Mar 01, 1985

Delays in Completion – Wills Variation Act; Seat Belt Legislation #67


By Gerry Neely
B.A. LL.B.

Delay in the completion of a sale may arise through the operation of the Wills Variation Act. The purpose of this Act is to give the surviving spouse or children of a deceased person, the right to apply to the Court to have the Will of the deceased person varied in their favour. This application by the surviving spouse or children must be brought within six months from the date of issuance of Probate of the Will in British Columbia. As a result of this time limitation, no part of the estate is to be distributed until six months after the Grant of Probate, unless the Court or the persons who would be entitled to bring the application (namely the spouse or children) consent to the transfer.

This applies equally to real estate. If the consent of the Court or the persons entitled to apply is not obtained, then while the purchaser can take title, his title will be subject to a notation filed against it by the Registrar of Land Titles. That notation states that the purchaser's interest is subject to the liability of being charged by an Order made under the Wills Variation Act. Since the Order could direct, for example, that the real estate was to be transferred to a beneficiary, a purchaser cannot safely take title until a period of six months and ten days has expired or the consents of the Court or persons referred to have been obtained.

The ten days is added because the applicant has ten days after the issuance of the Writ within which to file a Lis Pendens against the title. If no Lis Pendens is filed and six months and ten days has elapsed, then the title can be transferred free of any liability under the Wills Variation Act.

Therefore, if you are dealing with an Executor on the sale of real property held by an estate, you should enquire as to the ability of the Executor to convey title free of any liability under this Act.

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A licensee, who in the course of driving a prospective purchaser to an open house, was told to "button up" when he asked his passenger to "belt up," wonders whether the passenger knew something that he didn't. The licensee assumed that the legislation applied to him and to his passengers while he was driving them to and fro - the passenger thought otherwise.

The licensee's assumption is generally correct. If there is a seatbelt assembly for the seating position occupied by a person in a motor vehicle being driven or operated on a highway, then that person is required to wear the complete seatbelt. In addition, no driver may drive a motor vehicle containing a passenger less than sixteen years of age, unless that passenger wears a seatbelt.

The exceptions to this rule are firstly for those people who are able to obtain a Certificate stating that the person is unable either for medical reasons or because of the person's size, build or other physical characteristics, to wear a seatbelt. The second principal exemption is available to a person who is "actually engaged in work which requires him to alight from and re-enter the motor vehicle at frequent intervals and who, while engaged in that work, does not drive or travel in that vehicle at a speed exceeding 40 km/h." Would any licensee be able or wish to drive within this limitation?

Any person who contravenes the seatbelt provisions of the Motor Vehicle Act commits an offence and is liable for a fine of not more than $100.00. A licensee would be subject to a fine if his seatbelt were unfastened or he failed to have the seatbelt of someone under the age of sixteen, fastened. However, if a passenger sixteen years of age or over refused to belt up, then the passenger and not the licensee would be liable for the fine.

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