Section 9 of the Estates Administration Act (“EAA“)provides: 

“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…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…”

In short, real property will vest automatically upon the three-year anniversary of it not being disposed of under section 9 of the EAA. However, where a will gives the estate trustee a power to sell property at such times and in such manner as the estate trustee sees fit, s. 9 will not limit the scope of that power by requiring that the property vests after a specific period of time.

Section 9 was not enacted to limit the powers given to an estate trustee under a will. Rather, it was intended to give estate trustees additional powers, but only to the extent that the additional powers do not conflict with the provisions of the will. The intention of the deceased, as expressed in his or her will, is always paramount. This principle is enshrined in s. 10 of the EAA which provides: “nothing in section 9 derogates from any right possessed by an executor under a will or under the Trustee Act or from any right possessed by a trustee under a will” 

Proudfoot Estate, Re is an interesting application of the law. There, Catherine Proudfoot (“Catherine”) executed her last will and testament in which she devised, amongst two real properties, her interest in a farm property in Burlington (the “Burlington farm”) to her children. Catherine then bequeathed the residue of her estate upon certain trusts to her estate trustees, which included the power “to sell, call in, and convert into money such part of my estate not consisting of money, as my Trustees shall in their sole discretion deem necessary and advisable”.

In addition to this, there was paragraph 14(a) of her will, which provided the following power to the estate trustee:

(a) To sell any part or the whole of my real estate not hereinbefore specifically devised, at such times, in such manner and on such terms…as they, in their absolute discretion shall deem advisable…[emphasis added]

The Court found that this phrase expressed the clear intention of Catherine that allowed the Burlington farm to vest in the beneficiaries:

“I reject the proposition that, wherever there is an express or implied power to sell in a will, lands cannot vest in the beneficiaries pursuant to the now Estates Administration Act…In the matter before me nothing could be clearer than the testator’s intention to separate the Burlington farm from the express power to sell and the implied power…I find the Burlington farm vested in the named devisees three years after the date of death of Catherine Laing Proudfoot…“

Thanks for reading,

David Morgan Smith and Michael Bolotenko