According to a March 2017 survey done by BMO Estate Planning, 48% of the participating adult Canadians confirmed they did not have a Will. Many people simply don’t write one because they don’t feel they need to. All of their belongings will just pass to their spouse and children, right?
In Canada, when you die without a valid Will, that means you’ve died “intestate”. The provincial government then has the right to determine how your estate will be distributed in accordance with the laws of that province. It’s not as easy as a spouse and children simply dividing things as they please.
In New Brunswick, the estate of one who has died intestate is divided in accordance with the Devolution of Estates Act.
Although the goal in enacting such legislation is to provide for a distribution that is in line with what one might expect the deceased would have wanted, this outcome is far from certain. For example, the deceased is not able to benefit a friend or charity. He is not able to make unequal gifts to his children. He is not able to delay the age at which his children would receive their share beyond the age of majority. No guardian of children will be provided. The deceased will not have a say over who administers his estate.
Another problem arises for those in a common-law relationship. The Devolution of Estates Act only recognizes the entitlement of legally married spouses. Though the Provision for Dependants Act allows a dependant like a common-law partner to ask the court for “support” from the estate, the best way to convey a common-law partner’s entitlement is through a Will.
These are only a few of many problems that can arise when someone dies intestate.
Though it is possible for the distribution of an intestate estate to flow easily, this is not always the case.
By drafting a Will, you confirm exactly how you would like your estate to be divided and have some control over when it gets distributed. The effort and expense put into drafting a Will is well spent and will simplify management of your affairs.
If you would like to learn more about Wills, please contact us.
Remy Rosinski, Student-at-Law