Legislation allowing for enduring powers of attorney exists in all four Western provinces. The Western Canadian Law Reform Agencies’ report reviews Western legislation, notes differences between provinces, and reviews duties of attorneys and steps to prevent misuse. The Agencies recommend increased harmonization of Western Canadian law to support cross-boundary rules and recognition.
According to the default rules found within the Saskatchewan Wills Act, 1996, a will is automatically revoked on marriage or divorce. This rule also applies to common law relationships. The Commission does not recommend either abolition or retention of the rules, but focuses on the need for public education to inform citizens about the default rules with respect to wills.
This paper is a companion to theTrustees Act: Proposals for Reform (2002) and addresses the powers of personal representatives who are not trustees as defined in The Trustee Act. The Commission recommends including some provisions garnered from existing statute in The Administration of Estates Act and omitting other out-dated provisions, in effect replacing the Devolution of Real Property Act.
A will created on a computer and stored on computer media such as a CD-ROM or on a computer network rather than printed out and signed in the usual manner is probably invalid under Saskatchewan law at present. This paper discusses the issues and problems surrounding recognition of electronic wills.
It concludes that the technology is now available to legislate a set of formalities for recognition of electronic wills, but recommends delaying doing so until there is sufficient interest in legal profession and public to warrant doing so. In the mean time, the report recommends amendment of the Wills Act to make it clear that the courts can admit electronic wills to probate in the same manner as other formally deficient wills that “substantially comply” with the requirements of the Wills Act (2004).
Under the present law, a will is automatically revoked on marriage or divorce. These long-standing rules are intended to protect the interests of spouses and children of the makers of wills. However, it has been suggested the the changing social and legal context may sometimes defeat the purpose of the rules, and even make them a problem. This Consultation Paper discusses when a will is automatically revoked due to marriage or divorce.
The law regarding the partition of land is governed by English legislation rather than Saskatchewan statute, with a few exceptions. The existing Farming and Communities Land Act and the Matrimonial Property Act contain out-dated and obscure reasoning, and clarification on the partition and sale of land is recommended. The Commission recommends that a Partition and Sale Act be adopted in Saskatchewan.
Gaps in the Powers of Attorney Act have left those who wish others to administer their affairs vulnerable to abuse and without adequate guidance. The Commission suggests addressing a number of issues, including standard forms, a standard test of capacity, criteria of admissibility for attorneys, the effect of death or divorce on power of attorney, and appointment of a corporate attorney under an enduring power.
The Dependants’ Relief Act should be reformed to limit liability of estates to provide for handicapped adult children. It should be permissible to use funds for purposes other than day-to-day maintenance without jeopardizing eligibility for social assistance. The changes proposed would not impose any new or additional burdens on taxpayers.
The complexity of the law of perpetuities and accumulations can lead to unexpected and undesirable results. Social concerns originally justifying the rules no longer obtain. The Commission thus concludes that the rule against perpetuities and accumulations ought to be abolished
Marriage is now seen as a partnership between two people who expect to share in the obligations and benefits of their union. Matrimonial property legislation should be amended to reflect the current view. The Commission outlines basic principles it believes ought to guide any change to the legislation.
The Commission makes a number of recommendations on recovery by the estate of a deceased victim, and claims against a deceased wrongdoer. The report contains a draft Survival of Actions Act to amend unclear current legislation.
Ademption resulting from equitable conversion has had unjust consequences for beneficiaries. This report proposes amendment of The Wills Act to provide that when a testator enters into an agreement for sale of devised property, the beneficiary takes the interest of the testator under the agreement, mortgage or option agreement.
The Commission proposes reforms in the law of guardianship of a child’s person and estate. A draft of a Children’s Act is presented as an alternative to The Infants Act, which is now disjointed and in need of modernization and clarification. The draft incorporates proposals from this report and from the Commission’s 1981 Custody Report.