What happens when someone dies without a valid will? One would hope that their last wishes be honoured, but if no proof can be found in writing of their intentions, then an estate is said to be “intestate,” and estate administration and distribution is prescribed by Part II of Succession Law Reform Act, the primary governing statute for Ontario wills and estates law.
Many of these statutory provisions are common sense, especially in simple family situations. For example, if someone dies leaving a spouse, but no surviving children, then the surviving spouse inherits 100% of their estate. Conversely, if someone dies leaving a surviving spouse and children, then their estate is split between the spouse and children, however, the spouse is entitled to a “preferential share” of $350,000 prior to final distribution.
It should be noted that the definition of “spouse” in this context specifically excludes divorced and separated spouses. The principle underpinning this exclusion being that one’s ex-spouse should not inherit under their intestacy. Nonetheless, in borderline cases, where it was debatable at what point the “separation” occurred, these situations can devolve into costly litigation between the ex-spouse and other potential beneficiaries.
Also notably excluded from the definition of “spouse” in the context of intestate law are common law spouses. Indeed, a common law spouse has no basic entitlement under an intestacy, even if they were together with the deceased for several decades, living as if they were married. The caveat is that a common law spouse may make an application to the Court for “dependant support” from the estate, factoring in the nature and length of their relationship with the deceased. However, such applications are no guarantee, and are often the source of very acrimonious litigation between children from the deceased’s prior marriage, who are otherwise often entitled to the entirety of his or her entire estate, and the surviving common law spouse, who may or may not have a good relationship with them.
In the event that someone died intestate without a spouse or children, their first priority for succession would be their parents, if still alive, then, surviving siblings, then, surviving nieces and nephews. After this point, the law applies a complex calculation of “consanguinity” to determine one’s “next of kin” entitled to inherit based on their degree of blood relation to the deceased. In the rare, but not impossible situation whereby someone dies intestate without any discernable blood relatives, their estate reverts to the government, or in more arcane language, “escheats to the Crown.”
Needless to say, it is better to die having made a will than not, and your family will be forever grateful that you did.
by Fred Marian Tonelli
Fred is an Associate Lawyer with the Wills & Estates Group at Cambridge LLP
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