CHAPTER 19 Succession

• Date: 07 April 2025

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CH AP TE R 19

SUCCESSION

A. INTRODUCTION

In a broad sense, the topic of succession covers two areas: the adminis-

tration of the estate and the distribution of the deceased person’s prop-

erty to those benef‌icially entitled, whether under a will or on intestacy.

In a narrow sense, succession refers only to the second of these areas,

distribution, and is separate from estate administration. This chapter

covers both administration and distribution. It will generally use suc-

cession in the narrow sense.

In common law jurisdictions no one is entitled to deal with the

property of a deceased person without a grant of representation from

the courts. Such a grant will be in one of three forms: (1) a grant

of probate to those appointed in the will as executors; (2) a grant

of administration with will annexed where no executors have been

appointed by the will or where the named executors have died or

renounced their appointment; and (3) a grant of administration where

the deceased has left no will. Once appointed or recognized by the

courts, the personal representative is under a duty to gather in the

deceased’s assets, to pay o the estate’s debts, and to distribute any sur-

plus to those who are benef‌icially entitled. In this process, the courts

distinguish between matters of administration and matters of distri-

bution. The law governing the administration is the law of the coun-

try that appointed the personal representative. The law governing the

distribution is, in general, the law of the last domicile of the deceased

in the case of movable property and the law of the situs in the case of

immovable property.

Succession 415

B. ADMINISTRATION OF ESTATES

1) Local Grants of Representation

Traditionally, the presence of local assets was required for a local grant

of representation. The courts were, therefore, called on to locate assets

for the purpose of the administration of an estate. It was easy to locate

tangible property but the court had to develop rules for the situs of intan-

gible property in this context.1 Legislation, however, has broadened the

courts’ jurisdiction. In the United Kingdom, this expansion occurred

by virtue of section 2 of the Administration of Justice Act 1932.2 Equally,

provincial statutes now allow for grants of representation even though

the deceased left no assets in the province. Ontario’s Estates Act, for

example, provides that an application for a grant of representation shall

be made to the court of the district in which the deceased had a f‌ixed

place of abode at the time of death.3 If the deceased had no f‌ixed place

of abode in Ontario at the time of death then the application should be

made in a district where the deceased left property.4 The statute also

states that, in any other case, an application may be made to the court of

any district.5 Normally, there would be no point in applying for a grant of

representation where the deceased did not reside in and left no property

in the province. It has been suggested that one such case would be where

the deceased died domiciled in the province.6 In Alberta, it is specif‌ically

provided that when the deceased neither died resident nor left property

in the province, the court may stay the proceedings.7

An estate with property in multiple jurisdictions cannot be admin-

istered as a whole. There must be separate administrations of an estate

in each jurisdiction in which the deceased left assets. Thus, a provin-

cial grant of representation is eective only in respect of property of

the deceased located in that province. The common law draws a dis-

tinction between the principal administration, which takes place in the

country of the deceased’s domicile, and ancillary administrations, which

take place in all other jurisdictions where the deceased left property. In

an attempt to coordinate the administration of an entire estate, local

1 See, generally, Chapter 16.

2 (UK), 22 & 23 Geo 5, c 55.

3 RSO 1990, c E.21, s 7(1).

4 Ibid, s 7(2).

5 Ibid, s 7(3).

6 Janet Walker, Canadian Conf‌lict of Laws, 7th ed (Markham, ON: LexisNexis Can-

ada Inc, 2023) (loose-leaf) at para 24.01(4)(a).

7 Estate Administration Act, SA 2014, c E-12.5, s 2(2).