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Half-kin and intestate

Ontario Intestacy and the Half-Blood Kin

In the Harry Potter series, Professor Severus Snape appears to be one of Harry’s nemeses, while it is later revealed that he was secretly one of Harry’s staunchest allies and protectors.  As the story progresses, Harry and his friends also learn that Snape was in fact a “half-blood”, born with a Muggle (non-magic) father, while his mother was a witch.

In the real world however, the concept of being a “half-blood” very much exists and can still play a significant role in an estate where the deceased dies without making a valid will, resulting in what is called an “intestacy”.

In Ontario, the distribution of intestate estates is governed by Part II of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “Act“).   A helpful summary of the distribution rules of intestacy under the Act is summarized in the linked article by my colleague, Charles Wagner.

One question that can arise is how a Deceased’s estate may be divided amongst a person’s half, or whole, next-of-kin.  In other words, if the next of kin to receive under an intestacy is a brother or sister (or a cousin), does a half-brother, sister, niece, nephew or cousin form part of the inheriting group, or are only “whole blood” relatives recognized as being entitled to receive from the estate under the Act?

The first part of the answer can be found under ss. 47(6) and (8) of the Succession Law Reform Act.  Section 47(6) provides:

Where a person dies intestate in respect of property and there is no surviving spouse, issue, parent, brother, sister, nephew or niece, the property shall be distributed among the next of kin of equal degree of consanguinity to the intestate equally without representation.

Section 47(8) provides:

For the purposes of subsection (6), degrees of kindred shall be computed by counting upward from the deceased to the nearest common ancestor and then downward to the relative, and the kindred of the half-blood shall inherit equally with those of the whole-blood in the same degree. [emphasis added]

In Re Lainson Estate, Re, 1986 CarswellOnt 656, the interpretation of these provisions was addressed.

In the case, the deceased died intestate.  She was unmarried, had no children and was predeceased by her parents. Her father however had 16 children, 14 by his first marriage and two by his second marriage.

The deceased was a child of this second marriage. She had one sister from her father’s second marriage, but she predeceased the deceased.  Unlike her sister, however, she was survived by several children.

One of these children, Donald, applied for a grant of letters of administration to the estate (or probate) of the deceased, with the expectation that he and his siblings would inherit their aunt’s estate.  But in the application Donald neglected to mention that the deceased had 14 half-siblings from her father’s first marriage.

The justification that was made by Donald for not mentioning the 14 half-siblings, was that the half-blood siblings were precluded from receiving under the intestacy because s. 47 of the Act was silent about whether half-blood siblings were entitled to share equally with whole blood siblings.  Section 47, it was argued, only applied to half-blood relatives where a “person dies intestate in respect of property and there is no surviving spouse, issue, parent, brother, sister, nephew or niece”, which wasn’t the case here.

The court (understandably) disagreed with this view, noting, amongst other points, that the previous legislation governing intestacies in Ontario, known as The Devolution of Estates Act, enabled half-siblings to be treated equally to whole siblings of a deceased and that there was no evidence to suggest that the legislature when drafting the Succession Law Reform Act intended to alter this precedent.

The court cited with approval the comments of the authors of Macdonnell, Sheard and Hull on Probate Practice (3rd. ed. 1981) who stated that in “the absence of any intelligible reason for such a distinction [i.e. allowing half-cousins to share in the estate equally, but not half-siblings or half nieces or nephews], the fact that no such distinction was recognized under the Statute of Distributions or The Devolution of Estates Act and the unlikelihood that Parliament intended to reject the recommendation of The Ontario Law Reform Commission that no change should be made in the law in this respect, the better view is that the reference to subsection 6 governs only the method of computing degrees of kindred.”

Accordingly, the court found that all “half-bloods” of the same degree of kindred to their “whole blood” relatives, whether they be siblings, nephews or nieces, or cousins are entitled to share equally under an intestacy.

Beneficiaries to an intestacy and any individuals applying to act as Estate Trustee without a Will should be mindful of this fact.  Given the complexities that can arise when dealing with an intestacy, it may be advisable to seek legal guidance.

The author of this blog is Bradley Phillips. Bradley is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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