In this Act R.S., c.62, s.1; 1977, c.18, s.1; 1979, c.41, s.38; 1982, c.3, s.15; 1985, c.4, s.21; 1987, c.6, s.18; 2022, c.60, s.69; 2023, c.17, s.59
“child” means offspring of the first generation, and excludes grandchildren;(enfant)
“Court” means The Probate Court of New Brunswick or The Court of King’s Bench of New Brunswick, as the context requires;(Cour)
“estate” includes both real and personal property;(succession)
“lunatic” Repealed: 2022, c.60, s.69
“personal chattels” mean automobiles and accessories, domestic animals, garden effects, household or personal articles for use or ornament, furniture, books, pictures, prints, paintings and other works of art, jewellery, video or audio reproductive equipment, musical and scientific instruments and apparatus, wines, liquors, consumable stores and other articles of personal property not amounting to an interest in land, but does not include any such chattel used at the death of a deceased person for business purposes nor money or securities for money;(personal chattels)
“personal representative” means the executor and includes an administrator and an administrator with the will annexed.(représentant personnel)
This Part applies only in cases of death occurring after its commencement. R.S., c.62, s.2
R.S., c.62, s.3
All real and personal property that is vested in any person, without a right in another person to take by survivorship, shall on his death, notwithstanding any testamentary disposition, devolve upon and become vested in his personal representative from time to time as trustee for the persons entitled thereto, and subject to the payment of his debts and so far as such property is not disposed of by deed, will, contract or other effectual disposition, shall be administered, dealt with and distributed as if it were personal property not so disposed of.
This section applies to property over which a person executes by will a general power of appointment, as if it were property vested in him.
Subject to the provisions hereinafter contained, the jurisdiction of any court with respect to the appointment of administrators or to probate or letters of administration, and all enactments and rules of law relating to the effect of probate or letters of administration as respects personal property and as respects the dealings with personal property before probate or administration and as respects the payment of costs of administration and other matters in relation to the administration of personal estate, and the powers, rights, duties and liabilities of personal representatives in respect of personal property applies to real property vesting in these representatives, so far as the same are applicable, as if that real property were personal property, save that it is not lawful for some or one only of several joint personal representatives, without the authority of the Court, to sell or transfer real property. R.S., c.62, s.4
Without prejudice to the rights and powers of a personal representative, the appointment of a personal representative in regard to real property does not, save as hereinafter provided, affect R.S., c.62, s.5
(a) any rule as to marshalling, or as to administration of assets,
(b) the beneficial interest in real property under any testamentary disposition,
(c) any mode of dealing with a beneficial interest in real property or the proceeds of the sale thereof, or
(d) the right of any person claiming to be interested in the real property to take proceedings for the protection or recovery thereof against any person other than the personal representative.
In the administration of the assets of a deceased person his real property shall be administered in the same manner, subject to the same liabilities for debts, costs and expenses, and with the same incidents, as if it were personal property; but nothing herein contained shall alter or affect the order in which real and personal assets respectively are now applicable, as between different beneficiaries, in or toward the payment of funeral and testamentary expenses, debts or legacies, or the liability of real property to be charged with payment of legacies. R.S., c.62, s.6
Where any part of the real property of a deceased person vests in his personal representative under this Act, in the interpretation of any Act of the Legislature or in the construction of any instrument to which the deceased was a party or under which he was interested, the personal representative shall, while the estate remains in him, be deemed in law the heir of the deceased as respects such part, unless a contrary intention appears; but nothing in this section affects the beneficial right to any property or the construction of words of limitation of any estate in or by a deed, will or other instrument. R.S., c.62, s.7
R.S., c.62, s.8; 1979, c.41, s.38; 1986, c.4, s.12; 1988, c.42, s.21
At any time after the expiration of one year from the date of probate or of letters of administration, if the personal representative has failed, on the request of the person entitled to any real property, to convey the real property to that person, the Court may, if it thinks fit, on the application of that person and after notice to the personal representative, order that the conveyance be made, and in default may make an order vesting the real property in such person as fully and completely as might have been done by a conveyance thereof from the personal representative.
If, after the expiration of such year, the personal representative has failed, with respect to the real property or any portion thereof, either to convey the same to a person entitled thereto or to sell and dispose of it, the Court may, on the application of a person beneficially interested, order that the real property or portion be sold on such terms and within such period as may appear reasonable; and, on the failure of the personal representative to comply with such order, may direct the sheriff responsible for the county in which the real property is located to make a sale of the real property or portion upon such terms of cash or credit, or partly one and partly the other, as may be deemed advisable.
The personal representative may sell the real property for the purpose not only of paying debts but also of distributing the estate among the persons beneficially entitled thereto, whether or not there are debts, and it is not necessary that the persons beneficially entitled concur in the sale, except where it is made for the purpose of distribution only. R.S., c.62, s.9
R.S., c.62, s.10; 2022, c.60, s.69
Subject to the provisions hereinafter contained, no sale of real property for the purpose of distribution only is valid as respects a person beneficially interested, unless he concurs therein.
Where, in the case of such a sale, a person who lacks the capacity to concur in the sale is beneficially interested or adult beneficiaries do not concur in the sale, or where under a will there are contingent interests or interests not yet vested or the persons who may be beneficiaries are not yet ascertained, the Court, upon proof satisfactory to it that the sale is in the interest and to the advantage of the estate of the deceased and the persons beneficially interested therein, may approve such sale and any sale so approved shall be valid as respects such contingent interests and interests not yet vested, and shall be binding upon the person who lacks capacity, non-concurring person and beneficiaries not yet ascertained.
If an adult accepts a share of the purchase money, knowing it to be such, he shall be deemed to have concurred in the sale.
No sale, where a minor is interested, is valid without the written consent or approval of the guardian of the estate of the minor, or in the absence of such consent or approval, or if there is no guardian, without an order of the Court. R.S., c.62, s.11; 1986, c.4, s.12
The personal representative may, with the concurrence of the adult persons beneficially interested, with the approval of the guardian of the estate of the minor and in the case of a person for whom a representative has been appointed under the Supported Decision-Making and Representation Act, with the approval of the representative, if any minor or represented person is so interested, divide or partition and convey the real property of the deceased person, or any part thereof, to or among the persons beneficially interested. R.S., c.62, s.12; 1986, c.4, s.12; 2022, c.60, s.69
The personal representative may from time to time, subject to the provisions of any will affecting the property, R.S., c.62, s.13
(a) lease the real property or any part thereof, for a term not exceeding one year,
(b) lease the real property or any part thereof, with the approval of the Court, for a longer term, and
(c) raise money by way of mortgage of the real property or any part thereof for the payment of debts, or for payment of taxes on the real property to be mortgaged, and, with the approval of the Court, for the payment of other taxes, the erection, repair, improvement or completion of buildings, or the improvement of lands, or for any other purpose beneficial to the estate.
R.S., c.62, s.14
A person purchasing real property in good faith and for value from the personal representative, or from a person beneficially entitled thereto to whom the same has been conveyed by the personal representative, holds the same freed and discharged from all debts or liabilities of the deceased owner, except such as are specifically charged thereon otherwise than by his will, and where the purchase is from the personal representative, freed and discharged from all claims of the persons beneficially interested.
Real property that has been conveyed by the personal representative to a person beneficially entitled thereto or that vests in such person under section 19 shall continue to be liable to answer the debts of the deceased owner so long as it remains vested in that person or in any person claiming under him not being a purchaser in good faith and for value, as it would have been if it had remained vested in the personal representative, and in the event of a sale or mortgage thereof in good faith and for value by such person beneficially entitled he shall be personally liable for the debts to the extent to which such real property was liable when vested in the personal representative, but not beyond the value thereof.
Where there are two or more personal representatives, a conveyance, mortgage, lease or other disposition of real property devolving under this Act shall not be made without the concurrence therein of all such representatives, or an order of the Court; but where probate is granted to one or some of two or more persons named as executors, whether or not power is reserved to the other or others to prove, any conveyance, mortgage, lease or other disposition of the real property may be made by the proving executor or executors for the time being, and shall be as effectual without an order of the Court, as if all the persons named as executors had concurred therein. R.S., c.62, s.15
R.S., c.62, s.16
Where the personal representative desires to sell any real property devolving upon him free from curtesy or dower, he may apply to a judge of the Court, who may in a summary way and upon notice to be served personally, unless the judge otherwise directs, order that the same shall be sold free from the right of the tenant by the curtesy or dowress; and in making such order regard shall be had to the interests of all parties.
If a sale free from such curtesy or dower is ordered, all the right and interest of such tenant by the curtesy or dowress shall pass thereby; and no conveyance or release thereof to the purchaser shall be required; and the purchaser, his heirs and assigns, shall hold the real property freed and discharged from the estate or interest of such tenant by the curtesy or dowress.
The Court may direct payment to the person entitled to curtesy or dower of such sum in gross out of the purchase money as it may deem, upon the principles applicable to life annuities, a reasonable satisfaction for such estate or interest; or may direct the payment to the person entitled of an annual sum, or of the income or interest to be derived from the purchase money or any part thereof, as it may deem just, and for that purpose may make such order for the investment or other disposition of the purchase money, or any part thereof, as it may deem necessary.
The rights and immunities conferred by this Act upon personal representatives are in addition to and not in derogation of the powers conferred by any other Act or by the will. R.S., c.62, s.17
Notwithstanding anything contained in this Act, if a will is recorded in a Registry Office as provided by section 25 of the Registry Act the recording of the will has the effect of vesting any real estate devised by the will in the person to whom it is devised, to the extent of the interest so devised therein, but such real estate is subject to the provisions of the Probate Court Act. R.S., c.62, s.18; 1954, c.37, s.1; 1987, c.6, s.18
Money and securities for money to a value of twenty-five hundred dollars, personal chattels or real property not disposed of by the personal representatives, or conveyed to, divided or distributed among the persons beneficially entitled thereto within two years after the death of the deceased shall, whether probate or letters of administration have or have not been taken out, be thenceforward vested in the persons beneficially entitled thereto under the will or upon the intestacy, or their assigns, without any conveyance by the personal representatives. R.S., c.62, s.19; 1977, c.18, s.2
Repealed: 1977, c.18, s.3 1963, c.6, s.1; 1977, c.18, s.3
This Part applies only in cases of death after May 1, 1951. R.S., c.62, s.20
R.S., c.62, s.21; 1963, c.6, s.2; 1991, c.62, s.1
In this section
“marital property” means marital property as defined in the Marital Property Act.(biens matrimoniaux)
If an intestate dies leaving a widow and one child, the following shall go to the widow:
(a) any interest of the intestate in property that is marital property of the intestate and the widow; and
(b) one-half of the residue of the intestate’s estate.
If an intestate dies leaving a widow and children, the following shall go to the widow:
(a) any interest of the intestate in property that is marital property of the intestate and the widow; and
(b) one-third of the residue of the intestate’s estate.
If a child dies leaving issue and such issue is alive at the date of the intestate’s death, the widow shall take the same share of the estate as if the child had been living at that date.
If an intestate dies leaving issue, his estate shall be distributed, subject to the rights of the widow, if any, per stirpes among such issue. R.S., c.62, s.22
If an intestate dies leaving a widow but no issue his estate shall go to his widow. R.S., c.62, s.23; 1956, c.33, s.1; 1963, c.6, s.3; 1973, c.30, s.1
If an intestate dies leaving no widow or issue, his estate shall go to his father and mother in equal shares if both are living, but if either of them is dead the estate shall go to the survivor. R.S., c.62, s.24
If an intestate dies leaving no widow or issue, or father or mother, his estate shall go to his brothers and sisters in equal shares, and if any brother or sister is dead the children of the deceased brother or sister shall take the share their parent would have taken, if living. R.S., c.62, s.25
If an intestate dies leaving no widow, issue, father, mother, brother or sister, his estate shall go to his nephews and nieces in equal shares and in no case shall representation be admitted. R.S., c.62, s.26
If an intestate dies leaving no widow, issue, father, mother, brother, sister, nephew or niece, his estate shall be distributed equally among the next of kin of equal degree of consanguinity to the intestate and in no case shall representation be admitted. R.S., c.62, s.27
For the purposes of this Part, degrees of kindred shall be computed by counting upward from the intestate to the nearest common ancestor and then downward to the relative; and the kindred of the half-blood shall inherit equally with those of the whole-blood in the same degree. R.S., c.62, s.28
Descendants and relatives of the intestate, begotten before his death but born thereafter, shall inherit as if they had been born in the lifetime of the intestate and had survived him. R.S., c.62, s.29
R.S., c.62, s.30
If any child of a person who dies wholly intestate has been advanced by the intestate by portion, the portion shall be reckoned, for the purpose of this section only, as part of the estate of the intestate distributable according to law; and, if the advancement is equal to or greater than the share of the estate that the child would be entitled to receive as above reckoned, the child and his descendants shall be excluded from any share in the estate; but if the advancement is not equal to such share, the child and his descendants shall be entitled to receive so much only of the estate of the intestate as is sufficient to make all the shares of the children in the estate and advancement equal as nearly as can be estimated.
The value of any portion advanced shall be deemed to be that that has been expressed by the intestate or acknowledged by the child in writing, otherwise the value shall be the value of the portion when advanced.
The onus of proving that a child has been maintained or educated, or has been given money with a view to a portion shall be upon the person so asserting, unless the advancement has been expressed by the intestate, or acknowledged by the child, in writing.
All such estate as is not disposed of by will shall be distributed as if the testator had died intestate and had left no other estate. R.S., c.62, s.31
Repealed: 2006, c.18, s.2 R.S., c.62, s.32; 2006, c.18, s.2
Repealed: 1980, c.C-2.1, s.150 R.S., c.62, s.33; 1980, c.C-2.1, s.150
Repealed: 1980, c.C-2.1, s.150 R.S., c.62, s.34; 1980, c.C-2.1, s.150
The estate of a woman dying intestate shall be distributed in the same proportions and in the same manner as the estate of a man so dying, the word “widower” being substituted for “widow”, the word “her” for “his”, the word “she” for “he,” and the word “her” for “him,” where such words respectively occur in sections 22, 23, 24, 25, 26, 27, 28, 30 and 35. R.S., c.62, s.35
Repealed: 1991, c.62, s.1 R.S., c.62, s.36; 1991, c.62, s.1
Where an estate in any tenements, corporeal or incorporeal, is vested by way of mortgage in a person, the same shall on his death, in the absence of any testamentary disposition, devolve to and become vested in his personal representative, but subject to all the like rights, equities and obligations, and for the purpose of this section, his personal representative for the time being shall be deemed in law his heir for the purposes of all trusts and powers created by the said mortgage. R.S., c.62, s.37