Inheritance law in Canada

Last updated October 15, 2024

Inheritance law in Canada is constitutionally a provincial matter. Therefore, the laws governing inheritance in Canada is legislated by each individual province. ^[1]

Provincial and territorial estate laws

Ontario

Inheritance law in Ontario is governed by the Succession Law Reform Act (SLRA). The SLRA sets out the rules for how property is distributed when someone dies without a will (intestate) and how to probate a will.

The Act provides for certain family members to be entitled to a portion of the deceased's estate, including spouse, children and parents. The Act also includes provisions for the distribution of property in certain situations, such as when a person dies without a will and has no living relatives. ^[2]

Wills

In order to have a valid will in Ontario, it must meet the following requirements:

The will must be in writing and signed by the testator (the person making the will)
The testator must be of legal age (18 years old) and have mental capacity to make a will
The will must be signed in the presence of two witnesses who must also sign the will in the presence of the testator and each other. The witnesses cannot be beneficiaries of the will.
If the will is not a holographic will, it must also be attested to by an affidavit of execution before it can be submitted for probate.
The executors of the will can be beneficiaries, but the witnesses cannot.

It also allows for the creation of holographic will, which is a will written entirely in the testator's handwriting and signed by the testator; no witnesses or formalities are required.Accordingly, there can be no affidavit of execution. As part of the probate application, when being challenged, the executor may instead be asked to provide the Court with evidence that the signature and the handwriting on the Will are those of the deceased. ^[2]

Probate

The process of probate in Ontario is a legal process where a court approves the validity of a will and grants authority to the executor named in the will to distribute the deceased person's assets according to the instructions in the will. The process involves several steps. ^[3]

Intestate Succession

Where a person dies intestate, the following general rules apply:

Where the spouse survives, all the estate goes to the spouse.
Where there is a spouse and a child or children, the estate is divided as follows:^[4]

First however a matrimonial home will generally pass directly to the spouse.

Province	Preferential share to spouse (after debts are paid)	Remaining assets (spouse + 1 child)	Remaining assets (spouse + >1 child)	Notes
British Columbia	$300,000 if both the deceased and the spouse are parents of the descendants. $150,000 if the spouse is not parent to all the descendants.^[5]	1/2 to spouse, 1/2 to child ^[6]	1/2 to spouse, 1/2 to children ^[6]	"Spouse": Were married or in a marriage-like relationship for 2 years up until the death.^[7] Spouses aren't considered to have separated if they reconcile and live together again within one year of separation, and they continue to live together for one or more periods totalling 90 days. ^[8]
Alberta	nil	All to spouse, where all of the children are also children of the surviving spouse. Otherwise, prescribed amount or 1/2 (whichever is greater) to spouse, and remainder to child.	All to spouse, where all of the children are also children of the surviving spouse. Otherwise, prescribed amount or 1/2 (whichever is greater) to spouse, and remainder to children.	"Spouse": Includes an adult interdependent partner Excludes those separated for more than two years, or who had previously executed a separation agreement Special rules where there is both a surviving spouse and a surviving adult interdependent partner Where adult interdependent partner is also related to the deceased, there is exclusion from any further allocation from the estate
Saskatchewan	$100,000	1/2 to spouse, 1/2 to child	1/3 to spouse, 2/3 to children	"Spouse": Includes common-law partners Excludes legally married spouses who were cohabiting with someone else at the date of death
Manitoba	$50,000 or 1/2 (whichever is greater)	All to spouse, where all of the children are also children of the surviving spouse. Otherwise, 1/2 to spouse, 1/2 to child.	All to spouse, where all of the children are also children of the surviving spouse. Otherwise, 1/2 to spouse, 1/2 to children.	"Spouse": Includes common-law partners Includes separated spouses and common-law partners who had not previously divided their assets under a separation agreement
Ontario	$350,000	1/2 to spouse, 1/2 to child	1/3 to spouse, 2/3 to children	Extends only to legally married spouses Spouse may opt for equalization payment under s. 5 of the Family Law Act , if it results in a greater share Intestacy benefit is in addition to any separation payment received previously or upon death
Quebec	nil	1/3 to spouse, 2/3 to child	1/3 to spouse, 2/3 to children	"Spouse": Includes those joined in a civil union Where a marriage contract or a notarial civil union contract exists, any relevant provisions in it will supersede the rules on intestate succession
New Brunswick	Marital property	1/2 to spouse, 1/2 to child	1/3 to spouse, 2/3 to children	Extends only to legally married spouses "Child" does not include a stepchild
Nova Scotia	$50,000	1/2 to spouse, 1/2 to child	1/3 to spouse, 2/3 to children	Extends only to legally married spouses Excludes spouses "living in adultery", i.e. in another conjugal relationship whether registered or not Spouse may claim "matrimonial home" instead of share, regardless of value "Child" does not include a stepchild or a child raised by a non-biological parent that has not been legally adopted
Prince Edward Island	nil	1/2 to spouse, 1/2 to child	1/3 to spouse, 2/3 to children	Extends only to legally married spouses "Child" does not include a stepchild
Newfoundland and Labrador	nil	1/2 to spouse, 1/2 to child	1/3 to spouse, 2/3 to children	Extends only to legally married spouses "Child" does not include a stepchild Spouse may opt for equalization payment under the Family Law Act, if it results in a greater share
Yukon	$75,000	1/2 to spouse, 1/2 to child	1/3 to spouse, 2/3 to children	Common-law spouses may apply to the court for a share of the estate "Child" does not include a stepchild
Northwest Territories ^[9]	$50,000	1/2 to spouse, 1/2 to child	1/3 to spouse, 2/3 to children	"Spouse": Includes common-law partners Excludes legally married spouses who were cohabiting with someone else at the date of death, had initiated divorce proceedings and had not reconciled, or had previously divided their assets on separation Excludes a legally married spouse where the intestate had entered into a spousal relationship with another person "Child" does not include a stepchild
Nunavut	$50,000	1/2 to spouse, 1/2 to child	1/3 to spouse, 2/3 to children	As for NWT

Where there is no surviving spouse but there are surviving children, the estate is divided equally among the children.
Where there is no surviving spouse or children, the estate devolves according to the rules of consanguinity.
Where no heir can be determined, the estate is declared bona vacantia and escheats to the Crown.

Related Research Articles

<span class="mw-page-title-main">Will and testament</span> Legal declaration by which a person distributes their property at death

A will and testament is a legal document that expresses a person's (testator) wishes as to how their property (estate) is to be distributed after their death and as to which person (executor) is to manage the property until its final distribution. For the distribution (devolution) of property not determined by a will, see inheritance and intestacy.

<span class="mw-page-title-main">Intestacy</span> Dying without leaving a will

Intestacy is the condition of the estate of a person who dies without having in force a valid will or other binding declaration. Alternatively this may also apply where a will or declaration has been made, but only applies to part of the estate; the remaining estate forms the "intestate estate". Intestacy law, also referred to as the law of descent and distribution, refers to the body of law that determines who is entitled to the property from the estate under the rules of inheritance.

<span class="mw-page-title-main">Legal history of wills</span> United Kingdom legislation

Wills have a lengthy history.

<span class="mw-page-title-main">Probate</span> Proving of a will

In common law jurisdictions, probate is the judicial process whereby a will is "proved" in a court of law and accepted as a valid public document that is the true last testament of the deceased; or whereby, in the absence of a legal will, the estate is settled according to the laws of intestacy that apply in the state where the deceased resided at the time of their death.

<span class="mw-page-title-main">Estate planning</span> Process of planning for inheritance of property

Estate planning is the process of anticipating and arranging for the management and disposal of a person's estate during the person's life in preparation for a person's future incapacity or death. The planning includes the bequest of assets to heirs, loved ones, and/or charity, and may include minimizing gift, estate, and generation-skipping transfer taxes. Estate planning includes planning for incapacity, reducing or eliminating uncertainties over the administration of a probate, and maximizing the value of the estate by reducing taxes and other expenses. The ultimate goal of estate planning can only be determined by the specific goals of the estate owner, and may be as simple or complex as the owner's wishes and needs directs. Guardians are often designated for minor children and beneficiaries with incapacity.

<span class="mw-page-title-main">Holographic will</span> Handwritten and signed will and testament

A holographic will, or olographic testament, is a will and testament which is a holographic document, meaning that it has been entirely handwritten and signed by the testator. Holographic wills have been treated differently by different jurisdictions throughout history. For example, some jurisdictions historically required that a holographic will had to be signed by witnesses attesting to the validity of the testator's signature and intent.

<span class="mw-page-title-main">Will contest</span>

A will contest, in the law of property, is a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator or that the will is otherwise invalid. Will contests generally focus on the assertion that the testator lacked testamentary capacity, was operating under an insane delusion, or was subject to undue influence or fraud. A will may be challenged in its entirety or in part.

<span class="mw-page-title-main">Pretermitted heir</span> Concept in property law

In the law of property, a pretermitted heir is a person who would likely stand to inherit under a will, except that the testator did not include the person in the testator's will. Omission may occur because the testator did not know of the omitted person at the time the will was written.

<span class="mw-page-title-main">Lapse and anti-lapse</span>

Lapse and anti-lapse are complementary concepts under the US law of wills, which address the disposition of property that is willed to someone who dies before the testator.

<span class="mw-page-title-main">Attestation clause</span> In statutory law, a type of clause found in wills

In the statutory law of wills and trusts, an attestation clause is a clause that is typically appended to a will, often just below the place of the testator's signature. It is often of the form signed, sealed, published, and declared, a legal quadruplet.

<span class="mw-page-title-main">Letters of Administration</span>

Letters of Administration are granted by a surrogate court or probate registry to appoint appropriate people to deal with a deceased person's estate where property will pass under intestacy rules or where there are no executors living having been validly appointed under the deceased's will. Traditionally, letters of administration granted to a representative of a testator's estate are called "letters of administration with the will annexed" or "letters of administration cum testamento annexo" or "c.t.a.".

<span class="mw-page-title-main">Forced heirship</span> Form of testate partible inheritance

Forced heirship is a form of testate partible inheritance which mandates how the deceased's estate is to be disposed and which tends to guarantee an inheritance for family of the deceased.

<span class="mw-page-title-main">Administration (probate law)</span> Administration of an estate on death

In common-law jurisdictions, administration of an estate on death arises if the deceased is legally intestate, meaning they did not leave a will, or some assets are not disposed of by their will.

The Statute of Wills or Wills Act 1540 was an Act of the Parliament of England. It made it possible, for the first time in post-Conquest English history, for landholders to determine who would inherit their land upon their death by permitting devise by will. Prior to the enactment of this statute, land could be passed by descent only if and when the landholder had competent living relatives who survived him, and it was subject to the rules of primogeniture. When a landholder died without any living relatives, his land would escheat to the Crown. The statute was something of a political compromise between Henry VIII and English landowners, who were growing increasingly frustrated with primogeniture and royal control of land.

The Wills Act 1837 is an Act of the Parliament of the United Kingdom that confirms the power of every adult to dispose of their real and personal property, whether they are the outright owner or a beneficiary under a trust, by will on their death (s.3). The act extends to all testamentary dispositions or gifts, where "a person makes a disposition of his property to take effect after his decease, and which is in its own nature ambulatory and revocable during his life." As of 2012, much of it remains in force in England and Wales.

The South African law of succession prescribes the rules which determine the devolution of a person's estate after his death, and all matters incidental thereto. It identifies the beneficiaries who are entitled to succeed to the deceased's estate, and the extent of the benefits they are to receive, and determines the different rights and duties that persons may have in a deceased's estate. It forms part of private law.

Testate succession exists under the law of succession in South Africa.

Wills, Estates And Succession Act of British Columbia (WESA) is a provincial statute that governs the law of inheritance in British Columbia, Canada.

Intestate succession in South African law takes place whenever the deceased leaves property which has not been disposed of by valid testamentary instrument. In other words, the law of intestate succession applies only:

Inheritance law in ancient Rome was the Roman law that governed the inheritance of property. This law was governed by the civil law of the Twelve Tables and the laws passed by the Roman assemblies, which tended to be very strict, and law of the praetor, which was often more flexible. The resulting system was extremely complicated and was one of the central concerns of the whole legal system. Discussion of the laws of inheritance take up eleven of the fifty books in the Digest. 60-70% of all Roman litigation was concerned with inheritance.

References

↑ "Provincial and territorial resources on estate law". Archived from the original on 2022-10-17. Retrieved 2023-01-28.
1 2 "Succession Law Reform Act, R.S.O. 1990, c. S.26". Ontario.ca. Retrieved 15 February 2021. Holograph wills: A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.
↑ "Apply for probate of an estate".
↑ "Structuring an Effective Will". Invesco. p. 4. Retrieved 2012-04-11.
↑ s.21(3) and s.21(4) BC Wills, Estates and Succession Act
1 2 s.21(6)(b) BC Wills, Estates and Succession Act
↑ s.2(1) BC Wills, Estates and Succession Act
↑ s.2(2.1) BC Wills, Estates and Succession Act
↑ NWT Intestate Succession Act , RSNWT 1988, c. I-10, retrieved on 2020-02-22.

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[1] "Provincial and territorial resources on estate law". Archived from the original on 2022-10-17. Retrieved 2023-01-28.

[Law_Reform_Act_1990-2] 1 2 "Succession Law Reform Act, R.S.O. 1990, c. S.26". Ontario.ca. Retrieved 15 February 2021. Holograph wills: A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.

[3] "Apply for probate of an estate".

[4] "Structuring an Effective Will". Invesco. p. 4. Retrieved 2012-04-11.

[5] s.21(3) and s.21(4) BC Wills, Estates and Succession Act

[auto-6] 1 2 s.21(6)(b) BC Wills, Estates and Succession Act

[7] s.2(1) BC Wills, Estates and Succession Act

[8] s.2(2.1) BC Wills, Estates and Succession Act

[9] NWT Intestate Succession Act , RSNWT 1988, c. I-10, retrieved on 2020-02-22.

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