No-Fault Inheritance

November 4, 2015 Suzana Popovic-Montag Elder Law, Estate & Trust, Ethical Issues, Public Policy, Uncategorized Tags: , , , , 0 Comments

Public policy performs an important role in estate law. Among other things, it may remedy situations where the bequests contained in a will or pursuant to the laws of intestacy would lead to a result that offends Canadian values.

For instance, it is well settled in Ontario that someone who murders another person cannot benefit by inheriting their estate. They are also precluded from receiving any insurance proceeds. However, in common law Canada, depriving a murderer of such benefit (also known as the “common law slayer rule”) is as far as the Courts have been willing to go.

In contrast to civil law jurisdictions around the world (including the province of Quebec here at home, as well as many states in the United States) and subject to public policy considerations, common law Canada has stuck firmly by its system of no-fault inheritance.

The primary concern with having a no-fault inheritance regime is that we sometimes end up with absurd results. For example, imagine the child abandoned by one parent as an infant. Should that child die intestate as an adult without a spouse or children of their own, that same parent (if alive) could be entitled to either half or all of the estate.

Outside of common law Canada, this is traditionally where the doctrine of unworthiness to inherit has stepped in. In Quebec, these rules are codified in the Civil Code of Quebec.

Article 620 provides:

The following persons are unworthy of inheriting by operation of law:

(1) a person convicted of making an attempt on the life of the deceased;

(2) a person deprived of parental authority over his child, with the exemption for the child from the obligation to provide support, with respect to that child’s succession.

Article 621 adds:

The following persons may be declared unworthy of inheriting:

(1) a person guilty of cruelty towards the deceased or having otherwise behaved towards him in a seriously reprehensible manner;

(2) a person who has concealed, altered or destroyed in bad faith the will of the deceased;

(3) a person who has hindered the testator in the drawing up, amendment or revocation of his will.

Perhaps one of the most common uses of these rules has been as an alternative to undue influence claims. Undue influence is notoriously difficult to prove and often, while it is clear that there has been some influence and even some pretty reprehensible behaviour in caring for an aging parent, the claim falls short of reaching the higher standard of coercion.

In this way, the unworthy to inherit principle has been able to step in and look not only narrowly  at the influencer’s role in causing the will to be drafted but at the behaviour displayed towards the older person throughout their entire life. This widening of the net, so to speak, has been an important recourse in addressing the growing problem of elder abuse.

As discussed in my previous article, the U.S. has also moved towards the termination of inheritance rights for certain marital misconduct, including abandonment, abuse, and even adultery in some states. Whether this will be extended to non-spousal relationships, as is the case in most civil law jurisdictions, remains to be seen.

Thank you for reading.

Suzana Popovic-Montag

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