Succession

• Author: Stephen G.A. Pitel/Nicholas S. Rafferty
• Profession: Faculty of Law, University of Western Ontario/Faculty of Law, University of Calgary
• Pages: 340-369

340

CHAPTER 19

SUCCESSION

A. INTRODUCTION

The topic of succession in a broad sense covers two areas: the admin-

istration of the estate and the distribution of the deceased person’s

property to those benef‌icia lly entitled, whether under a will or on an in-

testacy. In common law jurisdictions no one is entitled to deal w ith the

deceased’s property without a grant of representation from the courts.

Such a grant will be in one of three form s: (i) a grant of probate to those

appointed in the will as executors; (ii) 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; and (iii) 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 sur plus to those benef‌icially entitled. In this proce ss, the

courts distinguish between matters of administration and matters of

distribution. The former are referred to the law governing the admin-

istration, which is the law of the country that appointed the personal

representative. The latter—questions of succession in a more narrow

sense—are governed in general by the law of the last domicile of the

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

the case of immovable property.

Succession 341

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

intangible property in this context.1 Legislation, however, has broad-

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

occurred by vir tue of section 2 of the Administration of Justice Act 1932.2

Equally, provinc ial statutes now allow for g rants of represent ation even

though the deceased left no ass ets 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 i n a dist rict where th e deceas ed left pr operty.4 The stat-

ute 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 apply-

ing for a grant of representation where the deceased did not reside, 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, where it is shown to the court

that the deceased neither died resident nor left property in the prov-

ince, the court may stay the proceedings.7

An estate cannot be administered as a whole. There must be separ-

ate 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 adminis-

tration, which takes place in the country of the deceased’s domicile,

and ancillary administrations, which take place in all other jurisdic-

tions where the deceased left property. In an attempt to coordinate the

1See, generally, Chapter 16.

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

3R.S.O. 1990, c. E.21, s. 7(1).

4Ibid., s. 7(2).

5Ibid., s. 7(3).

6Janet Walker, Castel & Walker: Canadia n Conf‌lict of Laws, 6th ed. (Markham,

ON: Butterworths, 2 005) at para. 26.2.a.

7Administration of Estates Ac t, R.S.A. 2000, c. A-2, s. 2(2).