SOLICITOR – ESTATE PLANNING

ESTATE PLANNING – CHAPTER 35

Lawyer’s 1. The will is drafted in language sufficiently clear and unambiguous.
Duties 2. There are no practical barriers in the way of the estate trustee’s administration of the
(453) estate.
3. Prudent post-signing practiceto alert the client to future events that may require the
will’s review.
4. The testator has mental capacity, and the client’s instructions did not result from
undue influence or duress.
5. If the client is ailing or elderly, the lawyer must make a professional judgment about
whether to take initial instruction from another family member, and later confirm
capacity in a meeting with the testator to sign the will.
Estate 1. Attending to the funeral and burial arrangements.
Trustee  Note: The estate trustee has control of the body, and the authority to determine the
Duties place and manner of the funeral and burial. The testator cannot bind the estate
(461R) trustee using the will.
2. Proving the will, if necessary.
3. Collecting and protecting estate assets.
4. Paying creditors and satisfying liabilities (including taxes owing)
5. Distributing specific bequests, and conveying devises of real property.
6. Distributing the residue of the estate.
7. Trustee will-establish, and administer trust until final distribution.
Signing A Formal WillMUST be signed at its physical end by the (i) the testator (or someone on
the Will the testator’s behalf, in the testator’s presence, and at the testator’s direction),AND (ii) at
(470-471) least 2 witnesses.
 Witnesses should not be a beneficiary or spouse becauseit raises issues of undue
influence, possiblyvoiding a bequest.
 An affidavit of execution should be procured from one of the witnesses.
 Note: The formal requirements are relaxed under the Indian Act (577)
Holograph Wills(or codicils)are possible in the testator’s handwriting, with a signature
at the will’s physical end, and without witnesses or formalities of execution.
 Note: With DIY will kits, ONLY the handwritten portion is admissible to probate.
Dependent Intends to ensure that certain persons who were financially dependent upon the
Support deceased during his lifetime are not put into dire straits by virtue of inadequate provision
Claim (SLRA, Part V)
(565) 1. The claimant must stand in the right relationship as dependant to the deceased
 legal or common-law spouses; parent; grandparent; child or settled intention to treat
as child; grandchild; sibling
2. Immediately before death, the deceased must have been EITHER (i) actually
providing support to the claimant, OR (ii) under a legal obligation to do so
3. The deceased did not make “adequate provision” for the claimant
 Reflection of the claimant’s budgetary needs, and moral considerations
 Legal or common-law spouse may have a claim for equitable sharing of the family
wealth
 Application must be commenced within 6 months from the date on which the
certificate of appointment of estate trustee was issued

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 POWER OF ATTORNEY – CHAPTER 36
For Property (473)
Scope of SDA, s7(2): A grantor may authorize the
Authority attorney to do anything in respect of
property that grantor could do.
 EXCEPT make a will for the grantor
 But no jurisprudence on other
testamentary dispositions
SUBJECT to any conditions or
restrictions set out by the grantor
SDA, s35.1(1): The attorney is prohibited
from disposing of property specifically
given in the will
 UNLESS the disposition is required to
comply with the grantor’s duties OR the
gift and loans sections (below)
Capacity SDA, s4: Grantor should be at least 18yo
when the power of attorney document is
signed for legislation to apply.
SDA, s5: Attorney must be at least 18yo to
act.
SDA, s8: Seven sufficient (but not
necessary) conditions for a grantor to be
capable of granting a continuing power of
attorney
SDA, s9(1): A person may be incapable of
managing his own property AND yet be
capable of giving a continuing power of
attorney.
Form No specific form is necessary, but it must
be referred to as a continuing power of
2
For Personal Care (477R)
Personal care encompasses health
care under the HCCA, nutrition,
shelter, clothing, hygiene, and safety.
 Power of attorney for personal
care places the attorney head of
the grantor’s relatives for the
purposes of giving or withholding
consent to health treatment.
Effective whengrantor becomes
incapable, AND either
(i) HCCA applies and authorizes
the attorney to decide; OR
(ii) HCCA does not apply, and the
attorney has reasonable belief that
the grantor is incapable to make the
decision
Under s 21(1) of the HCCA, a dispute
between co-attorneys results in the
Public Guardian & Trustee making the
decision.
SDA, s43: Grantor should be at least
16yo when the power of attorney
document is signed for legislation to
apply.
SDA, s44: Attorney must be at least
16yo to act.
 Persons providing health care
services to the grantor for
compensation cannot act as
attorney for personal care.
 UNLESS spouse, partner, or
relative
SDA, s47(1): The grantor must (i) be
able to understand whether the
proposed attorney has a genuine
concern for the grantor’s welfare,
AND (ii) appreciate that the proposed
attorney may need to make decisions
for the grantor.
SDA, s47(2): A person may be
incapable of personal care AND yet
be capable of giving a power of
attorney for personal care.
No specific form is necessary, but it
must be referred to as a power of
 attorney OR express the intention attorney for personal care OR
express the intention

Execution SDA, s10(1): Execution by the grantor in Analogous to continuing power of

the presence of two witnesses, each of attorney.
whom must sign as witnesses.
 Excluded witnesses: grantor’s
spouse/partner, or child; attorney’s
spouse/partner; persons whose property
is under guardianship; persons under
18yo
SDA, s10(4):BUT a court may still approve
without formal requirements being met “if
satisfied in grantor’s interests”
Termination 1. The attorney dies, becomes incapable, Analogous to continuing power of
or resigns. attorney, but without 4
 UNLESS the document appointed co-
attorneys or a substitute attorney
 Resignation is not effective until the
grantor and other attorneys receive a
copy
 SDA, s11: If the grantor has
become incapable, notice of
resignation must be given to the
grantor’s spouse/partner AND
relatives in Ontario.
 UNLESS the grantor and the
spouse are living separate and
apart
 SDA, s 11(2): The attorney must
make reasonable efforts to give
notice of resignation to persons with
whom the attorney dealt on the
grantor’s behalf
2. A court appoints a guardian of the
grantor’s property.
3. A new continuing power of attorney is
signed.
 UNLESS the document acknowledges
multiple CPOAs
4. The grantor dies.
5. The grantor revokes the continuing
power of attorney.
Revocation Appointment can be revoked, if the grantor Appointment can be revoked, if the
retains capacity. grantor retains capacity.
SDA,s12(2): Revocation must be in writing, SDA,s47(3): Revocation must be in
AND the same formalities as making a writing, AND the same formalities as
power of attorney apply. making a power of attorney apply.
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Use of the The attorney must act solely in the
Power of grantor’s interests.
Attorney The attorney should limit expenditures to
what is reasonably necessary for the
grantor’s own support, education, and care.
 If there are sufficient funds, then the
attorney may spend funds for the
grantor’s dependants’ support,
education, and care, or for other legal
obligations
Gifts or loans to the grantor’s family and
friends are possible ONLY IF specifically
authorized OR the attorney has reasons to
believe that the grantor would have made
them.
Charitable gifts are possible IF specifically
authorized OR the grantor made similar
gifts in the past.
 Limit is the lesser of 20% of grantor’s
annual income, OR the maximum set
out in the power of attorney
Standard of Anuncompensated attorney must exercise
Care the degree of care, diligence and skill that a
person of ordinary prudence would
exercise in conduct of the person’s own
affairs.
A compensated attorney is subject to the
higher standard of a person in the business
of managing others’ property.
 If the document is silent, the SDA
allows for annual compensation on a
prescribed fee scale (477R)
The attorney must keep accounts of all
transactions involving the grantor’s
property.
4
SDA, s50(4): Revocation of an
authorization of necessary or
reasonable force to undertake a
capacity assessment requires
confirmation of grantor’s capacity
within the previous 30 days.
The attorney must follow the grantor’s
wishes, if known.
 The grantor’s wishes may be
recorded separately.
A power of attorney for personal care
may function as a “living will” by
setting out instructions for various
treatments.
 But a power of attorney for
personal care is not the
appropriate vehicle for medical
assistance in dying.
An attorney for personal care must
act diligentlyand in good faith, and
must explain the attorney’s powers
and duties.
Where decisions are not governed by
the HCCA,
 The attorney shall decide
according to the grantor’s
expressed wishes or instructions.
 The attorney shall use reasonable
diligence to ascertain whether the
grantor’s has expressed such
instructions.
 Later wishes prevail over earlier
wishes, if capable.
 If no wishes or instructions for the
decision, the attorney shall decide
in the grantor’s best interests.
If document silent, attorney may claim
compensation as prescribed by
 legislation, but none exists currently.

PROCEDURE FOR THE COURT APPOINTMENT OF GUARDIANS FOR MENTALLY INCAPABLE

PERSONS – CHAPTER 37
Guardian of Standard Procedure (483L-485L) Summary Procedure (485L-486R)
Property  Due to extra steps, this procedure is
rarely used.
Hearing Hearing is required. No. Over-the-counterapplication read by
judge in chambers, but the application
must contain statements from at least
two medical assessors, OR one
assessor and another person.
 All people must meet with the alleged
incapable person, and provide
statements in a prescribed form.
 Assessor must be a member of a
college listed in Capacity Assessment
regulationin the six months before the
notice of application was issued.
 At least one statement must provide
opinion that it is necessary to appoint
a guardian of property to make
decisions on the allegedly incapable
person’s behalf. The basis of this
opinion must be set out.
Initial 1. Proceeding commenced by notice Same notice of application, and
Documentation of application, seeking a finding that applicant’s affidavit with exhibits as the
to be Prepared the person is incapable of managing core of the application record.
property, and, consequently, it is BUT additional capacity assessment is
necessary to appoint a guardian of required.
property.
2. Personal service of notice of
application on respondents:
 the alleged incapable person;
 the person’s guardian;
 attorney under continuing POA;
 attorney for personal care;
 Public Guardian and Trustee;
AND
 the proposed guardian of
property, if not the applicant
Some relatives must be served by
ordinary mail, but they are not
automatically respondents:
spouse/partner, adult children;
parents; AND adult siblings
3. Applicant’s affidavit is required,

5
 unless the applicant intends to call
viva voce evidence
 But affidavit evidence is not to be
on “information and belief”,
except for uncontentious facts.
 See page 483R for what it should
include.
4. Separate management plans for
guardianship of property, and
guardianship of the person.
5. Medical affidavits are generally
required as a practical matter:
EITHER a capacity assessment by a
duly-qualified assessor, OR at least
two affidavits from physicians.
Service of Personal service is required upon Notice of application issued after
Application Record respondents. assessment.
Ordinary mail is required upon Procedure same as standard.
specified relatives (484R)
Response to Respondent must deliver a notice of Procedure same as standard.
Service of appearance.
Application Record Specified Relatives can become
parties at any stage.
Court Hearing and Need finding that person is Judges are reluctant to declare
Judgment incapable, and, consequently, it is incapacity without a hearing.
necessary for decisions to be made After time for delivery expired, applicant
on person’s behalf. can require that the registrar submit the
Judgment should include specific documents directly to a judge, and the
statement appointing guarding. Joint judge may make a judgment without a
or separate guardians are possible. hearing.
Judgment must detail any security to The registrar must do so IF the applicant
be posted. certifies that
Guardian of property must adhere to  no notice of appearance has been
management plan, but guardian can delivered;
apply to court for directions.  appropriate documents have been
submitted; AND
Judgment should address costs.  at least one statement says
incapacity and need agent.
NOTE that notice of appearance must be
filed “forthwith”, so hard to know when to
certify that it has not been filed.
Draft judgment is not necessary.
 But if applicant is seeking costs
payable out of the property, it must
be set out in a draft judgment.
Three possible dispositions: judgment
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 without a hearing; additional evidence or
hearing required; OR order a trial.

Guardian of the Standard Procedure (486R-488L) Summary Procedure (488LR)

Person  Standard procedure plus two
assessments by assessors
Initiating 1. Notice of application, seeking a 1. Standard procedure.
Documents finding that the person is incapable of 2. Two assessors from the Capacity
some personal care functions set out Assessment Office must meet the
in s 45 of the SDA, AND a finding that alleged incapable person, perform an
the person needs decisions made on assessment of the person’s capacity
her behalf by an authorized person. during the six months before the
2.Applicant’s affidavit explaining notice of application is issued, AND
application for full or partial provide statements in the prescribed
guardianship of the person. form.
 Section 45 lists the categories of  At least one statement must
decision-making. specify that the assessor believes
that the person needs decisions
3.A capacity assessment (generally
made on her behalf by an
required by the court).
authorized person.
4. Proposed guardian’s consent to
3. Medical affidavits may be
act.
necessary, but it isn’t clear.
5. Section 70(2)(c) statement.
Preparing application record is the
6. Guardianship plan using General, same as standard procedure for
Form 3. guardianship of person.
7. Consents from relatives are
helpful, but not necessary.
8. Optional third-party statements
from persons knowing the alleged
incapable person, and in contact with
the alleged incapable person during
the preceding 12 months.
 Preferably sworn as affidavits.
Service Same as guardianship of property. Same as standard procedure for
guardianship of person.
Response Same as guardianship of property. Same as standard procedure for
guardianship of person.
Court hearing and Considers criteria in ss 55(2)(a)-(b) Same as summary disposition
judgment and 57(3)(a)-(c). procedure for guardianship of
Judgment must specify full or partial property. Three possible disposition.
guardianship.
 If partial, judgment must specify the
functions.
Judgment may appoint joint or
several guardians.
Judgment may specify limited time
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 period, or conditions.
Guardians may have authority to
apprehend the person with police
assistance, to change the person’s
custody or access arrangements, or
to consent to adoption.
Guardian must act in accordance with
guardianship plan.

HCCA and Substitute Decisionmakers(488R-489R)

 Consent can be given or refused on behalf of incapable person based on a ranked list of priority
o person’s guardian of the person  person’s attorney of personal care person’s
representative appointed by the Consent Capacity Board  person’s spouse or partner
person’s child, parent or agent of children’s aid society, but not parent with only right of
accessparent with only a right of access  person’s sibling other relative (including
separated spouse)
 Person can only consent or refuse to consent IF
o capable with respect to the treatment;
o at least 16yo, unless the person’s parent;
o not prohibited by court order or separation agreement from having access, or giving/refusing
consent; AND
o available and willing to assume responsibility.
 If there is no one meeting this description, then the Public Guardian and Trustee decides.
 If the incapable person is at least 16yo and objects to admission to a hospital or psychiatric
facility, then consent can only be given by (i) a guardian of the person with the authority to
consent, OR(ii) an attorney for personal care with authorizing provision.

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 GUARDIANS, CUSTODIANS, AND THE CHILDREN’S LAW REFORM ACT – CHAPTER 38
Custody Guardian: Person who has guardianship of the property of the minor.
under the Custodian: Not defined in theCLRA, but it is the person appointed in willto have
CLRA (491) custody.
 The father and the mother are equally entitled to custody of the child.
 Permits the sole living parent of a minor child to “pass-on” the statutory right to
custody.
 In a common disaster, only a common appointment will be effective.
 A parent’s appointment is at all times subordinate to the court’s supervisory role.
The child’s best interests must prevail.
 Testamentary custodial appointment is temporary. It expires 90 days after the
appointment becomes effective.
 Appointed custodian may apply for a “more permanent” custody order.
 Any person at anytime is entitled to apply for custody of a minor child.
 Testamentary capacity is subordinate to the outcome of a s 21 application for
custody.
Guardian  No inherent right to possess or control property of minor, not even parents. Apply to
of Property court for appointment as guardian.
(492L)  CLRA, s 47: Anyone may apply to court to be appointed as guardian of a minor
child’s property.
 Notice must be given to the Children’s Lawyer.
 A court-appointed guardian of a minor child’s property may “pass on” the
guardianship through a testamentary appointment.
 Testamentary appointment is also temporary. It expires at 90 days.
 Any person at any time is entitled to apply for guardianship of a minor child’s
property.
 Only an appointed trustee may possess and spend trust funds on a minor child’s
behalf.
 The estate trustee- is generally required to pay into court the estate funds to which
the child is entitled.
 Absent a court appointment of guardian, minor’s property paid into court to credit of
minor and held during child’s minority or until subsequent appointment of a
guardian.
 Where no guardian of a child’s property has been appointed, the estate trustee may
pay to a custodian for the benefit of the minor child up to an all inclusive maximum
value of $10,000.

9
 TAX ISSUES– CHAPTERS35, 39, 40 & 42
Two 1. When a person dies, there is a T1 “terminal return” for earned or deemed income
Taxpayers between January 1st and death (495L
(495, 500)  In the year of death, periodically payable income is deemed to accrue on a daily
basis (495L)
 Dues dates for terminal return (500R)
 If death prior to November, then terminal return is due by next following April
30, OR June 15th, if business income
 If death in November or December, the terminal return is due six months from
death
 If qualifying spousal trust is created, no late filing penalty for 18 months after
death, but interest runs normally
 If rights and things return, the later of one year from death OR 90 days after
terminal return assessment
 Due dates for return for year preceding the year of death (500R)
 If death prior to May, the prior year’s return is due six months after death
 If death in May or after, the prior year’s return was due on April 30 in year of
death, and no extension is given
2. On the day after the taxpayer’s death, the deceased’s estate becomes a new
taxpayer, filing a T3 trust returnfor income earned by the estate between the
deceased’s death, and the distribution of the estate to the beneficiaries (495L)
 CRA administrative policy does not insist on a trust return where (i) the total taxable
income of the estate does not exceed $500, (ii) no beneficiary’s share in that
taxable income exceeds $100, (iii) all of the income is taxable in the hands of the
beneficiaries, AND (iv) there are no non-resident beneficiaries (500L)
 T3 return is due 90 days after the expiry of the trust’s year-end (500R)
 Estate as trust functions as a conduit, flowing paid and payable income out to its
beneficiaries (505R)
 Testamentary trust taxed at same graduated rate as individuals, but inter vivos
trusts taxed at highest marginal rate (506L)
 Taxation of beneficiaries (510)
ITA, s159(3): Personal representative must obtain a clearance certificate certifying
taxes, interest and penalties have been paid prior for the tax year relevant to the
distribution BEFORE distributing any property. Personal representative is personally
liable for the payment of those amounts to the extent of the distributed property’s value
(496R; 506L)
 But, as a practical matter, most personal representatives assume the personal
liability, and retain a reserve to meet the anticipated taxes. (496R)
Income ITA, s70(5): Immediately before death, the deceased is deemed to have disposed of
Tax non-depreciable and depreciable capital property, and RRSPs at fair market value
(495R)
 Only 50% of a capital gain is taxable (495R)
 Capital loss cannot be triggered by disposition or deemed disposition of personal
use property (495R)
 Registered pension plans are taxed on a cash basis. They are taxable to the estate
or its beneficiaries (496L)
But death will not cause a deemed realization of depreciable or non-depreciable capital
property where there is (i) outright transfer to a spouse or qualifying spousal trust, OR
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(ii) intergenerational transfer of farm or fishing property (496L-497R)
 Spousal rollover for RRSPs is available (499R)
 For “rollover” to a surviving spouse, the property must become “indefeasibly vested”
within 36 months of the death (497R)
 “Surviving spouse” covers married spouses, common-law spouses, and common-
law partners (497R)
 “Qualifying spousal trust” meets two conditions: (i) spouse is entitled to receive all
of the trust income, AND (ii) only the spouse may obtain use of any trust income or
capital during the spouse’s lifetime (498L)
 Additional conditions for qualifying testamentary spousal trusts (507L), and
qualifying inter vivosspousal trusts (508L)
 Election to avoid a spousal rollover on only some assets is possible (499L)
Principal residence exemption: Any capital gain on actual or deemed disposition is fully
sheltered for one residence per family per year, but change in use may trigger a
deferrable deemed disposition (500L-501R)
“Income splitting” is shifting property from a high-income taxpayer to lower-income
taxpayer (501L)
 Prohibited income splitting leading to attribution to transferor (501)
(i) spousal transfer of property other than sale at fair market value;
(ii) transfer or loan to minor with whom the person does not deal at arm’s length or
a nephew/niece;
(iii) transfer to trust and transferor retains capacity to benefit;
(iv) loan to non-arm’s length individual and one of the main reasons is to reduce or
avoid tax.
 New incoming splitting rules fordisproportionate business or private corporation
dividends to family members (502)
Special income tax rules (460L)
1. Capital gains from a deemed disposition of (i) qualifying small business corporation
shares; (ii) qualified farm property; OR (iii) qualified fishing property may be
sheltered under an individual’s lifetime capital gains deduction
 the maximum is indexed annually: $883,384for 2020
2. Charitable gifts made by will give rise to a tax credit for taxable income in the year
of death, and the preceding year
3. For a long-running trust, fiction of a deemed disposition every 21 years

11
 THE IMPACT OF THE FAMILY LAW ACT– CHAPTER 41
Family Law Only deaths ON or AFTER 1 March 1986 give rise to a surviving spouse’s right to
Equalization make an equalization claim
Claim (514) When a spouse dies, if the deceased spouse’s net family property (NFP) exceeds
the surviving spouse’s NFP, the latter is entitled to 1/2 the difference between them
* see solicitor’s
 Courts have discretion to award more or less, if it would be unconscionable to
checklist (524-
do otherwise based on the six factors enumerated in s5(6)
5)
 A court has the authority to award an amount up to 100% of the NFP value of
the spouse with the higher NFP
If the surviving spouse’s NFP is larger, the deceased spouse’s estate has no claim
against the surviving spouse
On an application for an equalization claim, each party is required to serve on the
other party and file in court a statement, verified by oath or statutory declaration,
disclosing particulars of debts and liabilities as of (i) marriage date, (ii) valuation
date, and (iii) statement date (519R)
Election (514) Election is between EITHER an equalization claim OR
(i) where there is a will, the entitlement under the will;
(ii) where there is no will, the entitlement according to Ontario’s SLRA;
(iii) on a partial intestacy, entitlement under the will and the provincial intestacy
rules;
But NOT BOTH … UNLESS the will expressly provides for it (514-515)
Election must be filed within 6 monthsof the deceased spouse’s death, in the
prescribed form, and at the office of the Estate Registrar for Ontario in Toronto
(515R)
 Otherwise, the surviving spouse is deemed to have elected the non-
equalization option
 UNLESS the court orders otherwise on application
Election may be filed by (i) attorney with validly executed power of attorney for the
surviving spouse, (ii) PGT as a statutory guardian of property for the surviving
spouse, OR (iii) a guardian of property (statutory or court-appointed)
 But not a personal representative for a surviving spouse who died within the 6-
month limitation period without electing
Generally, an election should be treated as irrevocable (515)
 But Iasenza v Iasenza Estate held the court has a residual discretion to
authorize revocation in restrictive circumstances where (i) the interests of
justice so require, AND (ii) it is warranted by a balancing of the affected parties’
interests
Effect of If the surviving spouse elects to take under the will or on intestacy, the surviving
Election (516) spouse’s entitlement will be unaffected, and the surviving spouse will receive all
insurance proceeds, death or survivorship benefits, and the right to survivorship
associated with any property jointly own be the spouses(516)
If the surviving spouse elects to take under the FLA, the election results in
 the forfeiture of all entitlement under the will;
 interpretation of the will as if the surviving spouse had predeceased the
testator;

12
  including inability of the surviving spouse to act as executor (Reid Martin v
Reid)
 with partial or total intestacy, forfeiture of the entitlement under Part II of the
SLRA, even if the will allows for entitlement under the will, and the equalization
claim;
 a need to set-off against the equalization claim
 benefits as a named beneficiary under insurance or similar policy;
 benefits as named beneficiary of a lump-sum payment under pension or
similar plan; AND
 value of any property to which spouse becomes entitled by right of
survivorship
 property that was established by a third person that the deceased spouse was
never entitled to
UNLESS the will expressly provides that the surviving spouse is entitled to receive
under the will AND under the FLA
Priority (518) The equalization claim has priority over
 gifts made under the will UNLESS made for valuable consideration;
 Except where the court finds that the gift’s value exceeds the consideration
 a person’s right to a share of the estate under Part II of the SLRA; AND
 orders made against the estate, except those in favour of a child of deceased
BUT NOT NECESSARILY over secured creditors, or others preferred by law
Restrictions NO distributions can be made out of the estate during the 6 month period
on immediately following the deceased spouse’s death without (i) the surviving
Distribution spouse’s written consent, OR (ii) court authorization.
(518)  But, generally, reasonable advances to dependants for their support are
permitted
 Possible practical exceptions on six-month moratorium where (i) the surviving
spouse has entered into a domestic contract with the deceased spouse,
potentially waiving the right to make an equalization claim, and (ii) where the
will leaves the deceased spouse’s entire estate to the surviving spouse (519)
Duty to The personal representative should (i) not treat the surviving spouse as a creditor,
Surviving (ii) advise that the surviving spouse may have rights under the FLA, (iii) suggest
Spouse (524) that independent counsel be retained to explain those rights, AND (iv) stress the
importance of doing so in a timely manner in order to preserve those rights
 But the personal representative has duties to uphold the will, and act in the
beneficiaries’ best interests

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 DISTRIBUTION ON INTESTACY (544R-545)
1. If spouse but no issue survive, then section 44 of the SLRA states that the spouse is entitled to
the entire estate absolutely.
2. If spouse and issue survive, then
(i) the spouse is entitled to a preferential share, currently fixed at $200,000; AND
 Preferential share is calculated only on the assets in the deceased’s estate, and only after
debts and liabilities have been deducted
 The preferential share is calculated according to the following rules:
(a) If the deceased died partially intestate, the benefits received by the spouse under the
terms of the will are taken into account in computing the preferential share: SLRA, s 45(3)
(a)
(b) If the net value of the estate is less than the preferential share, the entire estate passes to
the spouse, whether or not there were surviving issue: SLRA, s 45(1)
(c) If the net value of the estate is greater than the preferential share, the preferential share
passes to the spouse:SLRA, s 45(2)
(ii)the spouse is entitled to a distributive share, which varies with the number of issue surviving,
under section 46 of the SLRA
(a) If the deceased leaves a spouse and one child, then the spouse and child are each entitled
to ½ of the residue:SLRA, s 46(1)
(b) If the deceased leaves a spouse and more than one child, then the spouse is entitled to ⅓,
and the rest is divided equally among the children on a per stirpes basis:SLRA, s 46(2)
3. If issue but no spouse survive, each child gets an equal share of what is left on a modifiedper
stirpes.
 If at least one child is living, then the estate is distributed equally among the children, and the
surviving children of any predeceased child stand in the predeceased child’s place
 If no surviving children, then the estate is distributed equally among the grandchildren
4. If neither spouse nor issue survive, then section 47 of the SLRA dictates who will recover:
(i) Surviving parents take the entire estate equally.
(ii) If there are no surviving parents, then the estate passes equally among any siblings, with any
surviving children of a deceased sibling taking an equal share of the deceased sibling’s share.
(iii) If there are no surviving siblings, then nieces and nephews share equally on a per
capita basis.
(iv)If none of the above survives, then the nearest next-of-kin of equal degree will share on a per
capita basis.
(v) If there is no surviving next-of-kin, the estate becomes the property of the Crown.

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