Lynn’s Question: If I pass away before my mother, what happens to the money that she has planned to pass down to me? Would my children receive the inheritance once my mother passes away?

TCM: We often need to bring in legal experts when discussing estate planning with clients. Darren Carlson is a Partner at McDougall Gauley in Regina and has provided a response to Lynn below. We have enjoyed working with Darren in the past and thought he was the perfect fit for this question. Thank you for being a guest on our blog Darren!

Darren: This is a great question. In order to answer this question one would need to examine your mother’s Will to determine what her intentions were with respect to your share of her Estate. Ideally, your mother would have indicated in her Will what would happen to the devise or bequest that you would have gotten had you been alive. For example, she could specifically state that should any of her children predecease her the devise or bequest that any of her children would have received would be equally divided among their issue (her grandchildren). Or, perhaps she would have indicated that the residue of her estate was to be divided among her surviving children and as such your children would not receive your share of her Estate as this would then be split amongst your siblings. However, if your mother’s Will did not specifically address what would happen to your share of her estate should you predecease her then we would need to look to Section 22(1) of the Wills Act to see how this might be dealt with.

Section 22(1) provides:

22(1) Unless a contrary intention appears in the will, where a person dies in the life time of a testator either before or after the testator makes the will, a devise or bequest to that person does not lapse if that person:

(a) is a child or other issue or brother or sister of the testator to whom, either as an individual or as a member of a class, is devised or bequeathed an estate or interest in real or personal property not determinable at or before his or her death; and

(b) leaves a spouse or issue any of whom is living at the time of the death of the testator.

(2) The devise or bequest mentioned in subsection (1) takes effect as if it had been made directly to the persons among whom and in the shares in which the estate of that person would have been divisible if he or she had died intestate and without debts immediately after the death of the testator, except that the surviving spouse of that person is not entitled to receive the preferential share pursuant to The Intestate Succession Act, 1996.

If all requirements of Section 22(1) have been met then we would need to look at Section 6(1) of The Intestate Succession Act to see how the devise or bequest that was made to you would be dealt with.

Section 6(1) provides:

6(1) Where an intestate died on or after June 22, 1990 leaving a spouse and issue and the net value of the estate does not exceed $100,000, the estate goes to the spouse.

(2) Where the net value exceeds $100,000, the spouse is entitled to $100,000 and has a charge on the estate for that amount, with legal interest from the date of the intestate’s death.

(3) Of the residue of the estate, after payment of the $100,000 and interest:

(a) where the intestate dies leaving a spouse and one child, one-half goes to the spouse; and

(b) where the intestate dies leaving a spouse and children, one-third goes to the spouse.

(4) Where a child of an intestate died leaving issue and that issue is alive at the date of the intestate’s death, the spouse takes the same share of the estate as if the child had been living at that date.

Therefore, if we were to apply Section 6(1) to the situation where you had left behind a spouse and one child, then your spouse would receive ½ and your child ½ of the devise or bequest. If you had a spouse and more than one child, then your spouse would receive 1/3 and your children would split 2/3 of the devise or bequest. Also, as you can see the spouse would not receive the $100,000.00 preferential share mentioned in Section 6(1) above as Section 22(2) of the Wills Act states that the spouse is not entitled to this.