Wills are useful legal tools for deceased individuals to unequivocally communicate their last wishes. Most commonly, such wishes include funeral arrangements, how assets of the estate should be distributed, and the names of estate trustees (those responsible to execute the Will's instructions). It remains true that it is not necessary for a lawyer to draft the Will for it to be legally enforceable. However, a lawyer's contribution ensures that the Will is drafted appropriately for the estate to be administered and dealt with according the wishes of the deceased, and in accordance with appliable laws. This is especially true if an individual intends to exclude certain persons from being beneficiaries or wishes to donate some of their estate to a charitable organization..
Often, individuals pass away without leaving behind a valid and unambiguous Will. This can be the situation if the individual did not create a Will before passing, or had left a Will, but one that is not valid according to given legal principles. In both examples, that individual is considered to have died "intestate" – and the distribution of the estate will be in accordance with the rules of intestacy.
There is an additional caveat worth noting; it is possible for the deceased to be deemed to have died intestate, even having left behind a valid Will. This might be the case if the individual has failed to address the distribution of all the assets of the estate, has listed a person as a beneficiary who has predeceased the individual, or has provided for a benefit to an organization that no longer exists. These examples are referred to as a 'partial intestacy'. Accordingly, the Will governs the distribution of the deceased's estate to the extent of the validity of the Will, and the statute (the Succession Law Reform Act (the "Act")) governs the remaining portion.
The rules of intestacy are numerous, and they are nuanced. For this reason, this article provides a high-level discussion of only the most common circumstances – when the intestate individual was single, a common law spouse, or a married spouse. Part 2 of the Act deals with distribution on intestacy.
- Single Persons and Common Law Spouses
In Ontario, only a person of the same or opposite sex who was married to the deceased is entitled to inherit from the deceased's estate under the Act (s. 1(1)). Common law spouses have no statutory entitlement to the deceased's property. The same holds true for married spouses who were separated at the time of the deceased's death (s. 43.1), which came into effect January 1, 2022. In such situations, the distribution of the estate will 'trickle down' to the next of kin – children, grandchildren, and so on. The definition of spouse in the Act (s.57) has been expanded to include two people who are not married but have cohabitated continuously for three (3) years, have some permanence, and are parents of a child. Subsequently, common law spouses can apply to become the personal representative of the estate. A common law spouse can also bring an application for support if s/he is a dependant spouse.
- Married persons
- Spouse and No Issue
If the diseased has died leaving behind a married spouse, and no issue (a term used to encompass children born within the marriage, outside of marriage, and adopted children), then the surviving spouse will inherit the estate absolutely (s. 44).
- Spouse and Issue
If the deceased individual has left behind issue, then the spouse is entitled to a 'preferential share' (s. 45) plus a portion of the residue. Currently, the preferential share amount is $350,000 in Ontario (O. Reg. 54/95). If the estate is less than this amount, then the spouse is entitled to the estate absolutely (s. 45(1)) regardless of the amount of issue. However, the application of this rule can become more caveated if the individual has died partially intestate. In this case, the spouse's entitlement of the preferential share is reduced by the amount, if any, she/he received under the deceased's Will. Similarly, where a spouse is entitled to less than the preferential share under the Will, the spouse will get 'topped up' to the preferential share amount from the portion of the estate that is intestate.
If the value of the estate is greater than the amount of the preferential share owed to the spouse, the spouse will be entitled to the full amount of the preferential share plus a distributive share of the remaining portion of the estate. The distributive share will depend on the amount of issues the deceased left behind. If the deceased only left behind one child, then the amount remaining will be divided equally between the spouse and issue (s. 45(2)). If there are two children, the amount remaining will be divided into three portions (1/3 for spouse, and 1/3 to each of the children) (s. 45(103)), and so on.
In practice, the application of these rules depends on a number of factors. An intestate individual who was pre-deceased by an issue or left behind an issue who was financially dependent on the individual for health reasons, are examples of situations that can affect the division of the estate. It is important to speak to a Wills and Estates lawyer to ensure that your estate is administered according to your desire.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
