“The Gentlemen”: Primogeniture and Intestacies in Ontario

“The Gentlemen”: Primogeniture and Intestacies in Ontario

I started to watch “The Gentlemen”, the new television show on Netflix, this Easter weekend (I’m not done so no spoilers please!). 

The storyline starts with the death of a father in an aristocratic family.  To the surprise of everyone, the youngest son inherits the family estate (while the mother and the family dog were given a discretionary life interest of course).  This was the bombshell that starts it all during a dramatic scene where the father’s will was read to the family by the family lawyer.  The scene itself was not unlike some of the 19th century portraits on the subject: see here and here.

The will was a surprise to all because the family had followed the tradition of primogeniture for centuries.  The eldest son couldn’t believe that he didn’t inherit the family estate despite his problems with gambling and various other things that make the show a lively one.

Primogeniture is a law or custom whereby the first-born son inherits all or the majority of the parents’ estate. 

In Ontario, our inheritance laws do not have any preference for birth order or gender.   

The only preference, on an intestacy, occurs where the deceased died with a married spouse, known as the preferential share in section 45 of the Succession Law Reform Act.  In accordance with Part II of the Act, the inheritance flows to the deceased person’s married spouse (with a preferential share for the spouse) and the deceased’s children or other descendants (i.e. his/her issue).  Where there is no married spouse or issue surviving, the Act then looks to whether there are surviving parents; if not, then siblings; if not, then nieces and nephews; and if not then, any other next of kin before finding that the estate has escheated to the Crown.

As with all issues in an estate matter, this makes an accurate family tree and accurate dates of death extremely important.  The foregoing also only applies to surviving blood relatives, with the only exceptions being the married spouse and those who were formally adopted at law. 

Thanks for reading!

Doreen So

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