Bill 13 - An Act to Amend the Wills Act

BILL 13

An Act to Amend the Wills Act

His Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1 The Wills Act, chapter W-9 of the Revised Statutes, 1973, is amended by adding before section 1 the following:

PART 0.I

DEFINITIONS, INTERPRETATION AND APPLICATION

2 The heading “Will defined” preceding section 1 of the Act is repealed and the following is substituted:

Definitions and interpretation

3 Section 1 of the Act is repealed and the following is substituted:

1( 1) The following definitions apply in this Act.

“application” means an application or a motion, as the case may be. (demande)

“beneficial disposition” means a disposition (disposition avantageuse)

(a) by beneficial devise or beneficial bequest, or

(b) by the exercise of a power of appointment.

“common-law partner” means a person who cohabits continuously in a conjugal relationship with another person for a period of at least two years without being married to that other person. (conjoint de fait)

“court” means The Court of King’s Bench of New Brunswick or The Probate Court of New Brunswick, as the context requires. (tribunal)

“personal representative” means the executor and includes an administrator with the will annexed. (représentant personnel)

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

1( 2) In the French version of this Act, the terms “désignation” and “pouvoir de désignation” are used in relation to the appointment of beneficiaries or the appointment of property or both, as the case may be.

1( 3) In the French version of this Act, the terms “confection” and “rédaction” mean the act of making a will.

4 The Act is amended by adding after section 1 the following:

Application

1.1( 1) Subject to subsections 2.1(2), 15.02(10) to (15) and 34(6), this Act applies to the will of a testator who dies on or after the date of the commencement of this section, regardless of the date on which the will was made.

1.1( 2) For greater certainty, this Act, as it read from time to time before the date of the commencement of this section, continues to apply to the will of a testator who died before the date of the commencement of this section, as though section 41 had not been repealed.

1.1( 3) For greater certainty, subsection (1) does not invalidate a will validly made before the date of the commencement of this section or revive a will validly revoked before that date.

5 The Act is amended by adding after section 2 the following:

Who may make a will

2.1( 1) A person may make, alter or revoke a valid will if the person is 16 years of age or older and has the mental capacity to do so.

2.1( 2) This section applies only to a will made on or after the date of the commencement of this section.

6 Section 3 of the French version of the Act is amended by striking out “valable” and substituting “valide”.

7 Section 4 of the French version of the Act is amended in the portion preceding paragraph a) by striking out “valable” and substituting “valide”.

8 Section 4.1 of the Act is amended

(a) in subsection (2) of the French version by striking out “en présence du” and substituting “soit signé en présence du”;

(b) by adding after subsection (8) the following:

4.1( 9) This section applies with the necessary modifications to the alteration, revocation and revival of a will.

9 Subsection 5(1) of the Act is amended by striking out “National Defence Act, chapter N-4 of the Revised Statutes of Canada, 1970,” and substituting “National Defence Act (Canada),”.

10 Section 6 of the Act is amended by striking out “signature of a witness” and substituting “subscription of a witness”.

11 Section 7 of the French version of the Act is amended

(a) in subsection (1) by striking out “valable” and substituting “valide”;

(b) in subsection (2) by striking out the portion preceding paragraph a) and substituting the following:

7( 2) Aucun testament n’est invalidé du fait que

12 The heading “Persons under 19 years” preceding section 8 of the Act is repealed.

13 Section 8 of the Act is repealed.

14 The heading “Validité du mandat de désignation” preceding section 9 of the French version of the Act is repealed and the following is substituted:

Validité du pouvoir de désignation

15 Section 9 of the French version of the Act is amended by striking out “une exécution valable d’un mandat de désignation” and “l’exercice de ce mandat soit établi” and substituting “un exercice valide d’un pouvoir de désignation” and “l’exercice de ce pouvoir soit fait”, respectively.

16 Section 10 of the French version of the Act is amended by striking out “valable” and substituting “valide”.

17 The Act is amended by adding after section 10 the following:

Witnesses

10.1( 1) A person may subscribe a will as a witness to the signature of the testator if the person

(a) has the mental capacity to do so, and

(b) has reached the age of majority.

10.1( 2) A person who signs a will on behalf of a testator may not be a witness to the execution of the will.

10.1( 3) A person who subscribes a will as a witness to the signature of a testator is not incompetent as a witness to prove the execution of the will or its validity or invalidity only because the person is

(a) a beneficiary under the will or the spouse or common-law partner of a beneficiary,

(b) an executor under the will or the spouse or common-law partner of an executor, or

(c) if the testator has charged a debt to the testator’s estate, the creditor or the creditor’s spouse or common-law partner.

18 Section 11 of the Act is repealed and the following is substituted:

Effect of incompetency of attesting witness

11 A will is not invalid only because a witness was incompetent at the time of its execution or subsequently became so.

19 The heading “Conflict of interest of attesting witness” preceding section 12 of the Act is repealed and the following is substituted:

Void beneficial disposition

20 Section 12 of the Act is repealed and the following is substituted:

12( 1) Subject to any order made under subsection (3), a beneficial disposition in favour of a witness who attested the execution of the will or the witness’s spouse or common-law partner is void as against the witness, the witness’s spouse or common-law partner or any person claiming under any of them.

12( 2) Despite subsection (1), if, in the testator’s will, the testator charges to the testator’s estate a debt owed by the testator to the witness or provides for a direction to repay the debt, the beneficial disposition made in favour of the witness or the witness’s spouse or common-law partner in repayment of the debt is not void or the direction to repay the debt is not invalid, as the case may be.

12( 3) On application, a court may, by order, declare that the beneficial disposition is not void if the court is satisfied that

(a) the testator intended to make the beneficial disposition in favour of the witness or the witness’s spouse or common-law partner despite the fact that the witness would be acting in that capacity, and

(b) the witness or the witness’s spouse or common-law partner did not exercise any undue influence on the testator.

12( 4) The application may not be made more than six months after the date of the death of the testator, unless the court orders an extension.

12( 5) On application, the court may, by order, extend the period referred to in subsection (4) on any terms and conditions it considers appropriate.

12( 6) Despite subsection (1), a beneficial disposition respecting personal representative remuneration, including professional fees, is not void by the personal representative acting as a witness to the execution of the will.

12( 7) If the execution of a will is attested by at least two witnesses who do not fall under subsection (1) or if no attestation is necessary, the beneficial disposition provided for in the will is not void under that subsection.

12( 8) The spouse or common-law partner referred to in subsections (1), (2) and (3) is the spouse or common-law partner at the time of the execution of the will.

21 The heading “Power of creditor to attest will” preceding section 13 of the Act is repealed.

22 Section 13 of the Act is repealed.

23 The heading “Power of executor to attest will” preceding section 14 of the Act is repealed.

24 Section 14 of the Act is repealed.

25 Paragraph 15b) of the French version of the Act is amended by striking out “établi” and substituting “fait”.

26 The Act is amended by adding after section 15 the following:

Interpretation of will

15.01( 1) A will must be interpreted in a manner that gives effect to the intent of the testator, and, in determining the testator’s intent, the court may admit the following evidence:

(a) evidence as to the meaning, in either an ordinary or a specialized sense, of the words or expressions used in the will;

(b) evidence as to the meaning of the provisions of the will in the context of the testator’s circumstances at the time of the making of the will; and

15.01( 2) For greater certainty, the admissibility of the evidence referred to in subsection (1) does not depend on any precondition, whether it be a finding that a word or an expression may have more than one meaning or that an ambiguity exists.

15.01( 3) For greater certainty, the court may admit the evidence referred to in subsection (1) in order to determine whether a contrary intention, within the meaning of this Act, appears by a will or by any other instrument.

Change in circumstances

15.02( 1) In this section, “common-law relationship” means the relationship between two persons who are common-law partners of each other.

15.02( 2) Except as otherwise provided in this section, a will is not revoked by presumption of an intention to revoke it on the ground of a change in circumstances.

15.02( 3) Except when a contrary intention appears by the will or by a marriage contract or separation agreement entered into between the testator and the testator’s former spouse, if, after the testator makes a will, the testator’s marriage is terminated by a judgment absolute of divorce or is declared a nullity, the following are revoked:

(a) a devise or bequest of a beneficial interest in property to the former spouse, whether personally or as a member of class of beneficiaries;

(b) an appointment of the former spouse as personal representative or trustee; and

15.02( 4) On the death of the testator, subsection (3) applies, with the necessary modifications, if the spouses are separated at the time of the testator’s death, as determined under subsection (5).

15.02( 5) A spouse is deemed to be separated from the testator at the time of the testator’s death for the purposes of subsection (4) if

(a) at the time of the death of the testator, they had been living separate and apart as a result of their marriage breakdown for at least the immediately preceding two-year period,

(b) immediately before the testator’s death, they were opposing parties to a proceeding under the Divorce Act (Canada) or the Marital Property Act,

(c) immediately before the testator’s death, they were parties to an agreement, a contract or an order with respect to their property or other issues affecting the couple or family, which agreement, contract or order aimed at separating and finalizing their affairs in recognition of their marriage breakdown, or

(d) before the testator’s death, they divided their property in a manner that was intended by them, or appears to have been intended by them, to separate and finalize their affairs in recognition of their marriage breakdown.

15.02( 6) Except when a contrary intention appears by the will or a domestic contract entered into between the testator and the testator’s former common-law partner, if, after the testator makes a will, the testator’s common-law relationship breaks down, the following are revoked:

(a) a devise or bequest of a beneficial interest in property to the former common-law partner, whether personally or as a member of a class of beneficiaries;

(b) an appointment of the former common-law partner as personal representative or trustee; and

15.02( 7) For the purposes of subsection (6), the testator is deemed at the time of the testator’s death to no longer be in a common-law relationship with the testator’s common-law partner if

(a) at the time of the death of the testator, they had been living separate and apart as a result of the breakdown of their common-law relationship for at least the immediately preceding two-year period,

(b) immediately before the testator’s death, they were parties to an agreement, a contract or an order with respect to their property or other issues affecting the couple or family, which agreement, contract or order aimed at separating and finalizing their affairs in recognition of the breakdown of their common-law relationship,

(c) before the testator’s death, they divided their property in a manner that was intended by them, or appears to have been intended by them, to separate and finalize their affairs in recognition of the breakdown of their common-law relationship, or

(d) before the testator’s death, the testator or the testator’s common-law partner otherwise permanently terminated their common-law relationship.

15.02( 8) For the purposes of subsections (3), (4) and (6), the will shall be construed as if the former spouse or common-law partner or the separated spouse had predeceased the testator.

15.02( 9) Nothing in this section prevents a former spouse or common-law partner or a separated spouse from relying on or enforcing the terms of any agreement or contract to which the testator is a party.

15.02( 10) Sections 15.1 and 16, as they existed immediately before their repeal, continue to apply to a will if

(a) the will was made before the date of the commencement of this section, and

(b) the testator married after the making of the will, but before the date of the commencement of this section.

15.02( 11) In the case of a divorce or nullification of a marriage, subsection (3) applies in respect of a will made before, on or after the date of the commencement of this section only if the judgment absolute of divorce or the declaration of nullity, as the case may be, took place on or after the date of the commencement of this section.

15.02( 12) Subject to subsection (13), in the case of a separation, subsection (4) applies in respect of a will made before, on or after the date of the commencement of this section only if

(a) the death of the testator occurs after the date of the commencement of this section, and

(b) a condition set out in paragraph (5)(a), (b), (c) or (d), as the case may be, comes into existence on or after the date of the commencement of this section.

15.02( 13) With regard to paragraph (5)(a), subsection (12) applies only if the date on which the two-year period begins to run is on or after the date of the commencement of this section.

15.02( 14) Subject to subsection (15), in the case of the breakdown of a common-law relationship, subsection (6) applies in respect of a will made before, on or after the date of the commencement of this section only if

(a) the death of the testator occurs after the date of the commencement of this section, and

(b) a condition set out in paragraph (7)(a), (b), (c) or (d), as the case may be, comes into existence on or after the date of the commencement of this section.

15.02( 15) With regard to paragraph (7)(a), subsection (14) applies only if the date on which the two-year period begins to run is on or after the date of the commencement of this section.

27 The heading “Effect of subsequent marriage on will” preceding section 15.1 of the Act is repealed.

28 Section 15.1 of the Act is repealed.

29 The heading “Circumstances where section 15.1 does not apply” preceding section 16 of the Act is repealed.

30 Section 16 of the Act is repealed.

31 The heading “Presumption of intention to revoke” preceding section 17 of the Act is repealed.

32 Section 17 of the Act is repealed.

33 Subsection 18(2) of the French version of the Act is amended in the portion preceding paragraph a) by striking out “valablement” and substituting “validement”.

34 Subsection 19(1) of the French version of the Act is amended

(a) in paragraph a) by striking out “rédigé” and substituting “fait”;

(b) in paragraph b) by striking out “rédigé” and substituting “fait”.

35 The heading “Effect of failure of inter-vivos gift” preceding section 22 of the Act is repealed and the following is substituted:

Failure of beneficial disposition

36 Section 22 of the Act is repealed and the following is substituted:

22( 1) If a beneficial disposition in a will cannot take effect because the intended beneficiary has predeceased the testator, whether before or after the will is made, then unless the court, in interpreting the will, finds that the testator had a contrary intention, the property that is the subject of the beneficial disposition shall be distributed

(a) to the alternate beneficiary, if any, of the beneficial disposition, whether or not the particular cause of the failure is contemplated in the will and regardless of whether the alternate beneficiary is to take in the specified circumstances,

(b) if paragraph (a) does not apply and the deceased intended beneficiary was issue of the testator, to the deceased intended beneficiary’s issue who survive the testator, in the same manner as if the deceased intended beneficiary had died intestate without leaving a surviving spouse or common-law partner,

(c) if neither paragraph (a) nor (b) applies and the deceased alternate beneficiary was issue of the testator, to the deceased alternate beneficiary’s issue who survive the testator, in the same manner as if the deceased alternate beneficiary had died intestate without leaving a surviving spouse or common-law partner,

(d) if none of paragraphs (a) to (c) applies, to the surviving residuary beneficiaries of the testator, if any, named in the will, in proportion to their interests, or

(e) if none of paragraphs (a) to (d) applies, in the same manner as if the testator had died intestate.

22( 2) If a beneficial disposition in a will cannot take effect by reason of the beneficial disposition to the intended beneficiary being void, contrary to law or disclaimed, or for any other reason, then unless the court, in interpreting the will, finds that the testator had a contrary intention, the property that is the subject of the beneficial disposition must be distributed as if paragraphs (1)(a) to (e) applied and the intended beneficiary had predeceased the testator.

22( 3) Despite subsections (1) and (2), no share of the property that is the subject of the beneficial disposition shall be distributed to a person described in subsection 12(1) unless subsection 12(2), (6) or (7) applies or the court makes an order under subsection 12(3).

37 Section 23 of the French version of the Act is amended

(a) in paragraph c), by striking out “désignés” and substituting “décrits”;

(b) in paragraph d) by striking out “désignés” and “être désigné” and substituting “décrits” et “être décrite”, respectively;

38 The heading “Legs comprend biens réel auxquels s’applique une désignation” preceding section 24 of the French version of the Act is repealed and the following is substituted:

Inclusion dans le legs des biens auxquels s’applique le pouvoir de désignation du testateur

39 Section 24 of the French version of the Act is amended

(a) in subsection (1)

( i) in paragraph c) by striking out “désignés” and substituting “décrits”;

( ii) in the portion following paragraph c) by striking out “la désignation et à l’égard desquels le testateur a un mandat de désignation qu’il peut exercer de quelque manière qu’il estime appropriée, et vaut exécution de ce mandat” and substituting “la description et à l’égard desquels le testateur a un pouvoir de désignation qu’il peut exercer de quelque manière qu’il estime appropriée, et vaut exercice de ce pouvoir”;

(b) in subsection (2)

( i) in paragraph b) by striking out “désignés” and substituting “décrits”;

( ii) in the portion following paragraph b) by striking out “la désignation et à l’égard desquels le testateur a un mandat de désignation qu’il peut exercer de quelque manière qu’il estime appropriée, et vaut exécution de ce mandat” and substituting “la description et à l’égard desquels le testateur a un pouvoir de désignation qu’il peut exercer de quelque manière qu’il estime appropriée, et vaut exercice de ce pouvoir”.

40 Paragraph 27(2)a) of the French version of the Act is amended by striking out “désigné dans” and substituting “visé par”.

41 Section 30 of the French version of the Act is amended

(a) in subsection (1) by striking out “valable” and substituting “valide”;

(b) in subsection (2) by striking out “valable” and substituting “valide”.

42 The heading “Devise of estate tail or entail estate” preceding section 31 of the Act is repealed.

43 Section 31 of the Act is repealed.

44 The heading “Effect of death of beneficiary or devisee” preceding section 32 of the Act is repealed.

45 Section 32 of the Act is repealed.

46 The heading “Illegitimate child deemed legitimate child” preceding section 33 of the Act is repealed and the following is substituted:

Births outside of marriage

47 Section 33 of the Act is repealed and the following is substituted:

33 In this Act and in any will, except when a contrary intention appears by the will, any person whose parents are not married at the time of their birth has the same status as a person whose parents are married at the time of their birth.

48 The heading “Devise of mortgaged property” preceding section 34 of the Act is repealed  and the following is substituted:

Property encumbered by a purchase money security interest

49 Section 34 of the Act is repealed and the following is substituted:

34( 1) In this section, “purchase money security interest” means a security interest taken in land or in tangible personal property

(a) securing the payment of a debt, including interest charges, incurred in respect of a loan or credit provided to the testator to acquire, improve or preserve the land or tangible personal property, and

(b) that is registered under the Land Titles Act, the Registry Act or the Personal Property Security Act, as the case may be.

34( 2) Except when a contrary intention appears by the will, the interest of a beneficiary in a devise or bequest of property encumbered by a purchase money security interest is, as between the different persons claiming through the deceased, primarily liable to pay the debt secured by the purchase money security interest to the extent that the debt is attributable to the acquisition, improvement or preservation of the property.

34( 3) Except when a contrary intention appears by the will, if a purchase money security interest applies to more than one devise or bequest of property, each property is liable for payment of the debt secured by the purchase money security interest proportionally, to the extent that the debt is attributable to the acquisition, improvement or preservation of that property.

34( 4) A contrary intention is not signified by the testator by either of the following unless the testator further signifies that intention by words expressly or by implication referring to all or some part of the debt secured by the purchase money security interest:

(a) a general direction in the will for the payment of debts; or

(b) a charge of debts on the testator’s estate.

34( 5) Nothing in this section affects the right of a secured party with a purchase money security interest in property of the deceased to have the deceased’s debt to the secured party repaid from the deceased’s other property or otherwise.

34( 6) This section applies only to a will made on or after the date of the commencement of this section.

50 Section 35.1 of the Act is amended

(a) in the portion preceding paragraph (a) by striking out “court of competent jurisdiction” and substituting “court”;

(b) in the portion following paragraph b) of the French version by striking out “valable” and substituting “valide”.

51 The Act is amended by adding after section 35.1 the following:

Abrogation of common law presumptions

35.2( 1) Except when a contrary intention appears by the will, the presumption of common law that if a testator makes a substantial transfer of property to the testator’s child during the life of the testator but after making a will that provides for a devise or bequest to that child, the testator intends the transfer as an advancement, in whole or in part, of the child’s share of the estate is abrogated.

35.2( 2) Except when a contrary intention appears by the will, the presumption of common law that if a testator makes a bequest of money to a creditor in an amount equal to or greater than the debt, the testator intends the bequest to satisfy the debt is abrogated.

35.2( 3) Except when a contrary intention appears by the will, the presumption of common law that a testator intends to revoke a bequest of money made in favour of a person if the testator transfers to the person, during the testator’s lifetime, after having made the will, an amount of money equal to or greater than that provided for in the bequest is abrogated.

Abrogation of the doctrine of election

35.3( 1) If a testator purports, by will, to dispose of property that the testator does not own, the disposition is void, and any rights that the owner of the property has as a beneficiary under the will are not affected by the purported disposition.

35.3( 2) Subsection (1) does not prevent the disposition of property by will from being subject to the condition that the beneficiary under the will dispose of other property that the beneficiary owns.

52 The Act is amended by adding before section 36 the following:

Law of a place

35.4 In this Part, any reference to the law of a place other than New Brunswick is a reference to the internal law only of that place and does not include the conflict of laws rules of that place.

53 Section 37 of the French version of the Act is amended

(a) in the portion preceding paragraph a) by striking out “valable” and substituting “valide”;

(b) in paragraph a) by striking out “rédigé” and substituting “fait”;

54 Section 38 of the French version of the Act is amended by striking out “ne le rend pas nul” and substituting “ne l’invalide pas”.

55 The heading “PART III APPLICATION OF ACT” preceding section of 41 of the Act is repealed.

56 Part III of the Act is repealed.

CONSEQUENTIAL AMENDMENTS AND COMMENCEMENT

Probate Court Act

57( 1) Section 8 of the Probate Court Act, P-17.1 of the Acts of New Brunswick, 1982, is amended by striking out “subject to the rules in contentious matters” and substituting “subject to section 15.01 of the Wills Act and the rules in contentious matters”.

57( 2) Subsection 36(3) of the Act is amended

(a) in paragraph (a) by striking out “National Defence Act,