Today’s blog was written by Courtney Lanthier, Law Clerk at Fasken LLP.

People in our profession often cringe when they hear the words “they died without a Will”, because as soon as we do, we can almost always envision problems arising. Unfortunately, it has become more and more common to hear that someone doesn’t have a Will.  A Will provides clear instructions as to how to handle assets on someone’s death, so without it these intentions may not be met in the manner the testator would have wanted. As well, when there is no Will, and therefore no executor named, a court proceeding may be required in order to appoint someone to have authority to deal with the estate assets.

The Succession Law Reform Act, R.S.O. 1990, c. S.26 is the legislation that sets out the laws of intestacy in Ontario. The following is a summary of some of the potential outcomes when someone dies without a Will:

If there was a spouse, but no children: the estate goes entirely to the spouse.

If there was a spouse and children: the estate would be dealt with as follows:

• If there was only one child: the spouse will receive the preferential share, which is currently $350,000.00, then the balance of the estate is divided between the spouse and children.
• If there was two or more children: the spouse would receive the preferential share, and 1/3 of the balance of the residue, with the remaining 2/3 going to the children.

Funds held for the benefit of minors are paid into court and a request for funds can be made from the Office of the Children’s Lawyer.

If there was no spouse and no children: the estate is divided between the parents, or all to the surviving parent.

If there was no spouse, no children and no parents: the estate is divided between the surviving brothers and sisters.

If there was no spouse, no children, no parents and no siblings: the estate is divided between the surviving nieces and nephews. [1]

In many cases, the above distribution will not reflect the testator’s desired distribution of estate assets. If they wanted to leave a legacy payment to a friend, a long-time employee or a charity, that would not be achieved through an intestate distribution.

The best way to make sure a client’s wishes are being met are to:

• Encourage clients to make a Will – even a simple Will is better than no Will.
• As drafters, we should be ensuring the Will is drafted so as to avoid even a partial intestacy. While it my seem obvious, it is sometimes good practice to draw out or visualize how the assets of an estate will flow down the line to make sure that if a beneficiary has predeceased the testator, we can see where their share would then go. Also, ensuring that a proper giftover provision to issue of beneficiaries and a “common disaster” provision are in place can help to avoid potential future intestacies.

Intestacy is something that can and should be avoided. So I ask you this – do you have a Will?

[1] Succession Law Reform Act, R.S.O. 1990, c. S.26