Highlights from the Law Reform Commission of Saskatchewan’s Paper on Intestate Succession

I. INTRODUCTION

Although a topic many would prefer not to discuss or even think about, death is coming for us all. Benjamin Franklin was correct when he stated that the only things in life that cannot be avoided are death and taxes.¹ However, death and taxes share more than just their inevitable arrival. Just as tax season can be more enjoyable if one has planned out their financial dealings with a careful eye to the future, so too can the administration of an estate with a carefully drafted will. Regardless of this fact, a great number of people die each year with no estate plan or will of any kind.² Unlike a forgotten tax return, however, the government seeks to help these individuals sort out their affairs. The Saskatchewan Legislature decided 110 years ago to craft its own law dealing with the distribution of assets of those who die intestate, thereby helping their loved ones understand where everything will go.³ Over the years this law has been amended numerous times and is now known as The Intestate Succession Act, 1996.⁴

The Act has been analyzed a great number of times, most recently by the Law Reform Commission of Saskatchewan (“the Commission”) in its paper, Reform of The Intestate Succession Act, 1996, which was released in August 2016.⁵ This comment aims to highlight some of the Commission’s recommendations and point out some areas that are in need of further thought and analysis. In Part II, I consider the intestate’s spouse’s preferential share. In Part III, I examine how spousal relationships and their dissolution are handled under the Act. Finally, Part IV considers the parent-child relationship in the modern age.

II. SPOUSE’S PREFERENTIAL SHARE

One of the Act’s more interesting provisions, in my opinion, is that contained in s. 6(2), which entitles the spouse of the intestate to a preferential share in the estate in the amount of $100,000.⁶ The belief behind this provision is that before any assets are distributed to other family members, this amount should be provided to the individual whose economic well-being is most tied to the deceased, their spouse. Similar provisions exist in almost all Canadian jurisdictions,⁷ with preferential shares ranging from $50,000 in Manitoba,⁸ Nova Scotia,⁹ and Nunavut,¹⁰ to $100,000 in the Northwest Territories,¹¹ to $300,000 in British Columbia.¹² With the spouse’s preferential share being three times as much in British Columbia as it is in Saskatchewan, and six times as much as in some other provinces, it is arguable that some provinces are getting this value “right” while others are getting it “wrong.” This view was supported in the Commission’s paper, where it was suggested that Saskatchewan update the value of the spouse’s preferential share.¹³ However, the report does not suggest an updated value.

This is a very important amount which should be considered further. Since the value of the preferential share in Saskatchewan has not been updated since 1990, a basic starting point may be to look to inflation.¹⁴ However, it may also be advisable to consider changes in real estate values in the province, social norms surrounding where an individual generally wishes their wealth to go, as well as the net worth of those who generally die intestate. In considering these factors, the ultimate goal should be to reach a value that is fair and just to all involved parties. 

III. SPOUSAL BREAKDOWN AND MULTIPLE SPOUSES

Another interesting area explored by the Commission was with regard to the possibility of an individual having multiple spouses. Under the Act, an individual has a “spouse” either when they are legally married or are in a common-law relationship, which entails living together for two years.¹⁵ However, a novel issue arises where spouses separate but are not legally divorced. Under s. 20 of the Act, the spouse of an intestate remains entitled to a preferential share of the intestate’s estate until they cohabitate with another person in a spousal relationship.¹⁶ This brings up an issue where the intestate has entered into a new spousal relationship, but their original spouse has not and, therefore, has not triggered s. 20 to end their entitlement to a preferential share under the Act. This is unlike other jurisdictions where either spouse can end a relationship by entering into a new relationship.¹⁷ In this situation, the intestate has two spouses, but the Act has no mechanism to respond.¹⁸

In this circumstance, different provinces have taken different approaches. In British Columbia, for example, the rules for ending a spousal relationship have been relaxed so that a spousal relationship is ended when “one or both persons terminate the relationship.”¹⁹ They also allow for a situation where there are multiple spouses by allowing those spouses to determine how to split the spouse’s preferential share amongst themselves and, if this is not possible, for a court to decide.²⁰ In other provinces, such as Alberta,²¹ rather than ending the relationship, the original spouse is treated as though they have predeceased the intestate in specified circumstances which are generally broader than those that terminate a spousal relationship in Saskatchewan. This is a topic that may warrant more research to determine which approach would work best in the Saskatchewan context. The question to be asked is the following: If Saskatchewan is to amend its provisions regarding how spousal relationships are recognized, is it more logical to treat the original spouse as predeceased or to treat the spousal relationship as terminated? In addition, how flexible should the law be with regard to ending these relationships?²² 

IV. THE PARENT-CHILD RELATIONSHIP IN THE MODERN AGE

Finally, the Commission also addressed two less conventional relationships between parents and children: posthumously conceived children and stepchildren.

The Commission first addressed posthumously conceived children.²³ The Act already grants inheritance rights to a child who is conceived prior to the death of the intestate but not born until after the death of the intestate, in s. 14.²⁴ However, with the expansion of individuals choosing to preserve their genetic material, there is the possibility that a person’s sperm or ovum could be used to conceive a child after their death. This situation has been considered in a number of provinces;²⁵ however, only British Columbia has formally addressed it in legislation.²⁶ This is an issue that deserves attention in Saskatchewan, although the conclusion may be the same as in other jurisdictions: that giving rights to posthumously conceived children simply complicates the law too much.²⁷

Secondly, the Commission considered the rights of stepchildren,²⁸ as they are currently not included as “issue” under the Act.²⁹ With over 15,000 “stepfamilies” in Saskatchewan in 2011,³⁰ it is nearly certain that this issue will need to be addressed in the future. On one hand, many individuals see their stepchildren as equal to their own biological children. On the other hand, this is not always the case, so simply including stepchildren as “issue” likely would not resolve the matter. This is a subject that certainly deserves careful deliberation given the number of factors at play, as is well illustrated by the Commission’s paper. 

V. CONCLUSION

The Commission’s recent report highlights the need for legal reform in the area of intestate succession in Saskatchewan. Although not a sexy subject, this is a discussion that must be had to ensure that those who die intestate, as well as their heirs, are treated fairly and with respect. The report also illustrates the need for further research into how these reforms can best be accomplished. I personally intend to write further on the value that should be attributed to the spouse’s preferential share, assuming it is still relevant in our current legal situation at that time. In conclusion, I would like to thank the Commission for their contributions to the legal environment in Saskatchewan. Their effort certainly does not go unnoticed, and in this case, will hopefully lead to a more modern version of the Act.

---

^* JD Candidate (University of Saskatchewan).

¹ Letter from Benjamin Franklin to Jean-Baptiste Leroy (13 November 1789). Franklin wrote that “in this world nothing can be said to be certain, except death and taxes.”

² Law Reform Commission of Saskatchewan, Reform of The Intestate Succession Act, 1996 (Saskatoon: LRC, 2016) at 12.

³ The Devolution of Estates Act, SS 1907, c 16.

⁴ SS 1996, c I-13.1 [the Act].

⁵ Supra note 2.

⁶ Supra note 4.

⁷ Quebec does not provide a preferential share to spouses under the Civil Code of Quebec (arts 666-83 CCQ), nor does Newfoundland and Labrador (Intestate Succession Act, RSNL 1990, c I-21, s 4) or Prince Edward Island (Probate Act, RSPEI 1988, c P-21, s 87). In New Brunswick, the spouse is preferred by way of receiving all “marital property,” but does not receive a fixed value (Devolution of Estates Act, RSNB 1973, c D-9, ss 22(2), 22(2.1)).

⁸ The Intestate Succession Act, CCSM c 185, s 2(3).

⁹ Intestate Succession Act, RSNS 1989, c 236, s 4(2). Also, note that s. 4(4)(a) gives the spouse the option of taking the family home in lieu of the $50,000.

¹⁰ Intestate Succession Act, RSNWT 1988, c I-10, s 2(4), as duplicated for Nunavut by s 29 of the Nunavut Act, SC 1993, c 28.

¹¹ Intestate Succession Act, RSNWT 1988, c I-10, s 2(4) [NWT Act]. Also, note that s. 2(5) gives the spouse the option of taking the family home in lieu of the $100,000.

¹² Wills, Estates and Succession Act, SBC 2009, c 13, s 21(3) [BC Act]. However, it should be noted that this is reduced to $150,000 under s. 21(4) if not all of the intestate’s children are also the children of the spouse.

¹³ Supra note 2 at 15.

¹⁴ Ibid.

¹⁵ Supra note 4, s 2.

¹⁶ Ibid.

¹⁷ See NWT Act, supra note 11, s 13(1).

¹⁸ Law Reform Commission of Saskatchewan, supra note 2 at 20.

¹⁹ BC Act, supra note 12, s 2(2).

²⁰ Ibid, s 22(1).

²¹ Wills and Succession Act, SA 2010, c W-12.2, s 63(1).

²² For a discussion of the differences between the Western provinces in terms of flexibility, see Law Reform Commission of Saskatchewan, supra note 2 at 21.

²³ Ibid at 22.

²⁴ Supra note 4.

²⁵ Law Reform Commission of Saskatchewan, supra note 2 at 23-28.

²⁶ Ibid at 22-23, 25-26.

²⁷ Ibid at 28.

²⁸ Ibid at 28-34.

²⁹ Supra note 4, s 2.

³⁰ Government of Saskatchewan, “Saskatchewan Families and Households” (Regina: Bureau of Statistics, 2012), online: <http://www.stats.gov.sk.ca/stats/pop/2011FamiliesHouseholds.pdf>, archived: <https://perma.cc/A99V-77FL>.