Sometimes people go missing in circumstances where there is insufficient evidence or insufficient time elapsed to apply for an order of presumption of death.
In such circumstances, counsel will wish to consider appointing a curator under the provisions of the Estates of Missing Persons Act.
Essentially, s. 1 of the Act defines a missing person is a person whose relatives or associates residing at the place where the person was last known to have resided, or with whom the person had been in the habit of communicating, have not heard from the person for at least three months and have been unable to ascertain the persons whereabouts.
s.1 of the Act also provides that where there is an urgent need to have a curator preserve the estate or support the dependants of that person, it is possible to
apply for a curator within three months of the person going missing.
s. 2 of the Act relates to jurisdiction and provides that to establish jurisdiction in the B.C. courts, the missing person must own or have an interest in property in
British Columbia.
From a practical point of view, the curator will most likely be the Official Administrator. s. 2(3) of the Act specifies that the court must appoint the Official
Administrator unless it is satisfied that some other fit and proper person would be a more desirable curator by reason of business or personal relationship or
any other fact or circumstance.
If someone other than the Official Administrator is appointed curator, the court will likely order a bond be posted for the full value of the estate since the curator is
responsible for preserving the assets of the missing person.
POWERS OF A CURATOR
s.3(1) stipulates that the curator has the same powers of dealing with property as the missing person would have if that person were present. In spite of this
broad wording, however, in reality other sections impose many restrictions on that power.
For example, the following restrictions are included in the Act:
- s. 4 requires court approval to sell or mortgage anything property valued at more than $100;
- s. 5 requires court approval to dispose of any monies coming into the curator’s hands; and
- s. 6 requires court approval to sue or be sued in respect to property owned by the missing person.
Practitioners should be careful in preparing any order to ensure it includes the terms necessary to enable the curator to effectively deal with assets, pay debts
and manage any legal actions without the necessity of requiring further court approval. The Public Guardians Office may have a helpful standard precedent as in
most cases they act as curator in these cases.
s. 3(2) stipulates that any acts performed by the curator during the appointment shall be binding on the missing person and on his or her heirs, personal
representatives and assigns..
s.11 provides that any power of attorney granted by the missing person before the disappearance shall be immediately cancelled and be void.
DISCHARGE OF THE CURATOR
s. 9 provides that where the missing person is either found, or declared to be dead and probate or letters of administration granted for the estate then, after the
passing of the curator’s accounts, the court may discharge the curator.
Where the person is neither found nor determined to be dead, the curator may still wind up the affairs of the missing person and seek an order for the payment
into court of the missing person’s estate.
FEES FOR THE CURATOR
Re Hoch(1977) 2 B.C.L.R. 398 dealt with an application by Canada Permanent Trust for its fees as curator for an elderly woman who could not be located for six
months following her husband’s death. In that case the court held that a curator is a trustee and thus its fees are subject to section 89 of the Trustee Act, with a
maximum fee of 5% of both capital and revenue.
The court then applied the criteria set out in Re McColl (1967), 65 W.W.R. 110 (B.C.) to determined a fair fee. The criteria are as follows:
- the magnitude of the trust.
- the care and responsibility involved.
- the time occupied in the administration.
- the skill and ability displayed.
- the success achieved in the final result.
CONCLUSION
The estate lawyer dealing with the affairs of a missing person must make diligent and reasonable enquiries to try and locate him or her. Where the evidence,
including any inferences that may be drawn from the circumstances of the disappearance, is sufficient, counsel will likely wish to apply for an order of
presumption of death.
Where, however, there is insufficient evidence or time elapsed such as would justify a presumption of death, then a curatorship may be appropriate. Where a
curator is appointed to deal with the affairs of the missing person, that curator will likely be the Official Administrator.
– See more at: http://www.disinherited.com/blog/missing-persons-curator-appointment-under-estates-missing-persons-act#sthash.4PCYm11L.dpuf
