Anti-Ademption Under Section 48 WESA

Forbes v Millard Estate 2017 BCSC 361 discusses and gives effect to S. 48 WESA , known as the anti-ademption provision, when property is disposed of by a nominee such as a power of attorney prior to death that under common law the bequest would have failed.

In McDougald Estate v. Gooderham (2005), 255 D.L.R. (4th) 435, 17 E.T.R. (3d) 36 (Ont. C.A.) [McDougald Estate], the Ontario Court of Appeal explained the concept of ademption: ” [1] Wills often contain bequests, which are directions that specific items of property are to be given to named recipients upon the testator’s death. Sometimes the specified item cannot be found among the testator’s assets at the time of death. This can happen because the item is lost, destroyed, sold or given away before the testator dies. At common law, in such a situation, the bequest is held to have adeemed and the gift fails. If there are proceeds from the disposition of the item of property, the proceeds fall into residue and are distributed accordingly. The proceeds are not given to the named beneficiary.”

Section 48 WESA was enacted to deal with ademption and applies to a will, whenever it was executed, if the will maker dies on or after March 31, 2014 when WESA came into effect.

S. 48 WESA states:

48 (1) In this section, “proceeds” means the gross proceeds at the time of disposition, and includes

(a) non-monetary consideration, and

(b) in the case of a gift, the fair market value of the gift.

(2) If property that is the subject of a gift in a will is disposed of by a nominee, the beneficiary of the gift is entitled to receive from the will-maker’s estate an amount equivalent to the proceeds of the gift as if the will had contained a specific gift to the beneficiary of that amount.

(3) Subsection (2) does not apply if

(a) the disposition is made to carry out instructions given by the will-maker at a time when the will-maker was legally capable of giving instructions, or

(b) a contrary intention appears in the will.

THE FACTS:

The deceased executed a will in September 2000 where she left her daughter “any property which I may own and be using as a home at the date of my death”.

The deceased became mentally incompetent and five years later, her attorneys appointed under an enduring power of attorney sold her only property for $185,000″

The deceased died In February 2015.

Accordingly, the deceased did not own property at the time of her death, and that common-law such a bequest would have adeemed since it no longer existed.

The petitioner successfully argued that because the property was sold by a nominee, namely an attorney under a power of attorney, S 48 ( 2) of WESA applied and that her daughter should accordingly receive the sale proceeds of the property, just as if the will had contained a specific gift of the proceeds of the sale.

The court also relied on S. 186, of WESA stating that the transitional provisions of WESA contained in Section 4 applied to a will, whenever executed, if the will maker dies on or after the date of March 31, 2014 which was the case.

The court concluded that S 48 is not retrospective in its general nature and that it did not operate retrospectively in this particular case.

Moreover, even if section 48 is retrospective in nature it does not interfere with vested rights. There were no vested rights in this fact pattern because the respondent’s rights were only vested on the death of the deceased.

The deceased had expressed clear intentions in her will as to the reasons that she wished her daughter to receive the bequest of the property, and it was only because she was incapable that the attorneys sold the property after she went into a rest home.

To fail to give effect to the anti-ademption provision in such circumstances would in the courts view inappropriately frustrate the deceased’s clear intentions.