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

CHAP TER 19

SUCCESSION

A. INTRODUC TION

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 represent ation 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 t he will or

where the named executors have died or renounced; and (iii) a grant of

administration where the deceased ha s left no will. Once appointed or

recognized by the court s, 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 disti nguish between matters of adm inistration and m atters of

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

istration, which is the l aw of the country that appointed t he 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. ADMINISTR ATION 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 ass ets

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

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

intang ible propert y in thi s context.1 Leg islation, 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 representat ion

shall be made to the court of the district in wh ich the deceased had a

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

place of abode in Ontar io at the t ime 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 distr ict.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 de ceased neither died re sident nor left property in t he prov-

ince, the court may stay the proceedings.7

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

ate administr ations of an estate in each jur isdiction in which t he de-

ceased left assets. Thus, a provincial grant of represent ation is effective

only in re spect of prope rty of the deceas ed situate d in that province.

The common law draws a distinct ion between the principal adm inis-

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

and ancillar y admini strations, which take place in all other jur isdic-

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

1 See, generally, Chapter 16.

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

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

4Ibid., s. 7(2).

5Ibid., s. 7(3).

6 Janet 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).