Devolution of Estates

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Compiled by Eric B. Appleby:

Intestate Succession

When a person dies without leaving a valid will that person is said to have died intestate. When a person dies intestate a provincial statute, sometimes titled Devolution of Estates Act, provides a “statutory will”. That is, the statute directs who is entitled to the estate of the intestate person. Intestate succession legislation can apply in circumstances where a will is invalid for a number of reasons, such as, improper execution, undue influence, contrary to public policy, lack of capacity, etc. Such legislation can also apply to a residuary gift that fails. A gift, other than a residuary gift, that fails becomes part of the residue of an estate.

Intestacy v. inclusion in residue

The testator had three sons from two marriages and little contact with the eldest. Another son, lacking legal training, prepared his father’s will. The testator intended that, provided his second wife survived him, she would inherit all his estate, except that the testator’s personal articles were to be divided between the two youngest sons, in equal shares. The wife predeceased the testator. The British Columbia Court of Appeal held that the testator’s will failed to provide for his assets (other than personal effects) in the event that his wife predeceased him. The court declined to supply a missing bequest and affirmed that the residue should be divided equally under the Estate Administration Act among the three sons. See Howell v. Howell Estate (1999), 127 B.C.A.C. 272; 207 W.A.C. 272 (C.A.).

Partial Intestacy

In his holograph will a testator in his only bequest left his house and land to one of his sons. His wife and other offspring were specifically excluded from receiving anything, but the testator failed to dispose of his other assets. The Newfoundland Supreme Court, Trial Division, held that the specifically excluded people were not entitled to share on intestacy in the undisposed property. The court held that the specific exclusion of his wife and other offspring created an implied gift of the balance to the son who received the bequest. See Sharpe Estate v. Sharpe (1985), 53 Nfld. & P.E.I.R. 247: 156 A.P.R. 247 (Nfld. T.D.).

Bars to inheritance, public policy

The deceased died intestate survived by her husband and one infant daughter. The husband was convicted of the murder of the deceased. The Manitoba Court of Queen’s Bench held that by public policy, the husband and his heirs, except for the deceased’s child, were disentitled from taking a benefit in the estate of the deceased whom he had feloniously killed. The infant daughter was the sole heir of the deceased under the Devolution of Estates Act, s. 6(3). See Proctor Estate v. Proctor (1989), 59 Man.R.(2d) 199 (Q.B.), paras. 12 to 18.

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This entry was last updated: February 13, 2017