79 Transfer By Personal Representative To Beneficiary

PRACTICE

Acceptance of “Assent to Devise”

The registrar requires, under s. 185(1) of the Land Title Act, that “a transfer of freehold estate must be in the form approved by the director and on a single page”. However, in some circumstances the registrar may accept an “assent to devise”, given s. 185(2) of the Land Title Act which provides that:

• (2) This section does not apply

• (a) if a form of transfer is prescribed by another enactment, or
• (b) if, in the opinion of the registrar, it would be proper to accept another form of transfer.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Restriction on Dealings under Wills Variation Act

Under s. 12 of the repealed Wills Variation Act, an executor or trustee must not distribute any part of an estate to beneficiaries until six months after probate of the will unless the executor has either:

1. the consents of those entitled to apply for a variation under that Act; or
2. a court order authorizing the distribution.

If the executor or trustee effects any of the following dealings within the six-month period under s. 12 plus the 10-day period for filing a certificate of pending litigation under s. 4:

1. a transfer to a beneficiary under the will;
2. a transfer to another person, with the beneficiary consenting to the transfer; or
3. a transfer by way of sale to a beneficiary,

on application to register the dealing the registrar makes a notation that the transfer is subject to the Act in accordance with s. 12, unless the executor provides the required consents or court order.

A transfer may be registered free of the Wills Variation Act notation if the following information is provided:

1. Evidence satisfactory to the registrar as to the beneficiaries in the form of:
   1. a court certified copy of the disclosure statement that lists the beneficiaries;
   2. a court certified copy of the affidavit of executor provided to the probate court by the executor;
   3. a court certified copy of the statutory declaration provided to the court by the executor as proof for this purpose; and
2. Consents from all of the beneficiaries listed.

Section 11 of the repealed Wills Variation Act provides that on an order for variation being made under the Act, the portion of the estate affected by it must be held subject to the provisions of the order, but the order does not bind land unless it is registered as a charge against the land.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 2, paras. 677 and 678.