The Law of Intestacy is a fundamental element of estates law which governs situations in which a person dies without having written a valid Will. The details of intestate succession differ between jurisdictions, but the general principles often overlap. In most jurisdictions, a deceased’s spouse and/or children take precedent. If a deceased dies without either a spouse or children, then the law of intestacy usually outlines a rank of priority involving parents, siblings, and nieces/nephews, and other “next of kin.” If a deceased leaves no family behind whatsoever, then the value of their estate is taken by the government, or in more formal language, “escheats to the Crown.”

Sihota Estate (Re), 2022 BCSC 61 is the most recent intestacy decision in Canada. In this case, the deceased passed away on August 9, 2021, without leaving a Will. He had never married and had no children. His only sibling (also without children) and parents had predeceased him, creating a complicated intestacy situation. The Applicants in this matter were the deceased’s two surviving uncles, one being his paternal uncle and the other, his maternal uncle. The Respondents, meanwhile, were 12 first cousins of the deceased, surviving children of his mother’s siblings, who had likewise predeceased him.

The uncles sought a declaration that they alone were entitled to the deceased’s estate, with the 12 cousins not to receive a share. The Court noted that the uncles’ position would have been correct under BC’s former “consanguinity” intestacy regime, in which determination of “next of kin” stopped after finding the most closely related by blood (the uncles). However, a new “parentellic” regime was adopted by the BC legislature in 2009, which now favoured the cousins’ position, that they ought also to share in the deceased’s estate.

Applying sections 23 and 24 of the Wills, Estates and Succession Act, SBC 2009, c 13 [WESA], to a situation as outlined above, the descendants of a deceased’s grandparents are to share equally in the estate, on a per stirpes basis. This resulted in the estate being divided into two shares, with the paternal uncle receiving one share, with the other share divided unevenly between the maternal uncle and 12 cousins. Ironically, the paternal uncle lost nothing in the change of intestacy regimes, but the maternal uncle lost significantly.

In contrast, if this case were decided in Ontario, the Applicants’ position would have been correct, as Ontario still operates under a consanguinity regime in such situations. In fact, section 47(6) of Ontario’s Succession Law Reform Act, R.S.O. 1990, c. S.26 [SLRA], concerning “next of kin” provisions, is nearly identical to BC’s former provisions on the same issue: 

Next of Kin

47(6) Where a person dies intestate in respect of property and there is no surviving spouse, issue, parent, brother, sister, nephew or niece, the property shall be distributed among the next of kin of equal degree of consanguinity to the intestate equally without representation.

It remains to be seen whether Ontario will likewise adopt a similar parentellic intestacy regime, especially considering the numerous changes made to the SLRA over the past year. It is certainly worth debating, as had been in BC prior to their intestacy reform, which system is more equitable to surviving relatives of a deceased in such exceptional circumstances as in this case. It also emphasizes the importance of leaving behind a Will, so as to avoid such complicated situations from arising in the first place.

Thanks for reading!

Fred Tonelli