Intestacy (16:VIII)

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A. Generally

If a person dies intestate (without a valid will), his or her assets are distributed to intestate successors in accordance with WESA. Where a will exists but does not cover all assets, there will be a partial intestacy and those assets outside the will that do not pass by contract or survivorship will pass according to WESA. Distribution

1. Spouses

Under WESA, it is possible to have more than one spouse.

The spouse of the deceased is always entitled to a preferential share of the estate, as well as the “household furnishings” defined as the personal property usually associated with the enjoyment by the spouses of the spousal home (WESA s 21(1)).

If there are two or more spouses, they must agree as to how to divide the preferential share, otherwise it will be determined by the courts (WESA s 22).

2. Spousal Home

In intestacy, the surviving spouse no longer has a right to the spousal home, but has a right to acquire it under s 31 of WESA. Section 33 allows the surviving spouse to make an application to retain the spousal home, considering factors such as whether requiring the surviving spouse to purchase the spousal home would be a significant hardship, and whether a greater prejudice would be imposed on the surviving spouse by being unable to continue to reside in the spousal home than would be imposed on the descendants entitled to share in the intestate estate.

3. Preferential Share

If all the descendants of the Will-maker are also the descendants of the surviving spouse, the preferential share of the spouse is $300,000 (WESA s 21(3)). If all the descendants of the Will-maker are not also those of the surviving spouse, the preferential share of the surviving spouse is $150,000 (WESA s 21(4)).

Situation WESA Section Distribution
Intestate dies leaving a spouse but no descendants. 20 Entire estate passes to surviving spouse
Intestate dies leaving one or more descendants, all of whom are descendants of the surviving spouse 21(3) Household furnishings plus preferential share of $300,000 to the spouse. One half of remainder distributed to the spouse, the other half distributed equally to the descendants
Intestate dies leaving one or more descendants, some of whom are NOT descendants of the surviving spouse. 21(4) Household furnishings plus preferential share of $150,000 to the spouse. One half of remainder distributed to the spouse, the other half distributed equally to the descendants
Intestate dies, leaving descendants but no spouse. 23(2)(a) Estate distributed equally to descendants
Intestate dies leaving no spouse or descendants. 23(2) Order of Priority: Parents, siblings, nieces/nephews, grandparents, aunts/uncles, etc. See section 23(2) for complete order of priority. If there are no beneficiaries entitled to the estate, the estate passes to the government subject to the escheat act.