Toronto Estate Law Blog : Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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Would it occur to you if you had nearly 200 reptiles living with you, that you really should make a Will? Recently in Ontario, this issue slithered into the Courts.  

The National Post this week reported the story of a Welland, Ontario man who died, as a result of an unexpected stroke, in May at the age of 52. Uniquely, he was survived by 200 exotic reptiles. Unfortunately, he did not leave a Will. Without a Will, there was no named executor for his estate and no directions with respect to the division of his assets or care of his exotic pets. This resulted in litigation, which only recently settled.

If you die without a Will, you are considered to have died "intestate." Simply put, this means that statutory provisions decide how your assets will be divided. Any intentions you may have had for your assets, which technically include any animals you own, are not factored into the statutory distribution scheme. 

In Ontario, if a person dies intestate, Part II of the Succession Law Reform Act governs who is entitled to their estate. As regular readers of our blog know, the order in which relatives of a deceased are entitled to inherit in an intestacy is, as follows:

1. If there is a spouse (defined as a married spouse only) and no children, the spouse takes all.
2. If there is a spouse and any children, the spouse gets the first $200,000.00 (the preferential share) of the estate.  If there is only one child, the balance of the residue is divided between the spouse and the child equally. If there is more than one child, the spouse gets one-third of the balance of the residue and the children share the other two-thirds equally.
3. If there is no spouse, the estate goes to the children equally.
4. If there are no children, the estate goes to the deceased’s parents equally.
5. If there no surviving parents, the estate goes to the deceased’s siblings equally; if a sibling has predeceased, that sibling’s share goes to his or her children.
6. If there are no siblings, the estate goes to the deceased’s nephews and nieces equally.
7. If there are no nephews or nieces, it goes to the next of kin of equal degree of consanguinity – in some cases, distant relatives who may have had no relationship with the deceased can end up inheriting. 
8. If there are no next of kin, the estate escheats to the Crown.

Having a thoughtfully considered and up-to-date Will is necessary not only to ensure that your intended beneficiaries share in your estate in a manner that it is appropriate and reflects your wishes, but also to ensure that your menagerie, should you have one, is provided for too.

Thanks for reading. Enjoy the weekend,

Saman Jaffery

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In our modern society more and more people choose to remain in common law relationships rather than to marry. Certainly many think that few differences distinguish a common law relationship from a married one as society has responded to practical reality by making common law spouses eligible for pension benefits, family insurance benefits and spousal support. No wonder some people think it is all the same whether they are married or not. However, what many fail to realize is that it makes a very big difference with respect to property rights - both in life and after death.

A common law spouse of a deceased who has died intestate (without a Will) has no entitlement as a beneficiary of the deceased partner’s estate.   It is not uncommon that a dedicated common law spouse of 20 or 30 years is faced with the prospect of the estate of their loved one, which they helped to build over the years, going to the blood relatives, who are the legal heirs according to legislation; and often being people who never had any social relationship with the deceased whatsoever.  

If a person dies intestate, Part II of the Succession Law Reform Act  governs who is entitled to their estate. In the Act, a spouse is defined as a married spouse only. Here is the order in which family of a deceased is entitled to take:

1.      If there is spouse and no children the spouse takes all.

2.      If there is a spouse and children, the spouse gets the first $200,000.00. 

3.      If there is one child, the residue goes to the spouse and the child equally.

4.      If more than one child, the spouse gets one-third of the residue and the children share the other two-thirds equally.

5.      If there is no spouse, the estate goes to the children equally.

6.      If no children, the estate goes to the deceased’s parents equally.

7.      If no parents, the estate goes to the deceased’s siblings; if a sibling pre-deceased, that sibling’s share goes to the deceased sibling’s children.

8.      If no siblings, the estate goes to the nephews and nieces.

9.      If no nephews and nieces it goes to the next of kin of equal degree of consanguinity - that’s where it gets complicated and complete strangers end up inheriting. 

10.   If no next of kin, the estate escheats to the crown.

Lesson? Make sure you have a Will!  

Sharon Davis - Click here for more information on Sharon Davis. 

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Common law spouses are not included in Part II of Ontario’s Succession Law Reform Act, which governs intestate succession (dying without a valid Will).

In British Columbia, unlike Ontario, intestate laws now provide the same rights to common law spouses as to married spouses, if the couple lived together in a marriage-like relationship for a period of at least two years before the death of one of them.  Recent case law out of British Columbia has grappled with the issue of identifying common law spouses in cases of intestacy. 

In Austin v. Goerz, 2007 BCCA 586, the deceased had been separated, but not divorced, from his wife for six years.  During the last six years of his life, the deceased lived with another woman, Ms. Goerz, as husband and wife.  The deceased died without a Will.  On the death of the deceased, the legally married spouse, Mrs. Austin, brought a claim seeking a declaration that Ms. Goerz was not the deceased’s common law spouse.  The lower court dismissed Mrs. Austin’s claim, and she appealed to the British Columbia Court of Appeal.  On appeal, Mrs. Austin argued that the deceased, while legally married, could not have a common law spouse as he lacked the legal capacity to marry.  Mrs. Austin also argued that Ms. Goerz was not a common law spouse as there was no financial dependence between her and the deceased during their relationship.  Both arguments were dismissed.  The Court of Appeal recognized that common law relationships can exist even though one or both partners lack the capacity to marry.  Furthermore, lack of financial dependence is not determinative in identifying common law relationships. 

Have a great day!

Bianca La Neve