Boisvert Estate

 The British Columbia Wills, Estates and Succession Act (the “WESA”) allows the spouse of someone who dies without a will to retain the deceased’s interest in the spousal home as part of the spouse’s share of the estate. This will apply when the residence is in British Columbia.

In British Columbia, when someone dies without a will, referred to as an intestacy, then the provisions of the WESA sets out how the estate is to be divided. If the deceased’s left a spouse, but no descendants, then all the estate goes to the spouse, but if there the deceased had descendants (children, grandchildren and/or great-grandchildren etc.), then the estate is allocated between the spouse, on the one hand, and the descendants on the other. The share of the spouse depends in part on whether all of the descendants are descendants of both the deceased and the spouse, or whether the deceased had descendants from a previous relationship. If all the descendants are shared, then the spouse receives the first $300,000 of the estate, but if the deceased also had descendants who are not descendants of the spouse, then the spouse receives the first $150,000 out of the estate. The spouse also receives one-half of the rest of the estate.

The law used to be that the spouse also received a life interest in the estate in the spousal home, which allowed the spouse to live in the home for the rest of the spouse’s life. But this changed in 2014 when the WESA came into effect.

Now, the spouse can choose to retain the house as part of their share, the effect being that the spouse receives less funds from the estate. This is straightforward when the value of the estate is significantly greater than the value of the deceased’s interest in the home. For example, if the home, owned solely by the deceased is worth $700,000, and the total value after debts and expenses of the estate is $2 million, then there are sufficient funds to allocate the home to the spouse. In this example, let’s say that the deceased and the spouse have two children together, and the deceased did not have any children from another relationship. The spouse would be entitled to $1,150,000 ($300,000 plus half of $1,700,000) of the estate. The spouse could then elect to receive the home plus an additional $450,000.

But what if the value of the estate is not large enough for the spouse to receive the spousal home without infringing on the descendants’ share of the estate? This is what happened in a recent case, Re Boisvert Estate, 2026 BCSC 195, the only reported decision of which I am aware (at the time of writing this post).

Kathryn Anne Boisvert died May 14, 2022. She did not have a will. Ralph Amies was her common-law spouse and lived with her in a home owned by her for 25 years. She had two children from a previous relationship. The home was worth about $600,000 and she had no other significant assets. On the basis that the estate was worth $600,000, he was entitled to $375,000 (the first $150,000 in this case plus $225,000 representing half of the remaining $450,000). Ms. Boisvert’s two children were each entitled to $112,500 (half of $225,000).

If he received the home, then the children would not receive their share. On the other hand, in the circumstances of this case, Mr. Armies had limited means to buy out the children’s interest. He was 62 years old, with an income of about $20,000 annually, and about $100,000 in a Registered Retirement Savings Plan. The home was his longtime residence, and he contributed to the home and the household expenses. It would have been, the court found, a hardship to him to require him to buy out the children’s interest or to leave immediately.

 

The WESA does have provisions for this type of circumstance, providing a judge with a broad discretion to balance the interest of a surviving spouse and the descendants. Section 33 reads as follows:

33   (1) On application by a surviving spouse, the court may make an order under subsection (2) if

(a)the surviving spouse is ordinarily resident in the spousal home at the time of the deceased person's death,

(b)assets in the estate are not sufficient to satisfy the interests of all descendants entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate without disposing of the spousal home,

(c)the court is satisfied that purchasing the spousal home under section 31 would impose a significant financial hardship on the surviving spouse,

(d)the court is satisfied that, in all the circumstances, a greater prejudice would be imposed on the surviving spouse by being unable to continue to reside in the spousal home than would be imposed on the descendants entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate by having to wait an indeterminate period of time to receive all or part of their share of the intestate estate, and

(e)either

(i)the surviving spouse has resided in the spousal home for a sufficient period of time to have established a connection to the spousal home, or

(ii)the surviving spouse has a sufficient connection with the community or members of the community in the vicinity of the spousal home to warrant an order under subsection (2).

(2) The court may, subject to any terms or conditions the court considers appropriate, make an order doing one or more of the following:

(a)vesting the same interest in the spousal home in the surviving spouse that the deceased person had;

(b)specifying the amount of money the surviving spouse must pay to the descendants towards satisfaction of their interest in the estate;

(c)converting the remaining unpaid interest of the descendants in the intestate estate into a registrable charge against the title to the surviving spouse's interest in the spousal home;

(d)determining an interest rate, as that term is defined in section 7 [interest rate] of the Court Order Interest Act, or at any other rate the court considers appropriate, for the amount the descendants are entitled to under paragraph (c) of this subsection;

(e)determining the value of the registrable charge referred to in paragraph (c) to include the principal amount owing to the descendants entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate and the expected value of the future interest that will be earned under paragraph (d).

Madam Justice Hardwick heard the application and balanced the competing interests by allowing Mr. Amies to retain the home, but subject to a charge on the title in the amount of $225,000 for the benefit of the Ms. Boisvert’s children. She reasoned:

[54]         Section 33(1)(d) requires me to assess whether a greater prejudice would be imposed on Mr. Amies by reason of not being able to reside in the spousal home, than would be imposed on the Descendants by reason of having to wait to receive most of their share of the Estate.

[55]         I find that Mr. Amies would be significantly prejudiced by a decision requiring him to quickly vacate the Smithers Home. He has resided in the Smithers Home for almost 30 years. It sits on a large lot. While there are homes that are available in Smithers that Mr. Amies could purchase with his share of the Estate, I accept that none of them are as desirable to live in as the Smithers Home as they are generally smaller and less private.

[56]         The Descendants will be prejudiced by Mr. Amies remaining in the Smithers Home but less so. Their only significant inheritance is their share of the Smithers Home. The longer that Mr. Amies stays in the Smithers Home, the longer they must wait for their inheritance. I am mindful that the Descendants’ inheritance has already been delayed through this litigation and that Mr. Amies has lived in the Smithers Home for almost four years following Ms. Boisvert’s death. As I will outline below however, the Descendents do have options to dispose of their charge so they can receive a portion of their inheritance sooner.

However, Madam Justice Hardwick limited the period Mr. Amies could reside in the home to 24 more months, reflecting the fact that he had already been in the home for over three years since Ms. Boisvert's death.

Right of Spouse to Acquire Spousal Home in Intestate Estate

In British Columbia, when a person dies without a will (or in other words intestate), his or her spouse may take the deceased interest in the spousal home as part of the surviving spouse’s share. The survivor does not receive the house automatically, but the Wills, Estates and Succession Act provides a mechanism for the spouse to select the home.

When someone dies without a will leaving a spouse and children or other descendants, the spouse receives the first $300,000 if the descendants are descendants of both the deceased and the spouse, or $150,000 if the deceased left descendants who are not also descendants of the spouse. For example, if the deceased had a child from a previous relationship, the surviving spouse would receive the first $150,000 as her preferential share. The spouse is also entitled in either case, to one-half of the rest of the estate.

Sections 26 through 35 of the Wills, Estates and Succession Act sets out the process for a surviving spouse to receive the spousal home. When the personal representative applies to court for a representation grant, the representative must give notice to the spouse of her right to acquire the spousal home. She has 180 days from the date the court issues the representation grant to provide written notice to the personal representative of her decision to acquire the home. If the spouse is the personal representative, then she must give notice to those entitled to a share of the estate, and if any are minors or mentally incapable person, notice is also given to the Public Guardian and Trustee.

When the spouse gives notice, the notice must set out a value of the home. If the personal representative agrees with the value, then the agreed value is taken from the spouse’s share of the estate. If the spouse is the personal representative, then the other beneficiaries may agree on the value. If there is a disagreement about how much the home is worth, then the court may determine the value.

What if the value of the home exceeds the spouse’s share? For example, what if the home is worth $1,000,000 but the value of the estate after payment of debts and expenses is $1,200,000, and the spouse’s share is $750,000? The spouse may then purchase the home by paying the difference into the estate ($250,000 in our example).

If purchasing the home would “impose a significant financial hardship to the spouse,” then the court has a broad discretion to give the spouse the home and may impose conditions. For example, the court could require the spouse to pay the other beneficiaries and amount that is less than the difference between the value and the spouse’s interest in the estate. The court may also place a charge on the home in favour of the other beneficiaries, in which case they will eventually receive funds, but may have to wait until sometime in the future as the court may set out, perhaps when the spouse sells the home, ceases to live in the home or dies. In applying this provision, the court will need to balance the interests of the spouse and the other beneficiaries.

I am not aware of any reported court decisions that have applied these provisions. Fortunately, my experience has been that the value of the spouse’s share of the estate has been sufficient to acquire the house, and the value has been agreed upon.

These provisions also apply when there is a will does not dispose of all of the deceased’s assets (referred to as a partial intestacy), and does not dispose of the home. Partial intestacies are unusual in professionally drawn wills, but may occur, if for example, the will-maker makes a will leaving specific assets to beneficiaries, but does not have a clause disposing of the residue of the estate.

Separation Without Termination: Robledano v. Queano

Can you separate from your common-law spouse without terminating the relationship? Apparently, according to the British Columbia Court of Appeal decision in Robledano v. Queano, 2019 BCCA 150.

Spousal status is often critical in estate disputes. A “spouse” as that term is defined in the Wills, Estates and Succession Act (the “WESA”) may apply to vary her deceased’s spouse’s will. If there is no valid will, she will be entitled to a share of the estate on an intestacy (sometimes the entire estate). There is not surprisingly a great deal of litigation over the question of whether someone meets the definition of spouse.

Section 2 of the WESA sets out the criteria for a spouse under the Act. I will leave out subsection (2.1) which is not necessary for this discussion.

2   (1) Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and

(a)they were married to each other, or

(b)they had lived with each other in a marriage-like relationship for at least 2 years.

(2) Two persons cease being spouses of each other for the purposes of this Act if,

(a)in the case of a marriage, an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the Family Law Act, to arise, or

(b)in the case of a marriage-like relationship, one or both persons terminate the relationship.

….
(3) A relevant time for the purposes of subsection (1) is the date of death of one of the persons unless this Act specifies another time as the relevant time.

The Family Law Act (the “FLA”) has similar, but as we shall see, not identical, criteria for determining when someone is a spouse. Section 3 provides:

3  (1) A person is a spouse for the purposes of this Act if the person

(a)is married to another person, or

(b)has lived with another person in a marriage-like relationship, and

(i)has done so for a continuous period of at least 2 years, or

(ii)except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person.

(2)A spouse includes a former spouse.

(3)A relationship between spouses begins on the earlier of the following:

(a)the date on which they began to live together in a marriage-like relationship;

(b)the date of their marriage.

(4) For the purposes of this Act,

(a)spouses may be separated despite continuing to live in the same residence, and

(b)the court may consider, as evidence of separation,

(i)communication, by one spouse to the other spouse, of an intention to separate permanently, and

(ii)an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently.

Section 81 of the FLA deals with the rights of each spouse to property held by the other on separation. It reads:

81  Subject to an agreement or order that provides otherwise and except as set out in this Part and Part 6 [Pension Division],

(a)spouses are both entitled to family property and responsible for family debt, regardless of their respective use or contribution, and

(b)on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt.

The main issue in the Court of Appeal in Robledano was whether Maria Robledano was Barbara Jacinto’s spouse when Ms. Jacinto died on April 14, 2014. If so, because the court had found that Ms. Jacinto did not have a will, Ms. Robledano is entitled to the entire estate. If not, the estate goes to other relatives. In the Supreme Court of British Columbia, the trial judge found that Ms. Robledano was Ms. Jacinto’s spouse. One of Ms. Jacinto’s sisters, Milagros Queano, appealed.

Ms. Robledano and Ms. Jacinto were not married. The parties agreed that Ms. Robledano and Ms. Jacinto were in a marriage-like relationship from 1985 to 2000, and again from 2005 to 2010, but Ms. Queano argued that they were no longer in a marriage-like relationship after 2010. From November 2010, Ms. Robledano and Ms. Jacinto had separate residences, but Ms. Robledano maintained that they did continue to reside together part of the time.

The Court of Appeal held that the trial judge applied the correct legal tests and did not make any palpable and overriding error.

In his reasons for judgement, Mr. Justice Groberman held that it is not necessary for a couple who were in a marriage-like relationship to be in a marriage-like relationship at the time of death, as long as the relationship had not been “terminated.” Termination is not the same as separation, although separation is a factor that may be considered.

Mr. Justice Groberman wrote:

[39]         Ms. Queano says an unmarried person can only be the spouse of a deceased person if they were living together at the time of death and for at least the two years immediately preceding it. In my view, that is not a correct interpretation of s. 2(1).

[40]         Paragraph 2(1)(b) of the statute uses the past perfect tense (“had lived together”) rather than the past continuous tense (“were living together”). The ordinary grammatical meaning of paragraph 2(1)(b) is that in order for a person who was not married to the deceased to be their spouse, the two must have lived together in a marriage-like relationship for two years, but not necessarily for the two years immediately preceding the deceased’s death. In contrast to paragraph 2(1)(b), paragraph 2(1)(a) uses the past continuous tense (“were married”) rather than the past perfect tense (“had been married”). The statute is professionally drafted and the use of these different tenses should be presumed to be deliberate.

Further on:

[44]         Ms. Queano contends that the question to be asked under s. 2(2)(b) is whether the parties separated. She says that the parties clearly did so at the end of 2010, and that they remained separated for the rest of Ms. Jacinto’s life.

[45]         Again, I am unable to fully agree with Ms. Queano’s interpretation of the statute. Paragraph 2(2)(a) of the WESA provides that married persons cease to be spouses when events occur that engage the property division provisions set out in Part 5 of the Family Law Act, S.B.C. 2011, c. 25. Typically, those provisions are engaged, under s. 81 of the Family Law Act, when the parties separate.

[46]         Paragraph 2(2)(b), on the other hand, which applies to persons who are not married but are in a marriage-like relationship, does not mention “separation” nor does it incorporate any test involving Part 5 of the Family Law Act. It simply states that persons in a marriage-like relationship cease to be spouses when either or both of them “terminate the [marriage-like] relationship”. I do not suggest that separation is an irrelevant consideration under the provision. The fact that parties have separated may lead a judge to infer that one or both of them has terminated the marriage-like relationship. That said, separation, per se, is not the test for termination of a marriage-like relationship.

Mr. Justice Groberman wrote that the standard for termination is a flexible one.

[55]         What we are left with, in s. 2(2)(b) of the WESA, is a rather imprecise and flexible legal standard. The question of whether a person has “terminated the relationship” requires a judge to consider the expressed and implicit intentions of each spouse, as well as the objective evidence concerning the subsistence of the relationship. The determination is a “judgment call” for the trial judge – the application of a broad legal standard to the factual circumstances of an individual case. It is a question of mixed fact and law. 

I have some doubt as to whether the drafters of the WESA intended to have different criteria for determining when a spousal relationship ends for the purpose of the WESA and for the purpose of the FLA. I understood that the intent was that one could have either a claim under the FLA or the WESA but not both. 

Consider this scenario. A couple living in a marriage-like relationship “separates” but neither one “terminates” the relationship. One of them dies without a will, leaving surviving him a child from a previous relationship. The implication is that the survivor may make both a claim to property under the FLA and a share of the estate under the WESA. Suppose he has an estate of $1 million, and the court finds that the surviving spouse is entitled to $400,000 under the FLA, leaving the value of the remaining estate at $600,000. Of this $600,000, the surviving spouse receives the first $150,000 plus one-half of the balance. The total amount the surviving spouse receives is $775,000 ($400,000 under the FLA, plus $150,000 and $225,000 under the WESA). If the spouses had not been separated, the surviving spouse would have received $575,000. If they had been separated, but the relationship terminated, then the surviving spouse would have received $400,000.

Missing Original Will: Thierman Estate v. Thierman

Following his death on August 25, 2010, George Patrick Thierman’s children were unable to find his original will. They knew he signed a will on October 27, 2006, a copy of which was in the dresser drawer of his bedroom. Did he destroy is original will in order to revoke it? Or did he simply lose it?

George Thierman had seven children, two of which, David Thierman and Andrew Thierman, lived with him for at least twenty years before his death. They were financially dependant on him.

In his will, George Thierman appointed his son Patrick Thierman as his executor, and provided that his estate would be held in trust for the benefit of his son David Thierman during his lifetime. Anything left after David Thierman’s death would be divided equally among George Thierman’s other six children.

After George Thierman signed his will, his lawyer mailed the will and her bill to him. He paid the bill. He told his lawyer that he was going to keep his original will in his safety deposit box at his bank, and the bank records show he accessed the safety deposit box on December 5, 2006.

After George Thierman became ill, he became dependent on David Thierman to assist him. He complained that David Thierman was not feeding him properly.

George Thierman accessed his safety deposit box on August 3, 2010. When his Patrick Thierman later checked the safety deposit box, the will was not there.

The evidence before Mr. Justice Ehrcke in Thierman Estate v. Thurman, 2013 BCSC 503, was that George Thierman was an intelligent and well organized man.

There is a presumption of law in British Columbia that when an original will that is missing can be last traced in the possession of the will-maker, he destroyed it with the intent of revoking it. This is a presumption only, and may be rebutted by evidence that the will-maker did not intend to revoke the will.

Mr. Justice Ehrcke quoting from a previous decision, Haiderv. Kalugin, 2008 BCSC 930, set out some of the factors the courts have considered as follows:

[13]      Some of the factors considered in determining whether the presumption has been overcome are:
*  whether the terms of the Will itself were reasonable: Pigeon Estate v. Major, [1930] S.C.R. 252 (S.C.C.);
*  whether the testator continued to have good relationships with the beneficiaries in the copy of the Will up to the date of death: Pigeon, supra;
*  where personal effects of the deceased were destroyed prior to the search for the Will being carried out: Pigeon, supra;
*  the nature and character of the deceased in taking care of personal effects: Pigeon, supra;
*  whether there were any dispositions of property that support or contradict the terms of the copy sought to be probated: MacBurnie v. Patriquin, supra; Anderson v. Kahan Estate, [2006] B.C.J. No. 716 (B.C.S.C.);
*  statements made by the testator which confirm or contradict the terms of distribution set out in the will: Bobersky Estate, supra, Anderson, supra, Holst Estate v. Holst, [2001] B.C.J. No. 1560 (B.C.S.C.), Re Green Estate, [2001] A.J. No. 1253 (Alta Q.B.);
*  whether the testator was of the character to store valuable papers, and whether the testator had a safe place to store the papers: Bobersky Estate, supra, Brimicombe v. Brimicombe Estate, [2000] N.S.J. No. 157 (N.S.C.A.);
*  whether there is evidence that the testator understood the consequences of not having a Will, and the effects of intestacy: Bobersky Estate, supra;
*  whether the testator made statements to the effect that he had a will: Bobersky Estate, supra.

Mr. Justice Ehrcke applied the presumption that the will was revoked. Mr. Justice Ehrcke found it unlikely that George Thierman would have lost the will, given that he was well organized. It was more likely, that unhappy with the care David Thierman was providing him, he took it out of the safety deposit box and destroyed it.

In the result, the estate will be divided equally among George Thierman’s children in accordance with the intestacy provisions of the B.C. Estate Administration Act.

Spouse's Preferential Share Under the New Wills, Estates and Succession Act

When it is brought into force, the new British Columbia Wills, Estates and Succession Act will increase the preferential share that goes to a spouse of a person who dies without a will.

The current law, section 85 of the Estate Administration Act, provides that when someone dies without a will in British Columbia leaving a spouse and descendents, the spouse is entitled to the first $65,000 of the estate (as well as household furnishings and a life estate in the spousal home). The spouse’s portion of the rest of the estate is one-half, if the deceased left only one child or one-third if the deceased left more than one child. For the purpose of determining the spouse's share, a child who has died before his or her deceased parent is counted if that child left descendents who are living at the intestate parent's death.

Under section 21 of the Wills, Estates and Succession Law Act., the spouse’s preferential share will be increased. The amount will depend on whether the deceased’s descendents are all also the surviving spouse’s descendents or some of them are not the surviving spouse’s descendents.

If the deceased's descendents are all common descendents of both the deceased and the surviving spouse, then the spouse’s preferential share is $300,000. If some of the deceased’s descendents are not common descendents than the spouse’s preferential share is $150,000. The theory behind this is no doubt that if all of the descendents are common to both the deceased and the surviving spouse, they will most likely eventually inherit something from the surviving spouse.

The spouse’s portion of the rest of the estate under the new Act will be one-half, with the other half going to the deceased’s descendants in the manner set out in the legislation.

Let’s look at a couple of examples. Paul dies without a will leaving his wife Sarah, and their two children. His net estate (after payment of his debts and funeral expenses) consists of $400,000 of investments.

Under the current laws, Sarah would be entitled to $176,666.67 ($65,000 plus one-third of the remaining $335,000), and each of their children would be entitled to $111,666.66 (one-half of the remaining $223,333.33).

Under the Wills, Estates and Succession Act, Sarah would be entitled to $350,000 ($300,000 plus one-half of the remaining $100,000), and each of their two children will be entitled to $25,000 (one-half of the remaining $50,000).

Now let’s change the facts a little bit. Paul and Sarah have one child together, but Paul also has a child from a previous marriage. Sarah would receive $275,000 ($150,000 plus one-half of the remaining $250,000). Each of Paul’s two children would receive $62,500 (one-half of the remaining $125,000).

Under the new Act, the surviving spouse will still be entitled to the household furnishings, but there are new provisions concerning the spousal home, which I will discuss in another post.

Is A Gun Collection “Household Furnishings?”

This is one of the issues raised in Zeitler v. Zeitler Estate, 2009 BCSC 500.

Alfons Zeitler died without a Will on April 26, 2007, leaving a common law spouse, Dina Zeitler, three children, and a complex mess of an estate (see a previous post on another court decision involving his estate here).

He owned a gun collection that he stored in his house. Dina Zeitler’s evidence was that

about a quarter of the residence gun collection was on display in the residence at any one time, while the remainder was stored in two large security vaults located in the residence. She stated that she and Alfons enjoyed the residence gun collection, rotating them for display, cleaning and polishing them, and showing them to guests. According to Dina, she and Alfons discussed the “make,” model and history of each rifle and upon occasion, would sit and visit while cleaning the guns. She said that Alfons taught her how to polish the guns although he did most of it himself.

On the other hand, one of Alfons Zeitler’s children gave quite different evidence:

According to Gregory, Dina disliked guns, and except on a few occasions when she came out into the yard with air rifles, she wanted nothing to do with them. He said that the guns in the display cases at the residence were never shot and rarely moved, and further, that the collection was not rotated, as Dina stated. Gregory also deposed that he never saw Dina clean, polish, or display any interest in the residence gun collection.

In British Columbia, the Section 96 of Estate Administration Act provides that when a spouse dies without a will leaving descendants the surviving spouse is entitled to the spousal home for her life, and the “household furnishings.” (The surviving spouse is also entitled to the first $65,000 and a share of the residue of the estate.) The definition of spouse includes common law spouses.

The term “household furnishings” is defined as “chattels associated with the enjoyment by the spouses of the spousal home.”

Madam Justice Arnold-Bailey rejected Dina Zeiler’s argument that the gun collection fell within the definition of “household furnishings.” The Judge looked at whether the “predominant characteristic” of the gun collection was as personal effects, or as something used or enjoyed by the spouses of the spousal home. In this case she found that the guns were in the nature of personal effects owned by Alfonse Zeitler.

Although this decision deals with a gun collection, Madam Justice Arnold Bailey’s reasoning set out below will provide a useful guide in future cases dealing with other chattels:

[ 34] To accept the submission of Dina’s counsel, any items of value owned by Alfons that he brought into the spousal home that the two of them enjoyed, even in a
transitory way, would constitute household furnishings. In my mind, to accept that submission would undermine the notion of a spouse’s personal property or the personal effects of one spouse vis-à-vis the other, and the notion of “household furnishings.” If one were to accept the logic of the proposition urged by Dina’s counsel, one might imagine that if Alfons had an antique missile collection, or an antique car collection stored in the garages of the spousal home or kept in a heated show room, such items could and would become household furnishings, just as long as both spouses enjoyed the same, even occasionally.

[35] In my view, the definition of household furnishings as “chattels usually associated with the enjoyment by the spouses of the spousal home” precludes such chattels that have as their predominant characteristic “personal effects” or “personal chattels” and are without a household use or a recognizable connection to the use, enjoyment or proper functioning of the spousal home.

[36] For example, an art collection belonging to one spouse and stored in crates in the basement of the spousal home, likely constitutes part of that spouse’s personal effects, but if all or the majority of the art collected was hung throughout the spousal home, then the same could legitimately be recognized as part of its “household urnishings.”

[37] In the present case, I am sceptical about Dina’s evidence about what she and Alfons used to do together in relation to the residence gun collection. I find that Dina’s claim that the guns were regularly rotated stretches common sense, and in that regard, I accept Gregory’s evidence to the contrary. However, even if I were to accept that evidence, I find that only one quarter of the collection was “on display” in the show cases at any one time.

[38] I find that the residence gun collection fulfilled no identified purpose or function associated with “the enjoyment by the spouses of the spousal home.” The enjoyment of the residential gun collection by Alfons, and to a lesser extent, Dina, was predominantly related to the gun collection itself, and not to their enjoyment of the spousal home. I do not regard the fact that a portion of it was on display in the spousal home as sufficient to make the entire residence gun collection “usually associated with the enjoyment by the spouses of the spousal home.”

[39] By definition, gun collections, like stamp collections, jewellery collections, art collections and the like, are, in the context of s. 96 of the EAA, the personal property of the person who collected them and to whom they belong, unless that predominant characteristic is overcome by their enjoyment by the spouses of the spousal home.

[40] The guns in the residence gun collection belonged to and were registered in Alfons’ name alone. I find that the fact that they were stored and maintained there with some involvement by Dina, with a portion of them on display, does not make them “household furnishings” within the definition contained in s. 96(1) of the EAA.

Accordingly, the gun collection will not go to Dina Zeitler.

If You Have Young Children, Please Make a Will

I am dealing with the estate of a man who died leaving a common-law wife and very young child. I am not going to get into the facts of this particular estate, but it got me thinking about how much simpler and better it would have been if he had left a professionally drawn will.

Let’s take a hypothetical situation. A lady dies. She has a husband, and two children, ages 2 and 4. She and her husband kept the house, worth $450,000 in her sole name. She had a mortgage, but the mortgage was life insured. She had some investments in her sole name worth $101,000, and a Registered Retirement Savings Plan worth $70,000 in which she designated her husband as the beneficiary. She and her family lived in British Columbia.

I realize that the majority of couples in British Columbia hold their principle residences in joint tenancies, but this is not always the case. Sometimes, one of them inherits the property from a parent, or they think it safer to hold the property in just one name.

What happens if the lady in our fact pattern dies without a will?

Because she designated her husband as the beneficiaries of the Registered Retirement Savings Plan, the funds will go to her husband, and will not be included in her estate.

If the husband wishes to handle the administration of the estate, he will have to apply to court to be appointed as the administrator. The court may require that he get a bond from an insurance company pursuant to section 16, of the Estate Administration Act, which will be costly, to protect the interests of the children and any unpaid creditors.

Under British Columbia law, the husband will be entitled to the contents of their home, and a life estate in the house. In other words he will be entitled to live in the house, or collect rents from the house, for his life. He can at anytime release his life interest.

The husband will also be entitled to the first $65,000 out of the estate and one-third of the residue. The children will be entitled to share two-thirds of the residue. These provisions are set out in Part 10 of the Estate Administration Act.

If the husband keeps his life interest in the house, he will be entitled to $77,000 of the investments. The children will be entitled to $12,000 each now. (I am ignoring expenses and debts in this illustration.) The children will also each be entitled to a one-third interest in the house which they will receive on the husband's death, or earlier if he releases his life estate.

The children’s shares of the investments are payable to the Public Guardian and Trustee, pursuant to section 75 of the Estate Administration Act. The Public Guardian and Trustee will charge fees for his services, and if the husband wishes access to the funds for the benefit of the children he will have to apply to the Office of the Public Guardian and Trustee.

Now, supposing the husband wishes to move. He would like to sell the home, and use the capital to buy a new residence for himself and the children to live in. If he releases his life estate in the house, then he is entitled to one-third of the proceeds of the house, which will be $150,000 (minus one-third of commissions and other costs). The other $300,000 (or thereabouts) will be paid to the Public Guardian and Trustee to hold in trust for the children. Possibly the husband could make some arrangements with the Public Guardian and Trustee to use those funds in the purchase of the new house, on the basis that the children will continue to have an interest in the new house.

The children will be entitled to take control of their shares of their mother’s estate at the age of 19. This may not be bad, if we are talking about $12,000. But if they receive substantially more than that, they might not be mature enough to manage their money, and may squander it within a few years.

What if this lady had made a Will? We can’t of course be sure of what provisions she would have made in her will. But she might have done something like this:

1. She appoints here husband as the executor with a close relative she trusts as an alternate executor;
2. She leaves here estate to her husband if he outlives her;
3. If her husband dies before her, she divides her estate between her children. She has her lawyer draw the will so that if either child is under the age of say 25, the trustee holds and manages that child’s share until the child attains the age of 25. The trustee could use each child’s funds to make payments to or for the benefit of that child, for example paying for the child’s education, before the child reaches 25. In other words, there are funds available for the children, but they don’t control the funds until they are more mature.

If she had made these provisions in a will, the husband would inherit everything outright, and would then have flexibility in using the assets to meet his and the children’s needs. If he had died before her, or if we modify our example so that she is a divorced mother with two children, then the children’s share would be managed by someone she knew and trusted until they reach a more mature age than 19.

There are of course many other ways she could structure her estate plan depending on her wishes and circumstances. But a carefully thought out plan, made with legal advice, is invariably going to be better than relying on the intestacy provisions of the Estate Administration Act.

Please note that if you live outside of British Columbia, the law where you live dealing with how intestate estates are disbritubed will be different. For those who live in British Columbia, there are proposals to change the distribution scheme on an intestacy.

Bill 28: Definition of Spouse

The proposed new Wills, Estates and Succession Act, recently introduced in the British Columbia Legislative Assembly, will have a new definition of spouse in section 2. It reads as follows:

(1) Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and
(a) they were married to each other, or
(b) they had lived with each other in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for at least 2 years.
(2) Two persons cease being spouses of each other for the purposes of this Act if,
(a) in the case of a marriage,
(i) they live separate and apart for at least 2 years with one or both of them having the intention, formed before or during that time, to live separate and apart
permanently, or
(ii) an event occurs that causes an interest in family assets, as defined in Part 5 of the Family Relations Act, to arise, or
(b) in the case of a marriage-like relationship, one or both persons terminate the relationship.
(3) A relevant time for the purpose of subsection (1) is the date of death of one of the persons unless this Act specifies another time as the relevant time.

The criteria for spouses who are not legally married to each other in section 2(1)(b) are similar to the criteria in British Columbia’s current Estate Administration Act (section 1), and Wills Variation Act (section 1). Currently there are some small differences in the wording of the definitions in the Wills Variation Act and the Estate Administration Act, and it will be beneficial to have an identical definitions to avoid inconsistencies (although the courts seem to be interpreting the definitions in a consistent manner in any case).

The provisions in subsection 2(2) dealing when spouses cease to be spouses for the purposes of succession law are new.

The proposal that legally married spouses cease to be considered spouses if they have lived separate and apart for 2 years, with at least one of them having the intention to live separately permanently, has at least a couple of significant implications.

Currently, under the Wills Variation Act, a married spouse has the right to apply to vary the will of his or her deceased spouse regardless of whether the couple had been separated at the deceased’s death. Only divorce terminates the right of a separated spouse to apply. Under the proposed changes, if a spouse has been separated for at least two years, he or she will not be entitled to apply.

Under the Estate Administration Act, a legally married spouse who has been separated for at least one year loses his or her right to inherit from his or her spouse under the intestacy provisions for people who die without a will. This is subject to the court’s discretion to award the separated spouse something on the spouse’s application. See section 98.

The proposed new legislation will allow a spouse who has been separated for more than one year, but less than two, to inherit if the deceased spouse did not have a will, unless there had been a triggering event under the Family Relations Act.

The proposals will reduce the risk that there will be two spouses making competing claims under either the Wills Variation Act, or the intestacy provisions of the Estate Administration Act (though perhaps not in Bountiful). Because a legally married spouse loses his or her status as a spouse after a two-year separation, and common law spouses must live together in a marriage-like relationship for at least two years before they are considered spouses, it should be rare for anyone to have two spouses for succession law purposes.

Young v. Abercrombie

Donald William Abercrombie had two children, Kim Young and Barry Abercrombie. He made a will on November 19, 1981 in which he left his estate to be divided between his two children. If either died before him, the deceased child’s share would go to that child’s “issue per stirpes.”

In October, 2004, after his son Barry Abercrombie was diagnosed with Alzheimer’s disease, Donald Abercrombie made a codicil to allow his daughter Kim Young to manage the money he left to his son Barry Abercrombie. Unfortunately, he wrote his own codicil instead of getting it done by a lawyer. The clause read,

Should either of my children become incapacitated due to illness or accident it is my instruction that my Trustee invest my incapacitated child’s share of my estate into investments or a form of annuity. My Trustee shall have the sole discretion to invest monies and advance monies as she or he she sees fit.

In all other respects I confirm this will.

After Donald Abercrombie’s death, Kim Young invested one-half of the estate, almost $600,000, for her brother.

When Barry Abercrombie died in 2007, there was still a significant amount of money left from the funds his sister invested for him.

The problem with codicil Donald Abercrombie wrote was that it didn’t say what would happen to any funds left if Donald Abercrombie died before the money was spent on him.

Kim Young, as the executor of her father’s will, brought an application to court to determine what should happen to the remaining funds.

In Young v. Abercrombie, 2008 BCSC 389, Madam Justice Dorgan considered two possibilities.

One possible interpretation is that the codicil didn’t really change the distribution in the will. Donald Abercrombie was entitled to one-half of the estate on his father’s death. In legal terms, his half-interest vested absolutely in him when his father died. If this interpretation were correct, then the funds will go to his estate and pass under his will to his wife.

The other possible interpretation is that Donald Abercrombie’s will and codicil did not completely dispose of his estate. Under this interpretation, Barry Abercrombie was only entitled to those funds paid to him from the half of the estate invested for him. Any remaining funds remained an un-disposed portion of Donald Abercrombie’s estate. If this interpretation were correct, under the intestate distribution provisions in British Columbia, one half of the remaining funds would go to Barry Abercrombie’s children, and the other half would go to Kim Young. In effect Kim Young would get about three-quarters of her father’s estate, while Barry Abercrombie and his family would end up with about one quarter.

Madam Justice Dorgan held that the first interpretation is correct. Barry Abercrombie became entitled to one-half of his father’s estate on his father's death.

In reaching her conclusion, the judge considered the overall scheme of the division under the will, which gave half to each child or child’s children if the child died before Donald Abercrombie. She also closely examined the language of the codicil which used the words, “incapacitated child’s share.” The wording implied that the share was vested.

Finally, Madam Justice Dorgan applied the presumption of law that if a will can be reasonably interpreted in two ways, one of which disposes of the entire estate, and another which leaves part of it un-disposed, the court should interpret the will in the way that avoids intestacy.

Accordingly, Barry Abercrombie’s widow was entitled to the remaining funds. She advised the court that she intended to share those funds with their children.

When Does a Common Law Relationship End?

About eight years ago, the British Columbia legislature amended the definition of spouse in a number of different laws to give common law spouses similar rights to married spouses on the death of one of the spouses. But, unlike married spouses, common law spouses can’t divorce each other. This raises the question about when do common law spouses cease to be common law spouses.

In Gosbjorn v. Hadley, 2008 BCSC 219, Christine Gosbjorn lived in a marriage-like relationship with Terrance George Krompocker for twelve years. Mr. Krompocker had two adult children from his first marriage.

Ms. Gosbjorn and Mr. Krompocker had some difficulties in their relationship, and on February 18, 2006, Ms. Gosbjorn moved out of the house they owned together, and into a basement suite. She took some, but not all, of her possessions with her.

When they separated, Mr. Krompocker suggested to some people that the separation was temporary, and to others that it was permanent.

On February 24, 2006—six days after Ms. Gosbjorn moved out of the house—Mr. Krompocker died tragically.

He did not have a will.

Under Part 10 of the Estate Administration Act, if Ms. Gosbjorn was Mr. Krompocker’s common law spouse at the time of his death, she would be entitled to the first $65,000 and one-half of the balance of Mr. Krompocker’s estate. She would also be entitled to a life-interest in his share of the matrimonial home, and to the household furnishings. Mr. Krompocker’s children would be entitled to the rest.

If Ms. Gosbjorn was not Mr. Krompocker’s common law spouse, then his children would be entitled to his whole estate.

Under the Estate Administration Act, the definition of spouse in section 1 includes a common law spouse. The definition of common law spouse includes “a person who has lived and cohabited with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for a period of at least 2 years immediately before the other person's death.”

Mr. Krompocker’s children argued that because he and Ms. Gosbjorn had separated before Mr. Krompocker died, she was not his common law spouse immediately before his death.

Ms. Gosbjorn argued that provisions of the Charter of Rights required the court to interpret the legislation in a way that treats legally married spouses the same way as common law spouses. She pointed to section 98 of the Estate Administration Act, which provides that unless the court orders otherwise, a spouse who had been separated for more than a year from the deceased was not entitled to a share of the estate of a person dying without a will. She argued that unless a common law spouse who had been separated from the deceased for less than one year is entitled to a share of the estate of the deceased, the effect would be to discriminate against common law spouses.

Madam Justice Gray distinguished between common law spouses who had merely separated, and those whose common law relationship had ended. Common law spouses who had ended their relationship are comparable to divorced spouses. Neither a common law spouse whose relationship had ended within one year of the deceased’s death, or a spouse who was divorced within a year of the deceased’s death, are entitled to a share of the deceased’s estate if the deceased did not have a will.

How do you determine if when the relationship has ended? Madam Justice Gray wrote that, “parties cease to live and cohabit in a marriage-like relationship when either party regards the relationship to be at an end, and by his or her conduct, demonstrates in a convincing manner that this particular state of mind is a settled one.”

In this case Madam Justice Gray found that “neither Mr. Krompocker nor Ms. Gosbjorn demonstrated that he or she had a settled intention to end the relationship.” Accordingly, Ms. Gosbjorn continued to live in a marriage-like relationship with Mr. Krompocker up to his death despite her move to a basement suite the week before his death.

Ms. Gosbjorn is entitled to a share of Mr. Krompocker's estate.

Kirkwood v. MacMillan

Were two people who were in a long term exclusive romantic relationship, but had not ever lived together, nor shared their money, living in a marriage-like relationship? This was the issue in the recent Supreme Court of British Columbia case Kirkwood v. MacMillan, 2008 BCSC 91.

Donald Kirkwood died without a will in October, 2005. He was not married, and he had no children. He had been in an exclusive relationship with Bonnie MacMillan for several years.

If Ms. MacMillan “lived and co-habited” with Donald Kirkwood “in a marriage-like relationship” for at least two years immediately before his death, she would be entitled as his common law spouse to his estate under Part 10 of the Estate Administration Act, RSBC 1996, c. 122.

If not, Donald Kirkwood’s estate would go to his brother, Kenneth Kirkwood.

Mr. Justice Bernard held that Ms. MacMillan and Mr. Donald Kirkwood did not live in a marriage-like relationship. He found there to be an “absence of economic dependence, of a sharing and a commitment to a common principal residence, and of a general recognition that the defendant [Ms. MacMillan] and the deceased were part of a family unit.” These findings were fatal to Ms. MacMillan’s claim.

Mr. Justice Bernard, quoting Mr. Justice Parrett in Harris v. Wille Estate, 2001 BCSC 143, said “the court should be very slow to impose on parties commitments which by their conduct they have clearly not made.”

Donald Kirkwood’s estate will go to his brother.

Austin v. Goerz

In British Columbia, if someone dies without a will, his or her common law spouse is entitled to share in the estate. The applicable statute, the Estate Administration Act, RSBC 1996, c. 122, defines common law spouse in s. 1 as either:

(a) a person who is united to another person by a marriage that, although not a legal marriage, is valid by common law, or
(b) a person who has lived and cohabited with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for a period of at least 2 years immediately before the other person's death….”

The Wills Variation Act has a similar (but not quite identical) definition of common law spouse.

If a couple lived together for more than two years, intending to marry, and presenting themselves as living in a marriage-like relationship, but kept their financial affairs separate, were they a common-law couple as defined in the Estate Administration Act?

Madam Justice Ballance considered this issue in Austin v. Goerz, 2006 BCSC 2005, a case she decided in June, 2006. Linda Austin, who was the legally married, but separated wife of the late James Austin, argued that Catherine Goerz was not James Austin’s common law spouse.

Ms. Austin based her argument, in part, on the fact that Catherine Goerz and James Austin had kept their finances separate, and were not financially dependant on each other.

Madam Justice Ballance rejected Linda Austin’s argument that a couple must be financial interdependent to meet the legal criteria of common law spouses. She wrote:

[15] The authorities no longer support the principle that the absence of financial maintenance or dependence is conclusive that a relationship does not qualify as a common-law relationship under section 1(b). I suggest that such a principle would be untenable in the world of modern marriages and relationships. There are, as we know, not a small number of marriages today where lawfully married spouses have retained completely independent financial arrangements throughout the entire course of their marriage. The term “marriage-like” must be given a broad interpretation to reflect societal norms: it incorporates relationships which have a component of financial intertwining or dependence and those that do not. I reject utterly the contention that the term "marriage-like" was meant to continue to impose a mandatory component of maintenance or financial contribution by the deceased in the definition of "common-law spouse" under section 1(b), as urged by plaintiff’s counsel.
….
[17] I find on the evidence that the mutual intentions of the deceased and Ms. Goerz were that they were in a committed, marriage-like relationship for all purposes up until James Austin’s death. To the extent that resorting to evidence of objective factors need be made, and I think they need not, it is overwhelmingly supportive of that intention, despite the lack of sharing of expenses and commingling of assets.

The British Columbia Court of Appeal upheld this decision at 2007 BCCA 586.

The Rule Against Accumulations and the Law of Unintended Consequences

Imagine setting aside some money. Then investing it. The income is paid to a couple of relatives. Forever.

You are not supposed to be able to do that under British Columbia law. But, that is what I think happened as a result of some quirks in some relatively obscure laws in a recent decision: The Canada Trust Company v. Shaver, 2007 BCSC 54.

Benjamin John Mott signed his last Will and Testament on March 16, 2004. In his Will he appointed Canada Trust as a trustee to hold funds from his estate in a trust. He directed Canada Trust to payout 60% of the income from the trust funds to three friends and to the “Salvation Army Kelowna Community Church.” Mr. Mott provided that when each of the three fiends died, Canada Trust would to add the friend’s share of the income to the Salvation Army’s share. Eventually, the Salvation Army would receive 60% of the income. He directed Canada Trust to retain the other 40% of the income in the trust. (Actually, Mr. Mott directed Canada Trust to retain at least 40%, and more if the inflation rate is higher.) Mr. Mott did not provide for any distribution of the capital of the trust.

After Mr. Mott died, Canada Trust made an application to the Supreme Court of British Columbia to decide several issues.

The court had to consider whether Mr. Mott could create a trust in which the trustee would hold the capital in trust forever.

The usual rule under British Columbia is that you cannot use a trust to keep property out of circulation indefinitely. This is called the rule against inalienability. I won’t get into all of the technicalities of British Columbia’s rules against inalienability or perpetuities, but British Columbia’s Perpetuity Act, RSBC 1996, c. 358, modifies and relaxes in some respects the traditional rule that you cannot keep property in a trust for longer than the lifetime of a person alive (or conceived) at the beginning of the trust plus twenty-one years.

But there is an exception for charitable gifts. The rule against inalienability does not apply to a gift that is charitable. In this case Madam Justice Homes held that the gift of income in perpetuity to the Salvation Army was charitable, even though part of the income was given to Mr. Mott’s three friends during their lifetimes. Because the trust was charitable, the rule against alienability did not make the trust invalid. In short, Mr. Mott could direct that Canada Trust invest funds from his estate in the trust forever, because income from the trust would be used to benefit a charity.

The court also had to consider whether the provision requiring Canada Trust to accumulate 40% of the income was valid. Under s. 25(1) of the Perpetuity Act, you can provide for the accumulation of income in a trust if the accumulated income is or may be disposed of within the perpetuity period (a life in being plus 21 years, or the alternate period of 80 years.) In other words, you can allow the income of a trust to be added to the capital of the trust for a while, but not forever.

The rule against accumulations beyond the allowable period applies to charitable gifts as well as to gifts that are not charitable. In this case Mr. Mott’s direction to accumulate 40% of the income forever was invalid.

The next question is what happens to the 40% if the direction to accumulate is invalid?

Madam Justice Holmes held that the trustees could allow some income to be added to the capital to the extent that doing so preserved the value of the capital against inflation.

But, after allowing for some income to be used to preserve the value of the capital, the court ordered that the rest of the 40% of the income be paid to Mr. Mott’s intestate heirs, or in other words, to the people who would inherit if Mr. Mott died without a Will.

In arriving at her decision that the 40% of the income will go to the intestate heirs, Madam Justice Holmes rejected Canada Trust’s proposed charitable scheme for the 40% of the income. This is called a cy-pres (as near as possible) scheme, which gives the court the ability to apply gifts to charity if there is an invalid direction to accumulate, and the court finds that the testator of the Will or settlor of the trust had a general charitable intent. In this case Madam Justice Holmes found that Mr. Mott wanted to specifically benefit the Salvation Army, and he did not have a general charitable intent allowing the court to apply the income cy-pres.

What are the implications? If I have understood the result correctly, Mr. Mott’s next of kin, who include two sons of a cousin of Mr. Mott, are entitled to receive 40% of the income (subject to an adjustment to preserve the capital of the trust) forever. After they are gone, their estates will be entitled to the income for thousands of years. I hope they have a very good estate plan.

What do "Testator," "Testate," and "Intestate" Mean?

A "testator" is someone who has made a will. If you have made your will, you are the testator of your will.

If you are a woman, you may call yourself the "testatrix," but I prefer to use the term "testator" for either a man or a woman. The reason I like to just say "testator" is not so much a matter of political correctness, as one of pronunciation. I find it easier to say "testator" than "testatrix." Try saying each one three times quickly.

When someone (whether man or woman) dies having made a valid will, he or she has died "testate." If he or she did not have a valid will in effect at death, he or she died "intestate." "Testate" means with a valid will, and "intestate" means without a valid will.

What if the deceased had a valid will that disposed of part of his or her assets, but not everything? Supposing the testator's will left his house to his children, but the did not deal with his other assets. This is called a "partial intestacy."

Dying Without a Will in British Columbia

[This post is out of date, and the rules for distribution of intestate estates in British Columbia were changed significantly when the Wills, Estates and Succession Act came into effect on March 31, 2014. The rules referred to below will only apply if the person who died without a will died before March 31, 2014.]

When someone dies without a will, we say that he or she died "intestate." It is also possible for someone to die with a will that does not dispose of all of his or her estate. If you say that half of your estate goes to your spouse, but don't say what happens to the other half, we call this a "partial intestacy."

I have heard advertisements on the radio for will kits in which the announcer says that if you do not have a will when you die, the government decides who gets your estate. I find this a little misleading. The advertisements sound as if a civil servant will arbitrarily decide what to do with your assets. That is not how it works. Rather there are rules set out in legislation for determining who gets what when there is no will.

Each province in Canada has its own laws for determining who gets what when someone does not have a will, and these laws vary significantly from province to province. In some cases the laws of more than one province may apply to the deceased’s estate; for example, the laws of both Alberta and British Columbia may apply where a resident of British Columbia who owns land in Alberta dies without leaving a will.

The rules in British Columbia are set out in the Part 10 of the Estate Administration Act, RSBC 1996, c. 122.

Under the Estate Administration Act, when a person dies without a will leaving a spouse, but no children or grandchildren or other issue (great grandchildren etc.), that person’s entire estate goes to the spouse. The word "spouse" is defined in section 1 to include a legally married spouse and a common law spouse, defined as a person who "lived and cohabited with the deceased in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for a period of at least 2 years ending not earlier than one year before the death."

If a legally married spouse was separated from the deceased for at least a year immediately prior to the deceased’s death, and they intended to live separate and apart, the spouse will not receive anything unless the spouse applies to court, in which case the court can decide on the spouse’s share.

Where a person dies without a will leaving a spouse and any issue (such as children, grandchildren and great grandchildren), the spouse receives the first $65,000 and a portion of the rest of the estate. The spouse’s portion of the rest of the estate is one-half, if the deceased left only one child, or one-third if the deceased left more than one child. But, for the purpose of determining the spouse's share, a child who has died before his or her deceased parent is counted if that child left issue who are living at the intestate parent's death. The spouse also has the right to live in the matrimonial home and use the household furnishings for the rest of the spouse’s life.

The children of a person who dies without a will share equally that part of the estate that does not go to the spouse. If there is no spouse, the children share the whole of the estate. There are exceptions where a child has died before the person who dies without a will. That deceased child’s own children share the portion of the estate that the deceased child would have inherited if he or she were still alive. (Similarly, great grandchildren and other issue stand in the place of their deceased parents.) In other words, the portion of the deceased's estate that does not go to the spouse goes to the deceased's issue per stirpes.

Where there is no spouse, children, grandchildren, or other issue, the deceased’s estate goes to his or her parents, unless both have died. If there are no parents, the estate goes to brothers and sisters (with the children of any deceased brother or sister receiving that deceased brother’s or sister’s share). There are further rules providing that the estate of a person who dies without a will goes to the next of kin where he or she does not leave a spouse, children, other lineal descendants, parents, or any brothers and sisters.

If you die without a will, someone will probably have to apply to court to be appointed to administer your affairs. Usually, the court will give preference to a spouse or next of kin.

A will is not the only way to dispose of your assets on death. If you have designated beneficiaries of your life insurance policies, Registered Retirement Savings Plans or Registered Retirement Income Funds, the proceeds may flow to the designated beneficiaries even if you do not have a will. Similarly, assets held in a joint tenancy may pass to the survivor on your death outside of your estate. You can also hold assets in a trust that provides who receives the assets on your death.

But, it still makes good sense to have a will in place when you die so that you can tailor your complete estate plan to suit your family's needs.