67 Raising Money When No Express Power In Will

In This Volume

67 (1) Subsections (2) to (4) apply if, by a will that comes into operation after March 21, 1881, the testator has

(a) charged the testator’s real estate or a specific portion of it with the payment of his debts, or with the payment of a legacy or other specific sum of money, and
(b) has devised the estate so charged to a trustee or trustees for the whole of the testator’s estate or interest in it, and has not made an express provision for the raising of the debt, legacy or sum of money out of the estate.

(2) Despite a trust actually declared by the testator, the devisee in trust may raise the debts, legacy or money

(a) by a sale and absolute disposition by public auction or private contract of those hereditaments or part of them,
(b) by a mortgage of them, or
(c) partly in one mode and partly in the other.

(3) A deed of mortgage executed under subsection (2) may reserve a rate of interest and set a period of repayment as the person executing it thinks proper.
(4) The power conferred by subsections (1) to (3) extends

(a) to all persons in whom the estate devised is for the time being vested by survivorship, descent or devise, and
(b) to any person who may be appointed under a power in the will, or by a court having jurisdiction, to succeed to the trusteeship vested in the devisee in trust as stated above.

(5) If a testator who has created a charge referred to in subsection (1)(a) has not devised the hereditaments charged as stated above on terms that the testator’s whole estate and interest in it must become vested in a trustee,

(a) the executor for the time being named in the will, if any, has the same power of raising the money as is vested in the devisee in trust of those hereditaments, and
(b) the power devolves to and becomes vested in the person, if any, in whom the executorship is for the time being vested.

(6) In the event of a sale or mortgage under this section, the sale or mortgage operates only on the estate and interest, whether legal or equitable, of the testator, and does not make it unnecessary to get in outstanding subsisting legal estate.
(7) Subsections (1) to (5)

(a) do not in any way prejudice or affect a sale or mortgage made under a will coming into operation before March 25, 1881, but the validity of the sale or mortgage must be ascertained and determined in all respects as if this Act had not passed,
(b) do not extend to a devise to a person in fee or in tail or for the testator’s whole estate and interest charged with debts or legacies, and
(c) do not affect the power of the devisee to sell or mortgage as the devisee may by law do now.

(8) Purchasers or mortgagees are not bound to inquire whether the powers under subsections (1) to (5) have been duly and correctly exercised by the person acting under them.

1979-114-73 to 77. [Repealed 2009-13-191(1), effective March 31, 2014 (B.C. Reg. 148/2013)].

PRACTICE

Power to Mortgage

An executor may mortgage land to pay debts, providing the will does not prohibit such an action. By contrast, an administrator does not have the power of a trustee under this section to borrow money or to give mortgages as security. However, an administrator may make a sale and take a mortgage back for the unpaid portion of the purchase price, including a transfer from and mortgage back to the administrator. If the transfer and mortgage back are not concurrent transactions, the registrar requires evidence that the mortgage was given to the administrator as part of the consideration for the disposition.