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Inheritance on Intestacy

1. Introduction

What happens to a person’s property when he dies? Initially it devolves upon (passes to) his personal representatives. These are the people who must administer his estate. That means that they must gather in all of the deceased’s assets and acquire title to them. Then they must pay all his debts and any taxes that need to be paid, including income tax and estate administration tax. They also arrange for the deceased’s funeral and pay all the costs associated with that out of the assets. And when all that is done, they must distribute the net estate among the people entitled to it.[1]

The deceased may have died testate, which means that he died with a will. (The word testate derives from testament, a Latinate synonym of the Old English word will. This is also why we call the maker of the will the testator).[2]  Or the deceased may have died intestate, that is, without a will. If he died testate, the distribution of the assets takes place in accordance with the dispositive provisions in the deceased’s will. In other words, the testator’s directions govern who gets what. But if he died intestate we need to look to what is sometimes referred to as a deceased person’s statutory will. This governs the distribution of the assets of a person who died without a will. The statutory will is contained in Part II of the Succession Law Reform Act[3] and supposedly distributes the estate as fairly as possible and in a way that the deceased would likely have wanted.

In fact, it is often not at all what the deceased would probably have wanted. In modern society people are often not married, but are in a “common law” relationship. However, under Ontario’s “statutory will” the common law partner is not entitled to inherit.[4] Only the spouse (of the same or opposite sex) to whom the deceased was married is entitled, together with the deceased’s descendants or more remote blood relatives. To ensure that your partner will inherit from you, you must therefore make a will and include her in it. Other reasons for making a will include that you can give preferential treatment to some of your descendants over others in the will. For example, you can make special provision for children who are mentally or physically challenged; you can also give less to a child whom you have already helped financially during his life; and you can even exclude persons from inheriting any property. In addition, a testator can name an executor in his will to administer her estate. This person is typically one whom the testator trusts to do so effectively and efficiently.

If a testator does not name an executor or the named executor cannot or refuses to act, the court can and will appoint an administrator to administer the estate and it will also appoint an administrator in the case of an intestate estate.

2. Distribution on Intestacy

The structure of the legislation makes provision first for the surviving spouse and descendants. If there are none, then it makes provision for other blood relatives of the intestate.

2.1 Surviving Spouse

If the intestate is survived by a spouse, but not by issue, the spouse takes the entire net estate.[5]

If the intestate is survived by a spouse and descendants, the spouse is given preferential treatment. She receives a preferential share off the top of the net estate.[6] The amount is fixed by regulation and is currently $200,000.[7] If the net estate is $200,000 or less the surviving spouse will therefore take it all. The preferential share also applies if the deceased dies partially intestate, that is, if he has a will, but it does not cover all his assets, so that he dies intestate of the assets not covered by the will. However, the legislation takes into account the amount the surviving spouse receives under the will. For example, if she receives $250,000 under the will, she is not entitled to a preferential share. But if she receives only $50,000 under the will, she is entitled to a preferential share of $150,000 out of the intestate property.

If the net estate is greater than $200,000, the surviving spouse is also entitled to a distributive share. This share varies with the number of descendants that survive the intestate. If he is survived by his spouse and one child, the spouse is entitled to one-half of the residue after payment of the preferential share. But if he is survived by his spouse and more than one child, the spouse’s distributive share is reduced to one-third. Note, however, that if a child has predeceased the intestate, but left issue surviving the intestate, the spouse’s distributive share is calculated as if the child survived the intestate.[8]

2.2 Surviving Issue/Descendants

Once the surviving spouse’s preferential and distributive shares have been paid, the intestate’s descendants share what remains. Of course, if there is no surviving spouse, they take the entire net estate. The property is distributed in equal shares among the intestate’s issue who are of the nearest degree in which there are issue surviving the intestate. Thus, if the intestate has three children, A, B, and C, and they all survive him, they each take a one-third share. However, if B and C have predeceased the intestate and both have children who survive the intestate, the remaining estate is first divided into three shares. Child A is paid her one third and the other two-thirds are distributed per stirpes among the children of B and C.

Thus, if B has two children and C has three, Each of B’s two children takes one-half of B’s one-third share, and each of C’s three children takes one-third of C’s one-third share. Note, however, that if the intestate’s issue are all of the same degree, e.g., grandchildren (as when A, B, and C have all predeceased the intestate and all or some have children who survived the intestate (his grandchildren) they all take an equal share.[9]

2.3 Posthumous Conception

Because assisted reproduction technology now makes posthumous conception of a child of a person possible, and because the conception can happen many years later, allowing such a child to share in the deceased’s estate can cause administrative delays and unfairness to children who had the foresight to be born before the deceased’s death. For this reason, Ontario enacted legislation in 2016 that places restrictions on the right of posthumously conceived children to share in the estate. The surviving spouse must give written notice to the Estate Registrar for Ontario within six months of the deceased’s death of the spouse’s intent to use reproductive material or an embryo to attempt to conceive a child of the deceased. The child must be born no later than the third anniversary of the deceased’s death, and the court must make a declaration establishing the child’s parentage.[10] The provision applies to both testate and intestate estates.

2.4 Surviving Ascendants and Collaterals

If, and only if, there is no surviving spouse and there are no surviving issue, the net intestate estate will be distributed among the intestate’s ascendants and collaterals. Ascendants are the intestate’s direct ancestors; collaterals are the descendants of the ascendants. Entitlement is determined in accordance with the gradual scheme of distribution and is measured, subject to a few exceptions, by reference to the degree of relationship an ascendant or collateral has to the intestate. The degrees of relationship are indicated on the diagram shown above.[11]

Apart from the exceptions, persons of the closest degree of consanguinity to the intestate are entitled to share in the estate before persons of more remote degrees of consanguinity. The exceptions are that the legislation prefers brothers and sisters over grandparents, even though both are of the second degree. It also favours nephews and nieces, who are of the third degree, over grandparents (second degree) and over great-grandparents and uncles and aunts (third degree).

Although stirpital distribution is the rule among descendants (except if all are of the same degree), ascendants and collaterals always take per capita. There is one exception to that rule and that is that the children of a deceased brother or sister of the intestate may represent their parent when they are competing with one or more living brothers or sisters of the intestate.

The degrees of relationship may cause confusion on occasion. For example, how exactly do you determine and describe your relationship between you and various cousins? The following diagram may help you.[12]

Richard and Heather are brother and sister. So their children, Steve and Melissa are first cousins. The relationship between Steve and Chris and between Melissa and Wilma is different, because they are one degree further removed. So they are known as first cousins once removed. Wilma and Chris are two degrees further removed, so they are second cousins.

The following is a description of the rights of inheritance of ascendants and collaterals.

If the intestate leaves no spouse or issue, his property will be distributed equally between his parents, or if only one survives him, all will go to the surviving parent.[13]

If there are no surviving parents, the intestate’s surviving brothers and sisters inherit equally, but if a brother or sister has predeceased the intestate, his or her share will be distributed equally among his or her children.[14] In other words, they represent their parent and take per stirpes.

If no brothers or sisters survive the intestate, the property will be distributed equally among the intestate’s nephews and nieces, “without representation”. In other words, as distinct from s. 47(4), discussed in the previous paragraph, the nephews and nieces now take per capita.[15]

If there are no surviving nephews and nieces, the property is distributed equally among the next of kin of the nearest degree to the intestate.[16]

Finally, if there are no surviving next of kin, the intestate’s property becomes the property of the Crown and the Escheats Act, 2015[17] applies.[18]

The legislation provides that “for the purposes of subsection (6), degrees of kindred shall be computed by counting upward from the deceased to the nearest common ancestor and then downward to the relative, and the kindred of the half-blood shall inherit equally with those of the whole blood in the same degree”.[19] There are some questions about both parts of this provision.

The first part seems to suggest that to determine the relationship of an ascendant you need to count up to the ascendant’s parent and then down to the ascendant. Thus, to determine the degree of a grandparent you would have to count up to a great-grandparent and then down to the grandparent. That would make the grandparent of the third degree and he would then have to compete with, for example, an aunt who is also of the third degree. That is not how degrees were calculated under the old law and it is highly unlikely that the drafters of the SLRA intended to change the former law on this point. In other words, a grandparent continues to be of the second degree.

With respect to the second part, s. 47(8) permits “kindred” of the half-blood to inherit equally with those of the same degree. Since s. 47(8) progresses through issue, parents, brothers and sisters, and nephews and nieces, and “next of kin”, it could be argued that “kindred of the half-blood” refers to next of kin other than issue, parents, brothers and sisters, and nephews and nieces. However, this is highly unlikely, since the term “next of kin” denotes the closest blood relative to the deceased regardless of the degree of relationship. That would, therefore, normally be one or more descendants of the intestate. It is unlikely that the drafters of s. 47(8) intended to change this well-understood principle.[20]

Finally, the legislation states that descendants and relatives of the deceased conceived before and born alive after the death of the deceased will inherit as if they were born in the deceased’s lifetime and survived the deceased.[21]

2.5 Blood Relationship

Note that, apart from two exceptions, the right to inherit depends on there being a blood relationship between the intestate and the claimant. (Another term for “blood relationship” is a consanguineous relationship: the word consanguineous incorporates the Latin word sanguis, blood, so the two terms are synonyms.)

The exceptions are: (1) The surviving spouse is not normally in a consanguineous relationship with the intestate, but in an affine relationship, i.e., a relationship of marriage. (2) Section 217 of the Child, Youth and Family Services Act, 2017[22] provides that for all purposes of the law an adopted person becomes the child of the adoptive parent and the adoptive parent becomes the parent of the adopted child. The adopted child also ceases to be the child of the person who was formerly the child’s parent. Thus, a person whom the intestate has adopted is treated as a child of the intestate and entitled to inherit with the intestate’s natural children even though she does not have a blood relationship with the intestate. Similarly, a person adopted by a child of the intestate or by any other relative of the intestate is entitled to inherit from the intestate.

2.6 Persons Born Outside Marriage

Finally, I should mention that at common law persons born outside marriage were not entitled to inherit, but that principle has long since been reversed by legislation. Thus, the Succession Law Reform Act now provides: “In this Act, and in any will unless a contrary intention is shown in the will, a reference to a person in terms of  a relationship to another person determined by blood or marriage shall be deemed to include a person who comes within the description despite the fact that he or she or any other person through whom the relationship is traced is based outside marriage.[23]

[1] See Estates Administration Act, R.S.O. 1990, c. E.22, s. 2(1).

[2] In passing, this terminology may be in flux. For example, in the Wills, Estates and Succession Act, S.B.C. 2009, c. 13, s. 1(1), the testator is called the will-maker. I find this an unnecessary and undesirable change. It is one thing to change Latin terms to English, since Latin is no longer understood by most people, but the word testator has long since been a naturalized English word. Besides, it is shorter than the new-fangled will-maker. If we continue on this route, we shall soon have to get rid of i.e., the abbreviation of the Latin phrase, id est, which means,” that is”; of e.g., the abbreviation of the Latin phrase, exempli gratia, which means, “for the sake of an example”; and of many other words. Ultimately, this will impoverish the English language, two-thirds of which derives, directly or indirectly, from Latin.

[3] R.S.O. 1990, c S.26 (“SLRA”).

[4] This too is changing. In the Western provinces common law partners are also entitled to inherit on intestacy.

[5] SLRA, s. 44.

[6] SLRA, s. 45.

[7] O. Reg. 54/95.

[8] SLRA, s. 46

[9] SLRA, s. 47(1)-(2). For diagrammatic representations of these examples, I refer the reader to my text, Oosterhoff on Wills, 9th ed. forthcoming Spring 2021, by Albert H. Oosterhoff, C. David Freedman, Mitchell McInnes, and Adam Parachin (Toronto: Thomson Reuters/Carswell, 2021), §3.3.3

[10] SLRA, s. 1.1, enacted S.O. 2016, c. 23, s. 71(6). For similar legislation, see Wills, Estates and Succession Act, B.B.C. 2009, c. 13, s. 8.1, added by S.B.C. 2011, c. 25, s. 67.

[11]See also Oosterhoff, supra, §3.3.4. An alternative to the gradual scheme of distribution is the parentelic scheme of distribution. It is used in the Uniform Intestate Succession Act, http://www.ulcc.ca/en/uniform-acts-new-order/current-uniform-acts/479-josetta-1-en-gb/uni-form-actsa/intestate-succession-act/304-intestate-succession-act-1986, and has been adopted in Alberta, British Columbia, Manitoba, and Saskatchewan: Intestate Succession Act, CCSM, c. I85, ss. 4-5; Intestate Succession Act, 2019, S.S. 2019, c. I-13.2, ss. 8-10; Wills and Succession Act, S.A. 2010, c. W-12.2, s. 67(1); Wills, Estates and Succession Act, S.B.C. 2009, c. 13, s. 23(1)(b). This type of legislation is thought to be fairer because it ensures that a close relative will take over a more remote relative of the same degree, and because both sides of the intestate’s family will usually take a share of the estate.

[12]See Oosterhoff on Wills, supra, §3.3.5(a).

[13] SLRA, s. 47(3),

[14] SLRA, s. 47(4)

[15] SLRA, s. 47(5).

[16] SLRA, s. 47(6).

[17] S.O. 2015, c. 38, Sched. 4.

[18] SLRA, s. 47(7).

[19] SLRA, s. 47(8).

[20] See further Oosterhoff on Wills, supra, §3.3.5(b), Notes and Questions 5 and 6.

[21] SLRA, s. 47(9).

[22] S.O. 2017, c. 14, Sched. 1.

[23] SLRA, s. 1(3). This subsection was amended following extensive changes made by the All Families Are Equal Act, S.O. 2016, c. 23, and the Children’s Law Reform Act, R.S.O. 1990, c. C.12, amended by S.O. 2016, c. 23.

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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