{"id":20573,"date":"2020-03-01T08:59:04","date_gmt":"2020-03-01T13:59:04","guid":{"rendered":"https:\/\/lawjournal.mcgill.ca\/?post_type=articles&p=20573"},"modified":"2022-04-12T09:03:31","modified_gmt":"2022-04-12T13:03:31","slug":"intestacy","status":"publish","type":"articles","link":"https:\/\/mcgill-lawjournal-new.nixa.ca\/fr\/article\/intestacy\/","title":{"rendered":"Intestacy"},"content":{"rendered":"

It is said that a \u201cstatutory will\u201d imposes itself to govern the administration of an estate when the deceased has failed to dispose fully of their assets by a valid will. The rules that govern intestate estates, in both the civil law and the common law, are statutory in nature. Relevant Canadian provincial or territorial estates legislation applies unless the deceased was an Indigenous person ordinarily living on a reserve, in which case the federal Indian Act<\/em>\u00a0governs. These statutory intestacy regimes are anchored to the idea that, should the deceased have failed to plan for their own succession through valid testamentary dispositions, the business of estate distribution falls to the state.<\/p>\n

It is true the state always has a role in the governance of estates, even those governed by will or will substitutes. In civilian systems, the state\u2019s presence in estate administration is prominently felt through statutory limitations on testamentary freedom. Yet while public oversight of estates is pervasive, in intestacy contexts the state alone determines the distribution of estates, leaving no space for private actors to decide or influence the distribution of estate assets.<\/p>\n

Legislative schemes for administering intestate estates are highly technical and mathematical, and there is little deviation from one Western jurisdiction to the next. Where variations exist, they are not especially striking. Parallels across regimes extend most obviously to the categories of persons whom the law privileges as intestate heirs. Married spouses and blood-related and adopted children always qualify. In certain circumstances, heirship also will be extended to the deceased\u2019s more extended kin.<\/p>\n

Beyond these obvious resemblances, two more latent themes cut transversally across law\u2019s regulation of intestate estates. First, legislation governing intestacy operates in a direct and blunt manner, leaving negligible room for judges to exercise discretion. Subject to the civil law\u2019s doctrine of unworthiness, discussed below, factors such as means, needs, merit, and morality essentially have no bearing on whether someone qualifies as an heir and, if so, the size of their share in an estate. Second, intestacy law rests on distinct suppositions about where the affections of the deceased would have, or should have, lain during their lifetime. In this way, the laws of intestacy telegraph a normative message about family structures, relationships, and loyalties that is particularly notable in the law\u2019s treatment of a survivor spouse.<\/p>\n

Judicial Discretion and Bright Line Rules<\/h1>\n

Intestacy regimes are characterized by fixed formulae for determining heirship and for carving up shares in an intestate estate. Hence, who will take, and in what proportion, are uncontroversial questions promptly decided by the application of relevant statutory rules. These rules leave minimal room for deviation. For better or for worse, an individual\u2019s past conduct or relationship with the deceased will not affect determinations about whether or how much they inherit.<\/p>\n

Accordingly, courts have consistently decided that all heirs in the same degree of consanguinity benefit from an estate in equal shares. Considerations about the nature of an heir\u2019s relationship with the deceased during the latter\u2019s lifetime generally afford courts no leeway to depart from this bright line rule. This is true whether the deceased made no will, or made a will that was later deemed invalid. Intestacy rules are subject to the same strict application even when the deceased lacked legal capacity to make a will. Such restrictions on judicial interpretation stand in contrast to the court\u2019s role when faced with assessing a valid will. The latter context allows judges to exercise broad discretion in drawing on rules of interpretation and evidence to discern testamentary intent. That discretion does not exist, however, when the deceased\u2019s intentions are conveyed other than through a will that is valid in form and substance.<\/p>\n

Consequently, in Baumann v. Miller<\/em>, a court had no discretion to accept arguments contesting the inheritance of a grandfather who was, with two other grandparents, the next of kin of an infant child who tragically died with her own parents in a motor vehicle accident. The grandfather\u2019s stake in his infant granddaughter\u2019s estate was unsuccessfully challenged on the basis that he had severed ties with his own daughter (the infant\u2019s mother), and had never even met the infant. Likewise, in Leach v. Egar<\/em>, an appeal to \u201cpublic policy\u201d failed to support the claim of a grieving mother whose daughter and two grandchildren were lost at sea. Under survivorship rules (which exist under a separate regime from the rules on intestacy), the daughter was deemed to have predeceased her own children, and so the former\u2019s estate passed to the latter. The children\u2019s respective estates then passed to their father on their intestacy. These parents had, however, divorced just before the fateful cruise, allowing the mother\u2019s estate to pass via her children to her ex-spouse. While the applicant argued that following the survivorship and intestacy rules would in this case yield an inequitable result, the British Columbia Court of Appeal insisted on their application.<\/p>\n

At common law, a narrow exception to the general \u201czero discretion\u201d approach to intestate successions emerges in the so-called \u201cslayer rule.\u201d The rule posits that a person culpably responsible for another\u2019s death forfeits any entitlement to inherit from the latter. Given that the rule requires such an extreme act of immorality, however, it is unsurprising that it has been minimally applied in Canadian law.<\/p>\n

Quebec civil law offers more discretion than exists in common law provinces to allow judges to evaluate an heir\u2019s past conduct in determining the entitlement to inherit. In Book 3 (\u201cSuccessions\u201d), the\u00a0Civil Code of Qu\u00e9bec<\/em>\u00a0sets out the qualities required to inherit, and specifies circumstances in which an heir will be deemed \u201cunworthy\u201d of benefiting from an estate. Two circumstances operate as a matter of law to deem a person unworthy of inheritance. These situations do not amplify judicial discretion but instead direct a court to exclude from sharing in an estate\u2014whether testate or intestate\u2014an individual convicted of making an attempt on the deceased\u2019s life or who, if the estate belongs to a child, has been deprived of parental authority over that child (article 620). A court does, however, have jurisdiction in regard to disinheriting a person on the basis of unworthiness in other circumstances. Notably, a person guilty of cruelty or who has otherwise behaved in a \u201cseriously reprehensible manner\u201d toward the deceased, a person who has in bad faith concealed, altered, or destroyed the deceased\u2019s will, or someone who has hindered the deceased in drafting, amending, or revoking a will, \u201cmay\u201d be deemed unworthy and thus disinherited (article 621). Note that while the\u00a0Code\u00a0<\/em>allows for judicial evaluation of an heir\u2019s past conduct and relationship with the deceased through the doctrine of unworthiness, this inquiry is relevant only to ascertaining whether an inheritance entitlement exists. It has no bearing on the size of an inheritance, whether set by a will or by the intestacy rules.<\/p>\n

Finally, it is worth signaling that successions legislation typically includes provisions to allow a deceased\u2019s dependants to bring support claims against an estate, and this may affect the final distribution of assets within an intestate estate. It should remain clear, however, that such dependants\u2019 relief claims do not alter intestacy rules\u2019 operation: the heirs and their respective initial shares remain the same. Ultimately, though, the scope of heirs\u2019 entitlements might be diminished to satisfy the entitlements of dependants, as would be true of any other successful claims advanced by an estate\u2019s legitimate creditors.<\/p>\n

Presumed Spousal Affections and Loyalties<\/h1>\n

Intestacy regimes establish hierarchies in the relationships of the deceased. They prioritize spouses and immediate descendants, creating room for more distant kin to inherit only if the deceased did not leave a surviving spouse or children. In this way, intestacy rules appear to rest on normative presumptions about the deceased\u2019s most important relationships and intentions. These rules further reflect assumptions about the deceased\u2019s interest in preserving family wealth through intergenerational transfer, regardless of their affective life. Concomitantly, intestacy regimes also convey a policy choice to privilege spouses and children, ensuring material protection for family members who might otherwise claim for alimentary support against the estate.<\/p>\n

Although historically intestacy law recognized only those heirs who were related to a deceased by blood, contemporary intestacy regimes accord spouses particularly revered treatment. Modern legislation provides that a husband or wife who survives the deceased will benefit from at least a third of an intestate estate. Some laws (e.g., Ontario\u2019s\u00a0Succession Law Reform Act<\/em>\u00a0and the federal\u00a0Indian Act<\/em>) even conserve a \u201cpreferential share\u201d for survivor spouses, the amount of which is determined by regulation. It is only after this share is paid to a spouse that the balance of the estate will be divided between that spouse and the deceased\u2019s children. Accordingly, a survivor spouse will be the sole heir of a small estate valued at or less than the preferential share amount.<\/p>\n

This privileged status for spouses\u2014seen also in other successions law doctrines, such as those governing testamentary lapse and revocation\u2014suggests that intestacy law presumes that a spouse was the most central person in the deceased\u2019s life, and the person to whom the deceased owed the most obvious economic obligation. These presumptions tend to focus on formalized spousal relationships. Spouses whose unions are registered, whether by marriage or by civil union in Quebec, clearly qualify as heirs. The definition of \u201cspouse\u201d in some (but not all) jurisdictions\u2019 estates statutes include unmarried partners. To establish one\u2019s self as a spouse when there was no marriage to the deceased, an applicant must demonstrate that they cohabited and otherwise maintained a marriage-like relationship with the deceased over a certain time.<\/p>\n

Intestacy law\u2019s efforts to locate a relationship akin to marriage in determining whether an unmarried partner is a spouse for the purposes of inheritance emerges prominently in Justice Sissons\u2019s 1961 judgment in\u00a0Re Noah Estate<\/em>. The case called for a characterization of the relationship between the deceased and his surviving partner, requiring the court to assess whether a union celebrated by Indigenous, particularly Innu, custom was more properly viewed as a \u201cmarriage\u201d or \u201cconcubinage.\u201d Justice Sissons\u2019s analysis, which ultimately recognized the deceased\u2019s spouse as such, integrated a forensic evaluation of all aspects of the spousal relationship. In concluding that \u201ccustom marriage\u201d is not a \u201cmorally loose affair,\u201d Justice Sissons underscored its parallels with key elements of marriage under English law: notably, mutual consent and exclusivity.<\/p>\n

The pre-eminent importance of formal status\u2014or, under some statutes, of a status that strongly resembles a formalized marriage\u2014is evident also in the nearly absolute nature of the spousal inheritance entitlement on intestacy. A person who qualifies for a spousal inheritance will benefit on intestacy even if their relationship with the deceased was brief or marked by discord. It is only once the relationship and spousal status terminate that the inheritance entitlement disappears. Exceptions exist in some jurisdictions to deprive spouses of their inheritance when they lived in adultery, inflicted cruelty toward the deceased, or were separated for a certain time. Interestingly, these are all legal bases for marriage termination under the federal\u00a0Divorce Act<\/em>. The presumption, therefore, is that spouses intend for one another to benefit from their respective estates as long as the marriage subsists or until legal grounds exist for the formal termination of the spousal bond.<\/p>\n

Ultimately, then, while estates scholars have tended to write about intestacy in a manner that focuses on the legal rules of devolution, these rules and their application offer probative insights that bear relevance across legal traditions and areas of law. A study of intestacy regimes illuminates the pre-eminent role of legislative rules that bind judges even in cases where intestacy law yields inopportune results. This is true in both the common law and the civil law although, as noted, the\u00a0Civil Code of Qu\u00e9bec<\/em>\u00a0affords judges some leeway to account for such factors when evaluating claims of \u201cunworthiness.\u201d Moreover, regimes governing\u00a0ab intestat<\/em>\u00a0estates, through their privileging of married or married-like spouses, foreground estates law\u2019s normative appreciation of spousal relationships. In this way, the law of intestacy bears connections to the law of the family, which has also valorized formalized spousal relationships and recognized informal unions to the extent that these resemble or track marriage. This conclusion draws to mind the way in which the law of successions, like the law of the family, distinguishes between obligations related to alimentary support and property division. While assessments of support entitlements are always discretionary and fact-driven, property sharing for spouses is rule-based and rigid, based on status rather than means or need. This is coherent with intestacy regimes that, as shown here, focus exclusively on formal status and relationships, to the exclusion of considerations regarding parties\u2019 circumstances.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/u><\/p>\n

References<\/strong><\/span><\/p>\n

Baumann v Miller<\/em> (1996), 81 BCAC 287, 24 RFL (4th) 297.<\/p>\n

Divorce Act<\/em>, RSC 1985, c 3 (2nd Supp).<\/p>\n

Indian Act<\/em>, RSC 1985, c I-5.<\/p>\n

Leach v Egar<\/em> (1990), 46 BCLR (2d) 158, 70 DLR (4th) 765 (CA).<\/p>\n

Re Noah Estate <\/em>(1961), 32 DLR (2d) 185, 36 WWR 577 (NWT Terr Ct).<\/p>\n

Succession Law Reform Act<\/em>, RSO 1990, c S26.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

It is said that a \u201cstatutory will\u201d imposes itself to govern the administration of an estate when the deceased has failed to dispose fully of their assets by a valid will. The rules that govern intestate estates, in both the civil law and the common law, are statutory in nature. Relevant Canadian provincial or territorial … Continued<\/a><\/p>\n","protected":false},"featured_media":0,"template":"","class_list":["post-20573","articles","type-articles","status-publish","hentry","article-type-special-section","article-language-english"],"acf":[],"yoast_head":"\nIntestacy - McGill Law Journal<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/mcgill-lawjournal-new.nixa.ca\/article\/intestacy\/\" \/>\n<meta property=\"og:locale\" content=\"fr_FR\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Intestacy - McGill Law Journal\" \/>\n<meta property=\"og:description\" content=\"It is said that a \u201cstatutory will\u201d imposes itself to govern the administration of an estate when the deceased has failed to dispose fully of their assets by a valid will. 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