Intestacy: Children's Rights Toronto Ontario Canada



Charles B. Wagner

An intestacy occurs when people die without a will.

In Ontario, the laws setting out the beneficiaries in an inheritance are set out in Ontario's Succession Law Reform Act.

This article reviews the options and rights of children whose parent's pass away without having made a will. It canvasses the laws of intestate succession in Ontario Canada and the possibility of a Dependant's Relief Application under Part V of the Succession Law Reform Act.

What rights do children have when a parent died without a will? In Canada, Ontario law provides children with two options.

Option 1 - Under Ontario Canada's intestacy regime, if the parent was married on the date of death (as opposed to being in a common law relationship) then the deceased's spouse takes a preferential share of $200,000.00 and the law divides the balance by giving a portion to the spouse and the remaining portion to the deceased's children. How that balance is divided depends on how many children the deceased had.

Option 2 - Depending on the circumstances, the child may have a right to sue for support under Part V of Ontario Canada's Succession Law Reform Act.

In this article we will explore children's' rights by applying Ontario's law to a fictional scenario. John dies and has no will. His two sons, Harry and Jake, were 20 and 25 years of age respectively. The deceased's youngest son, Jake, suffers from Cerebral Palsy and cannot support himself. He needs care 24 hours a day 7 days a week. By passing away without having made a will, John has died intestate. It's an estate worth $1,000,000.00. There are a number of options his children should consider.

Under the laws of intestacy in Ontario Canada, the deceased's wife is entitled to a preferential share of the first $200,000.00 of his estate. The balance is split in different ways depending on how many children, if any, the deceased had. In our example, Under Ontario Canada's laws of intestacy John's estate of $1,000,000.00 would be divided as follows:

  1. The first $200,000.00 goes to his spouse leaving $800,000.00;
  2. The wife would get another $266,666.67 representing 1/3 of the balance ($800,000.00/3) and the deceased's children would divide the remaining 2/3 ($533,333.33) between them with each of John's children receiving $266,666.67.

But that may not be the best option. Under Ontario Canada's Succession Law Reform Act, Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants, the court may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants.

Jake may have qualified as a dependent because he was a child of the deceased who was under a legal obligation to provide support immediately before his death. Given Jake's condition, one might think he would get the entirety of his father's estate since his needs were undeniably the greatest of all the parties. However, based on the Ontario Court of Appeal decision in Cummings v Cummings the court would take into account all of the dependents claims and divide the estate up in accordance with the needs of all the dependants having in mind the deceased moral obligations to all parties.

ABOUT THE AUTHOR: Charles B. Wagner is an estate litigator in Toronto Ontario Canada. His practice focuses in on estate litigation and it includes applications relating to children asserting their rights with respect to estate disputes involving intestacies.

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While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.


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