Tag: property rights

12 Nov

En Ventre Sa Mere: Conceived But Not Yet Born

Paul Emile Trudelle Estate & Trust Tags: , , , , 0 Comments

Property rights of children permeate estate matters. Children can have rights under wills, on intestacy, as dependants, or under policies of insurance. They may have claims for damages against third parties under the Family Law Act.

A question often arises as to how far these rights extend. While living children may have such rights, what about the as of yet unborn?

Under the common law, children conceived but not yet born have the same rights as born children. “A fiction has developed in the law that in respect of property rights an unborn child who is subsequently born alive is in the same position as a child living at the time of death of the benefactor.”[1]

Thus, in Fitzsimonds, an unborn child who was born 8 months after the deceased’s death was entitled to an insurance payout even though the legislation required that she be alive 60 days from the insured’s death. The “legal fiction” of the “en ventre sa mere” doctrine is so strong that it would apply to legislation unless the legislation specifically provided otherwise.

The Succession Law Reform Act codifies the “en ventre sa mere” doctrine. Section 1.(1) defines a child as including “a child conceived before and born alive after the parent’s death”. To guild the lily, s. 46(9), dealing with intestate succession, provides that for the purposes of determining kinship, descendants and relatives “conceived before and born after the death of the deceased shall inherit as if they had been born in the lifetime of the deceased and had survived him or her.”

(The Succession Law Reform Act now extends the “en ventre sa mere” rule to children conceived after the deceased’s death, through artificial insemination. Certain conditions apply. However, that discussion is for another day.)

When addressing issues that arise upon a death, such as the distribution of an estate, policies of insurance or dependant support claims, keep in mind the rights of those “in the belly of their mother”.

Thanks for reading.

Paul Trudelle

[1] Fitzsimonds v. Royal Insurance Company of Canada, 1984 ABCA 7 (CanLII)

02 Nov

Missing and Presumed…Alive? Property Rights under the Absentees Act

Hull & Hull LLP Estate & Trust, Estate Planning, Executors and Trustees, Public Policy, Trustees Tags: , , , , , 0 Comments

On Monday’s blog, I discussed the mechanisms available to Ontario courts under the Declarations of Death Act to deal with the estate of a deceased person who “returns from the dead.”  In today’s blog, I thought it might be useful to look at similar provisions under Ontario’s Absentees Act and to distinguish between the purpose of each Act as well as the authorities of the court thereunder.

The most obvious distinction is evident in the titles of each Act.  The Declarations of Death Act, unsurprisingly, concerns individuals that have been declared deceased by the courts.  In contrast, and perhaps even more unsurprisingly, the Absentees Act deals with “absentees.”

The Absentees Act gives no authority to the courts to enact distributions of property pursuant to a testamentary document.
The Absentees Act gives no authority to the courts to enact distributions of property pursuant to a testamentary document.

An absentee is defined under section 1 of the Absentees Act as a person, ordinarily resident in Ontario, who “has disappeared, whose whereabouts is unknown, and as to whom there is no knowledge as to whether he or she is alive or dead.”  Similar to the analogous provision in the Declarations of Death Act, section 2 of the Absentees Act allows the Superior Court of Justice to declare a person to be an absentee if a “due and satisfactory inquiry has been made.”


The difference in finality of an order declaring an individual to be deceased rather than merely an absentee is also reflected in the authority given to the courts in dealing with an individual’s property under each Act.  Once an individual is declared deceased, that individual’s property is subject to distribution in accordance with any testamentary documents that he or she may have left, such as a will.  Without going into significant detail, the property rights of the testator as well as those of any beneficiaries will be substantially impacted as a result of a declaration of death.  The courts will be reluctant to trigger these rights absent a conclusive determination of death.

As a result of the foregoing, the Absentees Act gives no authority to the courts to order distributions of property pursuant to a testamentary document.  In effect, the authority of the courts over the property of an absentee is severely limited, at least until he or she is declared as such in accordance with the Declarations of Death Act, or unless evidence of his or her death is produced.

Rather than create circumstances that may trigger distributions of an absentee’s property, the Absentees Act may require an individual to instead ensure its upkeep while the absentee is, well, absent.  Section 4 of the Absentees Act allows a court to make an order to ensure the “custody, due care and management” of an absentee’s property by a committee, if needed.

This appointee would essentially function as a caretaker of the absentee’s property.  The committee has all of the powers and duties of a guardian of property under the Substitute Decisions Act, including the authority to expend the absentee’s own funds for the purposes of determining whether he or she is alive or dead.

Thanks for reading.

Garrett Horrocks


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