This Bog was written by; Sally Lee

Is Priority Given to a Spouse/Common Law Partner to be an Executor in an Intestacy?

No, but I can understand why this misconception exists. Subsection 29(1) of the Estates Act creates the confusion by naming the surviving spouse/common law partner before the next of kin, which leads many to believe that there is in fact a priority of appointment to the surviving spouse/common law partner. However, the 2008 case of Mohammed v. Heera confirms that this is not the case.

In Mohammed v. Heera, the Applicants (children of the deceased) applied to become the Estate Trustees. The Respondent (same sex partner of the deceased) objected to the appointment of the Applicants on the basis that she had a prior right to the appointment because she was living in a conjugal relationship with the deceased at the time of her death. In the alternative, the Respondent requested that the deceased’s sister in law be appointed. There was no dispute that the Respondent and the deceased were living in a conjugal relationship before death.

Justice Warkentin held that subsection 29(1) does not provide spouses or those living in a conjugal relationship with the deceased at the time of death priority to the appointment over the next of kin. Her Honour accepted the Applicants’ argument that on plain reading of subsection 29(1), the enumerated list is simply that, a list of those eligible to apply to administer the estate on an intestacy. It was also apparent to Justice Warkentin that the use of the word “or” between subsections 29(1) (b) and (c) was evidence that the drafters of the legislation intended any person or persons in the classes of persons identified in subsection 29(1) is entitled to apply:

To what persons administration shall be granted

29 (1) Subject to subsection (3), where a person dies intestate or the executor named in the will refuses to prove the will, administration of the property of the deceased may be committed by the Superior Court of Justice to,
(a) the person to whom the deceased was married immediately before the death of the deceased or person with whom the deceased was living in a conjugal relationship outside marriage immediately before the death;
(b) the next of kin of the deceased; or
(c) the person mentioned in clause (a) and the next of kin,
as in the discretion of the court seems best, and, where more persons than one claim the administration as next of kin who are equal in degree of kindred to the deceased, or where only one desires the administration as next of kin where there are more persons than one of equal kindred, the administration may be committed to such one or more of such next of kin as the court thinks fit. R.S.O. 1990, c. E.21, s. 29 (1); 1999, c. 6, s. 23; 2005, c. 5, s. 24; 2006, c. 19, Sched. C, s. 1 (1).

Her Honour continued that if a priority scheme is established in subsection 29(1), it would be to create a fetter or constraint upon the court’s role and would detract from the court’s parens patriae jurisdiction. Subsection 29(3) clearly indicates that the court has the ultimate discretion to appoint the administrators when a person dies intestate. The case discussed other legal issues which arose, the conflict which would be if the Respondent was appointed as executor and made a dependent’s relief claim against the estate. The Respondent also did not have the majority required to nominate the deceased’s sister in law to be estate trustee pursuant to subsection 29(2).

While there is not a lot case law on this issue, it is clear, subsection 29(1) does not create a priority of a spouse/common law partner to be appointed as executor under an intestacy, and it is the court which has the ultimate authority over this issue.