Presumption of Death Act

CHAPTER 354

OF THE

REVISED STATUTES, 1989

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An Act Respecting
Presumption of Death

Short title

1 This Act may be cited as the Presumption of Death Act. R.S., c. 354, s. 1.

Interpretation

2 In this Act,

(a) "Court" means the Trial Division of the Supreme Court of Nova Scotia or a judge thereof;

(b) "interested person" means any person who is or would be affected by an order made under this Act and includes

(i) the next of kin of the person in respect of whom an order is applied for or made,

(ii) a person who holds property of the person in respect of whom an order is applied for or made, and

(iii) the Public Trustee. R.S., c. 354, s. 2.

Order of presumption of death

3 (1) Where, upon the application of an interested person by originating notice of motion, the Court is satisfied that

(a) a person has been absent and not heard of or from by the applicant, or to the knowledge of the applicant by any other person, since a day named;

(b) the applicant has no reason to believe that the person is living; and

the Court may make an order declaring that the person shall be presumed to be dead for all purposes, or for such purposes only as are specified in the order.

Content of order

(2) An order made under subsection (1) shall state the date on which the person is presumed to have died.

Amendment or revocation of order

(3) Any interested person may, with leave of the Court, apply to the Court for an order to vary, amend, confirm or revoke an order made under subsection (1).

Order as proof of death

(4) An order, or a certified copy thereof, declaring that a person shall be presumed to be dead for all purposes or for the purposes specified in the order is proof of death in all matters requiring proof of death for such purposes.

Effect of order on insurer

(5) No order issued pursuant to this Section shall be binding upon the insurer of the life of the person presumed to be dead until such time as a Court upon such notice and after such hearing as the Court may determine declares that the order applies to such insurer. R.S., c. 354, s. 3.

If personal representative believes person alive

4 Where an order has been made declaring that a person shall be presumed to be dead for all purposes or for the purpose of distributing his estate, and the personal representative of the person presumed to be dead believes or there are reasonable grounds for him to believe that the person is not in fact dead, the personal representative shall not thereafter deal with the estate or remaining estate unless the presumption of death is confirmed by an order made under subsection (3) of Section 3. R.S., c. 354, s. 4.

Distribution final

5 (1) Where a person who is presumed to be dead is in fact alive, any distribution of his property that has been made in reliance upon an order made under Section 3, and not in contravention of Section 4, shall be deemed to be a final distribution and to be the property of the person to whom it has been distributed as against the person presumed to be dead.

Undistributed property of person found alive

(2) Where a person who is presumed to be dead is found by the Court to be alive, the Court may, upon the application of any interested person, and subject to subsection (1), by order give such directions as the Court considers appropriate respecting the undistributed property of the person found to be alive and its preservation and return. R.S., c. 354, s. 5.

Distribution where person in fact dead

6 Where a person who is presumed to be dead is in fact found to be dead, any distribution of his property that has been made in reliance upon an order made under Section 3 shall be deemed to be a final distribution and to be the property of the person to whom it has been distributed as against any person who would otherwise be entitled if the order made under Section 3 had not been made. R.S., c. 354, s. 6.

Appeal

7 Any interested person may appeal an order made under this Act to the Appeal Division of the Supreme Court of Nova Scotia. R.S., c. 354, s. 7.

Public Trustee

8 Where, pursuant to this Act, an application is made or an order appealed from, a copy of the documents on application or appeal and all other relevant documents pertaining to such application or appeal shall be served upon the Public Trustee and the Public Trustee shall be entitled to make representation to ensure that the interest and the property of the person in respect of whom the order is sought or the appeal made are protected. R.S., c. 354, s. 8.

Common law rights preserved

9 Nothing in this Act contained shall preclude a person who at common law could make an application for a presumption of death from making such an application and a Court from granting the same. R.S., c. 354, s. 9.

Part VIII of Insurance Act

10 Where there is any conflict between this Act and Part VIII of the Insurance Act, the provisions of this Act apply. R.S., c. 354, s. 10.

This page and its contents published by the Office of the Legislative Counsel, Nova Scotia House of Assembly, and © 1998 Crown in right of Nova Scotia. Updated September 22, 1998. Send comments to legc.office@gov.ns.ca.

Presumption of Death Act

An Act Respecting Presumption of Death

An Act Respecting
Presumption of Death