Intestacy

It is said that a “statutory will” imposes itself to govern the administration of an estate when the deceased has failed to dispose fully of their assets by a valid will. The rules that govern intestate estates, in both the civil law and the common law, are statutory in nature. Relevant Canadian provincial or territorial estates legislation applies unless the deceased was an Indigenous person ordinarily living on a reserve, in which case the federal Indian Act governs. These statutory intestacy regimes are anchored to the idea that, should the deceased have failed to plan for their own succession through valid testamentary dispositions, the business of estate distribution falls to the state. It is true the state always has a role in the governance of estates, even those governed by will or will substitutes. In civilian systems, the state’s presence in estate administration is prominently felt through statutory limitations on testamentary freedom. Yet while public oversight of estates is pervasive, in intestacy contexts the state alone determines the distribution of estates, leaving no space for private actors to decide or influence the distribution of estate assets. Legislative schemes for administering intestate estates are highly technical and mathematical, and there is little deviation from one Western jurisdiction to the next. Where variations exist, they are not especially striking. Parallels across regimes extend most obviously to the categories of persons whom the law privileges as intestate heirs. Married spouses and blood-related and adopted children always qualify. In certain circumstances, heirship also will be extended to the deceased’s more extended kin. Beyond these obvious resemblances, two more latent themes cut transversally across law’s regulation of intestate estates. First, legislation governing intestacy operates in a direct and blunt manner, leaving negligible room for judges to exercise discretion. Subject to the civil law’s doctrine of unworthiness, discussed below, factors such as means, needs, merit, and morality essentially have no bearing on whether someone qualifies as an heir and, if so, the size of their share in an estate. Second, intestacy law rests on distinct suppositions about where the affections of the deceased would have, or should have, lain during their lifetime. In this way, the laws of intestacy telegraph a normative message about family structures, relationships, and loyalties that is particularly notable in the law’s treatment of a survivor spouse. Intestacy regimes are characterized by fixed formulae for determining heirship and for carving up shares in an intestate estate. Hence, who will take, and in what proportion, are uncontroversial questions promptly decided by the application of relevant statutory rules. These rules leave minimal room for deviation. For better or for worse, an individual’s past conduct or relationship with the deceased will not affect determinations about whether or how much they inherit. Accordingly, courts have consistently decided that all heirs in the same degree of consanguinity benefit from an estate in equal shares. Considerations about the nature of an heir’s relationship with the deceased during the latter’s lifetime generally afford courts no leeway to depart from this bright line rule. This is true whether the deceased made no will, or made a will that was later deemed invalid. Intestacy rules are subject to the same strict application even when the deceased lacked legal capacity to make a will. Such restrictions on judicial interpretation stand in contrast to the court’s role when faced with assessing a valid will. The latter context allows judges to exercise broad discretion in drawing on rules of interpretation and evidence to discern testamentary intent. That discretion does not exist, however, when the deceased’s intentions are conveyed other than through a will that …