VIDEO - Capacity and clients: Understanding the Ontario Substitute Decisions Act - Part 4
- Condominium Group
- Dec 30, 2007
- 2 min read
VIDEO - Capacity and clients: Understanding the Ontario Substitute Decisions Act - Part 4
December 31, 2007
Which jurisdiction's laws apply when a deceased has assets in several locations? Is it the location of the assets or the location of the individual?
To answer this question, Ontario's Succession Law Reform Act draws a distinction between immovables (real estate) and movables (any other personal property). The general rule is that immovables are governed by the law of the land in which the land is situated, and movables are governed by the law of the domicile of the deceased at the time of death.
For example, if a deceased was domiciled in Ontario at the time of death, and owned real estate in the United States, although that deceased's personal property - say, bank accounts - would be governed pursuant to Ontario law, this land interest would be governed pursuant to the law of the United States. It may be that the formalities of each jurisdiction's succession law differ, so a Will which may properly gift land situated in Ontario may not effectively gift land situated elsewhere.
Despite this rule, there is precedent for courts in Ontario to deviate. In Vak Estate (Re) (1994), 20 O.R. (3d) 378 (Ont. Ct. (Gen. Div.)) (http://canlii.ca/t/1vt56), the deceased died intestate, and at the time of death, was domiciled in Manitoba and owned land in Ontario. The general rule would therefore suggest that the land disposition would be governed by Ontario law, however, Kinsman J. stated as follows:
"The assets irrespective of whether they are movables or immovables, should be assembled under the administrators umbrella, and after setting aside the highest preferential share permitted under the respective jurisdictions where the assets are located, the residue of the estate be divided by the applicable law of the deceased's usual or habitual place of residence."
Kinsman J. appeared to be more concerned with fairness and equity to the deceased's widow, rather than with the general rules of governance. To illustrate, he actually found that it was...:
""...unnecessary to decide whether the laws of Ontario or Manitoba govern the disposition of the Ontario real estate.""
Unfortunately, this case has not been referenced significantly within subsequent Ontario jurisprudence. While deviation from the general rule does not appear to be a continuous trend, the court has certainly left the door open to an alternative governing approach, especially when fairness and equity calls.
