Intestate Succession Flashcards
Partial intestate
Will covers some things but not others
Person who leaves no will dies…
Intestate
What are laws of intestate modelled on?
What we as a society think the person would realistically want done with their estate after they die
Who do we assume you want it to go to?
Spouse, kids, etc.
Who are invisible under laws of intestacy?
Common law spouse and step children (if not legally adopted)
What is the difference between Ontario and NB devolution of estates act?
Ontario’s statute has good definitions section that mentions all terms of art in that statute where NB has nothing close to this with just a tiny act and not many definitions
What act is used for this?
Devolution of estates act
Issue
Child, grandchild, great-grandchild– has to be direct descendent of a child
Ex: dies intestate leaving a widow and no issue
Estate goes to widow
What about adoption?
Children who have been legally adopted qualify as issue under DEA
Child legally given up for adoption
Cannot avail themselves of law of intestacy, in NB you can legally say you want them to get it though
Illegitimate children?
Not legally married but have kids, no such thing anymore
Step children
If not legally adopted does not matter how close they are, they cannot avail themselves in law of intestacy
Child
Offspring of the first generation (child of testator)
Widow
Not defined in act but case law says surviving legal spouse
Spouse
Legally married person
In Canada no such thing as legal separation, t/f?
T- in order to get divorced have to be living separate and apart for years
Intestate Woman
S.36 same as a man, widow=widower
If deceased survived by a widow and 1 child
S.22(2) widow entitled to all marital property. If anything left (residue of estate) split 50//50 between widow and child.
Marital Property
Everything that married people own and use together for the sake of a family
Different in ONT for one widow on child
Spouse gets preference for $200,000 and after that it is legal share
S.23 Childs Interest
Informs Childs rights. Things get split between kids subject to the interest of the widow.
S.22(2.1) Widow + Children
Widow gets marital property and 1/3 of residue. Children split remaining 2/3.
Per Stirpes
Legally means the children or direct descendants of someone who has died step into the place of the person that has died
Per Capita
Heirs of the same generation each get an equal amount
S.22(3) Widow + issue
Widow still takes half and kid steps into dads shoes per stripes
Basics w/ S.22(3)
As long as someone is there to keep the memory of their dead parents alive then they keep the rights
In ONT if entire generation knocked out they share
per capita
No widow
Kids split equally
No widow and no issue
S.26 it goes to your parents (it goes up)
No widow, no issue, no parents
S.26 goes to surviving brothers or sisters of deceased (sideways). If sibling dies but leaves issues those children take per stirpes.
S.27 Surviving nieces and nephews
If all brothers and sisters are deceased, nieces and nephews take per capita
S.28 no widow, issue, parents, siblings, niece/nephew
Distributed equally to next of kin of equal degree of consanguinity to the intestate. (based on blood)
Contractual Surrender of Rights in Intestacy
Can contract out of your right to take under intestacy (ex: marriage contract or separation agreement)
Caron and Sailor v Rowe
Contracting out of intestacy rights. Language in document must be crystal clear and specific that you intend to contract out.
Advancement
Under laws of intestacy if someone entitled to inherit received portion by inter vivid gift and it can be proven the intestate intended for it to contribute to their portion, it should be subtracted.
What does doctrine of advancement apply to?
Only applies to complete intestacy (absolutely no will).
What if advancement equal to or greater than their portion?
They get absolutely nothing
Does advancement apply to spouses?
No, just children/ descendants so issue (in NB)
Exception to advancement
If monies given to child for purposes of education or maintenance (keeping them alive) that doesn’t count as advancement (onus on person trying to assert this)
