If a person dies without a will they are said to have died “intestate” therefore, statutory rules apply to the distribution of their estate. Dying intestate can create circumstances involving a range of legal issues which may result in an estate dispute.
This article summarizes some of the basic intestacy rules that apply in British Columbia. It also reviews a recent decision of the Supreme Court of British Columbia which demonstrates the turmoil that can result when a person dies without a will. In the case, one of the deceased’s daughters applied to the court to be appointed the estate administrator but some of her siblings opposed her application.
Part 3 of the British Columbia Wills, Estates and Succession Act (the “WESA”) sets out the rules that apply to the distribution of the deceased’s property when they die without a will. A different regime applies to individuals registered under the Indian Act.
The WESA lays down an order in which relatives inherit a deceased’s estate. Firstly, if the deceased had a spouse and no surviving descendants, the entire estate goes to the spouse.
If the deceased had a spouse and surviving descendants, the spouse receives the household furnishings plus a preferential estate share. This share is $300,000 if all surviving descendants are descendants of the deceased and spouse; otherwise it is $150,000. The remainder of the estate is divided with 50% going to the spouse and 50% to the descendants.
If the deceased did not have a spouse, the estate is distributed in the following order:
- equally among the deceased’s descendants;
- if no surviving descendant – equally among the deceased’s surviving parents;
- if no surviving parent – equally among the descendants of the parents (the deceased’s siblings); and
- if no surviving sibling – to surviving grandparents (or their descendants if deceased); otherwise to surviving great-grandparents (or their descendants if deceased).
Importantly, a person may be entitled as a surviving descendant or a descendant of a deceased descendent. This means that, for example, the deceased’s grandchildren are higher up the order of priority than the deceased’s parents.
Finally, if none of the above-listed relatives are alive, the estate passes to the provincial government, subject to the Escheat Act.
The WESA contains special rules that apply to the spousal home. It allows the spouse to receive the house to satisfy part or all of their share in the estate. For example, if a spouse is entitled to $500,000 of the estate and the deceased’s house is worth $400,000, the surviving spouse can elect to receive the house and $100,000 in other assets. It is important to note that the right to acquire the spousal home applies for a limited period of time.
If there is no will, there is no executor. Certain people are eligible to apply to the court for a grant of administration to handle the estate. If successful, the administrator is able to distribute the estate. An executor’s responsibilities often include valuing the deceased’s assets and debts, transferring the ownership of assets and selling assets.
Section 130 of the WESA allows the court to grant administration of the estate to one or more people, in a list of priority. This list starts with the deceased’s spouse or nominee, a child of the deceased having consent of the majority of children, a person nominated by a child if they have consent of the majority of children, and a child not having the consent of the majority of children, but also includes others.
In the recent case of Re Berlinguette Estate, the deceased died intestate, leaving behind five children. The deceased’s only significant asset was a house in Langley, which she had purchased with her son, Albert. They were both named on the title as tenants-in-common, but Albert removed himself when he ran into financial difficulties. Subsequently, the deceased added three of her other children to the title for no consideration.
Following her death, these three children sold the property. Her other child, Cherie, filed a notice of civil claim seeking various relief, including that the three children hold the proceeds of sale in trust for the deceased’s estate. She also sought an order declaring her the administrator of the estate, which was the subject of this decision.
Cherie argued that distribution of the estate was languishing because no administrator had been appointed. She wanted to distribute the estate equally among the deceased’s children, including the proceeds of sale. She argued her interests were aligned with the intestacy rules of the WESA.
This was opposed by her three siblings who were listed on the title to the house. They argued that she was not an appropriate administrator because she was not neutral. Their position was that the sale proceeds were not part of the estate because the title to the house was in their names.
Justice Gibb-Carsley of the Supreme Court of British Columbia sided with the applicant’s three siblings. Despite noting that Cherie and Albert thought it was unfair that they received no inheritance, this was not the issue to be decided.
As Cherie did not have the consent of the majority of children to be appointed administrator, his Honour said the court could only appoint her if she was independent and indifferent to the outcome of the estate’s distribution. Cherie was not detached from the outcome, so his Honour refused her application.
Administration of the estate was paused pending the outcome of Cherie’s civil claim.
The trusted team of estate litigators at Meridian Law Group provide comprehensive advice and advocacy when helping clients navigate complex estate litigation matters. We aim to resolve estate disputes amicably but are prepared to strenuously advocate for our clients’ rights where needed. We are located in downtown Vancouver and proudly represent clients throughout British Columbia. To arrange a confidential consultation to discuss your estate dispute, call (604) 687-2277 or fill out our online form.