Tag: Next of Kin
In drafting testamentary documents, the careful and precise use of language is of the utmost importance. After all, once the testator is dead and their will takes effect, the testator is no longer around to clarify any potential misunderstandings or ambiguous terms.
There are plenty of problems that can arise when interpreting a Will, from bequests to charities which no longer exist to the proper use of “per stirpes”. Even the most seemingly straightforward terms used in testamentary documents can lead to a great amount of discord among those with an interest in an estate. Today, I’ll look at one particular term which seems innocuous enough: “next of kin”.
Dictionaries, such as the Oxford Dictionary, defines “next of kin” in a straightforward manner as “a person’s closest living relative or relatives”. While seemingly simple, this term has lead to confusion in the past. In 2003, the Court of Appeal addressed this issue in Thomann v. Armgardt Estate, 170 OAC 11. In that case, the deceased left a Will relating to her assets in Canada in which she left the residue of her “Estate in Canada” to her next of kin in equal shares. She also had a will relating to her assets in Germany. At the time of her death, the testator had one sister and nieces and nephews living in Germany, along with one niece and a great-niece and great-nephew living in Canada. The testator’s sister died, however, before the estate was distributed.
The application judge found that “next of kin” had to be interpreted in conjunction with “equal shares” such that the testator intended for her estate to be left to a plurality of beneficiaries. Additionally, based on the use of a German will (which only provided specific bequests to German relatives) and the Canadian will (which only made a specific bequest to a Canadian relative), the application judge found that each will was only meant to benefit relatives living in the country to which the will applied. The judge thus found that the testator intended to leave the residue of her Canadian estate to her relatives (niece, great-niece, and great-nephew) living in Canada equally.
The Court of Appeal, on the other hand, made it clear that “next of kin” is to be defined by its ordinary meaning, i.e. as being one’s closest living relatives. Hence the Court found that the estate was to be distributed to the estate of the testator’s sister.
While it’s important to be as specific as possible and always good to define terms wherever possible, this case perhaps best serves to illustrate the point that you can’t prepare for every possible misinterpretation.
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It is not uncommon to encounter situations where an individual dies without a will, having never been married, widowed, separated or divorced and without children. It can, however, be uncommon to come across situations where an individual dies under these circumstance but also leaves behind no known close relatives or next of kin. When this occurs, the question that immediately arises is: who will inherit the deceased person’s estate?
In Ontario, the distribution of the estate of an unmarried, childless person who has died without a will is governed by Part II of the Succession Law Reform Act (the “Act”). The Act provides a statutory scheme that sets out classes of individuals who will inherit on such a persons’ intestacy. The order of entitlement is as follows:
- Nieces and Nephews; and finally,
- Next of Kin.
When none of the above individuals can be identified or located, section 47(7) of the Act states that the property of the deceased person becomes the property of the Crown, and the Escheats Act, 2015 applies.
Depending on the circumstances, individuals without a family may wish to consider if there is a charitable organization or community activity that they belong to that they would prefer to benefit from their estate under a will. In the alterative they may wish to take proactive steps to locate their distant relatives during their lifetime.
Some other Articles you may be interested in reading:
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On Tuesday, I introduced the idea of receiving an inheritance from a long-lost relative who dies intestate. While the law allows distantly-related next of kin to benefit from a deceased intestate, in reality, practical barriers often present themselves.
When trying to assert one’s position as a very distantly-related next of kin, the challenge may become proving (or, in some cases, disproving) the relationship. It can be difficult or impossible to establish someone who was not recognized as a close relative of the deceased as the next of kin, absent DNA evidence.
In determining the degree of relatedness of one individual to another, geneticists use math models and averages. However, when DNA analyses are done, our genetic materials do not always follow expectations based on mathematical trends. For this reason, DNA test results may be inaccurate or inconclusive, suggesting that two individuals are more or less closely related than they actually are. What makes the ability to rely on genetic testing more difficult is the fact that fourth cousins (and beyond) often share no more genetic material than that shared with any other member of the population.
Another difficulty that may present itself in determining the relatedness of one person with another who is deceased is that DNA testing requires a sample (such as hair or saliva) from both test subjects. If the deceased has been cremated, a tissue sample may not exist at the time that the purported family member seeks evidence of their relatedness.
In Ontario, genetic testing can be used to support or dispute familial relatedness within the context of estate litigation. The Court can order a DNA test to disprove genetic relatedness of a purported beneficiary on intestacy under Rule 33 of the Rules of Civil Procedure, which allows the mental or physical examination of a party whose condition is in question in a proceeding. In Kelly Estate (Trustee of) v. Kelly, Justice Coats of the Ontario Superior Court of Justice granted leave for DNA testing of one party, an alleged daughter of the deceased, stating that “DNA testing is a highly reliable method of determining parentage.”
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