ESTATE CONVEYANCING - THOSE PESKY
LITTLE “Subject To’s”
Wendy Ann O’Neill
Chong & O’Neill
Barristers and Solicitors
273 King St E, P.O. Box 1382
Kingston, ON
Tel (613) 549-1225
Email: wendyoneill@chongoneill.ca
AUTOMATION, LAND TITLES and E-REG: Welcome, Frontenac County, to the
21st Century: BUT WHAT ARE THOSE “SUBJECT TO’s”
Prior to 1997, real estate conveyancing in Frontenac County existed solely in the
context of the Registry Act and the registry system of title recording. 1997 brought two
major changes to conveyancing in Frontenac: the “automation” of titles in the Land
Registry Office, as well as the introduction of and conversion to Land Titles of many of
the titles being automated.
For those of you who do not do real estate, automation meant the introduction and
assignment of Property Identifier Numbers (PINs) to all titles in the county, enabling
titles to be accessed on a computer system operated by Teranet, effectively making the
title information available to anyone able to access the system, whether by computers
located in the Land Registry Offices or by desktop access from any computer loaded with
the requisite software, including those in our own offices. Of course, the process is not
unique to Frontenac County; in fact, we are merely following in the footsteps of other
counties which have undergone a similar automation and conversion of titles, a process
begun in Ontario some years ago and still continuing to this date.
In the ten year period since automation and Land Titles was first introduced in our
county, the process of administrative conversion of titles has continued and expanded, so
that as of this date Frontenac County now has 70% of its titles recorded in the Land Titles
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system and 30% registered in the Registry system. The ultimate goal, of course, is to
have all titles (or as many as possible) in the Province of Ontario recorded in the Land
Titles system, thus making all titles eventually accessible to electronic searching as well
as electronic registration of title related documents.
Once the first wave of conversions had been completed in Frontenac County, and
as the conversions have continued in the years since, we practitioners began to notice that
many of the titles we were dealing with in our ordinary day-to-day real estate
transactions, titles which had been assumed by us to be good, valid and marketable titles
in the Registry system, had been marked as being “subject to” certain interests on their
conversion from the previous Registry system to the Land Titles system.
This often
occurred and continues to occur, in situations where there had been a death of a registered
owner, whether the immediate prior owner or a previous owner within the search period
leading up to the conversion to Land Titles.
Many titles, in their “thumb-nail”
descriptions on the parcel abstract, showed, and continue to show, that the interests of the
currently registered owner might be “subject to the spousal interest, if any, in Instrument
No. X”, or “subject to the debts of the Estate in Instrument Y”, or “subject to the interests
in Instrument Z”.
Since 1997, many property owners in Frontenac County, with the assistance of
their solicitors, have had to make applications to amend their titles (“Application to
Amend the Register”) to delete the references to a title being subject to someone else’s
interest by bringing forth the necessary evidence or producing the necessary consents or
by making the necessary statements of fact and law sufficient to satisfy the Land
Registrar that in fact the title is free and clear of these other interests. In the course of so
doing, we solicitors have had to re-familiarize ourselves with the law, the regulations and
procedures that affect the dealing with real estate after the death of a registered owner. It
is a somewhat complicated area, and it would seem that some aspects of it either have
been overlooked by some of us in dealing with estate conveyances completed under the
Registry system, or that matters may have been dealt with internally, in the lawyer’s
estate or real estate files, but not sufficiently stated or documented in the actual recorded
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title instruments, resulting in the title seeming to be and marked as being “subject to”
other interests.
One purpose of my paper is to summarize some of the issues and concerns in this
somewhat complicated area of estate conveyancing, so that as we go forward as estate
and real estate solicitors, whether operating in the Registry system or the Land Titles
system, whether with registrations in paper format or electronic format, we will be
reminded of these issues as each estate matter crosses our desks.
At the end of the day, of course, any persons purchasing property in Ontario,
whether from a surviving joint tenant, an Estate Trustee (whether with a Will or Without
a Will), or from Beneficiaries of an Estate, will want to ensure that the person conveying
title to them has the necessary power and authority to do so, and that on transfer their title
will not be subject to any rights or any other party, or to the debts of an estate. As more
and more transactions (and eventually all) will occur by electronic registration, the role of
the lawyer is becoming even more important, as solicitors are making the law statements
which legitimate the transactions, such as “The property is subject to debts of the
deceased” or “ The debts of the deceased are paid in full”; “Title to the land is not subject
to spousal rights under the Family Law Act” or “Title to the land is subject to the spousal
rights of (insert name)”; “This transfer is for the purpose of paying debts” or “The sale is
bona fide and for good value”; “All required parties have given their consent to this
transfer” or “No consents are required for this transfer”; “The personal representative has
the authority to transfer the land under the terms of the will, if any, the Estates
Administration Act, and the Succession Law Reform Act” or “This transfer is authorized
by Court name of court under file number insert file number dated enter date, and is still
in full force and effect”. It is incumbent upon us, as estate solicitors and real estate
solicitors, to be familiar with the law and procedures affecting estate matters so that we
are able to accurately determine all interests that may affect an estate transfer, and so that
when we legitimate a transfer on the basis of “law” statements attested to by us, we will
know which of the various statements is actually relevant to a particular transmission or
transfer, and so that we will be sure to have the appropriate supporting materials
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documented in our files or registered or indexed on title, in support of the statements
being made.
LEGISLATION AFFECTING (Real Estate) ESTATE MATTERS
Whether there is a Will or no Will, whether there has been a Court appointment of
an Estate Trustee (with or without a Will) or no such appointment obtained, whether the
transfer is from the Surviving Joint Tenant, the Estate Trustee or directly from a
Beneficiary of an estate, the transfer of real estate by or from an estate or a beneficiary is
affected by the provisions of the Estates Administration Act, R.S.O. 1990, c E.22 It may
also be affected by provisions in the Children’s Law Reform Act, R.S.O. 1990, c. C-12 as
well as the Family Law Act,, R.S.O. 1990, c F-3. The most relevant sections of these
Acts are set out at the end of my paper.
MATTERS TO CONSIDER IN ESTATE CONVEYANCING

Whether the property was owned in joint tenancy by the deceased, either
with a spouse or with some other third party

Whether the deceased had a spouse

Whether some or all beneficiaries of the estate are children

Whether the debts of the estate have been paid

Whether the deceased died with or without a Will
o If there is a Will:

Whether there is an express power of sale in the Will

Whether there is an implied power of sale in the Will

Whether there any powers of sale at all in the Will

Whether the particular real estate is specifically dealt with in
the Will (ie: whether it the subject of a specific bequest)

Which statutory provisions are likely to govern certain aspects
of the conveyancing process
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o If there is no Will:

Which statutory provisions will govern all aspects of the
conveyancing process

What is the purpose of the proposed conveyance
o Is it to pay debts
o Is it to liquidate in order to distribute proceeds to the beneficiaries
o Is it to transfer to those beneficially entitled, whether by Will or on
intestacy

What consents might be required (this may already be known, based upon
the answers to many of the above questions)

Has the property vested in the beneficiaries
A.
SPOUSAL RIGHTS AFFECTING ESTATE CONVEYANCING
1.
Joint Tenancies: Death of a Joint Tenant
In so many situations, persons married to each other own their matrimonial home
(family residence) in joint tenancy, and so on the death of one spouse title will pass to the
surviving spouse / surviving joint tenant by “simple” operation of law. In the Registry
system, no specific notice or information needs be recorded on title until the surviving
joint tenant wishes to sell or to transfer or to mortgage the property, but at such time there
would be registered on title the appropriate proof of death and the statement confirming
that the deceased and the surviving joint tenant were spouses of one another at the time of
the death of the deceased. In the Land Titles system, the surviving joint tenant would
customarily make a Survivorship Application sometime after the death of the first party,
to have the name of the deceased owner deleted from the parcel register, leaving the
surviving joint tenant as the sole registered owner of the property. Again, the proof of
death would be registered or the fact of it stated on an electronic application (as a law
statement completed by a lawyer) and confirmation provided that the two joint tenants
were spouses of one another when the first joint tenant died.
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One reason for the “subject to spousal interest, if any” notations on the Land
Titles converted titles is that very often, in prior Registry Deeds, no indication was given
of the spousal status of the deceased person at the time of his or her death, and
consequently it was not possible to determine whether the deceased was in fact married at
all, married to the surviving joint tenant, or married to someone else entirely (ie: to
someone not on title).
Section 26(1) of the Family Law Act provides that if a spouse dies owning an
interest in a matrimonial home as a joint tenant with a third party and not with the other
spouse, the joint tenancy is deemed to have been severed immediately before the death of
the deceased spouse. Accordingly, in such a situation, the interest of the deceased joint
tenant would fall into his or her Estate, to be dealt with by Will or on intestacy, as the
case might be, and would not devolve to the surviving joint tenant by operation of law.
Clearly, then, if the death occurred after March 1, 1986, it is crucial that the spousal
status of the deceased person at the time of death be known. Unless it can be stated that
the deceased joint tenant and the surviving joint tenant were spouses of one another at the
time of the death or that the deceased joint tenant was not a spouse at the time of death or
the property was not a matrimonial home of the deceased at the time of death, the title
will be subject to rights of another (ie: the beneficiary of the deceased’s Will, if any, or
the statutory beneficiaries, if it is an intestacy).
2.
Right of Possession of the Non-Titled Spouse
Section 26(2) of the Family Law Act provides that where a non-titled spouse is in
actual occupation of the matrimonial home at the time of the death of the other spouse
who held title, the non-titled spouse has a right to retain possession of the home for sixty
days after the death of the other spouse, rent free. Accordingly, if there is a sale of the
home with a closing within sixty days of the death and the non-titled spouse was living in
the home at the time of death, the non-titled spouse must consent to the transfer or the
title would be subject to spousal rights, at least for the duration of the sixty day period.
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3.
Right of Election By Surviving Spouse Under the Family Law Act
Under Section 6 of the Family Law Act, a surviving spouse has a right to elect,
within six months of the death of the other spouse, either to take under the Will of the
deceased (in the case of an intestacy, under the Succession Law Reform Act) or to take his
or her equalization entitlement under Section 5 of the Family Law Act.
If the spouse
elects to take equalization, the Act provides that no distribution of the estate can be made
until the election has been dealt with. This does not prevent the sale of real property to a
third party purchaser, for consideration, since the proceeds would merely be held pending
distribution. Where there is a sale for consideration, to pay debts, no consent of any
beneficiaries or spouse is required, whether there is a Will or on intestacy.
However, some conveyances of property actually constitute a technical
distribution of the estate, as in the case of the conveyance of the real property where
the stated purpose is to distribute to those beneficially entitled. In such a situation, the
interests of the surviving spouse must be dealt with appropriately in the transfer, failing
which the title could be marked as being subject to spousal rights.
Transfer to Beneficiaries: Conveying to those beneficially entitled
Transfer To Beneficiary Within 6 months of death of the spouse: a transfer within six
months of the death must have either a Court Order authorizing the transfer or the
surviving spouse must consent to the transfer. Where there is no Court Order authorizing
the transfer, in addition to the spouse’s consent, the consent of all beneficiaries must be
obtained (Children’s Lawyer to consent on behalf of minors and incompetents) as well as
spousal statements for all consenting beneficiaries and an execution search against all
beneficiaries. If the property is actually a matrimonial home of any beneficiary, the
spouse of the beneficiary should also consent to the transfer. If any of the necessary
spousal consents are not obtained, the title will be subject to spousal rights.
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Transfer to Beneficiary After 6 months from death of the spouse: a transfer after six
months from the death must have either a court order authorizing the transfer or
statements must be made in the transfer concerning the status of the spouse’s election, if
any, and the spouse may be required to consent to the transfer, depending upon what has
or is occurring in respect of any such election. If the estate trustee confirms that no
election has been made and no application under Part 1 of the Family Law Act has been
received, the spouse remains a beneficiary under the Will (if he or she is so named) and
accordingly consent of the spouse will still be required unless he or she is the beneficiary
to whom the property is being transferred. If there is an application pending under Part 1
of the Family Law Act, the consent of the surviving spouse must be obtained for the
transfer. If an election has been filed with the Court but no application under Part 1 of the
Family Law Act is pending, the estate trustee will confirm what the election is (ie: an
election to take under the Family Law Act) and it will then be known whether or not the
spouse remains a beneficiary under the Will. If the spouse has opted for the Family Law
Act benefits, he or she ceases to be a beneficiary under the deceased spouse’s will and,
accordingly, his or her consent to the transaction would no longer be required. However,
as in any situation where there is a transfer to those beneficially entitled, the consent of
all beneficiaries is needed, along with spousal statements for and execution searches
against the consenting beneficiaries.
4.
Spouses of (Consenting) Beneficiaries
As set out above, for certain transfers, the consent of beneficiaries is required.
For instance, on a transfer to beneficiaries (to convey to those beneficially entitled), the
consent of all beneficiaries is required (Children’s Lawyers Office to provide consent for
minors and incompetents) and spousal statements must be made for all consenting
beneficiaries except for those for whom approval is given by the Children’s Lawyer. If
the property actually is a matrimonial home of any beneficiary, the spouse of that
consenting beneficiary should also consent to the transaction.
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On an intestacy, where there is a transfer for consideration, in order to distribute
proceeds to beneficiaries, the consent of beneficiaries having a 50% interest is required,
along with spousal statements for all consenting beneficiaries, save for minors and
incompetents for whom approval is given by the Children’s Lawyers Office. Once again,
if the particular property is an actual matrimonial home of one of the consenting
beneficiaries, the spouse of that beneficiary should also consent to the transaction.
5.
Dower Rights
Although the Dower Act, R.S.O. 1970, c. 135 was repealed and replaced with the
Family Law Reform Act, 1978, S.O. 1978, c. 2, almost thirty years ago, it may still be the
case that there will arise some rare situations where a deceased male has died prior to
March 31, 1978, owning the subject property, in which case it may still be necessary to
deal with vested dower rights of a widow who remained in possession of the property,
and may still be in possession. As this situation would now occur very rarely, however, I
will not deal with this matter further in this paper.
B.
ESTATE DEBTS: WHEN AND WHY CAN TITLES BE SUBJECT TO
DEBT
The main reasons why some of the Land Titles converted titles contain references
to the titles being subject to the debts of an estate are:
1. There is no information on title stating or confirming that all of the debts of
the estate have been paid; or
2. The purpose of the conveyance has not clearly been stated; or
3. There has been a transfer to a beneficiary and by operation of law the property
remains subject to debt until such time as the statutory criteria are met which
would enable the title to be shown as free from debt.
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1.
Confirmation of Debt Payment / Statement of Purpose of Transfer
Many of the Registry estate transfers contain no information regarding debts of
the estate, and on many transfers the purpose of the transfer is stated simply to be “for
purposes of administering the estate”, which may not a helpful statement when, at the
end of the day, one is attempting to determine whether the title remains subject to debt or
whether other consents may have been required for the transfer.
“For Consideration” Transfers
Where the transfer of the property is for consideration, if the estate document (it
can be the Transmission document or the Transfer itself) actually states that all creditors
of the estate have been notified and all debts of the estate are paid or simply that all debts
of the estate are paid, then the title of the property will not thereafter be subject to the
debts of the estate, as that statement (which would be that of the Estate Trustee, the
Beneficiaries in certain situations, or the lawyer in the case of an electronic registration)
would likely be accepted by the Land Registrar as satisfactory proof that there are no
estate debts affecting the title.
Even if there still are debts of the estate at the time of the for consideration
transfer but the Transfer itself states that the purpose of the transfer is to pay debts, then
the title of the property will not thereafter be subject to the debts of the estate. Failure to
state this purpose in the transfer, however, particularly in the case of an intestacy, will
mean not only that the title will be subject to the debts of the estate, but also that consents
of beneficiaries which would otherwise not be required where the transfer is for
consideration, to pay debts, would be required. On a failure to state that the purpose of
the transfer was to pay debt, the presumption would likely be that the purpose of the
transfer was instead to distribute proceeds to beneficiaries, and consents of beneficiaries
would accordingly be required, depending upon whether there was a Will or no Will, and
what powers are set forth in the Will, if any. (See below for the comments on when
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consents are necessary). If the transfer does not also contain a statement confirming that
the sale is bona fide and for value, on an intestacy, the title will remain subject to debts.
2.
Execution Creditors of the Deceased
Where property is not owned in joint tenancy, if the deceased was already a
judgment debtor at the time of acquiring the property, or became a judgment debtor while
owning the property, the title of the deceased’s property will of course remain subject to
execution unless or until the execution has been paid and discharged, or it has expired
and has not been renewed, or it has been discharged. When the property of the deceased
is held in joint tenancy, however, the situation may be different, depending upon when
the execution arose and whether or not the execution is actually being realized upon (ie:
the property is being sold by the sheriff under the execution) at the time that the surviving
joint tenant seeks to have his or her survivorship rights confirmed.
When the deceased was already a judgment debtor at the time that the joint
tenancy was created with another person, the title remains subject to the execution even
on death, and the title and rights of the surviving joint tenant will continue to remain
subject to that pre-existing execution.
However, where a Writ of Seizure and Sale has been filed against a deceased joint
tenant after the creation of the joint tenancy and more than six months before the death,
there must be satisfactory proof given to the Land Registrar that the sheriff is not in the
process of enforcing the execution by selling the property pursuant to the Writ (ie: the
sheriff must not have advertised the property for sale) before the title can transfer to the
surviving joint tenant free and clear of claim by the execution creditor. If the execution
creditor is actually in the process of realizing on the Writ of Execution, the creditor
would have priority over the joint tenant’s survivorship right. Where the Writ has been
filed less than six months before the death, no proof as to the status of sale proceedings is
required.
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3.
Debts of the Estate following Transfer to a Beneficiary
When, within three years of the death, there is a transfer to a beneficiary entitled,
whether pursuant to Will or on an intestacy, the title will always be subject to debt unless
a Court Order has been obtained both authorizing the transfer and providing that the
transfer will be free of estate debts. Absent such an Order, the transfer would also require
the consent of all beneficiaries (Children’s Lawyers Office for minors and incompetents),
spousal statements for all beneficiaries (save those for whom approval is given by the
Children’s Lawyer, or beneficiaries to whom the property is conveyed), execution
searches against all beneficiaries, and spousal entitlement statements.
Where there is no information on title sufficient to satisfy the Land Registrar that
there are no estate debts or that all such debts have been paid, when a beneficiary takes
title subject to debt, within three years of the death, and then conveys title within that
three year period to a bona fide purchaser for value who has no notice of any estate debts,
the title of that purchaser will still be subject to debt for the remainder of the three year
period.
Once three years has passed from the date of the death, the title will be
considered free from debt provided that, in the meantime, there has been no action
commenced and no caution or certificate of pending litigation registered against title.
When a beneficiary conveys after three years from the date of death, to a bona
fide purchaser for value who has no notice of any estate debts or claims against the title,
the title will be free of debts.
However, it will likely be necessary to make an
Application to Amend the Register to delete any reference to debts, in a Land Titles title,
or to register supporting evidence of the debt-free status in a Registry title. In either case,
the supporting information will consist of confirmation that the transfer did occur more
than three years from the date of death and that the purchaser was a bona fide purchaser
for value who had no notice or knowledge of any debts of the estate.
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4.
Vested Beneficiaries
The title of a vested beneficiary or a vested heir at law who actually takes title is
always subject to the debts of the estate, unless evidence is provided satisfactory to the
Land Registrar that there are no such debts. Absent evidence of there being no debts, title
remains subject to the estate debts for as long as the beneficiary owns the property.
However, if the vested beneficiary thereafter conveys to a bona fide purchaser for
value who has no knowledge of any estate debt, that purchaser will take title free and
clear of estate debts, provided that the transfer contains the following statements:
1. The property has vested in the beneficiary / transferor pursuant to the Estates
Administration Act
2. The sale is bona fide and for value; and
3. The purchaser / transferee did not have notice of any debts at the time of the
purchase.
C.
REQUIRED CONSENTS
Whether consent is required for a given transfer will depend upon a number of
factors, including the purpose of the conveyance, whether or not it is for consideration,
whether or not there is a Will and, if so, the powers given to the Trustee under the Will,
whether or not there are children or mental incompetents involved, and whether the
conveyance is to a person beneficially entitled to the property. Depending upon the
circumstances, there are many instances when consent of all or at least a 50% majority of
beneficiaries (including those for whom approval must be provided by the Children’s
Lawyers’ Office) will be required on a conveyance, failing which the title will remain
subject to the interests of those beneficiaries.
A transfer for consideration, to pay debts, never requires consent. On intestacy,
however, or where there is a Will but no powers of sale, the transfer must state that the
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purpose of the conveyance is to pay debts, failing which the title may be considered to be
subject to debts.
In addition, if there is a specific bequest of the subject property to a named
beneficiary, the release of that beneficiary should also be obtained.
1.
Transfer for Consideration, to Distribute Proceeds -
WITH A WILL
On a transfer for consideration from the Estate Trustee, to distribute proceeds to
beneficiaries, where all debts have been paid, and where there is an express power of
sale in the Will, no consents will be required.
On a transfer for consideration from the Estate Trustee, to distribute proceeds to
beneficiaries, where all debts are paid, and where there is only an implied power of sale
in the Will, beneficiaries having at least 50% interest in the estate MUST consent to the
transaction. If any beneficiaries are minors, the approval of the Children’s Lawyer must
be obtained pursuant the Estates Administration Act. As long as the 50% approval level
is achieved and the Children’s Lawyer’s Office has approved on behalf of minors, a
purchaser for value will take title free and clear of any debts of the estate or of the
interests of any beneficiaries. However, the Estate Trustee may be liable to any nonconsenting beneficiaries if objections are later made to the transaction, and it is
recommended, in order to protect the interest of the Estate Trustee, that the consent of all
beneficiaries be obtained even though only 50% consent is technically required. If all of
the beneficiaries are children, the Children’s Lawyer cannot consent or approve on behalf
of the children, and instead a Court Order will likely be needed to validate the transfer,
pursuant to the Children’s Law Reform Act. As a practical matter, the Children’s Lawyer
may not consent on behalf of the children in any event; instead, the Children’s Lawyer
may simply not oppose the transfer, and so in reality where children are beneficiaries and
their consent (or the approval of the Children’s Lawyer) is required, it may be simpler in
the first place to simply seek a Court Order authorizing and approving the sale and
transfer.
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2.
Transfer For Consideration, to Distribute Proceeds - ON AN INTESTACY,
OR WHERE WILL DOES NOT PROVIDE ANY POWERS OF SALE
If, on an intestacy or in a situation where there is a Will but the Will has no
powers of sale, there is a transfer for consideration from the Estate Trustee, to distribute
proceeds to beneficiaries, the Estate Trustee should have set out already, in the
Transmission Application, the names and ages of all beneficiaries of the estate and
whether or not debts have been paid. On the actual transfer, the following will then be
required:

The Consent of Beneficiaries having at least a 50% interest

Children’s Lawyer’s Office to provide approval on behalf of minors and
incompetents (Public Guardian and Trustee, in certain circumstances)

Spousal statements must be set out for all consenting beneficiaries (except
for those for whom approval is provided either by the Children’s Lawyer’s
Office or the Public Guardian and Trustee). If any such statement confirms
that the property is a matrimonial home of a consenting beneficiary, the
spouse of that consenting beneficiary should also consent.

Execution searches must be done against any consenting spouse (and
presumably if a beneficiary has an execution, one would not want that
particular beneficiary consenting, or would want to determine that the
execution would not affect the subject property

It must be stated that the purpose of the transfer is for distributing
proceeds

It must be stated that the beneficiaries consenting constitute a majority of
beneficiaries

It must be stated, if such is the case, that no minors are beneficially
interested in the property; otherwise, see above regarding approval of the
Children’s Lawyer’s Office

It must be stated the sale is bona fide and for value
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If all of the above is complied with, the purchaser will take title free from debts
and free and clear of the interests of any non-consenting beneficiary.
3.
Transfer to a Beneficiary - WITH A WILL
Where there is a transfer to beneficiaries from the Estate Trustee, to convey to
those beneficially entitled, the following will be required:

The Consent of all beneficiaries, with the Children’s Lawyer’s Office to
provide approval on behalf of minors and incompetents (Public Guardian
and Trustee in certain situations)

Spousal statements must be set out for all consenting beneficiaries (except
those for whom approval is provided by either the Children’s Lawyer or
the Public Guardian and Trustee). If the statement confirms that the
property is the matrimonial home of the beneficiary, the spouse of that
beneficiary should also consent to the transfer.

Execution searches must be done against any consenting beneficiary (and
presumably if a beneficiary has an execution, one would have to determine
how to ensure that the transfer would not be subject to execution against
that particular beneficiary)

A spousal entitlement statement under the Family Law Act will have to be
made (as to whether a surviving spouse has elected to take under the Will
or under Family Law Act equalization entitlement)
4.
Transfer to a Beneficiary
-
ON AN INTESTACY OR WHERE NO
POWERS OF SALE IN THE WILL
Where there is no Will, and there is a transfer by the Estate Trustee to
beneficiaries, to convey to those beneficially entitled, the following will be required:
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
The Consent of all beneficiaries, with the Children’s Lawyer’s Office to
provide consent on behalf of minors and incompetents (Public Guardian
and Trustee in certain instances)

Spousal statements must be set out for all of the beneficiaries (except
those for whom approval is provided by either the Children’s Lawyer or
the Public Guardian and Trustee).
If the statement confirms that the
property is a matrimonial home of the beneficiary, the spouse of that
beneficiary should also consent to the transfer

Execution searches must be done against any consenting beneficiary (and
presumably if a beneficiary has an execution, one would not want that
particular beneficiary consenting, or would have to determine how to
ensure that the transfer would not be subject to execution against a
particular beneficiary)

A spousal entitlement statement under the Family Law Act will have to be
made (as to whether a surviving spouse has elected to take under the Will
or under Family Law Act equalization entitlement)
NOTE: THE SAME CONSENTS ARE REQUIRED ON A TRANSFER TO
BENEFICIARIES, WHETHER THERE IS A WILL OR ON INTESTACY.
D.
THE “VESTED” BENEFICIARY
The Estates Administration Act (s. 2.1) provides that the property of the deceased
devolves to the personal representative of the deceased, whether or not there is a Will.
Accordingly, on the death of the deceased, the property becomes vested in the personal
representative, even on an intestacy and even if there is a specific bequest of the
particular property in the Will.
Pursuant to Section 9 of the Act, however, real property which is not disposed of,
conveyed to, divided or distributed among the persons beneficially entitled thereto by the
personal representative within three years after the death of the deceased ……
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whether probate or letters of administration have or have not been taken, henceforth
vests in the beneficially entitled thereto under the will or upon the intestacy, without
any conveyance by the personal representative, unless the personal representative has
registered a Caution against the real property. Accordingly, after three years from the
date of death of the owner, it would seem that the beneficiaries would have the right to
deal with the property as their own, whether it be to apply to be recorded as the owner of
the property or to convey to others. Note that the title remains subject to debts unless
evidence is provided satisfactory to the Land Registrar that there are no debts.
Section 10 of the Act provides a limitation to the vesting rule above; that is, the
vesting will not occur if there is a Trust Will or a Will that provides for certain rights or
powers. Basically, vesting will not occur if:

There is an express or implied power of sale in the Will, and the power
continues to exist

The Estate Trustee has registered himself as the owner or registered a
Caution against the title
In the case of an Intestacy, vesting will not occur if:

The Estate Trustee has registered himself as the owner or registered a
Caution against the title
If vesting has occurred, the transfer of the property should be from the vested
beneficiary or heir at law (in the case of an intestacy). If vesting has not occurred, the
transfer of the property should be from the Estate Trustee, with or without a Will.
19
Estates Administration Act
R.S.O. 1990, CHAPTER E.22
Consolidation Period: From June 22, 2006 to the e-Laws currency date.
Last amendment: 2006, c.19, Sched.C, s.1 (1).
Skip Table of Contents
CONTENTS
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
Form 1
Form 2
Form 3
Definitions
Devolution to personal representative of deceased
Application of enactments as to probate, etc.
Real and personal property assimilated in matters of administration
Payment of debts out of residuary estate
How far personal representatives to be deemed “heirs”
Trust estates and interests of mortgagees
Who to be defendants in action for foreclosure where no personal representative of mortgagor
Vesting of real estate not disposed of within 3 years
Ordinary rights of executors, etc., preserved
Registration of caution after three years from death of testator
Effect of repealing enactment
Vacating caution
Land in two or more persons
Sales where minors interested
Powers of personal representative over real property
Powers of executors and administrators as to selling and conveying real estate
Effect of accepting share of purchase money
Protection of purchasers from personal representatives
Definition
Protection of purchasers from beneficiary
Powers of personal representative as to leasing and mortgaging
Rights of purchaser in good faith against claims of creditors
Search for children born outside marriage
Cases of children advanced by settlement, etc.
Distribution not to be made for one year
Appointment of temporary deputy Children’s Lawyer
Affidavits
Definitions
1. In this Act,
“court” means the Superior Court of Justice; (“cour”)
“judge” means a judge of the Superior Court of Justice; (“juge”)
“mental incompetency” means the condition of mind of a mentally incompetent person; (“incapacité
mentale”)
“mentally incompetent person” means a person,
(a) in whom there is such a condition of arrested or incomplete development of mind, whether arising
from inherent causes or induced by disease or injury, or
(b) who is suffering from such disorder of the mind,
20
that the person requires care, supervision and control for his or her protection and the protection of the
person’s property; (“incapable mental”)
“personal representative” means an executor, an administrator, or an administrator with the will annexed.
(“représentant successoral”) R.S.O. 1990, c. E.22, s. 1; 2006, c. 19, Sched. C, s. 1 (1).
Devolution to personal representative of deceased
2. (1) All real and personal property that is vested in a person without a right in any other person to take
by survivorship, on the person’s death, whether testate or intestate and despite any testamentary disposition,
devolves to and becomes vested in his or her personal representative from time to time as trustee for the
persons by law beneficially entitled thereto, and, subject to the payment of the person’s debts and so far as
such property is not disposed of by deed, will, contract or other effectual disposition, it shall be
administered, dealt with and distributed as if it were personal property not so disposed of. R.S.O. 1990,
c. E.22, s. 2 (1).
Idem, where under appointment
(2) This section applies to property over which a person executes by will a general power of
appointment as if it were property vested in the person. R.S.O. 1990, c. E.22, s. 2 (2).
Exceptions
(3) This section does not apply to estates tail or to the personal property, except chattels real, of a person
who, at the time of death, is domiciled out of Ontario. R.S.O. 1990, c. E.22, s. 2 (3).
Vesting of real estate not disposed of within 3 years
9. (1) Real property not disposed of, conveyed to, divided or distributed among the persons beneficially
entitled thereto under section 17 by the personal representative within three years after the death of the
deceased is, subject to the Land Titles Act in the case of land registered under that Act and subject to
subsections 53 (3) and (5) of the Registry Act, and subject as hereinafter provided, at the expiration of that
period, whether probate or letters of administration have or have not been taken, thenceforth vested in the
persons beneficially entitled thereto under the will or upon the intestacy or their assigns without any
conveyance by the personal representative, unless such personal representative, if any, has signed and
registered, in the proper land registry office, a caution in Form 1, and, if a caution is so registered, the real
property mentioned therein does not so vest for three years from the time of the registration of the caution
or of the last caution if more than one was registered. R.S.O. 1990, c. E.22, s. 9 (1).
Verification
(2) The execution of every caution shall be verified by the affidavit of a subscribing witness in the
manner prescribed by the Registry Act or the Land Titles Act, as the case may be. R.S.O. 1990, c. E.22,
s. 9 (2).
Effect
(3) A caution registered or reregistered under this section or under section 11 is effectual only as to the
real property mentioned in the caution. R.S.O. 1990, c. E.22, s. 9 (3).
Withdrawal of caution
(4) The personal representative, before the expiration of the three years, may register a certificate in
Form 2 withdrawing the caution in respect of the real property described in the certificate, and, upon
registration of the certificate, the real property described therein shall be treated as if the caution had
expired. R.S.O. 1990, c. E.22, s. 9 (4).
Verification
(5) The certificate of withdrawal shall be verified by an affidavit of a subscribing witness in Form 3.
R.S.O. 1990, c. E.22, s. 9 (5).
Renewal of caution
(6) Before a caution expires it may be reregistered and so on from time to time as long as the personal
representative considers it necessary, and every caution continues in force for three years from the time of
its registration or reregistration. R.S.O. 1990, c. E.22, s. 9 (6).
Ordinary rights of executors, etc., preserved
10. Nothing in section 9 derogates from any right possessed by an executor or administrator with the
will annexed under a will or under the Trustee Act or from any right possessed by a trustee under a will.
R.S.O. 1990, c. E.22, s. 10.
21
Registration of caution after three years from death of testator
11. (1) Where a personal representative has not registered a caution within the proper time after the
death of the deceased or has not reregistered a caution within the proper time, the personal representative
may register or reregister the caution, as the case may be, if there is registered therewith,
(a) the affidavit of execution; and
(b) a further affidavit stating that the personal representative finds or believes that it is or may be
necessary to sell the real property of the deceased, mentioned in the caution or part thereof, under the
powers and in fulfilment of the duties of the personal representative and, as far as they are known to
the personal representative, the names of all persons beneficially interested in the real property, and
whether any, and, if so, which of them, are minors or mentally incompetent persons; and
(c) the consent in writing of every adult and of the Children’s Lawyer on behalf of every minor and
mentally incompetent person whose property or interest would be affected, and an affidavit verifying
such consent; or
(d) in the absence and in lieu of such consent, an order of the court, or the certificate of the Children’s
Lawyer authorizing the caution to be registered or reregistered, which order or certificate the judge
or Children’s Lawyer may make with or without notice on such evidence as satisfies him or her of
the propriety of permitting the caution to be registered or reregistered, and the order or certificate to
be registered does not require verification and shall not be rendered null by any defect of form or
otherwise. R.S.O. 1990, c. E.22, s. 11 (1); 1994, c. 27, s. 43 (2).
Application of section
(2) This section extends to cases where a grant of probate of the will or of administration to the estate of
the deceased may not have been made within the period after the death of the testator or intestate within
which a caution is required to be registered. R.S.O. 1990, c. E.22, s. 11 (2).
Effect of such registration
(3) Where a caution is registered or reregistered under this section, it has the same effect as a caution
registered within the proper time after the death of the deceased and of vesting or revesting, as the case may
be, the real property of the deceased in his or her personal representative, save as to persons who in the
meantime have acquired rights for valuable consideration from or through a person beneficially entitled,
and save also and subject to any equities of any non-consenting person beneficially entitled, or of a person
claiming under the person beneficially entitled, for improvements made after the time within which the
personal representative might, without any consent, order or certificate, have registered or reregistered a
caution, if his or her real property is afterwards sold by the personal representative. R.S.O. 1990, c. E.22,
s. 11 (3).
Signature to caution
(4) Where there are two or more personal representatives, it is sufficient if a caution or the affidavit
mentioned in clause (1) (b) is signed or made by one of such personal representatives. R.S.O. 1990,
c. E.22, s. 11 (4).
Sales where minors interested
15. (1) Where a minor is interested in real property that but for this Act would not devolve on the
personal representative, no sale or conveyance is valid under this Act without the written approval of the
Children’s Lawyer, or, in the absence of such consent or approval, without an order of a judge. R.S.O.
1990, c. E.22, s. 15 (1); 1994, c. 27, s. 43 (2).
Local guardians
(2) A judge may appoint himself or herself or another judge as local guardian of minors in a county or
district during the pleasure of the judge, with authority to give such written approval instead of the
Children’s Lawyer, and the Children’s Lawyer and local guardian are subject to such rules as the court may
make in regard to their authority and duties under this Act. R.S.O. 1990, c. E.22, s. 15 (2); 1994, c. 27,
s. 43 (2).
Powers of personal representative over real property
16. Except as otherwise provided in this Act, the personal representative of a deceased person has power
to dispose of and otherwise deal with the real property vested in the personal representative by virtue of this
Act, with the like incidents, but subject to the like rights, equities and obligations, as if the real property
were personal property vested in the personal representative. R.S.O. 1990, c. E.22, s. 16.
22
Powers of executors and administrators as to selling and conveying real estate
17. (1) The powers of sale conferred by this Act on a personal representative may be exercised for the
purpose not only of paying debts but also of distributing or dividing the estate among the persons
beneficially entitled thereto, whether there are or are not debts, and in no case is it necessary that the
persons beneficially entitled concur in any such sale except where it is made for the purpose of distribution
only. R.S.O. 1990, c. E.22, s. 17 (1).
Concurrence of heirs and devisees
(2) Except with the approval of the majority of the persons beneficially entitled thereto representing
together not less than one-half of all the interests therein, including the Children’s Lawyer acting on behalf
of a minor or mentally incompetent person, no sale of any such real property made for the purpose of
distribution only is valid as respects any person beneficially entitled thereto unless the person concurs
therein, but, where a mentally incompetent person is beneficially entitled or where there are other persons
beneficially entitled whose consent to the sale is not obtained by reason of their place of residence being
unknown or where in the opinion of the Children’s Lawyer it would be inconvenient to require the
concurrence of such persons, the Children’s Lawyer may, upon proof satisfactory to him or her that the sale
is in the interest and to the advantage of the estate of the deceased person and the persons beneficially
interested therein, approve the sale on behalf of such mentally incompetent person and non-concurring
persons, and any such sale made with the written approval of the Children’s Lawyer is valid and binding
upon such mentally incompetent person and non-concurring persons, and for this purpose the Children’s
Lawyer has the same powers and duties as he or she has in the case of minors, but in any case a judge may
dispense with the concurrence of the persons beneficially entitled or any or either of them. R.S.O. 1990,
c. E.22, s. 17 (2); 1994, c. 27, s. 43 (2).
Powers of personal representative as to dividing estate among persons entitled
(3) The personal representative has power, with the concurrence of the adult persons beneficially
entitled thereto, and with the written approval of the Children’s Lawyer on behalf of minors or mentally
incompetent persons, if any, so entitled, to convey, divide or distribute the estate of the deceased person or
any part thereof among the persons beneficially entitled thereto according to their respective shares and
interests therein. R.S.O. 1990, c. E.22, s. 17 (3); 1994, c. 27, s. 43 (2).
Patient in psychiatric facility
(4) Where a person beneficially entitled is a patient in a psychiatric facility under the Mental Health Act
and the Public Guardian and Trustee is his or her guardian of property, the Public Guardian and Trustee
may give the concurrence and approval required by subsections (2) and (3). 1992, c. 32, s. 10.
Distribution by order within three years from death
(5) Upon the application of the personal representative or of any person beneficially entitled, the court
may, before the expiration of three years from the death of the deceased, direct the personal representative
to divide or distribute the estate or any part thereof to or among the persons beneficially entitled according
to their respective rights and interests therein. R.S.O. 1990, c. E.22, s. 17 (5).
Exercise of power of division without concurrence
(6) The power of division conferred by subsection (3) may also be exercised, although all the persons
beneficially interested do not concur, with the written approval of the Children’s Lawyer, which may be
given under the same conditions and with the like effect as in the case of a sale under subsection (2).
R.S.O. 1990, c. E.22, s. 17 (6); 1994, c. 27, s. 43 (2).
ss. 16, 17 not to apply to administrators of personal estate only
(7) Section 16 and this section do not apply to an administrator where the letters of administration are
limited to the personal property, exclusive of the real property, and do not derogate from any right
possessed by a personal representative independent of this Act, but an executor shall not exercise the
powers conferred by this section until the executor has obtained probate of the will except with the
approval of a judge. R.S.O. 1990, c. E.22, s. 17 (7).
Conveyance by personal representative without an order
(8) The powers of a personal representative under subsection (2), (3) or (6) have heretobefore been and
shall hereafter be exercisable during the period of three years from the death of the deceased without an
order of a judge, provided that,
(a) real property conveyed, divided or distributed by virtue of such powers to or among the persons
beneficially entitled thereto, shall be deemed to have been and to be liable for the payment of the
23
debts of the deceased owner as if no conveyance, division or distribution had been made, even
though it has subsequently during such three-year period been conveyed to a purchaser or purchasers
in good faith and for value, but, in the case of such purchaser or purchasers, such liability shall only
continue after the expiry of such three-year period if some action or legal proceeding has been
instituted by the creditor, or an assignee or successor of the creditor to enforce the claim and a
certificate of pending action or a caution has, before such expiry, been registered against the
property; and that
(b) although such liability has applied and shall apply as aforesaid in respect of real property so
conveyed, divided or distributed, any such purchaser, in good faith and for value, shall be deemed to
have had and to have a right to relief over against the persons beneficially entitled, and where such
conveyance, division or distribution was made by the personal representative with knowledge of the
debt in respect of which claim is made, or without due advertisement for creditors, then against such
personal representative; and that
(c) upon the expiration of such three-year period where no certificate of pending action or caution has
been registered, subsection 21 (2) and section 23 apply as if such real property had become vested in
the person beneficially entitled thereto under section 9. R.S.O. 1990, c. E.22, s. 17 (8).
Protection of purchasers from personal representatives
19. A person purchasing in good faith and for value real property from a personal representative in a
manner authorized by this Act is entitled to hold it freed and discharged from any debts or liabilities of the
deceased owner, except such as are specifically charged thereon otherwise than by his or her will, and from
all claims of the persons beneficially entitled thereto, and is not bound to see to the application of the
purchase money. R.S.O. 1990, c. E.22, s. 19.
Protection of purchasers from beneficiary
21. (1) A person purchasing real property in good faith and for value from a person beneficially entitled,
to whom it has been conveyed by the personal representative, by leave of a judge, is entitled to hold it freed
and discharged from any debts and liabilities of the deceased owner, except such as are specifically charged
thereon otherwise than by his or her will, but nothing in this section affects the rights of creditors as against
the personal representative personally, or as against any person beneficially entitled to whom real property
of a deceased owner has been conveyed by the personal representative. R.S.O. 1990, c. E.22, s. 21 (1).
Extent to which real property remains liable to debts and personal liability of beneficiary
(2) Real property that becomes vested in a person beneficially entitled thereto under section 9 continues
to be liable to answer the debts of the deceased owner so long as it remains vested in such person, or in any
person claiming under that person, not being a purchaser in good faith and for valuable consideration, as it
would have been if it had remained vested in the personal representative, and in the event of a sale thereof
in good faith and for value by such person beneficially entitled that person is personally liable for such
debts to the extent of the proceeds of such real property. R.S.O. 1990, c. E.22, s. 21 (2).
Rights of purchaser in good faith against claims of creditors
23. (1) A purchaser in good faith and for value of real property of a deceased owner that has become
vested under section 9 in a person beneficially entitled thereto is entitled to hold it freed and discharged
from the claims of creditors of the deceased owner except such of them of which the purchaser had notice
at the time of the purchase. R.S.O. 1990, c. E.22, s. 23 (1).
Liability of personal representative
(2) Nothing in subsection (1) affects the right of the creditor against the personal representative
personally where the personal representative has permitted the real property to become vested in the person
beneficially entitled to the prejudice of the creditor or against the person beneficially entitled. R.S.O. 1990,
c. E.22, s. 23 (2).
after the death of the deceased, a person entitled by virtue of a relationship traced through the birth is
entitled to follow only property that is distributed after the personal representative has actual notice of an
application to establish the parentage or of the facts giving rise to a presumption of parentage. R.S.O.
1990, c. E.22, s. 24 (3).
26. Subject to section 53 of the Trustee Act, no distribution shall be made on an intestacy until after one
year from the death of the intestate, and every person to whom in distribution a share is allotted shall, if any
debt owing by the intestate is afterwards sued for and recovered or otherwise duly made to appear, refund
and pay back to the personal representative the person’s rateable part of that debt and of the costs of suit
and charges of the personal representative by reason of such debt out of the part or share so allotted to the
24
person, thereby to enable the personal representative to pay and satisfy such debt, and shall give bond with
sufficient sureties that the person will do so. R.S.O. 1990, c. E.22, s. 26.
______________
Children’s Law Reform Act
R.S.O. 1990, CHAPTER C.12
Consolidation Period: From November 30, 2006 to the e-Laws currency date.
Last amendment: 2006, c.19, Sched.B, s.4.
Court order re property of child
59. (1) Upon application by a child’s parent or by any other person, on notice to the Children’s Lawyer,
the Superior Court of Justice by order may require or approve, or both,
(a) the disposition or encumbrance of all or part of the interest of the child in land;
(b) the sale of the interest of the child in personal property; or
(c) the payment of all or part of any money belonging to the child or of the income from any property
belonging to the child, or both. R.S.O. 1990, c. C.12, s. 59 (1); 2001, c. 9, Sched. B, s. 4 (5).
Criteria
(2) An order shall be made under subsection (1) only where the Court is of the opinion that the
disposition, encumbrance, sale or payment is necessary or proper for the support or education of the child
or will substantially benefit the child. R.S.O. 1990, c. C.12, s. 59 (2).
Conditions
(3) An order under subsection (1) may be made subject to such conditions as the Court considers
appropriate. R.S.O. 1990, c. C.12, s. 59 (3).
Limitation
(4) The Court shall not require or approve a disposition or encumbrance of the interest of a child in land
contrary to a term of the instrument by which the child acquired the interest. R.S.O. 1990, c. C.12,
s. 59 (4).
Execution of documents
(5) The Court, where it makes an order under subsection (1), may order that the child or another person
named in the order execute any documents necessary to carry out the disposition, encumbrance, sale or
payment. R.S.O. 1990, c. C.12, s. 59 (5).
Directions
(6) The Court by order may give such directions as it considers necessary for the carrying out of an
order made under subsection (1). R.S.O. 1990, c. C.12, s. 59 (6).
Validity of documents
(7) Every document executed in accordance with an order under this section is as effectual as if the child
by whom it was executed was eighteen years of age or, if executed by another person in accordance with
the order, as if the child had executed it and had been eighteen years of age at the time. R.S.O. 1990,
c. C.12, s. 59 (7).
Liability
(8) No person incurs or shall be deemed to incur liability by making a payment in accordance with an
order under clause (1) (c). R.S.O. 1990, c. C.12, s. 59 (8).
25
Family Law Act
R.S.O. 1990, CHAPTER F.3
Consolidation Period: From April 30, 2007 to the e-Laws currency date.
Last amendment: 2006, c. 19, Sched. C, s. 1 (1), (2), (4).
Skip Table of Contents
CONTENTS
Preamble
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
38.1
39.
Definitions
Procedural and other miscellaneous matters
Mediation
PART I
FAMILY PROPERTY
Definitions
Equalization of net family properties
Election
Application to court
Statement of property
Powers of court
Determination of questions of title between spouses
Operating business or farm
Orders for preservation
Variation and realization of security
Presumptions
Conflict of laws
Application of Part
PART II
MATRIMONIAL HOME
Definitions
Matrimonial home
Possession of matrimonial home
Designation of matrimonial home
Alienation of matrimonial home
Right of redemption and to notice
Powers of court respecting alienation
Order for possession of matrimonial home
Variation
Spouse without interest in matrimonial home
Registration of order
Application of Part
PART III
SUPPORT OBLIGATIONS
Definitions
Obligation of spouses for support
Obligation of parent to support child
Obligation of child to support parent
Order for support
Powers of court
Domestic contract, etc., may be filed with court
Effect of divorce proceeding
Application for variation
Indexing existing orders
Priority to child support
Existing orders
26
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
Restraining orders
Financial statement
Obtaining information
Arrest of absconding debtor
Provisional orders
Necessities of life
Order restraining harassment
Application for custody
Appeal from Ontario Court of Justice
Contempt of orders of Ontario Court of Justice
PART IV
DOMESTIC CONTRACTS
51.
52.
53.
54.
55.
56.
57.
58.
59.
59.1
59.2
59.3
59.4
59.5
59.6
59.7
59.8
60.
Definitions
Marriage contracts
Cohabitation agreements
Separation agreements
Form and capacity
Provisions that may be set aside or disregarded
Rights of donors of gifts
Contracts made outside Ontario
Paternity agreements
Family arbitrations, agreements and awards
Other third-party decision-making processes in family matters
Contracting out
No agreement in advance of dispute
Status of awards
Conditions for enforceability
Secondary arbitration
Enforcement
Application of Act to existing contracts
PART V
DEPENDANTS’ CLAIM FOR DAMAGES
Right of dependants to sue in tort
Offer to settle for global sum
Assessment of damages, insurance
PART VI
AMENDMENTS TO THE COMMON LAW
Unity of legal personality abolished
Actions between parent and child
Recovery for prenatal injuries
Domicile of minor
GENERAL
Regulations
Transition
61.
62.
63.
64.
65.
66.
67.
69.
70.
5. (1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated
and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family
property is the lesser of the two net family properties is entitled to one-half the difference between them.
R.S.O. 1990, c. F.3, s. 5 (1).
Death of spouse
(2) When a spouse dies, if the net family property of the deceased spouse exceeds the net family
property of the surviving spouse, the surviving spouse is entitled to one-half the difference between them.
R.S.O. 1990, c. F.3, s. 5 (2).
Election
Spouse’s will
6. (1) When a spouse dies leaving a will, the surviving spouse shall elect to take under the will or to
receive the entitlement under section 5. R.S.O. 1990, c. F.3, s. 6 (1).
Spouse’s intestacy
27
(2) When a spouse dies intestate, the surviving spouse shall elect to receive the entitlement under Part II
of the Succession Law Reform Act or to receive the entitlement under section 5. R.S.O. 1990, c. F.3,
s. 6 (2).
Spouse’s partial intestacy
(3) When a spouse dies testate as to some property and intestate as to other property, the surviving
spouse shall elect to take under the will and to receive the entitlement under Part II of the Succession Law
Reform Act, or to receive the entitlement under section 5. R.S.O. 1990, c. F.3, s. 6 (3).
Property outside estate
(4) A surviving spouse who elects to take under the will or to receive the entitlement under Part II of the
Succession Law Reform Act, or both in the case of a partial intestacy, shall also receive the other property to
which he or she is entitled because of the first spouse’s death. R.S.O. 1990, c. F.3, s. 6 (4).
Gifts by will
(5) The surviving spouse shall receive the gifts made to him or her in the deceased spouse’s will in
addition to the entitlement under section 5 if the will expressly provides for that result. R.S.O. 1990, c. F.3,
s. 6 (5).
Insurance, etc.
(6) Where a surviving spouse,
(a) is the beneficiary,
(i) of a policy of life insurance, as defined under the Insurance Act, that was taken out on the life
of the deceased spouse and owned by the deceased spouse or was taken out on the lives of a
group of which he or she was a member, or
(ii) of a lump sum payment provided under a pension or similar plan on the death of the deceased
spouse; and
(b) elects or has elected to receive the entitlement under section 5,
the payment under the policy or plan shall be credited against the surviving spouse’s entitlement under
section 5, unless a written designation by the deceased spouse provides that the surviving spouse shall
receive payment under the policy or plan in addition to the entitlement under section 5. R.S.O. 1990,
c. F.3, s. 6 (6); 2004, c. 31, Sched. 38, s. 2 (2).
Idem
(7) If a surviving spouse,
(a) elects or has elected to receive the entitlement under section 5; and
(b) receives payment under a life insurance policy or a lump sum payment provided under a pension or
similar plan that is in excess of the entitlement under section 5,
and there is no written designation by the deceased spouse described in subsection (6), the deceased
spouse’s personal representative may recover the excess amount from the surviving spouse. R.S.O. 1990,
c. F.3, s. 6 (7).
Effect of election to receive entitlement under s. 5
(8) When a surviving spouse elects to receive the entitlement under section 5, the gifts made to him or her in the deceased
spouse’s will are revoked and the will shall be interpreted as if the surviving spouse had died before the other, unless the will
expressly provides that the gifts are in addition to the entitlement under section 5. R.S.O. 1990, c. F.3, s. 6 (8).
Idem
(9) When a surviving spouse elects to receive the entitlement under section 5, the spouse shall be
deemed to have disclaimed the entitlement under Part II of the Succession Law Reform Act. R.S.O. 1990,
c. F.3, s. 6 (9).
Manner of making election
(10) The surviving spouse’s election shall be in the form prescribed by the regulations made under this
Act and shall be filed in the office of the Estate Registrar for Ontario within six months after the first
spouse’s death. R.S.O. 1990, c. F.3, s. 6 (10).
Deemed election
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(11) If the surviving spouse does not file the election within that time, he or she shall be deemed to have
elected to take under the will or to receive the entitlement under the Succession Law Reform Act, or both, as
the case may be, unless the court, on application, orders otherwise. R.S.O. 1990, c. F.3, s. 6 (11).
Priority of spouse’s entitlement
(12) The spouse’s entitlement under section 5 has priority over,
(a) the gifts made in the deceased spouse’s will, if any, subject to subsection (13);
(b) a person’s right to a share of the estate under Part II (Intestate Succession) of the Succession Law
Reform Act;
(c) an order made against the estate under Part V (Support of Dependants) of the Succession Law
Reform Act, except an order in favour of a child of the deceased spouse. R.S.O. 1990, c. F.3,
s. 6 (12).
Exception
(13) The spouse’s entitlement under section 5 does not have priority over a gift by will made in
accordance with a contract that the deceased spouse entered into in good faith and for valuable
consideration, except to the extent that the value of the gift, in the court’s opinion, exceeds the
consideration. R.S.O. 1990, c. F.3, s. 6 (13).
Distribution within six months of death restricted
(14) No distribution shall be made in the administration of a deceased spouse’s estate within six months
of the spouse’s death, unless,
(a) the surviving spouse gives written consent to the distribution; or
(b) the court authorizes the distribution. R.S.O. 1990, c. F.3, s. 6 (14).
Idem, notice of application
(15) No distribution shall be made in the administration of a deceased spouse’s death after the personal
representative has received notice of an application under this Part, unless,
(a) the applicant gives written consent to the distribution; or
(b) the court authorizes the distribution. R.S.O. 1990, c. F.3, s. 6 (15).
Extension of limitation period
(16) If the court extends the time for a spouse’s application based on subsection 5 (2), any property of
the deceased spouse that is distributed before the date of the order and without notice of the application
shall not be brought into the calculation of the deceased spouse’s net family property. R.S.O. 1990, c. F.3,
s. 6 (16).
Exception
(17) Subsections (14) and (15) do not prohibit reasonable advances to dependants of the deceased
spouse for their support. R.S.O. 1990, c. F.3, s. 6 (17).
Definition
(18) In subsection (17),
“dependant” has the same meaning as in Part V of the Succession Law Reform Act. R.S.O. 1990, c. F.3,
s. 6 (18).
Liability of personal representative
(19) If the personal representative makes a distribution that contravenes subsection (14) or (15), the
court makes an order against the estate under this Part and the undistributed portion of the estate is not
sufficient to satisfy the order, the personal representative is personally liable to the applicant for the amount
that was distributed or the amount that is required to satisfy the order, whichever is less. R.S.O. 1990,
c. F.3, s. 6 (19).
Order suspending administration
(20) On motion by the surviving spouse, the court may make an order suspending the administration of
the deceased spouse’s estate for the time and to the extent that the court decides. R.S.O. 1990, c. F.3,
s. 6 (20).
29
Spouse without interest in matrimonial home
Joint tenancy with third person
26. (1) If a spouse dies owning an interest in a matrimonial home as a joint tenant with a third person
and not with the other spouse, the joint tenancy shall be deemed to have been severed immediately before
the time of death. R.S.O. 1990, c. F.3, s. 26 (1).
Sixty-day period after spouse’s death
(2) Despite clauses 19 (2) (a) and (b) (termination of spouse’s right of possession), a spouse who has no
interest in a matrimonial home but is occupying it at the time of the other spouse’s death, whether under an
order for exclusive possession or otherwise, is entitled to retain possession against the spouse’s estate, rent
free, for sixty days after the spouse’s death. R.S.O. 1990, c. F.3, s. 26 (2).
Spouse without interest in matrimonial home
Joint tenancy with third person
26. (1) If a spouse dies owning an interest in a matrimonial home as a joint tenant with a third person
and not with the other spouse, the joint tenancy shall be deemed to have been severed immediately before
the time of death. R.S.O. 1990, c. F.3, s. 26 (1).
Sixty-day period after spouse’s death
(2) Despite clauses 19 (2) (a) and (b) (termination of spouse’s right of possession), a spouse who has no
interest in a matrimonial home but is occupying it at the time of the other spouse’s death, whether under an
order for exclusive possession or otherwise, is entitled to retain possession against the spouse’s estate, rent
free, for sixty days after the spouse’s death. R.S.O. 1990, c. F.3, s. 26 (2).
(My thanks to the Land Registrar of Frontenac County, Marilyn McLean, for reviewing and “preapproving” the contents of this paper. )