Acts and Regulations

P-15.1 - Presumption of Death Act

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Repealed on 1 March 2013
CHAPTER P-15.1
Presumption of Death Act
Assented to May 31, 1974
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
Repealed: R.S.N.B. 2012, Schedule A
Definitions
1In this Act “Court” means The Court of Queen’s Bench of New Brunswick and includes any Judge thereof.(Cour)
1979, c.41, s.97
Application to presume person dead
2(1)Upon application after such notice as the Court considers proper, the Court, if satisfied that
(a) a person has been absent and not heard of or from by the applicant, or to the knowledge of the applicant by any other person, since a day named,
(b) the applicant has no reason to believe that the person is living,
(c) reasonable grounds exist for presuming that the person is dead, and
(d) the applicant has a sufficient reason for requesting an order under this section,
may make an order declaring that the person is presumed dead for all purposes or for such purposes only as are specified in the order.
2(2)The order referred to in subsection (1) shall state the date on which the person is presumed to have died or the date after which the person is presumed to be dead.
Application to declare person to be an absentee
3(1)Upon application after such notice as the Court considers proper, the Court, if satisfied that
(a) a person has been absent and not heard of or from by the applicant, or to the knowledge of the applicant by any other person, since a day named,
(b) there is insufficient evidence to justify an order under section 2,
(c) the person has property in New Brunswick, and
(d) the person should be declared to be an absentee for the purpose of managing his property, having regard to the preservation of the property and its efficient use in satisfying his obligations,
may make an order declaring the person to be an absentee and in the order may
(e) provide for the custody, due care and management of his property,
(f) appoint a committee of one or more persons for the purpose of paragraph (e), and
(g) authorize the sale, lease or other disposition of the property.
3(2)Where an application has been made under subsection 2(1), the Court may, with the concurrence of the applicant, treat the application as an application under subsection (1).
3(3)The powers and duties of the Court and a committee with respect to the estate of an absentee are the same, mutatis mutandis, as those of a court and a committee respectively under the Infirm Persons Act, but the Court may relieve the committee from the requirements of that Act respecting the provision of a bond.
3(4)Subject to the direction of the Court, a committee appointed under this Act has authority to expend money out of the estate of an absentee for the purpose of endeavouring to trace his whereabouts and to ascertain whether he is alive or dead.
3(5)Upon application after such notice as the Court considers proper, the Court, if satisfied that a person declared to be an absentee has ceased to be an absentee, may make an order so declaring and superseding, vacating and setting aside the order declaring him to be an absentee for all purposes except as to acts or things done respecting the estate of the absentee while the order was in force.
Application to have order changed
4A person aggrieved or affected by an order made under this Act may apply for an order to replace, vary, amend, or terminate such order.
Effect of presumption of death order
5(1)An order, or a copy thereof, certified by the Registrar or a deputy registrar, declaring that a person is presumed dead for all purposes or for the purposes specified in the order is proof of death in all matters requiring proof of death.
5(2)An order made under subsection 2(1) is not proof of the death of a person whose life is insured under a policy of insurance to which Part V of the Insurance Act applies for the purpose of claiming under that policy of insurance.
1975, c.43, s.1; 1987, c.6, s.83
Where person not dead and an order has been issued
6(1)Subject to subsections (2) and (3), where an order has been made declaring that a person is presumed dead for all purposes or for the purpose of distributing his estate and
(a) the estate, or a portion thereof, has been distributed in accordance with the law governing the same, and
(b) it is later discovered that the person is not in fact dead,
any estate distributed shall be deemed to be a final distribution and to be the property of the person to whom it is distributed as against the person presumed dead, and is not subject to recovery by that person.
6(2)In circumstances described in subsection (1), the Court may order a person to whom any estate has been distributed to reconvey to the owner the whole or a specified portion of the estate in his possession at the time of the order, or to pay to the owner a specified amount representing the value of the estate distributed to him or a portion thereof if, in the opinion of the Court, having regard to the circumstances of the case, including any inconvenience or hardship that would be imposed upon the person subject to the order, the making of such an order would be just.
6(3)Where the whole or a portion of the estate is reconveyed, or an amount paid, to a person pursuant to an order under subsection (2),
(a) any estate reconveyed shall be deemed not to have been distributed, and
(b) any amount paid shall be deemed to have been the property of that person immediately prior to the distribution.
6(4)Any estate referred to in subsection (1) not distributed at the time it is discovered that the person presumed dead is not in fact dead continues to be the property of that person and is to be returned to that person upon such terms and conditions as the Court may direct.
6(5)The person holding any estate referred to in subsection (4) shall be deemed to be a trustee of the estate within the meaning of the Trustees Act until such time as the Court directs otherwise.
6(6)If the person distributing the estate of a person presumed dead under an order made under this Act has reason to believe that the person is or may, in fact, be alive, he shall cease the distribution and apply to the Court for directions.
1987, c.6, s.83
N.B. This Act is consolidated to March 1, 2013.