Understanding Intestate Succession – Estate Litigation

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Estate Planning and Estate Litigation lawyers often preach the importance of planning ahead and most importantly, executing a valid will that deals with all of your assets. However even in circumstances where someone has tried to make an estate plan, if the will is found to be invalid or poorly drafted so that all assets are not covered, the distribution of a deceased’s estate will occur via an Intestacy.

What is Wills Estates and Succession Act (WESA)?

The Wills Estates and Succession Act (“WESA”) sets out the statutory scheme under which property is distributed by way of intestacy. When considering an Intestacy, one must first determine who the valid estate intestate successors are. Sections 21-25 of WESA, and the first issue to be determined is whether the deceased had a spouse. In the event that the Deceased had a spouse and no children, the spouse is entitled to all of the assets. For the purposes of this act, a spouse is defined as:

2  (1) Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and

(a) they were married to each other, or

(b) they had lived with each other in a marriage-like relationship for at least 2 years.


However, it is important to note that upon a separation, the spousal relationship ceases (even if the parties are legally married still) and separation is described as follows:


(2) Two persons cease being spouses of each other for the purposes of this Act if,

(a) in the case of a marriage, an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the Family Law Act, to arise, or

(b) in the case of a marriage-like relationship, one or both persons terminate the relationship.

(2.1) For the purposes of this Act, spouses are not considered to have separated if, within one year after separation,

(a) they begin to live together again and the primary purpose for doing so is to reconcile, and

(b) they continue to live together for one or more periods, totaling at least 90 days.


In Part 2 of this Blog we will discuss the intestate succession rules for intestacies involving spouses and children.


If you are involved in estate dispute, contact the Kushner Law Group today to schedule a consultation.


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