Sunday, March 11, 2012

Sale of Property Gift in a Will by an Attorney under and Enduring Power of Attorney

In British Columbia, if you have been appointed an attorney under and enduring power of attorney, and the person who appointed you loses his capacity to manage his or her financial affairs, you may not dispose of any specific property that is subject to a gift in the will of the person for whom you are acting unless it is necessary for you to do so to carry out your duties.

This is set out in section 19(3) (d) of the Power of Attorney Act which provides that the attorney must “not dispose of property that the attorney knows is subject to a specific testamentary gift in the adult's will, except if the disposition is necessary to comply with the attorney's duties….”

But what happens to the gift if the attorney does dispose of property that is subject to a specific gift in the will. For example, the attorney may not have access to the will and know about the gift. Or it may be necessary for the attorney to sell the property to meet the needs of the person who appointed the attorney.

In that case, there is a provision under the Estate Administration Act that says that unless the will says something to the contrary, the beneficiary of the intended gift of property is entitled to an amount equal to the proceeds from the sale of the property after the death of the will-maker. This is set out in section 67.2:

Effect of disposition of property subject to specific testamentary gift
67.2 (1) In this section, "proceeds" means the proceeds at the time of disposition, and includes
(a) any non-monetary consideration, and
(b) in the case of a gift, the fair market value of the gift.
(2) If property that is the subject of a specific gift under a will is disposed of by
(a) an attorney acting under Part 2 of the Power of Attorney Act,
(b) a committee under the Patients Property Act, or
(c) a representative acting under section 7 (1) (b) of the Representation Agreement Act,
the beneficiary is entitled to receive from the testator's estate an amount equivalent to the proceeds of the disposition, as if the will had contained a specific gift to the beneficiary of that amount.
(3) Subsection (2) does not apply if
(a) the disposition is made to carry out the testator's instructions, given at a time when the testator was capable, or
(b) a contrary intention is expressed in the testator's will.

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