The Presumption of Death and Declaration of Absence Act

The Presumption of Death and Declaration of Absence Act, C.C.S.M. c. P120 (Assented to June 3, 2019) bilingual version (HTML) Table of Contents Section 1 Definitions 2 Application of King's Bench Rules 3 Who may apply for an order 4 Presumption of death order 5 Declaration of absence order 6 Changing or confirming an order 7 Appeal 8 Duty of personal representative 9 Status of property if person alive or found 10 Court may order return of property or proceeds 11 Status of property if person dead 12 Order made in Canada 13 Amendments to Insurance Act 14-15 Consequential amendments 16 Repeal 17 C.C.S.M. reference 18 Coming into force WHEREAS it may become necessary to deal with the property of a person who has disappeared for a prolonged time period without explanation; AND WHEREAS the preservation and distribution of that property may provide some measure of closure for those affected by the person's prolonged disappearance; AND WHEREAS it is appropriate to establish a judicial process for presuming a person to be dead or declaring a person to be absent for the purposes of preserving and distributing that property; THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows: INTRODUCTORY PROVISIONS Definitions 1 The following definitions apply in this Act. "applicant" means a person who applies for an order. (« requérant ») "committee" means a committee appointed under a declaration of absence order. (« curateur ») "court" means the Court of King's Bench. (« tribunal ») "declaration of absence order" means an order made under section 5. (« ordonnance de déclaration d'absence ») "interested person" means a person who may apply for an order under section 3, and includes a person who is directed to be served with an application as provided for in subclause 3(2)⁠(a)⁠(ii). (« personne intéressée ») "presumption of death order" means an order made under section 4. (« ordonnance de présomption de décès ») Application of King's Bench Rules 2 Except as otherwise provided in this Act, the King's Bench Rules apply to an application made under this Act. ORDERS Who may apply for an order? 3(1) The following persons may apply to the court for a presumption of death order or a declaration of absence order: (a) in respect of the person who is the subject of the application for an order, (i) their spouse or common-law partner, (ii) their child, parent or sibling, (iii) any person who is in possession of their property, or (iv) the insurer of a contract of insurance to which Part V or VI of The Insurance Act applies if their life is insured under that contract; (b) the Public Guardian and Trustee when acting as authorized under The Public Guardian and Trustee Act in respect of (i) the person who is the subject of the application for an order, or (ii) a person who is or would be affected by an order; (c) any other person who could be affected by the making of an order. Notice of application 3(2) At least 10 days before the hearing of an application, the applicant must (a) serve notice of the application on (i) all other interested persons of whom the applicant is aware, and (ii) any other person as directed by the court; and (b) give public notice of the application by publishing a notice in a newspaper having general circulation in the area where the person who is the subject of the application was last known to reside. Status of person directed to be served 3(3) A person directed by the court to be served is deemed to be an interested person and may intervene in and make representations at the hearing. Presumption of death order 4(1) The court may make an order declaring that a person is presumed to be dead if the court is satisfied that (a) the person has been absent and the applicant has not heard from them or of them, and, to the knowledge of the applicant, no other person has heard from them or of them, since a day named; (b) the applicant has no reason to believe that the person is living; and (c) reasonable grounds exist for supposing that the person is dead. Date of presumed death 4(2) The presumption of death order must state the date on which the person is presumed to have died. Scope of order 4(3) The presumption of death order applies for all purposes unless the court determines that the order applies only for certain purposes and specifies those purposes in the order. Order is proof of death 4(4) The presumption of death order or a certified copy of the order is proof of the person's death for the purposes for which it applies. Alternative order 4(5) If the court is not satisfied that there is sufficient evidence to justify the making of a presumption of death order, the court may make a declaration of absence order instead. Declaration of absence order 5(1) The court may make an order declaring that a person is absent and appointing a committee to administer the person's property if the court is satisfied that (a) the person has been absent and the applicant has not heard from them or of them, and, to the knowledge of the applicant, no other person has heard from them or of them, since a day named; (b) there is insufficient evidence to justify a presumption of death order; (c) the person has property in Manitoba; and (d) it is advisable that a committee be appointed to manage the person's property. Contents of order 5(2) When appointing a committee under this section, the court may (a) appoint the applicant or any other person the court considers suitable, including the Public Guardian and Trustee; and (b) impose any other terms and conditions on the committee that the court considers appropriate. Powers and duties of committee 5(3) Subject to this Act and the terms and conditions of the declaration of absence order, the powers and duties of a committee of property in respect of an incapable person under Divisions 3 and 5 of Part 9 of The Mental Health Act apply, with necessary changes, to a committee appointed under the order with respect to the person's property. Powers of committee to expend money out of estate 5(4) Subject to the terms and conditions of the declaration of absence order, the person's committee has authority to expend reasonable amounts out of the person's estate for the purpose of endeavouring to trace the person and endeavouring to ascertain whether the person is alive or dead. Changing or confirming an order 6(1) An interested person may, with leave, apply to the court for an order to vary, amend, confirm or revoke a presumption of death order or a declaration of absence order. Court may give directions 6(2) The court may give any directions it considers appropriate when making an order under this section, including an order under section 10 respecting the preservation and return of property or the return of proceeds of an insurance policy. Appeal 7(1) An interested person may appeal an order or decision made under this Act to the Court of Appeal within 30 days after the order or decision is made. Notice of appeal 7(2) To appeal an order made under this Act, the interested person must (a) file a notice of appeal; and (b) serve a copy of the notice on all other persons who were served with the application concerning the order or decision being appealed. Powers of Court on appeal 7(3) On hearing the appeal, the Court of Appeal may (a) make any finding or order that in its opinion ought to have been made in accordance with this Act; or (b) dismiss the appeal. ACTIONS UNDER AN ORDER Duty of personal representative 8(1) A personal representative or committee acting under an order must not take any further steps to administer the estate or property of the person who is the subject of the order if they have reasonable grounds to believe that (a) the person is not in fact dead; or (b) if applicable, the person is no longer absent or has since been heard from or of. Duty of trustee of insurance proceeds 8(2) A trustee for a beneficiary regarding a contract of insurance on the life of a person who is the subject of a presumption of death order must not take any further steps respecting the proceeds of the contract of insurance that they hold if they have reasonable grounds to believe that the person is not in fact dead. Confirmation order required 8(3) To take any further steps, the personal representative, committee or trustee must first have the order confirmed under section 6. Status of property if person is in fact alive or found 9(1) A distribution of a person's property made in accordance with an order is deemed to be a final distribution of the property and the person, even if in fact alive or no longer absent, is not entitled to recover any of their property that has been so distributed. Insurance proceeds used by trustee 9(2) Proceeds from a contract of insurance on the life of a person who is the subject of a presumption of death order that are received by a trustee and expended in accordance with the terms of the trust are considered to be finally distributed, and no one is entitled to recover them even if the person whose life was insured is found to be alive. Exception 9(3) This section does not apply in respect of a distribution or expenditure that is made when section 8 applies. Court retains jurisdiction to order return of property or proceeds 10(1) Despite subsections 9(1) and 9(2), and subject to subsection (2), the court may, if it is of the opinion that it would be just to do so, make an order requiring (a) any person to whom property of the person presumed to be dead or declared to be absent was distributed to reconvey all or part of it, or to pay a specified amount, to the person if the person is found to be alive or no longer absent; or (b) the recipient of proceeds of a life insurance policy to pay some or all of the proceeds into court, to be dealt with as ordered by the court, if the person insured is found to be alive. Order 10(2) The court may make an order under this section on application made by the person who is found to be alive or no longer absent or by any other interested person, and only if it is of the opinion it is just to do so considering all the circumstances, including any inconvenience or hardship that would be experienced by the person ordered to reconvey property or make a payment. Status of property if person is in fact dead 11 If a person who is presumed to be dead is, in fact, dead, any of the person's property that has been distributed in reliance on a presumption of death order is deemed to be a final distribution and to be the property of the person to whom it has been distributed as against any person who would otherwise be entitled if the declaration had not been made. PRESUMPTION OF DEATH ORDER MADE OUTSIDE MANITOBA Order made in Canada 12(1) An order declaring a person to be presumed dead that is made in another Canadian jurisdiction must be recognized in Manitoba if the requirements of The Enforcement of Canadian Judgments Act are satisfied. Order made outside Canada 12(2) An order declaring a person to be presumed dead that is made outside Canada must be recognized in Manitoba if the order is made in accordance with legislation substantially similar to this Act. AMENDMENTS TO INSURANCE ACT 13 NOTE: This section contained amendments to The Insurance Act that are now included in that Act. CONSEQUENTIAL AMENDMENTS 14 to 15 NOTE: These sections contained consequential amendments to other Acts that are now included in those Acts. REPEAL, C.C.S.M. REFERENCE AND COMING INTO FORCE Repeal 16 The Presumption of Death Act , R.S.M. 1987, c. P120, is repealed. C.C.S.M. reference 17 This Act may be cited as The Presumption of Death and Declaration of Absence Act and referred to as chapter P120 of the Continuing Consolidation of the Statutes of Manitoba . Coming into force 18 This Act comes into force on the day it receives royal assent.