According to the 2016 RCMP Commissioner of Firearms Report, approximately 87 000 Manitobans hold firearm licences, roughly 7.25 per cent of the population.
Gun owners must obtain a licence before acquiring a gun. To obtain a licence, a potential owner must follow the prescribed process, including completing 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.
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, they 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 their gun, it's important they are properly educated in these matters.
On the other hand, an executor can become the legal owner of a firearm, in their capacity as executor, without training. This occurs by virtue law. When a person dies, their executor becomes 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 them to the intended individual.
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:
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 before his death, he showed signs of dementia and Alzheimer's disease. You are also aware that he owned a few hunting rifles. Because his mental capacity diminished before death, he did not correctly 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. If the RCMP appeared, the officer would likely show some understanding and advise you on storing the rifles properly. 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 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 situation is often what criminal lawyers argue at trial. But save yourself time, money and aggravation by acting quickly).
According to 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 "Declaration of Authority to Act on Behalf of an Estate," which is on the RCMP's website.
However, if the deceased did not have a license, 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 I would not want to rely on someone else's decision or discretion on something as serious as a criminal offence. 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 particular scenario should be examined to avoid any legal repercussions.
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,
23.2 (1) A person may transfer a prohibited firearm or a restricted firearm if, at the time of the transfer,
As you can see by reading sub-paragraphs (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 they must apply for and receive one before transfer.
If none of the beneficiaries want to take possession, then the estate must dispose of the firearm. The RCMP provides the following options:
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 rapidly find themself in deep legal trouble. Executors in this position should consult with a lawyer as soon as they learn that they must handle firearms. Have questions or need help? Contact us at and we'll do our best to help you.
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