A Closer Look at Rights of (Great) Nieces and Nephews on Intestacy

September 21, 2021 Nick Esterbauer Intestacy Tags: , , , , , 0 Comments

Estate lawyers are well aware that, in the event that a person dies without a will, is not survived by a spouse, children, or parents, the next in line to inherit are the deceased’s siblings.  Furthermore, where one or more of the person’s siblings have predeceased them, the children of those predeceasing siblings are entitled to a share of the deceased’s assets on intestacy.  However, what happens in a scenario where a person is survived by one or more siblings, but predeceased by other siblings and their children, who themselves have left children (great nieces or nephews of the deceased)?

Subsection 47(4) of the Succession Law Reform Act reads:

“Where a person dies intestate in respect of property and there is no surviving spouse, issue or parent, the property shall be distributed among the surviving brothers and sisters of the intestate equally, and if any brother or sister predeceases the intestate, the share of the deceased brother or sister shall be distributed among his or her children equally.”

Subsection 47(5) further stipulates:

“Where a person dies intestate in respect of property and there is no surviving spouse, issue, parent, brother or sister, the property shall be distributed among the nephews and nieces of the intestate equally without representation.”

The issue in considering the effect of these provisions is that it may be somewhat unclear whether the reference in 47(5) to “without representation” applies in situations where the intestate is survived by siblings, as the statement that the person is not survived by any brother or sister is not accurate.  “Without representation” in such instances implies that the issue of a person, in this case a niece or nephew, will not benefit in circumstances where they predecease the deceased.  While subsection 47(4) does not include the wording “without representation”, it does make specific reference to “children” rather than “issue” (like we see in other subsections relating to the rights of predeceasing children of the intestate).

A 1995 decision of the Ontario Court of Justice provides guidance on this specific scenario.  In Kiehn v Murdoch, 9 ETR (2d) 76, Justice Flinn considered the meaning and purpose of subsection 47(4) of the Succession Law Reform Act on an application for the opinion, advice, and direction of the court, finding as follows (at paras 9-10):

“In these circumstances, subs. (4) appears to be very clear when applied to the estate…[The intestate] did not leave surviving any spouse, issue or parent. Therefore, his property should be distributed among the surviving brothers and sisters equally, with the further provision that if any brother or sister predeceases the intestate, the share of that deceased brother or sister should go to the children of the deceased brother or sister…[T]he court finds that the children of the deceased children of the deceased brothers and sisters of [the intestate], that is his grandnephews and grandnieces, are excluded by the operation of s. 47(4).”

Because Justice Flinn found the wording of subsection 47(4) to be clear, other subsections of the Succession Law Reform Act did not need to be considered in determining the limitations of rights of great nieces and nephews in such circumstances.

Thanks for reading,

Nick Esterbauer

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