Earlier this week, I blogged on the case of Marcy v. Marcy, which was a cautionary tale on the use of cautions. This case also engaged the principles underlying section 9 of the Estates Administration Act and in which instances it may apply.
Section 9 of the Estates Administration Act states that:
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…
However, those invoking their rights under section 9 of the Act often overlook section 10, which states:
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.
The leading case on this issue is the Court of Appeal decision in Di Michele v. Di Michele. In this case, the court held that 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.
Where a will gives the estate trustee the power to sell property at such times and in such manner as the estate trustee sees fit, section 9 of the Act will not limit the scope of that power by requiring that the property vest after a specific period of time.
Anyone seeking to enforce their automatic vesting rights under section 9 of the Act must carefully double-check the wording of the will, as most wills provide for this discretion to delay conversion. For another blog exploring a will that did allow for automatic vesting, see David Morgan Smith’s blog: Wills and the Vesting of Real Property.
Thanks for reading,