Today’s blog was written by Jessica Butler, Law Clerk at Fasken LLP.

Chadwick Boseman’s death came as a surprise to the world when he passed away in August 2020, at age 43 from colon cancer.  Chadwick was best known for his role in Black Panther – the first superhero movie to ever be nominated for  “Best Picture” among five other awards at the Oscars in 2019.

Fans were shocked to learn that, while working on many new films, he was also receiving treatment, including multiple surgeries and chemotherapy, and continued to do so until his passing.  His final performance, a voiceover role in the Disney+ series “What If…” earned him a posthumous Primetime Emmy nomination for “Outstanding Character Voice-Over”.

Chadwick’s Estate, which had an estimated value of $3.8 million USD, was newsworthy, as he died intestate – (without a Will).  It may seem shocking that someone with such wealth would not turn their mind to estate planning (Prince says “hello!”).  However, those in the estate planning community know this situation occurs far more often than we like.

Chadwick is survived by his long-time partner, Taylor Ledward, and his parents, Leroy and Carolyn Boseman.  In the absence of a Will, Taylor asked the California Court to appoint her as sole administrator with limited authority.

In Ontario, there are statutory provisions that set out who is to inherit an estate in an intestate situation and how an intestate estate is to be administered.  Section 29 of the Estates Act^[1] sets out to what persons administration shall be granted where a person dies intestate.  Interestingly, authority to apply as executor on an intestate estate^[2]  is granted to a “person with whom the deceased was living in a conjugal relationship outside marriage immediately before the death”^[3].

Part II of the Successi

on Law Reform Act ^[4] (the “SLRA”) speaks to intestate succession in-depth. Where there is a married spouse and no children/issue of the deceased, a spouse would inherit the whole of the deceased’s property on an intestacy.  However, when the deceased is survived by his children/issue, the married spouse would be entitled to a preferential share (currently $350,000.00^[5]) with the balance then split according to the number of children/issue surviving.

For example, if the deceased died leaving a spouse and two or more children, the spouse would be entitled to one-third (1/3) of the residue of the estate after the payment of the preferential share.   The distribution scheme devolves from spouse, to issue, to parents, to siblings, to nieces and nephews, and then finally to next of kin (and what happens if there is no next of kin? The deceased’s propert

y escheats to the Crown – more on that next time!).

What happens if you are a common-law partner, and your partner dies intestate?  Are you considered a “spouse” for estate law purposes when dealing with an intestacy?  The answer is no.  Common-law partners have no right to inherit under the SLRA^[6]. 

Dealing with the death of a loved one can be particularly painful and, if unexpected, can cause tremendous stress.  Learning that, because you were not legally married, you are not entitled to a distribution from your partner’s estate, may come as a huge shock.

A common-law partner may be entitled to bring an Application for Dependant Support Relief under the SLRA.  On the disposition of same, the Estate may be ordered to pay adequate support to a common-law partner, if the common-law partner is successfully able to establish a dependant relationship and show that support is necessary.  There is little, if any, other recourse for a common-law partner as they are not considered a “spouse” for the purposes of succession.

Chadwick and Taylor were reportedly married in a secret service shortly before he passed away, perhaps in an attempt to avoid a succession scenario in which Taylor had no right to inherit under California law.  In this case, Chadwick’s partner and parents were able to settle the terms of his Estate such that (after the payment of $1.3 million in legal fees which were no doubt higher than average to deal wit

h the complexities involving the intestacy issues and the settlement), the remaining $2.5 million USD will be distributed equally with 50% to Taylor, and the remaining 50% to Chadwick’s parents.

The moral of this story for me is two-fold. Having an up-to-date estate plan: 1) remains the best way to ensure that the people most important to you are provided for in the manner in which you  intend, and not by the force and effect of a Provincial Statute; and, 2) avoids legal fees.  In the Boseman estate, the matter was resolved, one would say amicably, but that is not always the case.

 

 

 

 

[1]              R.S.O. 1990, c E.21

[2]              Authority may also be granted to the person the deceased was legally married to immediately before the death of the deceased and/or the next of kin of the deceased.

[3]              Ibid., s.29(1)

[4]              R.S.O. 1990, c. S.26

[5]              Pursuant to Ontario Regulation 54/95, the preferential share is prescribed as (i) $200,000 for estates of a person who died before March 1, 2021; and (ii) $350,000 for estates of a person who died after March 1, 2021.

[6]              Section 1 of the SLRA defines a ‘spouse’ for the purposes of succession to have the same meaning as in section 1 of the Family Law Act, R.S.O. 1990, C F.3, which states that ‘spouse’ means “either of two persons who are (a) married to each other, or (b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relaying on this clause to assert any right”. This definition of ‘spouse’ does not extend to Part V of the SLRA, which deals with dependant support, and extends the definition of ‘spouse’ to include either of “two persons who are not married to each other and have cohabited, (a) continuously for a period of not less than three years, or (b) in a relationship of some permanence, if they are the parents of a child…”