Estates and Firearms; Can executors break the law?
According to the 2016 RCMP Commissionner of Firearms Report, at the time, approximately 87 000 Manitobans held firearm licences which works out to about 7.25% of the population.
Gun owners must obtain a licence before acquiring a gun. In order to obtain a licence, a potential owner must follow the prescribed process which includes the completion of a program, background checks, and a waiting period. I won’t go into detail about the process to acquire a licence. You can find those resources online.
Executors or administrators
This article is written for executors or potential executors (or administrators) of an estate where the deceased owned firearms. Unless an executor already holds a firearms licence, he or she will likely be unaware of the legal ramifications surrounding the safe storage and legal transfer of firearms. As outlined above, before acquiring a firearm, an owner must complete a program. The program teaches potential owners of their obligations and the regulations around owning, storing, and using a firearm. So, by the time the new owner acquires his or her firearm, he or she is properly educated in these matters.
On the other hand, an executor can become the legal owner of a firearm, in his or her capacity as executor, without going through any training. This occurs by virtue law. When a person dies, his or her executor become the legal owner (trustee) of the deceased person’s property (both real and personal). The executor legally owns the property and holds it on behalf of the beneficiaries. Only when the executor transfers the property to the beneficiary does ownership pass from him or her to the intended individual.
Criminal Code and the Firearms Act
An executor who is unaware of the laws that affect the storage and transfer of firearms faces the possibility of committing a regulatory and or criminal offence. In Canada, not knowing the law is not an excuse. The Firearms Act establishes the rules regulating the possession, storage and transportation of firearms. The Criminal Code creates criminal offences when the Firearms Act is not respected. For example, s. 86(2) of the Criminal Code states as follows:
(2) Every person commits an offence who contravenes a regulation made under paragraph 117(h) of the Firearms Act specting the storage, handling, transportation, shipping, display, advertising and mail-order sales of firearms and restricted weapons.
This subsection establishes criminal liability. An executor (who is a person) commits an offence [when he or she] contravenes a regulation … of the Firearms Act. This offence arises even when the executor is unaware of the regulations.
Imagine the following scenario: You are your uncle’s executor. Your uncle lives by himself – he is a bit of a recluse – and prior to his death showed signs of dementia and Alzheimer’s disease. You are also aware that he owned a few hunting rifles. Because his mental capacity diminished prior to death, he did not properly store his rifles and ammunition. Following his death, you attend to his home and find the rifles on the coffee table. What do you do?
You (the executor) are now the legal owner of your uncle’s estate and, as owner, you are responsible for the safe storage of those rifles. Under the Firearms Act and possibly under the Criminal Code, you are now committing an offence. Now if the RCMP appeared at the door, the officer would likely show some understanding and advise you on how to properly store the rifles. If not, you could probably rely on the court to exercise some discretion. But that is not the point. Under a strict interpretation of the law, you committed an offence. That means that you must now rely on others’ common sense and discretion in order to avoid liability. (Caveat – in criminal law, a person must have an intent to commit an offence. In this scenario, you would not have committed the criminal offence the moment possession vested in you. However, once you become aware of the circumstances, any delay in action can be interpreted as creating the required intent. This is often what criminal lawyers argue at trial. But save yourself time, money and aggravation by acting quickly).
According the RCMP website, an executor has the same rights to possess a firearm as the deceased. According to the site, the executor is not required to obtain a licence. (Interestingly, the Firearms Act is silent on the subject. I can’t locate the authority that states that an executor is deemed to have a licence or an equivalent authority). However, the executor must notify the RCMP by completing the appropriate form. As of the day this article is written, an executor must complete a Declaration of Authority to Act on Behalf of an Estate which can be found on the RCMP website highlighted above.
However, if the deceased did not have a licence, the executor would not have the authority to possess the firearm either. In this case, liability arises immediately. As discussed above, an executor must now rely on the justice system’s discretion. I don’t know about you, but on something as serious as a criminal offence, I would not want to rely on someone else’s decision or discretion. While ultimately, illegally held firearms must be turned over to the police, an executor should consult with a lawyer first. Because of the potential for regulatory or criminal liability, the facts of that particular scenario should be examined to avoid (as much as possible) any legal repercussions.
Class of firearm
If the firearms are legally owned, then the executor must determine the class of firearms that applies to those owned by the deceased. This is important for two reasons. First the executor must ensure that the firearms are properly stored. Different rules apply to different classes.
Secondly, different rules apply to the transfer of these classes of firearms. The Firearms Act establishes the following procedures in the act:
23 A person may transfer a non-restricted firearm if, at the time of the transfer,
(a) the transferee holds a licence authorizing the transferee to acquire and possess that kind of firearm; and
(b) the transferor has no reason to believe that the transferee is not authorized to acquire and possess that kind of firearm.
Restricted or prohibited firearms:
23.2 (1) A person may transfer a prohibited firearm or a restricted firearm if, at the time of the transfer,
(a) the transferee holds a licence authorizing the transferee to acquire and possess that kind of firearm;
(b) the transferor has no reason to believe that the transferee is not authorized to acquire and possess that kind of firearm;
(c) the transferor informs the Registrar of the transfer;
(d) if the transferee is an individual, the transferor informs a chief firearms officer of the transfer and obtains the authorization of the chief firearms officer for the transfer;
(e) a new registration certificate for the firearm is issued in accordance with this Act; and
(f) the prescribed conditions are met.
As you can see by reading sub-paragraph (a) and (b) in both sections, the law does impose an obligation on executors to determine whether the person who receives the firearm is legally entitled to acquire the firearm from the estate. So the executor cannot simply transfer the firearm to the beneficiary. If the beneficiary does not hold a licence, then he or she must apply for and receive one prior to transfer.
If none of the beneficiaries want to take possession, then the estate must dispose of the firearm. The RCMP provide the following options:
sell or give the firearm to any individual, museum or business with a licence to acquire that particular type of firearm through the official transfer process; or
export it to a country that allows it. Global Affairs Canada (1-800-267-8376) can provide information on export permit requirements. For restricted or prohibited firearms, an Authorization to Transport (ATT) is required and can be obtained from the provincial or territorial CFO; or
have the firearm permanently deactivated by a gunsmith so it no longer meets the definition of a firearm and is therefore exempted from the requirements of the Firearms Act; or
surrender the firearm to a police officer or a firearms officer for disposal. These authorities must be contacted beforehand.
This article does not intend to be a step-by-step guide. It is meant to make the reader aware that executors must pay particular attention to estates where the deceased owned firearms. The acts of storing, transporting, and transferring firearms are highly regulated and an executor who is not careful can find him or herself in deep legal trouble rapidly. Executors in this position should consult with a lawyer as soon as they learn that they must handle firearms.
Philippe Richer is President of TLR Law Group. TLR has been located in the St. Boniface neighbourhood, in Winnipeg, since 1996. The office serves the middle class and small business within the province. With a focus on estates, wills, real estate, and corporate law, he leads his team in providing accessible legal services. Philippe also authored the business law course for the Knowledge Bureau and instructed the français juridique class at the faculty of Law at the University of Manitoba.