Skip to main content

14 Presumptions And Evidence As To Future Parenthood

In This Volume

  • 14 (1) If, in a proceeding respecting the rule against perpetuities, a question arises that turns on the ability of a person to have a child at some future time, then, it must be presumed that
  • (a) a male is able to have a child at the age of 14 years or over, but not under that age, and
  • (b) a female is able to have a child at the age of 12 years or over, but not under that age or over the age of 55 years.
  • (2) Despite subsection (1), in the case of a living person, evidence may be given to show that the person will not be able to have a child at the time in question.
  • (3) Subject to subsection (4), if any question is decided in relation to a disposition by treating a person as able or unable to have a child at a particular time, then the person must be so treated for the purpose of any question that may arise respecting the rule against perpetuities in relation to the same disposition, even if the evidence on which the finding of ability or inability to have a child at a particular time is proved by subsequent events to have been erroneous.
  • (4) If a question is decided in relation to a disposition by treating a person as unable to have a child at a particular time and that person subsequently has a child at that time, the court may make an order as it sees fit to protect the right that the child would have had in the subject of the disposition as if that question had not been decided and as if the child would, apart from the decision, have been entitled to a right in the subject of the disposition not in itself invalid by the application of the rule against perpetuities as modified by this Act.
  • (5) For the purposes of this section, the possibility that a person may at any time have a child by adoption or legitimation must not be considered in deciding a question that turns on the ability of a person to have a child at some particular time, but, if a person does subsequently have a child by that means, then subsection (4) applies to that child.
  • (6) A trustee or personal representative is not personally liable if
  • (a) relying on a decision of a court having jurisdiction in relation to a disposition that a person is or will be unable to have a child at a particular time, and
  • (b) before the trustee or personal representative has notice that that person subsequently has a child at that time,
  • the trustee or personal representative transfers, delivers or pays over property under the control of the trustee or personal representative.
  • (7) Subsection (6) does not extend to indemnify a trustee or personal representative in respect of any act done in accordance with the opinion, advice or direction of a court if the trustee or personal representative has been guilty of fraud or wilful concealment or misrepresentation in obtaining that opinion, advice or direction.

1979-321-10; 2016-5-Sch.9.