All About Estates

Personhood and RBG

This Blog was written by: Alicia Godin, Estate and Trust Consultant, Scotia Wealth Management

If you are frequent visitor to All About Estates, you can likely appreciate the importance of a well-prepared estate plan. The cornerstone of the estate plan is the Last Will and Testament. Many contributors to this blog discuss the importance of a Will, and considerations before, during and after its preparation.

There are very specific requirements that must be followed for a Will to be valid…but who can make a Will? The Succession Law Reform Act states that:

“A person may by will devise, bequeath or dispose of all property (whether acquired before or after making his or her will) to which at the time of his or her death he or she is entitled either at law or in equity (…).”[1]

Some people may feel that it is not necessary to prepare a Will until they have acquired a certain amount of property or assets of value. This is a discussion for another time but does highlight that possession of property is a key consideration in whether to prepare a Will. “Personhood” is also a key component. In order to prepare a Will, you must be a “person” and should have property you wish to dispose of.

With the recent death of Ruth Bader Ginsburg, many have had an opportunity to reflect on the advancements she pursued for humankind, and indeed, for women in particular.

Ginsburg served on the Supreme Court for 27 years, and before that, successfully argued 6 cases for gender equality in the 1970’s. In her own words, “women’s rights are an essential part of the overall human rights agenda, trained on the equal dignity and ability to live in freedom all people should enjoy.”

In 1928, the Supreme Court of Canada ruled that women were not “persons” according to the British North America Act. Fortunately, this decision was reversed in 1929 on appeal to the Judicial Committee of the Privy Council in London, England.[2] The BNA later became known as the Constitution Act, 1867 and was reframed in a way that was more consistent with the “needs of society.”

Specifically, in the area of estate and trust law, in order to make a Will one must not only be classified as a person, but also capable of possessing property. For many years, women were not entitled to own property in their own name, often their assets were contingent upon their spouse, father, or other male relative’s involvement.

In the area of estates and trust law, the intersection of race and gender with political and social policies is often less obvious, but the historical advancements that have been made to make this so are a result of the hard work of many before.

It wasn’t until 1971 that the United States Supreme Court invalidated a state statute that automatically gave preference for the appointment of administrator of a deceased person’s estate to men.[3]

Women’s rights in Canada have been and continue to be advanced by a number of remarkable women and men. In the United States, Ruth Bader Ginsberg was one of these people, who, throughout her career, advanced the rights of women and other historically marginalized groups, and leaves behind a considerable legacy.

[1]Succession Law Reform Act

[2] Edwards v AG of Canada [1930] AC 124, [1929] UKPC 86.

[3] Reed v Reed (1971) 404 U.S. 71.

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