Succession
| Author | Stephen G.A. Pitel; Nicholas S. Rafferty |
| Pages | 359-389 |
CHAPTER
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
(as
a
synonym
for
distribution).
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
pro
bate
to
those
appointed
in
the
will
as
executors;
(2)
a
grant
of
admin
istration
with
will
annexed
where
no
executors
have
been
appointed
by
the
will
or
where
the
named
executors
have
died
or
renounced;
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
off
the
estate
’
s
debts,
and
to
distribute
any
surplus
to
those
beneficially
entitled.
In
this
process,
the
courts
distinguish
between
matters
of
administra
tion
and
matters
of
distribution.
The
law
governing
the
administration
is
the
law
of
the
country
that
appointed
the
personal
representative.
The
law
governing
the
distribution
is,
in
general,
the
law
of
the
last
359
360
CONFLICT
OF
LAWS
domicile
of
the
deceased
in
the
case
of
movable
property
and
the
law
of
the
situs
in
the
case
of
immovable
property.
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
5
The
statute
also
states
that,
in
any
other
case,
an
application
may
be
made
to
the
court
of
any
district.
3
Normally,
there
would
be
no
point
in
applying
for
a
grant
of
representation
where
the
deceased
did
not
reside
in
and
left
no
prop
erty
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
cannot
be
administered
as
a
whole.
There
must
be
sep
arate
administrations
of
an
estate
in
each
jurisdiction
in
which
the
de
ceased
left
assets.
Thus,
a
provincial
grant
of
representation
is
effective
only
in
respect
of
property
of
the
deceased
situated
in
that
province.
The
common
law
draws
a
distinction
between
the
principal
administra
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,
Castel
&>
Walker:
Canadian
Conflict
of
Laws,
6th
ed
(Markham,
ON:
Butterworths,
2005)
(loose-leaf)
at
para
26.2.a.
7
Estate
Administration
Act,
SA
2014,
c
E-12.5,
s
2(2).
To continue reading
Request your trial