Tag: law of succession
Today on Hull on Estates, David M. Smith and Stuart Clark discuss the definition of “spouse” within the meaning of Part V of the Succession Law Reform Act, and the factors that the court will look to in determining whether two parties are common law spouses within the meaning of the Act, with particular attention paid to whether two parties must live under the same roof to be considered common law spouses.
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With the purchase of second, and even third, homes becoming more common, it is not unusual to encounter situations where an individual dies residing in one country, but owning property in another. Issues can arise when the laws in each country are disparate.
In determining the law of succession that should apply, there are two main issues: where the Deceased was domiciled at the time of his death and the nature of the property that was owned. The concept of domicile coincides with the concept of a “permanent home” and is generally the jurisdiction in which an individual resides intending to remain there permanently.
The disposition of movables (assets other than land) at death is dictated by the law of the domicile of the deceased. For example, if a Deceased were domiciled in Ontario, its domestic law would govern any movables.
The disposition of immovables (land including real property) is governed by the law of the place where the property is situated. For example, if the Deceased owned any land in France, its disposition would be governed its internal law.
A conflict in laws will not necessarily mean catastrophe, especially if there is a well drafted Will in place. However, in cases where issues do arise it is important for the estates practitioner to know what law to look to.
For more information on the conflict of laws, as it relates to domicile, I’d suggest taking a look at:
- McCallum v. Ryan Estate,  O.J. No. 1088 (SCJ);
- Re Montizamber Estate,  O.J. No. 1035 (SCJ); S
- Smallman v. Smallman Estate,  O.J. No. 1718 (OCJ – Gen. Div.).
Have a great day!