Land often forms a significant portion of the value of most
estates in Canada, especially here in Vancouver. However, depending
upon the nature of the land owned by the deceased, there may be
unexpected liabilities associated with the administration of such
land by a trustee under the Environmental Management Act
of British Columbia and the regulations thereto (collectively, the
Part 4 of the EMA provides that all current and previous owners
or operators of a land which is a contaminated site under the EMA
are responsible for remediation of a contaminated site and as such
are jointly and severally liable for the reasonably incurred costs
of remediation. An "owner" is defined in the EMA as a
person who is in possession, has the right of control or occupies
or controls the use of land and includes a person who has an estate
or interest, legal or equitable, in the land.
An "operator" is defined in the EMA as a person who is
in or was in control of or responsible for any operation located on
a contaminated site.
A "person" is defined to include any director,
officer, employee or agent of a person.
If the deceased (either at the time of death or previously)
owned or had an interest in land (whether alone or with others),
was a director or officer of a company that owned or had an
interest in land, was an operator on any land or was a director or
officer of a company that was an operator on any land, it is
important to determine if that land is or could be a contaminated
site under the EMA. In addition to the potential liability of the
deceased, care must also be taken to address the potential
liability of the "trustee" in relation to that
contaminated site so as to protect the "trustee" from
personal liability. A "trustee" is broadly defined
in the EMA to include an executor, administrator, express or bare
trustee, committee or other representative, guardian or attorney
acting under a power of attorney.
Under the EMA,
a "trustee" is designated as responsible, in his or her
role as a trustee, for the remediation of a contaminated
site and will be subject to a pollution prevention
order in relation to such contaminated site. However, the extent of
a trustee's liability in this role is generally limited to the
"extent of the trust", i.e. the limit of the available
funds for the period commencing with the trustee's appointment
and ending with termination thereof. Generally speaking, a
"trustee" is not personally responsible for remediating a
contaminated site unless the trustee exercised control over or
imposed requirements on any person regarding the treatment,
disposal or handling of a substance that caused contamination, or
where the trustee was grossly negligent or guilty of wilful
misconduct and such gross negligence or wilful misconduct caused
the site to become contaminated.
Because of the significant costs and liabilities associated with
environmental remediation, trustees are well advised to examine any
land forming part of the estate they are administering and to seek
legal advice regarding the potential for contamination and their
obligations under the EMA.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
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