Partial Intestacy in Ontario: What Happens When a Will Doesn't Cover Everything?

Most people assume that having a will means the law controls nothing about their estate. That assumption is only true if the will covers every asset and every scenario. When it does not, the portions of the estate not addressed by the will fall into partial intestacy — and Ontario's Succession Law Reform Act (SLRA) fills the gaps using the same distribution rules that apply when there is no will at all.

Partial intestacy is more common than most people realize. It happens when a will exists but leaves some assets undistributed — either because the will is outdated, poorly drafted, or simply never contemplated assets acquired after it was signed.

How Partial Intestacy Arises

The will was never updated

A person made a will in their thirties leaving everything to a spouse who later died. A decade passes, new assets are acquired, and the will is never revised. When the testator dies, the will may still be valid — but it directs the entire estate to someone who predeceased them, and the gift lapses. If there is no alternate beneficiary named, that portion of the estate falls into intestacy.

A specific gift failed

The will leaves "my 2010 Honda Civic to my nephew." The testator sold the car in 2019 and never replaced it. The specific gift fails (what lawyers call an ademption — the subject of the gift no longer exists). There may be nothing in the will about what to do with the proceeds from the car sale. The cash representing that asset may fall into the undistributed estate.

No residual clause

A will that gives specific items to specific people but does not include a general residual clause ("I give the rest and residue of my estate to…") creates a gap. Everything not specifically named in the will is undistributed — even if the testator owned significant assets that simply were not anticipated when the will was written.

Assets acquired after the will was signed

A testator signs a will and then inherits money from a parent, starts a business, or acquires new investment accounts. If the will's residual clause is too narrow or absent, the new assets may not be covered.

A beneficiary predeceased the testator

If a named beneficiary dies before the testator and the will does not name an alternate or include a substitution clause, the gift typically lapses. Ontario law has limited "anti-lapse" provisions — as of writing, verify the current scope of anti-lapse rules with a lawyer — but these do not catch every situation. A lapsed gift that does not pass to an alternate falls back into the estate, and if no residual clause covers it, it can fall into intestacy.

How the SLRA Fills the Gaps

The portion of the estate not covered by the will is distributed according to the SLRA's intestacy rules — as if there were no will at all for that portion. This means:

• The surviving spouse receives the preferential share from the intestate portion (as of writing, verify the exact amount)
• The residue of the intestate portion is divided between the spouse and children in the SLRA formula
• If there is no spouse or children, the bloodline hierarchy applies (parents, siblings, next of kin)

The will and the intestacy rules run in parallel. The estate trustee distributes the testamentary assets according to the will and the intestate assets according to the SLRA.

Why This Produces Unintended Results

The SLRA beneficiaries may not match the will's beneficiaries

Imagine a testator who leaves everything in their will to three adult children in equal shares — but does not include a residual clause. A significant investment account acquired after the will was signed falls into partial intestacy. If the testator had a surviving spouse, the spouse receives the preferential share off the top of that intestate portion — potentially receiving a share of the estate despite not being in the will at all.

Shares may go to relatives the testator was estranged from

If no spouse or children survive, the intestate portion passes through the SLRA's bloodline hierarchy. A parent, sibling, or distant relative may receive a share of the estate even if they were not mentioned in the will because the testator considered the relationship irrelevant.

The administration becomes more complex

An estate with partial intestacy requires the estate trustee to apply the two regimes simultaneously. This adds work, cost, and the potential for disputes between the will's beneficiaries and those entitled under intestacy.

The Fix: A Properly Drafted Residual Clause

The most reliable way to prevent partial intestacy is a robust residual clause — a provision that sweeps up "everything not otherwise disposed of by this will" and gives it to named beneficiaries (with alternates in case they predecease). A good residual clause ensures that no matter what new assets are acquired, what specific gifts fail, or what beneficiaries predecease the testator, the estate has a home for all of its assets.

Beyond the residual clause, wills should be reviewed and updated after major life events:

• Marriage, separation, or divorce
• Birth or death of a beneficiary
• Significant change in assets (inheriting property, selling a business, buying a home)
• Death of a named executor or trustee
• Moving to a different province

Frequently asked questions