The Law Reform Commission of Saskatchewan was established by An Act to Establish a Law Reform Commission, proclaimed in force in November, 1973. The Commission began functioning in February, 1974. Commissioners are appointed by Order in Council. The Commission’s recommendations are independent, and are submitted to the Minister of Justice and Attorney General of Saskatchewan for consideration.

Projects are initiated by the Commission in response to suggestions from the public and the legal community, or at the request of the Minister of Justice and Attorney General. After preliminary research, the Commission usually issues background or consultation paper to facilitate consultation. Tentative Proposals may be issued if the legal issues involved in a project are complex. Upon completion of a project, the Commission’s recommendations are formally submitted to the Minister of Justice and Attorney General as final proposals.

At present, the Commission is funded by grants from the Law Foundation of Saskatchewan and the Ministry of Justice.

The Intestate Succession Act, 1996 (the Act) determines how an estate is divided when there is not a valid will. It also applies to any portion of an estate that is left after a will has been completely applied.

This project was initiated by a suggestion of the Public Guardian and Trustee and a Saskatchewan lawyer in relation to several sections of the Act. The Law Reform Commission of Saskatchewan has decided to undertake a review of the Act in its entirety. Every Saskatchewan resident could be affected by the law of intestacy at some point in their lives, or at death, so the Act should be current, comprehensive, and complete. In the 20 years since the Act was passed, the other Western provinces have all revised their intestate succession legislation

This survey will provide a summary of the discussion on each issue contained in the consultation paper and then pose the questions as they are stated in the consultation paper. In order to fully understand and respond to the questions being posed in this survey, you may wish to read the consultation paper prior to completing this survey.

Your comments and input are welcomed and appreciated.

Please complete this survey by October 31, 2106.

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* 1. The preferential share is the amount of the estate the intestate’s spouse receives before other amounts from the estate are distributed. Currently, the Act provides a preferential share of $100,000 to the spouse and one-half of the residue if the intestate had one child or one-third of the residue if the intestate had more than one child. 

An order under The Family Property Act can distribute part of the assets to the spouse. In addition, the intestate’s spouse, minor children or certain children over 18 with a disability may also receive part of the intestate’s assets if these individuals were dependent on the intestate. This requires an order under either or both of The Family Property Act or The Dependants’ Relief Act, 1996. Assets that are jointly owned by the intestate and spouse will be the property of the spouse and not part of the estate.

The introduction of a distinction between spouses who share all their children and spouses who do not, shows that there are situations where the intestate is less likely to desire to leave their entire estate to their spouse. Passing the entire estate to the spouse where all the children are shared could provide several important benefits. First, where part of the estate passes to a minor child, the Public Guardian and Trustee must become involved and remains involved while the child remains a minor regarding the use of the assets. Second, passing the entire estate to the spouse would eliminate the need for the spouse to make applications under The Family Property Act and/or The Dependants’ Relief Act, 1996 to obtain a larger share of the estate.

A final issue to consider is whether the preferential share should be prescribed in the regulations rather than set out in the Act. Alberta has a prescribed amount; the current prescribed amount also has an end date. Considering how long it has been since the preferential share has been changed in Saskatchewan, this may be a useful approach.

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* 2. The Act was changed in 2001 to recognize common-law spouses as spouses. The current definition of spouse in section 2 is:

(a) the legally married spouse of the intestate; or
(b) if the intestate did not have a spouse within the meaning of clause (a) or had a spouse within the meaning of clause (a) to whom section 20 applies, a person who:
(i) cohabited with the intestate as spouses continuously for a period of not less than two years; and
(ii) at the time of the intestate's death was continuing to cohabit with the intestate or had ceased to cohabit with the intestate within the 24 months before the intestate's death.

The separation provision in section 20 states:

Where the spouse of an intestate has left the intestate and is cohabiting with another person in a spousal relationship at the time of the intestate's death, the spouse takes no part in the intestate's estate.

This section means that if married spouses are separated and the intestate has a common-law spouse, the common-law spouse is only able to inherit if the surviving married spouse is cohabiting with another person in a spousal relationship. As a result, the intestate may have a common-law spouse who is not recognized by the Act because the intestate is still married and section 20 does not apply. In this case, where the intestate has cohabited with someone for two years, the intestate may wish to pass property to that individual instead of to the intestate’s married spouse.

In addition, there may be situations where neither the intestate nor the married spouse has cohabited with another person, and the marriage is essentially over but a divorce has not been obtained. In this case the intestate may in some circumstances have wanted the estate to go to the spouse and in some cases would have preferred that it go to others.

The Act could be changed so that the existence of a married spouse not within section 20 does not preclude the recognition of a common-law spouse. This could lead to the circumstance of having multiple spouses under the Act, which may better recognize the status of the parties involved. The definition of spouse provides an end-point for a common-law relationship; this could be altered or left as it is.

The other Western provinces use family property legislation to define when a married spouse will no longer be considered a spouse for intestate succession and also allow for events outside of that legislation to establish the end of the relationship.

How should it be determined that a spousal or common-law relationship has ended for the purposes of the Act?

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* 3. Depending on the changes made regarding the definitions of spouse and separation, the result could be situations where an intestate has multiple spouses. The Saskatchewan legislation does not currently allow for this in relation to intestate succession, although multiple spouses are possible for dependant’s relief applications and family property divisions. The other Western provinces all have provisions that contemplate the possibility of multiple spouses even when, due to other provisions in their legislation, the possibility of having multiple spouses is remote.

The British Columbia provision may be useful. It provides the option that either an agreement between the parties or a court may determine the division:

22 (1) If 2 or more persons are entitled to a spousal share of an intestate estate, they share the spousal share in the portions to which they agree, or if they cannot agree, as determined by the court.

(2) If 2 or more persons are entitled to apply or have priority as a spouse under this Act in respect of an intestate estate, they may agree on who is to apply or who is to have priority, but if they do not, the court may make the decision.

In Alberta, when there is a spouse and an adult interdependent partner, each party receives half of the spousal share. This is a clear rule instead of a flexible one, as British Columbia has. The Manitoba provision favours the more recent spouse, giving them priority over other spouses but allows for other spouses to make a claim under family property legislation. If the earlier spouse received assets through that application, the recent spouse’s share of the estate is reduced by that same amount so that the spousal share does not use up a larger portion of the estate.

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* 4. Canadian intestate succession legislation recognizes circumstances where children are conceived before, but born after, the death of one of the parents. Children who are en ventre sa mere (in utero) at the time of one parent's death are granted succession rights, including the right to inherit on intestacy. In general, Canadian legislation has not touched on the topic of posthumously conceived children. Posthumously conceived children are children who are conceived using genetic material of an individual after they have died.

Arguments in favour of allowing posthumously conceived children to inherit under intestate legislation are centered around the rights and best interests of the child. Children should not be treated differently based on the choices of their parents and an analogy can be drawn between children conceived posthumously and children born outside marriage. Moreover, the deceased individual is required to have consented to the posthumous use of his or her genetic material, and presumably they would have intended for all of their potential offspring to benefit from their estate. Arguments against allowing posthumously conceived children to inherit from an intestate are based on the need for orderly and timely estate administration and protecting the interests of other beneficiaries.

Currently, British Columbia is the only jurisdiction in Canada which provides intestate succession rights to children conceived posthumously.In order to address concerns in relation to the timely and orderly administration of estates, British Columbia has imposed two conditions on the right of a posthumously conceived child to inherit from an intestate. First, the spouse and potential parent must give notice that they may use the genetic material of the deceased to conceive a child through assisted reproduction. Second, the potential descendant must be born within two years after the deceased person’s death. Also of importance is that the right of the descendant to inherit from relatives of the deceased only begins on the date the descendant is born. Thus, the estates of the child’s other intestate relatives may be entirely disposed of before the child is entitled to claim any inheritance.

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* 5. Stepchildren are not recognized as issue for the purposes of intestate succession. However, stepfamilies play an important role in modern society and the relationship between stepparents and stepchildren can be just as important as relationships between parents and their other children. Further, there are a large number of stepfamilies in Saskatchewan. Thus, it may be time to consider whether some step-relationships should be recognized for the purposes of intestate succession. Similar considerations apply to families where children are treated as adopted but have not been formally adopted.

It is important to note that not every step-relationship can be equated to a parent and child relationship. There may be instances where a stepparent would not want part of their estate to go to a stepchild. For instance, if two individuals with adult children marry, they may intend the remainder of their estate to go to their children and not their stepchildren. Thus it may not be suitable to simply redefine “issue” to include stepchildren, as it would be difficult to conclude that intestates, as a group, would want their stepchildren to inherit.

An alternative option would be to allow a court to assess whether stepchildren in a particular case should be able to inherit from an intestate. However, such a process would complicate what is currently quite a clear piece of legislation. In addition to consuming resources and court time, adding stepchildren and informal adoptees as possible heirs could also lead to delays in the distribution of many estates, even when there is not a good claim.

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* 6. Advancements from a parent to a child reduce the amount of the estate a child inherits from their intestate parent. Subsection 15(1) of the Act states: “where a child of a person who has died wholly intestate has been advanced by the intestate by portion, that portion is to be considered as part of the estate of the intestate according to law.” Note that pursuant to subsection 15(1), the doctrine of advancement does not apply to a partial intestacy, nor does it apply to payments made to family members other than children, such as grandchildren or nieces or nephews.

The Act refers to proving “that a child has been maintained or educated, or has been given money, with a view to a portion.” Except where the intestate has expressed the intention that the amount is an advancement or the child who received the amount has acknowledged in writing that the amount is an advancement, the onus is on the person claiming an advancement to prove it. The value of an advancement is the value at the time of advancement, unless expressed by the intestate or acknowledged by the child who received it, in writing.

A number of changes could be made to the advancement provision. One option would be to expand it to apply to partial intestacies. Section 15 only applies where a person has “died wholly intestate.”

A second option would be to abolish the advancement provision, as was done in British Columbia. The British Columbia Law Reform Commission was of the view that intestacy rules should distribute the property of the intestate on death and not remedy any unequal treatment of children that may have occurred during the intestate’s lifetime.

However, the inclusion of this provision may still prove useful in limited circumstances. When the Alberta Law Reform Commission considered this issue 15 years ago, according to lawyers who responded to their questionnaire, a significant number of individuals in Alberta wanted large amounts transferred to a child to be taken into account when their estate is divided. There was a mixed response on whether the doctrine of advancement still served a useful purpose in Alberta.

The lack of any reported cases on this issue in Saskatchewan suggests that it has not been problematic.

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* 7. Under the Act, if an intestate has no spouse or issue, the estate passes to: (i) the parents of the intestate equally, or the surviving parent if one has died; (ii) if there are no surviving parents, to the siblings of the intestate with representation; (iii) if there are no surviving siblings, to the nieces and nephews of the intestate without representation; and lastly (iv) if there are no surviving nieces and nephews, to those who share the highest degree of consanguinity without representation. All of the other Western provinces have changed their legislation to use the parentelic system instead of degrees of consanguinity.

A parentelic system, instead of focusing on degrees of kinship, looks at each family line and does not consider a new family line until the first line is extinguished. First, the parents’ lines are considered and only if there is no one to inherit in those lines are the next lines considered, such as those of the grandparents. Within each line the relatives of the highest degree of kinship inherit. In this system, if there was a great niece, only the parents’ lines would be investigated. If there were other relatives of the fourth degree of kinship that are not in the parents’ lines, like a first cousin or great uncle, they would not share in the estate.

The benefit of changing the existing system is it would reduce the amount of work and cost involved in administering the estate where distant relatives are the ones to inherit. Under the parentelic system, if the closest relative is a great niece, the administrator will only have to identify and determine the status of the intestate’s parents, siblings, nieces, nephews, great nieces and great nephews to determine this. In contrast, the current Saskatchewan system in this scenario would require the administrator to identify and determine the status of the intestate’s parents, siblings, nephews, nieces, great nieces, great nephews, grandparents, aunts, uncles, first cousins, great grandparents, great aunts, great uncles and great-great grandparents before it could be determined that the great niece is the relative to inherit.

The British Columbia Ministry of Justice provided two reasons to change from a degree of kinship to a parentelic system:

1. First, descendants of the nearest common ancestor will always take before descendants of a more remote ancestor. This is desirable as it can be very expensive to search for relatives of a deceased person and the expense usually rises with the level of remoteness involved.

2. Second, the parentelic system tends to divide the estate more evenly between the different branches of a deceased’s family.

The Alberta Law Reform Institute noted that distant relatives may feel uncomfortable inheriting, and the Manitoba Law Reform Commission added that the intestate is more likely to be in a closer relationship with younger relatives.

Should next of kin be determined by the parentelic system of distribution instead of the current system in order to simplify the process of determining next of kin?

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* 8. In addition to adopting the parentelic system of distribution, the Act could place a limit on which degrees of kinship can inherit. The British Columbia and Alberta legislation limit inheritance rights to the fourth degree of kinship under the parentelic system (cousins, grand-nieces and -nephews, grand-uncles and -aunts). The rationale for this limit is that it can be time consuming and costly to trace distant relatives. The limit avoids depletion of the estate by the costs involved in locating distant relatives of the deceased. The Alberta legislation and the British Columbia legislation exempt an intestate’s descendants (children, grandchildren, etc.) from the fourth degree of kinship cut-off.

If the Act limits the degree of kinship, it could allow those of further degrees of kinship to inherit, but do so in a way that places the obligation on the relative to prove their claim, instead of placing the obligation on the administrator to identify that person.

One more option is to include a provision requiring that if there are no relatives in a parent’s line, both sides of the family are considered separately and receive half of the estate, if there is a living relative on each side of the family. This could increase the work required of the administrator but may also produce a result that appears more fair.

Should the Act place a limit on which degree of kinship can inherit?

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* 9. Conflict of laws governs what happens when an issue relates to more than one jurisdiction. It governs both the place where an action should be taken (jurisdiction) and the choice of law (the law of which province or state should apply). In relation to intestate succession, the primary issue that needs to be considered is choice of law. There are two different contexts in which to consider this: interprovincial and international. On an interprovincial level, the law in each province is likely to be similar, but under a traditional approach, the result would be the spouse receiving a preferential share twice.

There are limited circumstances in which this would be an issue, such as when the intestate is not domiciled in Saskatchewan at the time of the intestate’s death but has immovable property in Saskatchewan. “Immovables” generally includes real estate or rights related to real estate. The general rule is that the law of the lex situs (the physical location) governs immovables and the law of the lex domicilii (the location of domicile at death) governs movables. As a result, when the intestate has real property or certain types of rights to real property in Saskatchewan, but lives and has other property outside of Saskatchewan, the estate is subject to two different sets of law: one for the real property in Saskatchewan and one for the rest of the estate which could include other property in Saskatchewan.

There are no reported Saskatchewan cases dealing with this issue. However, two Manitoba cases suggest that a clear provision may be useful when the intestate has land in Saskatchewan but is domiciled in another province.

There are three approaches that could be taken in relation to the interprovincial conflict of laws. The first is to not make any changes to the legislation. If there is no provision in the legislation, it is not clear if the court would follow the traditional approach (i.e. allow “double dipping”) or the approach of the Manitoba courts (i.e. prevent “double dipping”).

A second option is one recommended by the Manitoba Law Reform Commission. They recommended having the law of the intestate’s domicile determine how immovables in Manitoba are distributed. This is referred to as a single choice of law or a unitarist approach as the law of only one place applies. This recommendation was made in relation to both interprovincial and international matters.

A third option would be to amend the Act to direct the courts to follow the approach taken by the Manitoba courts in order to prevent “double dipping.”The Act could be amended to direct the court to award the spouse the highest preferential share and then divide the residue based on the law of the province where the intestate was habitually resident. If the estate has already been dealt with in another jurisdiction, the Act could direct the court to subtract the amount of the preferential share already received from that which would normally be awarded under the Act, and to divide the residue based on the law of the province where the intestate was habitually resident.

Should the Act address immovables in Saskatchewan where the intestate is domiciled in another province or country? If it does, should it adopt the the Hague Convention’s single choice of law approach? Or should it guide the courts to follow the approach taken by the Manitoba courts?

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* 10. As the Act is intended to reflect the succession desires of intestates in general, the Commission would appreciate hearing about your (or your clients) succession preferences. Are there any other reforms that could be made to the Act in order for it to better represent the succession desires of intestates? Are there any cultural practices relating to intestate succession that should be incorporated or referenced in the Act?