132 Special Circumstances

PRACTICE

Wills, Estates and Succession Act, Section 103 and Section 132 Orders—Transmission into Name of Administrator

An order issued pursuant to s. 103 or 132 of the Wills, Estates and Succession Act (the “WESA”) appoints an interim administrator and does not result in a grant of probate or administration. The general purpose of such an order is to appoint an interim administrator of the estate and to protect the estate’s assets until an event has occurred (e.g., legal proceedings have concluded or the next of kin is no longer a minor and is able to act). A subsequent grant is required in order to distribute the estate.

Section 266 of the Land Title Act sets out that the registrar must not register a transmission of land following the death of a will-maker or intestate unless the application is supported by (1) a certified copy of the grant of probate or administration and (2) a copy of a document describing the land or charge affected (the exact form of which depends on the date of death of the deceased but, for deaths that occurred after January 1, 1982, is the Statement of Assets, Liabilities and Distribution). Since orders issued pursuant to ss. 103 and 132 of the WESA are not grants of probate or administration, the requirements of s. 266 are not met, and the registrar cannot rely on such orders to transmit property if they simply contain an appointment of an administrator.

Order Must Include Vesting Language

If an order issued pursuant to s. 103 or 132 of WESA not only contains an appointment of an administrator but also explicitly directs the vesting of a property into the name of the administrator appointed, the registrar relies on the authority of the order to transmit the property. Such an order must contain vesting language. For more information on appropriate vesting language, see the “Practice” annotation under s. 34 of the Land Title Act in chapter 3 (Land Title Act Part 3 (ss. 20 to 38)—Registration and Its Effect). Under these circumstances, a Statement of Assets, Liabilities and Distribution (or other document describing the land or charge affected as set out in s. 266) is not required.

For a precedent for either a s. 103 or 132 order under the WESA that not only appoints an administrator but also directs the vesting of property in the name of the administrator appointed, see the British Columbia Probate and Estate Administration Practice Manual, 2nd ed. (CLEBC, 2007–).

Wills, Estates and Succession Act Section 103 and Section 132 Orders—Sale or Transfer by Administrator Prior to Grant

Section 142(1) of the WESA provides that the personal representative has the same authority over the estate as the deceased person would have if living. This power is subject to a contrary intention appearing in the will of the deceased person and to the rules set out in the WESA or any other enactment.

When an administrator has been appointed by a court order under s. 103 or 132 of the WESA, the administrator’s authority over the estate is subject to and limited by those powers outlined in the court order. These orders do not result in a grant of probate or administration and do not provide the administrator with the authority to distribute the estate.

Court orders issued pursuant to ss. 103 and 132 may, however, provide the administrator with the authority to transfer or sell the deceased’s property. Upon receiving an application to transfer or sell property of the deceased held in the name of the administrator under such circumstances, the registrar confirms that the order issued pursuant to s. 103 or 132 grants the administrator with the authority to do so and confirms that the transfer or sale does not constitute a distribution.