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NOTARIES - Powers and duties of notary

Wednesday, January 24, 2018 @ 8:35 AM  


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Appeal by the Society of Notaries Public from the dismissal of its application for a declaration that notaries were authorized to draw wills that created life estates or trusts. The appellant argued that the words “distributed immediately on death” in s. 18(b)(i) of the Notaries Act should be interpreted as “vested immediately on death”. The chambers judge concluded that a will in which the beneficial interest vested immediately on the death of the will-maker, but distribution of possession or legal title or both was postponed, was not within the scope of s. 18(b)(i) of the Notaries Act. The chambers judge determined that the provision required that the entire interest to be distributed immediately, not simply vested.

HELD: Appeal dismissed. When the Legal Profession Act and the Notaries Act were read together, it was evident that the Legislative Assembly authorized notaries to draw only the three types of wills described in s. 18(b)(i),18(b)(ii), and 18(b)(iii) of the Notaries Act. The Legislative Assembly used the expression “distributed immediately” in s. 18(b)(i) of the Notaries Act in its ordinary sense to describe a will that directed the immediate transfer of both the legal and beneficial interest in the assets of the estate to the beneficiaries. The fact that the legislature used “distributed” in one subsection and “vested” in the two other subsections weighed heavily against the appellant’s position that “distributed” should be interpreted as synonymous with “vested”. Also weighing against the appellant’s position was that distribution and vesting had long been treated as distinct concepts in wills and estate matters.

Society of Notaries Public of British Columbia v. Law Society of British Columbia, [2017] B.C.J. No. 2617, British Columbia Court of Appeal, M.V. Newbury, S.D. Frankel and J.E.D. Savage JJ.A., December 21, 2017. Digest No. TLD-January222018007