Part 6 — General
109 Court application respecting alleged advance
(a) "applicant" means
(i) a personal representativ e of the deceased's estate, or
(ii) a person having an interest as a beneficiary in the
deceased's estate;
(b) "prospective beneficiary" means a spouse, adult
interdependent partner or descendant of the deceased.
(2) If a deceased, during life, has transferred property to a
prospective beneficiary, an applicant who alleges that the transfer
was intended by the deceased to be an advance against, or
otherwise repayable from, the prospective beneficiary's share of
the estate may make an application to the Court under this section.
(3) In considering the application, the Court may consider the
deceased's intention respecting the transfer
(a) as determined in the course of interpreting the will, if any,
or
(b) as evidenced by
(i) any oral statement made b y the deceased respecting the
transfer at the time the transfer was made,
(ii) any written statement made by the deceased respecting
the transfer, or
(iii) any oral or written statement made by the prospective
beneficiary.
(4) Subject to subsection (5), the Court may, on hearing the
application
(a) determine the nat ure of the transfer,
(b) determine the value of the transferred property,
(c) order that the value of the transferred property be deduct ed
from the prospective beneficiary's share of the estate,
(d) order that the prospective beneficiary's share of the estate be
held on trust for the estate, and
(e) make any other order or give any other direction the Court
considers appropriate.
(5) If the Court determines that the transfer was intended by the
deceased to be an advance against, or otherwise repayable from,
the prospective beneficiary's share of the estate, then unless the
Court determines that the deceased had a contrary intention,
(a) the shares of all the beneficiaries shall be determined as if
the transferred property were part of the estate available for
distribution,
(b) if the value of the transfe rred property equals or exceeds the
prospective beneficiary's share of the estate, the prospective
beneficiary is to be excluded from any share of the estate,
and
(c) if the value of the transfe rred property is less than the share
of the estate of the prospective beneficiary, the prospective
beneficiary is to receive only so much of the estate as is
required, when added to the value of the transferred
property, to make up the prospective beneficiary's share of
the estate.
(6) Where the application is made in respect of an intestate estate
and the prospective beneficiary has predeceased the intestate, it is
presumed that the intestate did not intend the transfer to be an
advance repayable by the descendants of the prospective
beneficiary.
(7) For the purposes of this section, the value of the transferred
property is its value at the time of the transfer, unless the Court
determines that the deceased had a contrary intention.
(8) An application under this section may be made only within 6
months after a grant of probate or administration is issued in
respect of the deceased's estate.
2010 cW-12.2 s109;2011 c20 s13