LAW 582: WILLS

HOPP

INTRODUCTION

1. Intestate Estates

Intestate Succession Act:

  • Governs what happens to property when a person dies without a will, with an invalid will, or when the entire property isn’t disposed of by an existing will
  • Section 12: whatever the will does not dispose of is distributed according to the Act
  • Section 1(a): estates include both real and personal property
  • Section 1(b): issue includes all lineal descendants
  • Section 1(c): net value is the value of the estate after payment of debts, and includes property of the estate wherever it is situated, both inside and outside of Alberta
  • Important provision because if only property in Alberta was considered, the surviving spouse could claim the spousal preferred share in every province that the intestate had property (and potentially scoop the entire estate)
  • However, spouse can claim the difference if another province has a preferred share higher than Alberta
  • Section 2: if the intestate dies leaving a spouse or AIP (see Adult Interdependent Relationships Act), but no issue, then the entire estate goes to the surviving spouse or AIP
  • Section 3: if the intestate dies leaving a spouse/AIP and issue:
  • Section 3(1)(a): if the net value of the estate is less than or equal to $40 000, then the entire estate goes to the surviving spouse/AIP
  • Section 3(1)(b): if the net value of the estate is greater than $40 000, the surviving spouse/AIP is entitled to a preferred share of $40 000 and has a charge on the estate for that amount
  • After the spousal preferred share is paid out, count how many children there are:
  • If there is one child, then the surviving spouse/AIP gets half the residue of the estate and the child gets the other half (s. 3(2)(a))
  • If there is more than one child, 1/3 of the residue of the estate goes to the surviving spouse/AIP and the remaining 2/3 is distributed among the children, per stirpes (i.e., per branch)
  • Section 3(3): treat grandchild of intestate as a child for purposes of distribution
  • Section 3.1(1): if the intestate dies leaving both a surviving spouse and AIP, then whoever s/he was living with last will take the spousal preferred share, to the exclusion of the other
  • Section 3.1(2): if neither of them were living with the intestate at the time of his or her death, the whoever was living with him/her last will take to the exclusion of the other
  • Note: the other has a remedy under dependant’s relief
  • Section 3.2: if a person takes under this Act as an AIP, s/he is not entitled to take in any other capacity (i.e., cannot take both as an AIP and as a child)
  • Note: need an AIP agreement between parent and child
  • Section 4: per stirpes distribution
  • Section 5: if the intestate dies with no spouse/AIP or issue, the intestate’s estate is split equally between his/her father and mother
  • If either the father or mother is dead, then the surviving parent will take the entire estate
  • Section 6: if the intestate dies with no spouse/AIP, issue or parents, then the estate is split equally between his/her brothers and sisters
  • Representation is allowed (i.e., nieces and nephews can take if their parent has died)
  • Section 7: if the intestate dies with no spouse/AIP, issue, parents or siblings, then the intestate’s estate is split equally among his nieces and nephews
  • No representation is allowed—per capita distribution
  • Section 8: if intestate dies with no spouse/AIP, issue, parents, siblings or nieces/nephews, then the intestate’s estate is split equally among his next of kin
  • No representation allowed—split between maternal and paternal relatives on a per capita basis
  • Section 9: determine next of kin by counting from deceased to the nearest common relative and then to the relative
  • Half relatives will be treated as full relatives
  • Section 10: posthumous births will inherit the same as relatives who were alive at the date of the deceased’s death
  • Section 11: if a parent has died wholly intestate and has made a large advance to one child before his or her death, this advance should be taken into account when distributing the estate
  • Add the advance back into the estate, divide the estate equally and the deduct the advance from the share of the child to whom the advance was made
  • If the advance was bigger than the child’s share, then the estate is simply divided between the remaining children, without adding the advance back in
  • Section 13: if the intestate dies leaving a surviving spouse that (i) had left the intestate; (ii) was living in adultery (iii) at the time of the intestate’s death, then that person shall take no part in the intestate’s estate
  • Doesn’t apply to AIP
  • Would still have a dependant’s relief remedy, but the Court can consider conduct under the DRA

Wills and Succession Act, ss. 58-70, 109-112:

  • Section 1(1)(e): descendants = all lineal descendants of an individual through all generations
  • Section 58(1)(b): net value includes property both within and outside Alberta
  • Section 58(2): references to child, descendant or kindred include posthumous births
  • Section 59: specifies that distribution of intestate estates shall occur in accordance with this Part (Part 3: Distribution of Intestate Estates)
  • Section 60: if intestate leaves a spouse/AIP but no descendants, the entire estate goes to the spouse/AIP
  • Section 61(1)(a): if the intestate leaves a spouse/AIP and descendants, but all the descendants are also descendants of the surviving spouse/AIP, then the entire estate goes to the spouse/AIP
  • Section 61(1)(b): if not all of the surviving descendants are also descendants of the surviving spouse/AIP:
  • (i) the spouse/AIP is entitled to the prescribed amount or 50% of the net value of the estate (whichever is greater)
  • (ii) the residue shall be distributed among the descendants, per stirpes (see s. 66)
  • Section 62: if intestate leaves both a spouse and an AIP, they will share equally (either split the entire estate or split the preferred share)
  • They can also still apply for dependant’s relief
  • Section 63(1): if the surviving spouse had been living apart from the intestate for 2 years prior to his/her death, if they had been parties to a declaration of irreoncilability or a separation agreement, then the spouse is deemed to have predeceased the intestate
  • Section 63(2): does not apply if they reconciled before the intestate’s death
  • If excluded under this section, can still apply for dependant’s relief
  • Section 64: an individual who claims as an AIP cannot claim in any other capacity
  • Section 65(a): if the intestate does not leave a spouse or AIP, then the estate will be distributed to the descendants (per stirpes distribution, see s. 66)
  • Section 65(b): if there are no descendants, the estate will be distributed in accordance with s. 67 (parentelic distribution—parents, grandparents etc)
  • Section 66: per stirpes distribution (note: descendants include nieces and nephews)
  • A higher representative of the branch will take to the exclusion of anyone else in the branch
  • Section 67(1): parents or descendants of parents (in equal shares), grandparents or descendants of grandparents (in equal shares on maternal/paternal side), great-grandparents or descendants of great-grandparents etc
  • Section 67(2): relatives of the 5th degree or greater cannot inherit—deemed to have predeceased the intestate
  • Does not affect the right to make a claim under the Unclaimed Personal Property and Vested Property Act (s. 69(b))
  • Section 68(1): determine kinship by counting up from intestate to nearest common ancestor and then down to relative
  • Section 68(2): half-blood relatives inherit the same as full-blood relatives
  • Section 69(a): if no one is entitled to take the intestate’s estate, the Unclaimed Personal Property and Vested Property Act applies
  • Section 70: only applies to deaths occurring after 1 January 2012
  • Section 109(2): if a prospective beneficiary received a transfer from the deceased during the deceased’s life, an applicant alleging that it was intended to be an advance of the beneficiary’s inheritance can make an application Court
  • Section 109(1)(a): applicant = personal representative or a beneficiary
  • Section 109(1)(b): prospective beneficiary = spouse, AIP or descendant
  • Section 109(3): Court can consider the deceased’s intention by looking at any evidence
  • Section 109(5): if an advance is found, the advance is added back in, the net value is determined and divided between beneficiaries and the advancee’s advance is subtracted from his or her share
  • If the advance exceeds his/her share, s/he is excluded entirely
  • Section 109(6): if the advancee predeceases the intestate, the transfer is not presumed to be an advance
  • Section 109(7): value of the transferred property is the value at the time of transfer
  • Section 110(1): no presumption that a transfer to a child is an advance
  • Section 110(2): no requirement that if a transfer does occur it must be deducted from the child’s share
  • Only if an advance is found

Intestate Estate Differences Between ISA and WSA :

  • If there is both a surviving spouse and AIP:
  • ISA: one takes to the exclusion of the other (s. 3.1(1))
  • WSA: they share equally (s. 62)
  • If there is a surviving spouse/AIP and issue and/or descendants:
  • ISA: the spouse/AIP gets a $40 000 preferred share and they split the residue 1/3-2/3 (or half and half if there is only one child) (s. 3)
  • WSA: if all the descendants are also descendants of the spouse/AIP, the spouse/AIP gets the whole estate. If they are not, the spouse/AIP gets 50% of the estate and the rest is distributed to the descendants (s. 61)
  • Explicit distribution to grandparents in WSA (s. 67(1)(c))
  • In ISA, they could take under the next of kin provision (s. 8)
  • Under the WSA, distribution to everyone is per stirpes (s. 66)
  • ISA: nephews/nieces, parents etc take per capita (ss. 7-8)
  • WSA: next of kin must be within 5th degree (s. 68)
  • ISA: no stipulation (s. 9)
  • WSA: advances to any “prospective beneficiary” (spouse, AIP or descendant) considered (s. 109(2))
  • ISA: advances only to children considered (s. 11)
  • WSA: addresses the issue of whether the surviving spouse/AIP and the deceased had been separated at the date of the deceased’s death (s. 63)
  • ISA: does not address this issue

2. Dependents’ Relief

Dependents Relief Act:

  • Section 1(1)(b): child includes a child born after the deceased’s death and a child born out of wedlock
  • Section 1(1)(d): dependant means:
  • The spouse of the deceased
  • The AIP of the deceased,
  • A child of the deceased who is under 18 at the time of the deceased’s death, and
  • A child of the deceased who is over 18 at the time of the deceased’s death and unable to earn a livelihood because of a mental or physical disability
  • Must have had the disability at the time of the death—cannot claim under DRA for subsequently obtaining a disability (Hopp thinks this is a gap—a subsequently disabled child should be provided for if the estate is not yet distributed)
  • Section 3(1): if the will or intestacy does not provide adequate provision for proper maintenance and support of the deceased’s dependants, an application can be made by or on behalf of the dependants for support from the estate
  • Note: adequate and proper are not the same thing
  • Section 3(2): judge can make any inquiries s/he wishes, accept any evidence s/he wishes and direct that certain types of evidence be submitted
  • S/he can also consider the deceased’s reasons for making certain dispositions or for not making adequate provision, including statements made by the deceased in writing (s. 3(2)(c))
  • Section 3(3): when considering such a statement, the judge can decide its accuracy
  • Section 3(5): when making an order for maintenance and support, the judge can consider the conduct of the dependant
  • Section 4: the judge can take the dependant’s dower rights into account (i.e., can make an order for maintenance and support contingent on the dependant relinquishing his/her dower rights)
  • Section 11: the order has effect from the date of death, and the will must be revised accordingly (i.e., Court rewrites will)
  • Section 12: if the testator entered into a contract during his lifetime—in good faith and for valuable consideration—to dispose of property in a certain way upon his death, and then does so in the will, the court cannot make an order affecting this property
  • Exception: in the opinion of the judge, the value of the property exceeds the consideration received by the testator
  • Section 13(2): the Public Trustee can make an application for maintenance and support on behalf of a minor or a represented adult
  • Public Trustee will know when to make such an application because they will receive notice of an application for a grant of probate whenever there is a minor or a represented adult interested in an estate (Administration of Estates Act, s. 7)
  • Section 14: if the deceased was living with a spouse/AIP at the date of his death and any minor child or incapacitated adult child is living with the spouse/AIP after the death and the Public Trustee is satisfied that the child is receiving adequate support, then there is no obligation on the Public Trustee to apply for relief on the child’s behalf
  • Section 15: must apply for relief within 6 months of grant of probate
  • Section 17: personal representative will be liable for any loss if s/he distributes the estate before the 6 months has elapsed (unless s/he has consent from all the dependant’s or authorization from the court)
  • Section 16: the court cannot make an order unless everyone who is entitled to receive notice under the Surrogate Rules has in fact received it
  • Section 21: can appeal to ABCA—they can change the order even if ABQB didn’t make any error in law or principle

Wills and Succession Act, ss. 72-108:

  • Section 72(b): a family member is
  • Spouse
  • Section 72(d): includes a party to a void or voidable marriage
  • AIP
  • Minor children
  • Posthumous children
  • Children who are over 18 but incapacitated (at time of deceased’s death)
  • Children who are 18-22 and full time students
  • Hopp: maybe not if child was well to do in his own right
  • Grandchildren/great-grandchildren who are under 18 and to whom the deceased acted as a parent
  • Section 73(2): the grandparent demonstrated a settled intention to treat the grandchild as his own child and if for at least 2 years preceding the grandparent’s death the grandchild’s primary home was with the grandparent and the grandparent provided the primary financial support for the grandchild
  • Section 75: a surviving spouse/AIP who is not registered on title is entitled to a 90 day possession of the family home after the death of the deceased
  • This right can be asserted against the estate
  • Section 88: a family member can apply for maintenance and support whether the deceased was testate or intestate
  • An “adequate order for proper maintenance and support” shall be made out of the estate
  • The order can be made for more than one family member
  • Section 89: application for support must be commenced within 6 months of grant of probate or administration
  • Or, as allowed by the court respecting property not yet distributed at time of application
  • Section 106: personal representative shall not distribute estate until the 6 months have expired
  • Otherwise, s/he is personally liable
  • Section 90: the following people can make an application:
  • Family member
  • If the family member is a minor:
  • His/her guardian
  • The Public Trustee
  • Section 91(3): not obligated to make an application when served with notice
  • Section 104(1): not obligated to make an application when satisfied that the minor is already receiving adequate support
  • Anyone entitled to do so under the Surrogate Rules
  • If the family member is a represented adult:
  • Trustee
  • Anyone entitled to do so under the Surrogate Rules
  • Section 91: sets out who must be served with notice of the application
  • Section 92: application is deemed to be made on behalf of all family members, unless the Court orders otherwise
  • If a family member is not given notice, s/he doesn’t lose the right to make an application
  • Section 93: sets out the matters the Court should consider on such an application
  • i.e., nature and duration of relationship, age and health of family member, ability of family member to contribute to his or her own support, legal obligations of the deceased etc
  • Note: no specific mention of dower rights, but might be considered part of family member’s ability to look after him/herself
  • Section 100: order has effect from the date of death and the will shall be changed accordingly (i.e., Court rewrites will)
  • Section 102: if the testator entered into a contract during his lifetime—in good faith and for valuable consideration—to dispose of property in a certain way upon his death, and then does so in the will, the court cannot make an order affecting this property
  • Exception: in the opinion of the judge, the value of the property exceeds the consideration received by the testator
  • Then, Court can deal with the difference
  • Section 103: cannot contract out of rights for maintenance and support
  • Section 104: the Public Trustee can make an application on behalf of a family member, but need not if he or she is satisfied that the family member is receiving adequate support
  • Hopp: must also be satisfied that family member will continue to receive adequate support
  • Section 105: no liability for decisions made under this Division in good faith
  • Section 108: this Division only applies to deaths occurring after 1 January 2012

Differences Between DRA and WSA:

  • Terminology:
  • DRA: dependant (s. 1(d))
  • WSA: family member (s. 72(b))
  • Who can apply?
  • DRA: spouse, AIP, child under 18 at date of deceased’s death or child over 18 who, at date of deceased’s death is unable, by reason of physical or mental disability, to earn a livelihood (s. 1(d))
  • WSA: those allowed under DRA + child who is 18-22 and a full time student, and a grandchild or great-grandchild for whom the deceased stood in the place of the parent (s. 72(b))
  • Dower rights
  • DRA: the dependant’s dower rights can be taken into account (s. 4)
  • WSA: dower rights are not specifically mentioned, but are probably included in the list of matters the court can consider when making an order (s. 93)
  • Contracting out of right to maintenance:
  • DRA: not specifically mentioned in the Act, but confirmed in the jurisprudence
  • WSA: specifically mentioned in s. 103
  • Application:
  • DRA: every dependent must make their own application (implicit), but the Court cannot make an order unless everyone who is entitled to notice under the Surrogate Rules has received it (s. 16)
  • WSA: deemed to be made on behalf of all family members (s. 92(1))
  • Temporary possession of the family home:
  • DRA: not mentioned
  • WSA: a surviving spouse or partner who is not listed on title is entitled to 90-day possession of the family home after the deceased’s death (s. 75)

3. Adult Interdependent Relationships