When contemplating a transfer of land from a deceased person’s estate, whether in an abstract or in current time, a lawyer must be aware of the different laws which apply depending on whether the deceased left a will or died intestate.
Where there is a will:
A lawyer must be aware that the date of execution of the Will determines whether the Probate Act, S.N.S., 2000, c.31 (the “New Act”)1 which came into force October 1, 2001 or the Probate Act, R.S.N.S., 1989, c.359 (the “Old Act”)2 will apply with respect to the disposition of the deceased’s lands.
Whether reviewing an abstract or acting for the grantor or buyer of a deceased person’s land, a lawyer must ensure that the Will has been properly proven by the Court of Probate and evidence thereof filed at the Registry of Deeds/Land Registration Office.3
A lawyer must ensure that the person(s) who executed or who intends to execute the Deed is/are the person(s) to whom probate was granted; that the Will gives the Executor/Personal Representative the power and authority to transfer the lands and that any heirs who are required to give their consent have done or will duly do so.4
A lawyer must also consider the residency status of the personal representative(s), the deceased and beneficiaries to determine whether Section 116 of the Income Tax Act applies.5
A lawyer must determine whether the date of death of the intestate occurred before the New Act came into effect as that will determine whether the lands transferred directly to the heirs without need for probate.6
A lawyer must be aware of the provisions of the Descent of Property Act with respect to intestate deaths prior to 19667 and the Intestate Succession Act with respect to intestate deaths thereafter.8
If, in a chain of title, the heirs of an intestate purport to convey lands, a lawyer must be satisfied that the records indicate that all the deceased’s heirs have signed off or the provisions of the Marketable Titles Act apply to extinguish the missing heir’s interest.9
When acting for the Grantor or Buyer of the land of an intestate who dies on or after October 1, 2001, a lawyer must ensure that a Grant of Administration has been issued by the Court of Probate and filed at the Registry of Deeds/Land Registration Office.10
A lawyer must also ensure that the person(s) who executed or who intends to execute the Deed is/are the person(s) to whom administration was granted and that any persons beneficially entitled to the lands give their consent.11
A lawyer must be aware that the interest of a spouse in a matrimonial home is not affected by the new sections of the Probate Act.12 If a spouse does not hold title to the matrimonial home when the other spouse dies, the surviving spouse still has rights to the property.13 Note: At the time of last revision this does not apply to common law spouses.
A lawyer who is acting for non-resident personal representatives on the sale or transfer of estate lands must obtain a clearance certificate from Canada Revenue Agency pursuant to s. 116 of the Income Tax Act (Canada)14 because the estate of the deceased will be considered to be non-resident even if the deceased was a resident of Canada. If the estate has Personal Representatives resident both within and outside Canada then the lawyer must consider whether a clearance certificate is required and if so, act upon the requirement.15
- Probate Act, S.N.S., 2000, c.31
- Probate Act, R.S.N.S., 1989, c.359
- Land Registration Act, S.N.S., 2001, c.6, s. 24; Boyer v. Brennan-Throop, (1993) 129 NSR (2d) 60
- Probate Act, S.N.S., 2000, c.31, ss. 50 and 51
- Income Tax Act, R.S.C., 1985, c.1 (5th Supp.), s. 116
- Note: This is most likely to arise in the context of migration.
- Descent of Property Act, R.S. 1954, c.69
- Intestate Succession Act, R.S.N.S. 1989, c.236
- Marketable Titles Act, 1995-96, c.9
- Land Registration Act, S.N.S., 2001, c.6, s. 25
- Probate Act, S.N.S., 2000, c.31, ss. 50 and 51
- Probate Act, S.N.S., 2000, c.31, s.44(1)
- Intestate Succession Act, R.S.N.S. 1989, c.236, s.4(4)
- Income Tax Act, R.S.C., 1985, c.1 (5th Supp.), s.116.
- Garron Family Trust v. The Queen [2010 2CTC 2346 (TCC), aff’d 2010 FCA 309; aff’d 2012 SCC14]; Canada Revenue Agency Technical Interpretation 2012 –0448681e5.
- E. O’Brien Edmonds, “Property Issues: The Real Estate-Probate Interface”, in Probate Procedures and Documentation Seminar, (C.L.E.S.N.S., October, 2001)
- Probate Act, S.N.S. 2000, c. 31, s.44 (matrimonial property), 46(1) (states that real property of a deceased person vests in the personal representative (executor or administrator) as if it were personal property, therefore having legal title).
- Land Registration Act, S.N.S. 2001, c. 6, ss. 24 (wills), 25 (intestacy) and 26 (requirement for certificate of legal effect when application for revision is based on administrator’s deed)
- Intestate Succession Act, R.S.N.S. 1989, c.236, s.6 (election of matrimonial home).
- A.L. Paton,“Update – Probate Act Reform”, in Wills, Estates and Probate 2000, (C.L.E.S.N.S. September 2000).
- A.L. Paton, “Changes to the Probate Act: How They May Affect Your Practice” in Property Law: Profession and Business – Staying in the Game, (C.L.E.S.N.S., February 2001).
- A.L. Paton, “The Old and the New: A Look at Probate in Nova Scotia” in Probate Procedures and Documentation Seminar (C.L.E.S.N.S., October, 2001).
- W. M. Penfound, “Changes to the Probate Act: How They May Affect Your Practice” in Property Law: Profession and Business – Staying in the Game, (C.L.E.S.N.S., February 2001).
- Filliter, John D. / Chart showing the legislative history of the Descent of Property Act and the later Intestate Succession Act (2005).
Client Resource Manuals
https://linns.gov.ns.ca/LandRegistrationResourceMaterial/Client_Manual_Default.html (Probate Fact Sheet)
https://linns.gov.ns.ca/LandRegistrationResourceMaterial/Client_Manual_Default.html (Revision by Grant of Probate/Administration, refers to revising on a grant of probate and how it’s placed on the Form 24 to change the parcel register).
It is helpful to have a precedent Trustee’s Deed which calls for recitals confirming that the Grantor was named personal representative by the Grant of Probate and pointing out the provisions in the Will which give the Grantor the power to sell and secondly, anyone who has to consent to a transfer should sign the Deed.
Amended by Council on January 22, 2021