Determining intestate heirs can be a tricky business. Stoyan v. Johnson, a 2021 decision of Justice Dietrich of the Superior Court of Justice/Toronto Estates List, is a great illustration of the evidentiary challenges that may be posed by a party seeking to prove heirship in the absence of documentary evidence.

In this case, the applicant sought to prove that she was the daughter of the first cousin of the Deceased. The case hinged on whether one Stella Stoyan was the sister of the Deceased’s mother. The evidentiary record was, at best, patchy. After an exhaustive review of the evidence, Justice Dietrich noted:

“Perhaps the most vexing question with respect to the evidence in this matter is this – why is there not a shred of documentary evidence with respect to [Stella Stoyan’s] vital statistics? …neither of them has produced a birth certificate, a marriage certificate, immigration papers, a Certificate of Canadian Citizenship, a Landed Immigrant card, a Greek or Canadian  passport, a death certificate (or even a date of death, if indeed she has died), or an obituary…It is also curious that the applicant’s family clipped the obituaries for their “grandaunts” Mitra and Tena but have no obituary to show for their grandmother’s death. Her obituary would likely have listed her husband, her children and any child who predeceased her, as well as her siblings….Unfortunately, that evidence is not before the court.

In the absence of clear evidence as to heirship, the Court could either direct the distribution of the estate in accordance with Part II of the Succession Law Reform Act or issue a declaration, by way of a Benjamin Order, that heirs who would take on the Deceased’s intestacy, who cannot be located, or whose death cannot be confirmed by a death certificate, have predeceased the deceased.

A Benjamin Order (first referenced in Neville v. Benjamin, a turn of the century UK case) does not grant a declaration of death; indeed, the lost beneficiary retains the right to come forward at a later date and claim what is rightfully his or hers if any property remains undistributed.

In order to grant a Benjamin Order, the Court considers whether the estate trustee had made “full inquiries” by taking such steps as ascertaining such things as: what evidence exists, how long has it been since the testator’s death, what specific steps have been taken and by whom, and the size of the estate.

In Stoyan, Justice Dietrich pointed out that the same problems that doomed the heirship application bedeviled any determination of who would be the ultimate next of kin if a Benjamin Order were issued. As such, she declined to grant a Benjamin Order as being premature, given the “many unanswered questions respecting the Deceased’s next of kin and the rightful heirs to the Estate.”

Thanks for reading,

David Morgan Smith