Drizzt
Member
Firearms, the law, and inheritance.
Jim Hinter NFA National President
Published 01. 15. 03 at 16:36 Sierra Time
We have been receiving many telephone calls lately regarding firearms, the law and inheritance.
Here is the information... you may need.
A relative, or friend or neighbor has passed away. That person possessed firearms. Now what? What does the law say must happen to the firearms they owned at the time of his death?
This should help you to understand what you should and should not do. If a person dies without a will, or an appointed executor, the nearest living relative is automatically appointed as the executor.
Firearms Act section 112 (1) states: “Subject to subsections (2) and (3), every person commits an offense, who, not having previously comitted an offence under this subsection or subsection 91 (1) or 92 (1) of the Criminal code, possesses a firearm that is neither a prohibited firearm not a restricted firearm without being the holder of a registration certificate for the firearm.â€
But — FAs. Subsection (2) (b) states: “(2) Subsection (1) does not apply to… (b) a person who comes into possession of a firearm by operation of law and who, within a reasonable period after acquiring possession of it, lawfully disposes of it or obtains a registration certificate for it.â€
CC S. 91 (1) says “...every person...who possesses [any] firearm [is guilty of an offence] unless the person is the holder of (a) licence [covering it]... and (b) a registration certificate [covering it]...â€
And CC s. 91 (2) says, “...every person...who possesses a prohibited weapon, a restricted weapon, a prohibited device, or any prohibited ammunition [is guilty of an offence] unless the person is the holder of a licence [covering it]...â€
But — CC s.91 (4)(b) says, “Subsections (1) and (2) do not apply to (b) a person who comes into possession of a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition by operation of law...â€
CCs. 92 (1), 92 (2) and 92 (4) (b) state much the same thing and cover situations where the accused does know the law. CCs. 91 covers situations where the accused may not know what the law requires.
The phrase, “by operation of law†means the automatic transfer of legal possession from the deceased to the executor of the estate, as a part of the estate, at the moment of death. The executor is defined as a person appointed by a testator to carry out the terms of the will, and to dispose of the property according to the provisions of the will after his or her death.
The law is crystal clear.
Any firearm (legal or illegal), prohibited weapon, restricted weapon, prohibited device or prohibited ammunition that passes into the hands of an executor is legal.
Possession by that executor is legal – for “a reasonable periodâ€. All firearms and any other items listed held by the deceased – legally or illegally – become (if necessary, and temporarily) legal as they pass into the hands of the hands of the executor at the moment of death.
The broad exemptions granted to an executor by the law are there in order to allow him to settle the estate in an orderly manner, and with a minimum of firearm control system problems.
Law enforcement officers should, therefore, be cautious about seizing firearms, legal or illegal, or other listed items if they are involved in an estate.
Officers can be subjected to claims for damage due to poor handling or poor storage, and to legitimate complaints of illegal seizure, if they ignore the law.
The exemptions granted by FA. S.112 (2) (b), CCs. 91(4)(b) and CCs. 92(4) (b) are very broad. The exemptions granted by FA 5. 112(2)(b), CC s. 91(4)(b) and CC s. 92(4)(b) are so broad that even an obviously illegal, unregistered full automatic submachine gun, a sawed-off shotgun, or a FA s. 12(6) prohibited handgun temporarily becomes perfectly legal when the death of its possessor passes it, automatically, into the possession of the executor of the estate — who needs no licence or registration certificate.
If the deceased dies in possession of “prohibited firearm†described in FA s. 12(6), that firearm can be passed on to the heir if the conditions set out in FA s. 12(7) are met.
If the deceased died in possession of “prohibited firearm†that no one but a museum can have, the executor may legally transport it without an Authorization To Transport (ATT) — say, to a gunsmith for deactivation. (The executor must stay with it while it is deactivated, so that it is never illegally possessed by the gunsmith.) Once deactivated, it is still an asset of the estate, but it is no longer a firearm under the CC s. 2 definition of “firearmâ€.
The statement that an executor does not need an ATT requires explanation, as Parliament set up that exemption in two different ways, both having the same purpose:
CC s. 93 criminalizes only “the holder of an authorization or a licence under which the person may possess a firearm, a prohibited weapon, a restricted weapon, a prohibited device or prohibited ammunition†— if that person has the item at a forbidden location. Because an executor is not “the holder of an authorization or a licence under which the person may possess†the item, but merely the agent for the real possessor — the estate — he or she has temporary possession only under the exemption granted to executors, so this section does not apply to an executor and cannot be used to charge an executor.
CC s. 94(4) provides an exemption to a CC s. 94(1) charge against an executor who is actually transporting such an item, and for anyone else who is in a motor vehicle with such an executor. That confirms that it was Parliament’s intent to exempt an executor from ATT considerations, as well as licence and registration certificate considerations.
However, the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations apparently do apply to an executor, and must be obeyed by an executor.
For more helpful information on this or other firearm related situations, contact the National Firearms Association; Box 52183, Edmonton, Alberta, T2G 2T5 Phone: (780) 439-1394
copyright National Firearms Association, all rights reserved.
http://www.sierratimes.com/03/01/15/cag3011503.htm
Jim Hinter NFA National President
Published 01. 15. 03 at 16:36 Sierra Time
We have been receiving many telephone calls lately regarding firearms, the law and inheritance.
Here is the information... you may need.
A relative, or friend or neighbor has passed away. That person possessed firearms. Now what? What does the law say must happen to the firearms they owned at the time of his death?
This should help you to understand what you should and should not do. If a person dies without a will, or an appointed executor, the nearest living relative is automatically appointed as the executor.
Firearms Act section 112 (1) states: “Subject to subsections (2) and (3), every person commits an offense, who, not having previously comitted an offence under this subsection or subsection 91 (1) or 92 (1) of the Criminal code, possesses a firearm that is neither a prohibited firearm not a restricted firearm without being the holder of a registration certificate for the firearm.â€
But — FAs. Subsection (2) (b) states: “(2) Subsection (1) does not apply to… (b) a person who comes into possession of a firearm by operation of law and who, within a reasonable period after acquiring possession of it, lawfully disposes of it or obtains a registration certificate for it.â€
CC S. 91 (1) says “...every person...who possesses [any] firearm [is guilty of an offence] unless the person is the holder of (a) licence [covering it]... and (b) a registration certificate [covering it]...â€
And CC s. 91 (2) says, “...every person...who possesses a prohibited weapon, a restricted weapon, a prohibited device, or any prohibited ammunition [is guilty of an offence] unless the person is the holder of a licence [covering it]...â€
But — CC s.91 (4)(b) says, “Subsections (1) and (2) do not apply to (b) a person who comes into possession of a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition by operation of law...â€
CCs. 92 (1), 92 (2) and 92 (4) (b) state much the same thing and cover situations where the accused does know the law. CCs. 91 covers situations where the accused may not know what the law requires.
The phrase, “by operation of law†means the automatic transfer of legal possession from the deceased to the executor of the estate, as a part of the estate, at the moment of death. The executor is defined as a person appointed by a testator to carry out the terms of the will, and to dispose of the property according to the provisions of the will after his or her death.
The law is crystal clear.
Any firearm (legal or illegal), prohibited weapon, restricted weapon, prohibited device or prohibited ammunition that passes into the hands of an executor is legal.
Possession by that executor is legal – for “a reasonable periodâ€. All firearms and any other items listed held by the deceased – legally or illegally – become (if necessary, and temporarily) legal as they pass into the hands of the hands of the executor at the moment of death.
The broad exemptions granted to an executor by the law are there in order to allow him to settle the estate in an orderly manner, and with a minimum of firearm control system problems.
Law enforcement officers should, therefore, be cautious about seizing firearms, legal or illegal, or other listed items if they are involved in an estate.
Officers can be subjected to claims for damage due to poor handling or poor storage, and to legitimate complaints of illegal seizure, if they ignore the law.
The exemptions granted by FA. S.112 (2) (b), CCs. 91(4)(b) and CCs. 92(4) (b) are very broad. The exemptions granted by FA 5. 112(2)(b), CC s. 91(4)(b) and CC s. 92(4)(b) are so broad that even an obviously illegal, unregistered full automatic submachine gun, a sawed-off shotgun, or a FA s. 12(6) prohibited handgun temporarily becomes perfectly legal when the death of its possessor passes it, automatically, into the possession of the executor of the estate — who needs no licence or registration certificate.
If the deceased dies in possession of “prohibited firearm†described in FA s. 12(6), that firearm can be passed on to the heir if the conditions set out in FA s. 12(7) are met.
If the deceased died in possession of “prohibited firearm†that no one but a museum can have, the executor may legally transport it without an Authorization To Transport (ATT) — say, to a gunsmith for deactivation. (The executor must stay with it while it is deactivated, so that it is never illegally possessed by the gunsmith.) Once deactivated, it is still an asset of the estate, but it is no longer a firearm under the CC s. 2 definition of “firearmâ€.
The statement that an executor does not need an ATT requires explanation, as Parliament set up that exemption in two different ways, both having the same purpose:
CC s. 93 criminalizes only “the holder of an authorization or a licence under which the person may possess a firearm, a prohibited weapon, a restricted weapon, a prohibited device or prohibited ammunition†— if that person has the item at a forbidden location. Because an executor is not “the holder of an authorization or a licence under which the person may possess†the item, but merely the agent for the real possessor — the estate — he or she has temporary possession only under the exemption granted to executors, so this section does not apply to an executor and cannot be used to charge an executor.
CC s. 94(4) provides an exemption to a CC s. 94(1) charge against an executor who is actually transporting such an item, and for anyone else who is in a motor vehicle with such an executor. That confirms that it was Parliament’s intent to exempt an executor from ATT considerations, as well as licence and registration certificate considerations.
However, the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations apparently do apply to an executor, and must be obeyed by an executor.
For more helpful information on this or other firearm related situations, contact the National Firearms Association; Box 52183, Edmonton, Alberta, T2G 2T5 Phone: (780) 439-1394
copyright National Firearms Association, all rights reserved.
http://www.sierratimes.com/03/01/15/cag3011503.htm
