Can a Spouse Who Is Mentally Incapable Inherit From an Intestate Estate?

When someone dies without a will and the person who would inherit cannot manage their own affairs, families often worry. Can a spouse with advanced dementia still inherit? Who receives the money? Does someone have to go to court?

This article explains how Ontario's intestacy rules treat an incapable heir, who must be told about the estate application, and when the Public Guardian and Trustee may be involved. It is general information, and incapacity situations turn heavily on the facts.

Capacity does not change who inherits

The intestacy rules in Part II of the Succession Law Reform Act (SLRA) work by relationship. If the deceased leaves a spouse and no children or other issue, the spouse takes the whole intestate estate. If there are a spouse and issue, the spouse takes the preferential share first, which is $350,000 for deaths on or after March 1, 2021.

Above that amount, a spouse with one child takes one-half of the residue, and a spouse with more than one child takes one-third, with the rest going to the issue. None of these rules turns on the heir's mental capacity. The question is not whether the person can inherit, but who will receive and manage what they inherit.

Who acts for an incapable heir

When someone entitled to share in the estate is mentally incapable, the applicant for a certificate of appointment of estate trustee must serve the person's guardian or attorney for property. If neither has authority, the Public Guardian and Trustee must be served.

An attorney for property is someone the person named in a power of attorney while capable. Whether a particular document is valid and wide enough to cover estate matters is a question for a lawyer to review.

Applying to administer the estate

With no will, Ontario.ca says the deceased's spouse or common-law partner usually has the first right to apply to administer the estate. If that person does not, a close adult relative such as a child, parent, grandchild, sibling, nephew or niece can apply, and the court may choose whichever it considers most suitable.

Whether an incapable spouse can take on that job themselves depends on their situation, so it is worth confirming with a lawyer. The application is made on Form 74A with an affidavit of service and a draft certificate. Renunciations are required from every person with priority or equal right who has not joined in the application, and consents are required from people who together hold a majority interest in the estate's assets. An incapable person's attorney or guardian may be the one asked to sign. What they can sign on the person's behalf depends on their authority, so confirm it with a lawyer.

An administrator generally gives a bond to the court, though a judge may reduce or dispense with it in special circumstances, and a bond is generally not required for a small estate unless a beneficiary is a minor.

Time limits and special entitlements

• Election for married spouses: a surviving spouse must choose between the intestacy entitlement and the Family Law Act equalization entitlement. The election must be filed with the Estate Registrar within six months of the death, and if none is filed the spouse is deemed to have chosen the intestate entitlement unless a court orders otherwise. If the spouse is incapable, the person acting for them should get advice before the deadline.
• Matrimonial home: a spouse who occupied the home at the death may remain there rent-free for 60 days.
• Dependants' support: a court may order support from an estate where the deceased did not make adequate provision for a dependant's proper support, whether or not there was a will. Applications generally cannot be made more than six months after the grant of probate or administration.
• Common-law partners do not inherit on intestacy, but can claim support.

What to do next

• Find out whether the incapable person has a power of attorney for property or a court-appointed guardian, and collect copies.
• Note the date of death so the six-month dates can be tracked.
• List the estate's assets and debts, and who is likely to share in it.
• Ask a lawyer who should apply to administer the estate and how the incapable person's interests should be protected.
• If no attorney or guardian exists, ask a lawyer how the Public Guardian and Trustee fits in before filing anything.

Frequently asked questions