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  • My Legal Briefcase

    Law of Inheritance
    Posted: 2012-12-13 05:00:40

    The rules and customs in many countries regarding inheritance are different. In common law countries like India, Sri Lanka, Canada and United States the basic rules come from England and the English Law which generally allows a person to give away their entire estate to anyone they please by a properly drawn and signed will. If it is not done the inheritance goes to relatives based on degree of relationship. The exception to this rule is that a dependant prior to testators death is required to be looked after in the will. If this is not done the dependant can challenge the will.

    The law in Islamic countries is fundamentally different. These countries are mostly in the Middle East where the Sharia Law applies with some variation in each country. The rules come from Muslim Religious Personal Law. The spouse has limited right to inheritance and the children share property based on gender. The males generally inherit more than female members of the family.

    In common law Provinces of Canada which include Ontario and the Western Provinces the English System applies, and one can make a will solely in his or her discretion to give the estate to the person that he or she pleases. It is therefore very important for the newcomers to Canada to have a will because the Personal Laws applicable to a Permanent Resident are the Laws of Canada and the Province in which the person resides. The Government intervention is avoided if one has prepared the will. Preparing the will is the last thought in the mind of the immigrants who are busy thinking about careers and establishing themselves in a new country. Family traditions and customs also affect the way people make or postpone making wills.

    Consequences of not making a will can be severe. Succession Law Reform Act dictates that the spouse inherits CAD$.200,000.00 of the value of the property held in the sole name of the testator and the balance is divided between the spouse and the children. Where a child is under the age 18, the public trustee may demand that the trustee will hold the benefit for the children until the age of 18 years.

    Inflation forges ahead much faster than the politicians can change the law and consequently the CAD$.200,000.00 limit has not been changed for some years and that limit represents a very small amount of value of a persons estate today. Therefore not preparing a will could have dire consequences when a family when there is an accident or illness that cuts short their lives.

    Preparing a will from a "Do It Yourself Kit" is not a good idea. The kit may provide a blank form which one can fill in. Filling out the form would mean that under the present Holograph Will Law the handwritten part of the document may be recognized by the court and the printed part may not be with the result that you have an uncertain will that required court battle, and not a desirable consequence when the family is facing a serious tragedy.

    A basic will should contain a clause in the will setting out who the executor will be. It is usually the spouse or an adult child or close relative and sometimes it is a Trust Bank. The function of the executor is to collect the assets and make distribution as set out in the will.

    You need to make an inventory of all the assets, including the bank accounts, shares, properties, insurances and cash held by the deceased. The deceased is called the testator when he has a will.

    If a person dies with a will, it is probated which means that you open a file in court and obtain court approval for the executor to act in his capacity to put the assets together and make distribution to the beneficiaries listed in the will. If you are the beneficiary you need to transfer the estate and the property to your name. The court issued authority gives you that right to make transfer in the name of the deceased. This would require the assistance of a lawyer.

    If any property was held jointly between the spouse or anyone else then such property does not require formal change from the deceased to the survivor since the ownership jointly means that each owned the property along with the other joint owner and if one has died the other automatically assumes the full ownership.

    You may still need to delete the name of the deceased spouse or relative from the deed in the registry office.

    Specific gifts called legacies are given out first and residue to the spouse or the relative. The shares, properties and other assets are transferred to the beneficiary by sending the copy of the probate and evidence of ownership of the shares or bonds to the institution that records the ownership.

    In Canada the main inheritance tax now is the Capital Gains Tax. It is applicable on the increased value of the property other than the principal residence. The tax must be paid and it is the duty of the executor to pay the taxes before making the transfer of the assets to the beneficiaries.


    Mr. Jay Chauhan has more than 30 years of experience practicing Commercial law, Family law, Immigration law, Wills and Estates, and Litigation. Mr. Jay Chauhan earned degrees, including a Bachelor of Science from the London School of Economics in England; a Barrister-at-Law at Lincoln's Inn in England; a Master of Economics at the Berlin University in Germany; and a Bachelor of Laws at Osgoode Hall in Ontario, Canada. He was called to the Bar in Ontario in 1972, England in 1965, and admitted as an Advocate in the State of Gujarat, India in 1982. You can learn more about him by visiting his website at
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