Intestate Succession

Question 1

Partial intestate

Answer 1

Will covers some things but not others

Question 2

Person who leaves no will dies…

Answer 2

Intestate

Question 3

What are laws of intestate modelled on?

Answer 3

What we as a society think the person would realistically want done with their estate after they die

Question 4

Who do we assume you want it to go to?

Answer 4

Spouse, kids, etc.

Question 5

Who are invisible under laws of intestacy?

Answer 5

Common law spouse and step children (if not legally adopted)

Question 6

What is the difference between Ontario and NB devolution of estates act?

Answer 6

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

Question 7

What act is used for this?

Answer 7

Devolution of estates act

Question 8

Issue

Answer 8

Child, grandchild, great-grandchild– has to be direct descendent of a child

Question 9

Ex: dies intestate leaving a widow and no issue

Answer 9

Estate goes to widow

Question 10

What about adoption?

Answer 10

Children who have been legally adopted qualify as issue under DEA

Question 11

Child legally given up for adoption

Answer 11

Cannot avail themselves of law of intestacy, in NB you can legally say you want them to get it though

Question 12

Illegitimate children?

Answer 12

Not legally married but have kids, no such thing anymore

Question 13

Step children

Answer 13

If not legally adopted does not matter how close they are, they cannot avail themselves in law of intestacy

Question 14

Child

Answer 14

Offspring of the first generation (child of testator)

Question 15

Widow

Answer 15

Not defined in act but case law says surviving legal spouse

Question 16

Spouse

Answer 16

Legally married person

Question 17

In Canada no such thing as legal separation, t/f?

Answer 17

T- in order to get divorced have to be living separate and apart for years

Question 18

Intestate Woman

Answer 18

S.36 same as a man, widow=widower

Question 19

If deceased survived by a widow and 1 child

Answer 19

S.22(2) widow entitled to all marital property. If anything left (residue of estate) split 50//50 between widow and child.

Question 20

Marital Property

Answer 20

Everything that married people own and use together for the sake of a family

Question 21

Different in ONT for one widow on child

Answer 21

Spouse gets preference for $200,000 and after that it is legal share

Question 22

S.23 Childs Interest

Answer 22

Informs Childs rights. Things get split between kids subject to the interest of the widow.

Question 23

S.22(2.1) Widow + Children

Answer 23

Widow gets marital property and 1/3 of residue. Children split remaining 2/3.

Question 24

Per Stirpes

Answer 24

Legally means the children or direct descendants of someone who has died step into the place of the person that has died

Question 25

Per Capita

Answer 25

Heirs of the same generation each get an equal amount

Question 26

S.22(3) Widow + issue

Answer 26

Widow still takes half and kid steps into dads shoes per stripes

Question 27

Basics w/ S.22(3)

Answer 27

As long as someone is there to keep the memory of their dead parents alive then they keep the rights

Question 28

In ONT if entire generation knocked out they share

Answer 28

per capita

Question 29

No widow

Answer 29

Kids split equally

Question 30

No widow and no issue

Answer 30

S.26 it goes to your parents (it goes up)

Question 31

No widow, no issue, no parents

Answer 31

S.26 goes to surviving brothers or sisters of deceased (sideways). If sibling dies but leaves issues those children take per stirpes.

Question 32

S.27 Surviving nieces and nephews

Answer 32

If all brothers and sisters are deceased, nieces and nephews take per capita

Question 33

S.28 no widow, issue, parents, siblings, niece/nephew

Answer 33

Distributed equally to next of kin of equal degree of consanguinity to the intestate. (based on blood)

Question 34

Contractual Surrender of Rights in Intestacy

Answer 34

Can contract out of your right to take under intestacy (ex: marriage contract or separation agreement)

Question 35

Caron and Sailor v Rowe

Answer 35

Contracting out of intestacy rights. Language in document must be crystal clear and specific that you intend to contract out.

Question 36

Advancement

Answer 36

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.

Question 37

What does doctrine of advancement apply to?

Answer 37

Only applies to complete intestacy (absolutely no will).

Question 38

What if advancement equal to or greater than their portion?

Answer 38

They get absolutely nothing

Question 39

Does advancement apply to spouses?

Answer 39

No, just children/ descendants so issue (in NB)

Question 40

Exception to advancement

Answer 40

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)