTION 19: [Wills, Estates and Succession Act, section 39] replaces "the signature of the will-maker" with the defined term "the will-maker's signature".

19 Section 39 (1) is amended by striking out "the signature of the will-maker" and substituting "the will-maker's signature".

SECTION 20: [Wills, Estates and Succession Act, section 40] clarifies that a will is not valid unless the witness to a will-maker's signature is 19 years of age or older.

20 Section 40 (3) is amended by adding ", unless the witness was not 19 years of age or older at the time the will was signed by the will-maker" after "proving the will".

SECTION 21: [Wills, Estates and Succession Act, section 43] includes the spouse of the witness.

21 Section 43 (4) is amended by adding "or his or her spouse" after "even though the person".

SECTION 22: [Wills, Estates and Succession Act, section 48] clarifies that the proceeds are gross proceeds.

22 Section 48 (1) is amended by adding "gross" after "means the".

SECTION 23: [Wills, Estates and Succession Act, sections 52, 60 to 62, 129 and 150] is self-explanatory.

23 Sections 52, 60, 61 (4) and (5), 62 (1), 129 (1) (b) (iii) and 150 (3) are amended by striking out "an action" wherever it appears and substituting "a proceeding".

SECTION 24: [Wills, Estates and Succession Act, section 55] clarifies that a will may be revoked by a will-maker by an act other than those described in section 55 (1) (a) to (c).

24 Section 55 (1) (d) is repealed and the following substituted:

(d) by any other act of the will-maker, or another person in the presence of the will-maker and by the will-maker's direction, if the court determines under section 58 that

(i) the consequence of the act of the will-maker or the other person is apparent on the face of the will, and

(ii) the act was done with the intent of the will-maker to revoke the will in whole or in part.

SECTION 25: [Wills, Estates and Succession Act, section 61] is self-explanatory.

25 Section 61 is amended

(a) in subsections (1) and (2) by striking out "An action" and substituting "A proceeding",

(b) in subsection (1) (a) by striking out "the action" and substituting "the proceeding", and

(c) by striking out "the writ of summons" wherever it appears and substituting "the initiating pleading or petition".

SECTION 26: [Wills, Estates and Succession Act, section 71] specifies when a court may inquire into circumstances and cancel or vary an order.

26 Section 71 is amended by striking out "If the court has made an order under section 60," and substituting "If the court has ordered periodic payments, or that a lump sum be invested for the benefit of a person,".

SECTION 27: [Wills, Estates and Succession Act, section 73] is self-explanatory.

27 Section 73 is amended by striking out "notice of the will" and substituting "notice of will".

SECTION 28: [Wills, Estates and Succession Act, section 77] replaces "all notices filed" with "the last notice" and repeals the requirement that a certificate be issued in duplicate.

28 Section 77 (3) (a) is repealed and the following substituted:

(a) issue to an applicant under subsection (1) or (2)

(i) the search results for the person named in the application, and

(ii) a certificate showing the contents of the last notice that is relevant to the application, and .

SECTION 29: [Wills, Estates and Succession Act, section 85]

29 Section 85 is amended

(a) in subsection (1) by striking out "A person entitled to a benefit under a benefit plan" and substituting "A participant",

(b) in subsection (2) by adding ", alteration or revocation" after "A designation",

(c) by repealing subsection (2) (a) and substituting the following:

(a) is only effective if the designation, alteration or revocation

(i) is in writing,

(ii) is not altering or revoking a previous designation that is irrevocable under section 87, and

(iii) is signed by the person making it, or by another person in the presence of the person making it and by his or her direction,

and the signature may be in the name of the person making it or the person signing by his or her direction, ,

(d) in subsection (3) (b) by striking out "a committee acting under", and

(e) in subsection (3) by adding ", alter or revoke" after "may make".

SECTION 30: [Wills, Estates and Succession Act, section 90] changes who may make a new designation on behalf of the participant.

30 Section 90 (1) is repealed and the following substituted:

(1) Subject to subsection (2), a new designation of the same designated beneficiary may be made, other than by a will, by a representative of the participant, including one of the following:

(a) a committee acting under the Patients Property Act;

(b) an attorney acting under an enduring power of attorney as described in section 8 [enduring power of attorney] of the Power of Attorney Act;

(c) a representative acting under a representation agreement made under section 9 (1) (g) [other provisions] of the Representation Agreement Act;

(d) a person appointed under section 51 (2) [mentally incompetent Indians] of the Indian Act (Canada) or the Minister of Indian Affairs and Northern Development.

SECTION 31: [Wills, Estates and Succession Act, section 109] provides that a person may apply to the court for a declaration that the person is a personal representative.

31 Section 109 (1) is amended by striking out "becomes the personal representative of the deceased person by" and substituting "may apply to the court to administer the small estate under this Division by".

SECTION 32: [Wills, Estates and Succession Act, sections 109 and 110] replaces references to prescribed small estate declarations and documents with references to the Supreme Court Civil Rules.

32 Sections 109 (1) (b) and 110 (1) (b) are amended by striking out "prescribed small estate declaration" and substituting "small estate declaration as set out in the Supreme Court Civil Rules" and by striking out "prescribed documents" and substituting "documents as set out in the Supreme Court Civil Rules".

SECTION 33: [Wills, Estates and Succession Act, section 114] replaces a reference to "prescribed supplementary statutory declaration" with a reference to the Supreme Court Civil Rules.

33 Section 114 (1) is amended by striking out "prescribed supplementary statutory declaration" and substituting "supplementary statutory declaration as set out in the Supreme Court Civil Rules".

SECTION 34: [Wills, Estates and Succession Act, section 121] extends the protection of a personal representative from liability.

34 Section 121 (2) is amended

(a) by adding "to recover property or enforce an order under Division 6 [Variation of Wills] of Part 4 [Wills]." after "except for claims", and

(b) by repealing paragraphs (a) and (b).

SECTION 35: [Wills, Estates and Succession Act, section 122] replaces a reference to a prescribed form with a reference to the Supreme Court Civil Rules.

35 Section 122 (3) is amended by striking out "prescribed form" and substituting "form as set out in the Supreme Court Civil Rules".

SECTION 36: [Wills, Estates and Succession Act, section 128] provides what the court may do in respect of an application for a grant of administration.

36 Section 128 is amended by adding the following subsection:

(1.1) If security is required under subsection (1), the applicant for a grant of administration must apply to the court to determine the security required and the court may, on that application, do one or both of the following:

(a) accept any form or amount of security;

(b) impose a restriction on the powers of the proposed administrator that may be exercised without prior approval of the court or the Public Guardian and Trustee.

SECTION 37: [Wills, Estates and Succession Act, section 129] adds circumstances when the registrar may grant probate or administration.

37 Section 129 is amended by adding the following subsection:

(3) The registrar of the court may grant probate of a will or administration of an estate for general, special or limited purposes in the circumstances described in subsections (1) and (2) if the application for the grant of probate or administration is

(a) unopposed, and

(b) made in accordance with the applicable Supreme Court Civil Rules.

SECTION 38: [Wills, Estates and Succession Act, section 141] clarifies that authority to act passes not only if executorship is terminated.

38 Section 141 (2) is repealed and the following substituted:

(2) If a grant of probate or administration is revoked, the authority to act passes as if the person had never been appointed executor.

SECTION 39: [Wills, Estates and Succession Act, section 146] is self-explanatory.

39 Section 146 (5) (b) is amended by striking out "action" and substituting "proceeding".

SECTION 40: [Wills, Estates and Succession Act, section 150] clarifies when a cause of action or a proceeding is not annulled because of the death of certain persons.

40 Section 150 (1) is repealed and the following substituted:

(1) Subject to this section, a cause of action or a proceeding is not annulled by reason only of the death of

(a) a person who had the cause of action, or

(b) a person who is or may be named as a party to the proceeding.

SECTION 41: [Wills, Estates and Succession Act, section 157] changes the reference to "guardian" or "nominee".

41 Section 157 (3) (c) (i) is amended by striking out "a person appointed to manage the affairs of the beneficiary or intestate successor" and substituting "the guardian of the minor's estate or a nominee".

SECTION 42: [Wills, Estates and Succession Act, section 164] clarifies that the executor's whereabouts are unknown.

42 Section 164 (2) (b) is amended by striking out "grant of probate, or whose whereabouts are unknown." and substituting "grant of probate or whose whereabouts are known."

SECTION 43: [Wills, Estates and Succession Act, section 170]

43 Section 170 (1) is amended

(a) by repealing paragraph (c) and substituting the following:

(c) legal expenses incurred in the administration of the deceased person's estate; ,

(b) in paragraph (f) by adding "and taxes of the Nisga'a Lisims Government or a taxing treaty first nation" after "municipal taxes", and

(c) in paragraph (j) by striking out "or the government of any other province," and substituting ", the government of any other province, the Nisga'a Lisims Government or a treaty first nation,".

SECTION 44: [Wills, Estates and Succession Act, section 182] corrects a statutory reference.

44 Section 182 (2) is repealed and the following substituted:

(2) If the guardian of a minor referred to in subsection (1) is not also the guardian of the estate of the child within the meaning of the Family Relations Act, the reference to "guardian" in subsection (1) of this section must be read as the guardian of the minor's estate.

SECTION 45: [Wills, Estates and Succession Act, section 184]

45 Section 184 (2) is amended

(a) in paragraph (a) by striking out "that have been superseded or that refer to wills that have been probated", and

(b) in paragraph (c) by adding "or to search for or inspect a notice filed" after "file a notice".

SECTION 46: [Wills, Estates and Succession Act, section 186] replaces sections to which section 186 of the Act is subject.

46 Section 186 (1) is amended by striking out "Subject to sections 193 and 194," and substituting "Subject to subsections (2) and (3) of this section and section 189,".

SECTION 47: [Wills, Estates and Succession Act, section 197] is self-explanatory.

47 Section 197 (a) and (b) is repealed and the following substituted:

(a) in subsection (6) (a) and (b) by striking out "the executor or administrator" and substituting "the personal representative", and

(b) in subsection (7) by striking out "The executor, administrator" and substituting "The personal representative".

SECTION 48: [Wills, Estates and Succession Act, sections 224.1 to 224.4] is consequential to the replacement of the Wills Act with the Wills, Estates and Succession Act and the renaming of the Survivorship and Presumption of Death Act as the Presumption of Death Act.

48 The following sections are added:

Insurance Act

224.1 Section 65 (2), of the Insurance Act, R.S.B.C. 1996, c. 226, as enacted by section 47 of the Insurance Amendment Act, 2009, S.B.C. 2009, c. 16, is amended by striking out "Survivorship and Presumption of Death Act," and substituting "Presumption of Death Act,".

224.2 Section 91.1 (2), as enacted by section 67 of the Insurance Amendment Act, 2009, is amended by striking out "Survivorship and Presumption of Death Act," and substituting "Presumption of Death Act,".

224.3 Section 102.2 (2), as enacted by section 79 of the Insurance Amendment Act, 2009, is amended by striking out "Wills Act," and substituting "Wills, Estates and Succession Act,".

224.4 Section 107.3 (1), as enacted by section 86 of the Insurance Amendment Act, 2009, is amended by striking out "Wills Act," and substituting "Wills, Estates and Succession Act,".

SECTION 49: [Wills, Estates and Succession Act, section 224.5] adds a provision to the Insurance (Vehicle) Act that was previously included in the Estate Administration Act.

49 The following section is added:

Insurance (Vehicle) Act

224.5 The Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, is amended by adding the following section:

Recovery in relation to motor vehicle insurance

76.1  (1) This section applies if

(a) at the time of the loss or damage in relation to which a proceeding is continued or brought under section 150 [proceedings by and against estate] of the Wills, Estates and Succession Act, the person who committed the wrong was insured against liability for loss or damage in respect of it by a vehicle liability policy, and

(b) the person wronged or the personal representative of that person recovers a judgment in the proceeding.

(2) Despite the terms of the vehicle liability policy or the provisions of any law or statute to the contrary,

(a) the liability of the insurer under the policy extends to the wrong, and

(b) the person or the personal representative by whom the judgment is recovered has the same rights and remedies, as against the insurer and in respect of the insurance money payable under the policy, as the person wronged would have if both the person wronged and the insured person who committed the wrong were alive and the proceeding had been brought or continued against the insured.

(3) The estate of the insured is liable to pay or reimburse the insurer, on demand, any amount paid by the insurer by reason of this section that the insurer would not otherwise be liable to pay.

SECTION 50: [Wills, Estates and Succession Act, sections 246 and 252] repeals amendments to provisions that are no longer in force.

50 Sections 246 and 252 are repealed.

SECTION 51: [Wills, Estates and Succession Act, section 246.1] adds a reference to "small estate declarant".

51 The following section is added in numeric order under the Police Act heading:

246.1 Section 87 (1) (c) is repealed and the following substituted:

(c) if the complainant dies after making a complaint, the executor of the complainant, the administrator of the complainant's estate, the small estate declarant of the complainant or, if no executor, administrator or small estate declarant is available or willing to act, a responsible adult.

SECTION 52: [Wills, Estates and Succession Act, section 248.1] adds a provision to the Property Law Act that was previously included in the Estate Administration Act.

52 The following section is added:

Property Law Act

248.1 The Property Law Act, R.S.B.C. 1996, c. 377, is amended by adding the following section:

Actions of account

13.1  (1) Actions in the nature of the common law action of account may be brought and maintained by one joint tenant or tenant in common against the other as bailiff for receiving more than comes to that person's just share or proportion, and against the executor or administrator of the joint tenant or tenant in common.

(2) The registrar or other person appointed by the court to inquire into the account

(a) may administer an oath and examine the parties touching the matters in question, and

(b) is entitled, for taking the account, to receive the allowance that the court orders from the party that the court may direct.

SECTION 53: [Wills, Estates and Succession Act, section 267] amends the definition of "nominee".

53 Section 267 is amended as it enacts the definition of "nominee" in section 1 (1) of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13, by striking out "and" at the end of paragraph (b), by adding ", and" at the end of paragraph (c), and by adding the following paragraph:

(d) a person appointed under section 51 (2) [mentally incompetent Indians] of the Indian Act (Canada) or the Minister of Indian Affairs and Northern Development; .

SECTION 54: [Wills, Estates and Succession Act, section 267] provides a new definition of "nominee".

54 Section 267 is repealed and the following substituted:

267 Section 1 (1) of this Act is amended by repealing the definition of "nominee" and substituting the following:

"nominee" includes

(a) a committee under the Patients Property Act granted power over financial affairs,

(b) an attorney acting under Part 2 of the Power of Attorney Act,

(c) a representative acting under a representation agreement made under section 7 (1) (b) of the Representation Agreement Act, and

(d) a person appointed under section 51 (2) [mentally incompetent Indians] of the Indian Act (Canada) or the Minister of Indian Affairs and Northern Development; .

SECTION 55: [Wills, Estates and Succession Act, section 268] clarifies designations and alterations or revocations of previous designations.

55 Section 268 is amended as it enacts section 85 (3) of the Wills, Estates and Succession Act by adding ", alter or revoke" after "may make".

SECTION 56: [Wills, Estates and Succession Act, section 268] sets out who may make a designation under section 85 of the Act.

56 Section 268 is repealed and the following substituted:

268 Section 85 (3) of this Act is repealed and the following substituted:

(3) A person granted power over an adult's financial affairs under

(a) Part 2 of the Power of Attorney Act, or

(b) the Patients Property Act

may make, alter or revoke a designation under this section only if expressly authorized to do so by the court and the designation is not made in a will.

SECTION 57: [Wills, Estates and Succession Act, section 268.1] sets out who may make a new designation on behalf of a participant under section 90 of the Act.

57 The following section is added:

268.1 Section 90 (1) of this Act is repealed and the following substituted:

(1) Subject to subsection (2), a new designation of the same designated beneficiary may be made, other than by a will, by a representative of the participant, including by one of the following:

(a) a statutory property guardian or property guardian under the Adult Guardianship Act;

(b) an attorney acting under Part 2 of the Power of Attorney Act;

(c) a person appointed under section 51 (2) [mentally incompetent Indians] of the Indian Act (Canada) or the Minister of Indian Affairs and Northern Development.

SECTION 58: [Wills, Estates and Succession Act, section 269] adds section 268.1 to the sections that may be repealed by regulation by the Lieutenant Governor in Council.

58 Section 269 of this Act is amended by striking out ", 267 and 268" and substituting "and 267 to 268.1".

Commencement

59  The provisions of this Act referred to in column 1 of the following table come into force as set out in column 2 of the table:

Item Column 1
Provisions of Act
Column 2
Commencement
1 Anything not elsewhere covered by this table The date of Royal Assent
2 Section 54 By regulation of the Lieutenant Governor in Council
3 Sections 56 to 58 By regulation of the Lieutenant Governor in Council

 
Explanatory Notes

SECTION 1: [Wills, Estates and Succession Act, section 1] adds the definitions of "Nisga'a Village Government" and "taxing treaty first nation" and sets out definitions relocated from another section of the Act by this Bill.

SECTION 2: [Wills, Estates and Succession Act, section 1] amends the definition of "nominee".

SECTION 3: [Wills, Estates and Succession Act, section 1] amends the definition of "participant".

SECTION 4: [Wills, Estates and Succession Act, section 1] amends the definition of "small estate declaration".

SECTION 5: [Wills, Estates and Succession Act, section 1] amends the definition of "spousal home".

SECTION 6: [Wills, Estates and Succession Act, heading to Division 3 of Part 2] adds a reference to the Nisga'a Final Agreement.

SECTION 7: [Wills, Estates and Succession Act, section 12] repeals definitions relocated to section 1 of the Act by this Bill.

SECTION 8: [Wills, Estates and Succession Act, sections 13, 14, 106, 108 to 110, 121, 122, 124, 138, 141, 159, 164, 181 and 182] replaces references to "Rules of Court" with "Supreme Court Civil Rules" to accord with the new Supreme Court Civil Rules.

SECTION 9: [Wills, Estates and Succession Act, section 16] is self-explanatory.

SECTION 10: [Wills, Estates and Succession Act, section 17] is self-explanatory.

SECTION 11: [Wills, Estates and Succession Act, sections 18.1 to 18.3]

SECTION 12: [Wills, Estates and Succession Act, section 23] clarifies intestate inheritance at the great-grandparent level.

SECTION 13: [Wills, Estates and Succession Act, section 24] replaces a reference to "intestate" with a reference to "person" and corrects the description of "parent".

SECTION 14: [Wills, Estates and Succession Act, section 27] requires a personal representative to notify a surviving spouse of section 18.3 of the Act if a spousal home is located on Nisga'a Lands or treaty lands.

SECTION 15: [Wills, Estates and Succession Act, section 29] requires notice to the Public Guardian and Trustee of exercising a right to the spousal home if one of the descendants is a minor or a mentally incapable person without a nominee.

SECTION 16: [Wills, Estates and Succession Act, section 30] requires agreement by the Public Guardian and Trustee in respect of the value of the spousal home if one of the descendants is a minor or a mentally incapable person without a nominee.

SECTION 17: [Wills, Estates and Succession Act, section 31] replaces a reference to a prescribed form with a reference to the Supreme Court Civil Rules.

SECTION 18: [Wills, Estates and Succession Act, section 32] adds a regulation-making power to exclude taxes.

SECTION 19: [Wills, Estates and Succession Act, section 39] replaces "the signature of the will-maker" with the defined term "the will-maker's signature".

SECTION 20: [Wills, Estates and Succession Act, section 40] clarifies that a will is not valid unless the witness to a will-maker's signature is 19 years of age or older.

SECTION 21: [Wills, Estates and Succession Act, section 43] includes the spouse of the witness.

SECTION 22: [Wills, Estates and Succession Act, section 48] clarifies that the proceeds are gross proceeds.

SECTION 23: [Wills, Estates and Succession Act, sections 52, 60 to 62, 129 and 150] is self-explanatory.

SECTION 24: [Wills, Estates and Succession Act, section 55] clarifies that a will may be revoked by a will-maker by an act other than those described in section 55 (1) (a) to (c).

SECTION 25: [Wills, Estates and Succession Act, section 61] is self-explanatory.

SECTION 26: [Wills, Estates and Succession Act, section 71] specifies when a court may inquire into circumstances and cancel or vary an order.

SECTION 27: [Wills, Estates and Succession Act, section 73] is self-explanatory.

SECTION 28: [Wills, Estates and Succession Act, section 77] replaces "all notices filed" with "the last notice" and repeals the requirement that a certificate be issued in duplicate.

SECTION 29: [Wills, Estates and Succession Act, section 85]

SECTION 30: [Wills, Estates and Succession Act, section 90] changes who may make a new designation on behalf of the participant.

SECTION 31: [Wills, Estates and Succession Act, section 109] provides that a person may apply to the court for a declaration that the person is a personal representative.

SECTION 32: [Wills, Estates and Succession Act, sections 109 and 110] replaces references to prescribed small estate declarations and documents with references to the Supreme Court Civil Rules.

SECTION 33: [Wills, Estates and Succession Act, section 114] replaces a reference to "prescribed supplementary statutory declaration" with a reference to the Supreme Court Civil Rules.

SECTION 34: [Wills, Estates and Succession Act, section 121] extends the protection of a personal representative from liability.

SECTION 35: [Wills, Estates and Succession Act, section 122] replaces a reference to a prescribed form with a reference to the Supreme Court Civil Rules.

SECTION 36: [Wills, Estates and Succession Act, section 128] provides what the court may do in respect of an application for a grant of administration.

SECTION 37: [Wills, Estates and Succession Act, section 129] adds circumstances when the registrar may grant probate or administration.

SECTION 38: [Wills, Estates and Succession Act, section 141] clarifies that authority to act passes not only if executorship is terminated.

SECTION 39: [Wills, Estates and Succession Act, section 146] is self-explanatory.

SECTION 40: [Wills, Estates and Succession Act, section 150] clarifies when a cause of action or a proceeding is not annulled because of the death of certain persons.

SECTION 41: [Wills, Estates and Succession Act, section 157] changes the reference to "guardian" or "nominee".

SECTION 42: [Wills, Estates and Succession Act, section 164] clarifies that the executor's whereabouts are unknown.

SECTION 43: [Wills, Estates and Succession Act, section 170]

SECTION 44: [Wills, Estates and Succession Act, section 182] corrects a statutory reference.

SECTION 45: [Wills, Estates and Succession Act, section 184]

SECTION 46: [Wills, Estates and Succession Act, section 186] replaces sections to which section 186 of the Act is subject.

SECTION 47: [Wills, Estates and Succession Act, section 197] is self-explanatory.

SECTION 48: [Wills, Estates and Succession Act, sections 224.1 to 224.4] is consequential to the replacement of the Wills Act with the Wills, Estates and Succession Act and the renaming of the Survivorship and Presumption of Death Act as the Presumption of Death Act.

SECTION 49: [Wills, Estates and Succession Act, section 224.5] adds a provision to the Insurance (Vehicle) Act that was previously included in the Estate Administration Act.

SECTION 50: [Wills, Estates and Succession Act, sections 246 and 252] repeals amendments to provisions that are no longer in force.

SECTION 51: [Wills, Estates and Succession Act, section 246.1] adds a reference to "small estate declarant".

SECTION 52: [Wills, Estates and Succession Act, section 248.1] adds a provision to the Property Law Act that was previously included in the Estate Administration Act.

SECTION 53: [Wills, Estates and Succession Act, section 267] amends the definition of "nominee".

SECTION 54: [Wills, Estates and Succession Act, section 267] provides a new definition of "nominee".

SECTION 55: [Wills, Estates and Succession Act, section 268] clarifies designations and alterations or revocations of previous designations.

SECTION 56: [Wills, Estates and Succession Act, section 268] sets out who may make a designation under section 85 of the Act.

SECTION 57: [Wills, Estates and Succession Act, section 268.1] sets out who may make a new designation on behalf of a participant under section 90 of the Act.

SECTION 58: [Wills, Estates and Succession Act, section 269] adds section 268.1 to the sections that may be repealed by regulation by the Lieutenant Governor in Council.