Qestion: Myself and my wife are going to have our wills set up through our
lawyer, and I want to know how we should handle the firearms. I have an
FAC, as well as several long guns, plus some registered (to myself)
Thursday, February 17, 2005
What section of law should I tell my lawyer to refer to
so that if I died, and my wife is the executor of my will, she could
maintain control/ownership of my property? I am concerned that the
gov't would try to take my firearms away from her.
NFA: Criminal Code section [CC s.] 91(4)(d) authorizes the executor of an estate to take possession of any
firearm (including a prohibited or restricted firearm). The executor
can possess it until he "with reasonable despatch, lawfully disposes
thereof or obtains a firearms acquisition certificate under which he
could lawfully have acquired the firearm." CC s. 92(4)(b) is the same
provision, and operates in the same manner.
Can she acquire them without an FAC (as executor)? Can the restricted ones be registered to both of us?
Yes, she can acquire without an FAC or licence if she is the executor.
Firearms cannot be registered to two individuals on one registration
certificate, unless they were registered to two or more individuals on
one registration certificate on 01 Dec 1998. Firearms can be
transferred from one individual to another, after the first has his or
her registration certificate, without transfer of ownership
. If ownership
is not transferred, then the old registration certificate is not
automatically cancelled, and it remains valid -- at the same time the
new registration certificate is also valid.
If something happened to both of us, can I will some of them to the NFA as a donation?
NFA: Certainly. They then go into the hands of the executor, until a legal transfer can be arranged.
in advance for your info. I really like your articles in PointBlank,
and find your comments to be very informative. (I just wish I could
remember what you said regarding wills, executors, and firearms !!)
Worst case: If you own an illegal, unregistered full automatic machine
gun, your executor can legally take possession of it, and legally take
it to a gunsmith for alteration into a deactivated firearm without
getting an Authorization to Transport. (That is because it is legally in his/her possession, and because no such Authorization can
legally be issued.) The executor must stay
with the firearm until
it is deactivated, because the gunsmith cannot legally take possession of it -- so it must remain
, at all times until deactivated, in the possession of the executor.
is a document that you should print out and clip to your will. It is
specifically designed to be given to a police officer who thinks that
he is authorized to seize firearms from the executor of a will:
National Firearms Association
Law Enforcement Update
October 2000 © National Firearms Association
INHERITANCE AND TODAY'S LAWS
have the unfortunate duty of telling a woman that her husband was
killed in a hunting accident. Obviously, the man possessed firearms.
What does the law say must happen to the firearm the man was carrying,
and any other firearms he owned, upon his death?
The phrase, "by operation of law", means the automatic
transfer of legal possession from the deceased to the executor
of his estate, as a part of the estate, at the moment of death.
This will help you to understand what you should and should not do:
Act section [FA s.] 112(1) says, ".. every person.. who...possesses
[any unrestricted firearm] without being the holder of a registration
certificate [covering it is guilty of an offence]..."
But -- FA s. 112(2) says, "(2) Subsection (1) does not apply to...(b) a person who comes into possession of a firearm by operation of law..." (as an executor does).
S. 91(1) says, "...every person...who possesses [any] firearm [is
guilty of an offence] unless the person is the holder of (a) a licence
[covering it]...and (b) a registration certificate [covering it]..."
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]..."
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..."
s. 92(1), 92(2), and 92(4)(b) say much the same thing, and cover the
situation where the accused does know the law, while CC s. 91 covers
situations where the accused may not know what the law requires.The law
set forth in C-68 is crystal clear.
firearm, prohibited weapon, restricted weapon, prohibited device, or
prohibited ammunition that passes into the hands of an executor is
legal, and possession by that executor is legal -- for a "reasonable
period". All firearms and any of the other items listed held by
the deceased -- legally or illegally -- become [if necessary, and
temporarily] legal as they pass into the hands of the executor at the
moment of death. The executor has broad exemptions granted to him by
the law in order to let him settle the estate in an orderly manner, and
with a minimum of firearms control system problems.
enforcement officers should, therefore, be very cautious about seizing
firearms (and other listed items) that are involved in an inheritance
process. There can be claims for damage due to poor handling or poor
storage, as well as complaints of illegal seizure.The exemptions
granted by FA 5. 112(2)(b), CC s. 91(4)(b) and CC s. 92(4)(b) are very
broad. 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, temporarily. That happens
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 to be in possession of it.
If the deceased dies in possession of a "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.
the deceased died in possession of a "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 "firearm".
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. An executor is not
"the holder of an authorization or a licence under which the person may
possess" the item. He or she is 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.
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
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.
you have questions on this, or any other issue regarding firearms, the
National Firearms Association would be pleased to answer them for you.
Please call us at (780)439-1394