A. Introduction

This report considers three matters respecting intestate succession, two being amendments to existing sections of The Intestate Succession Act and one being the question whether posthumously conceived children should be eligible to inherit from and through a deceased parent who dies intestate.  Also, in regard to posthumously conceived children there is the concomitant issue of dependants relief. 

B. Posthumously Conceived Children: Intestate Succession and Dependants Relief

The Intestate Succession Act currently provides for inheritance by successors alive at the intestate’s death and by survivors who were conceived before but born after the death of the intestate. The definition of “child” in The Dependants Relief Act is similar to what is provided for the right of kindred to inherit in The Intestate Succession Act.  The Dependants Relief Act should be amended to include a posthumously conceived child(ren).

Nowadays, conception can occur through assisted reproduction technologies after the death of at least one biological parent by using cryopreserved gametic material.  Sooner or later, such a posthumously conceived child will emerge who would be entitled to participate in an intestacy or make application for dependants relief, but for the silence of the Acts.  The Intestate Succession Act and The Dependants Relief Act should be amended to include posthumously conceived children in order to remedy the current discrimination and to avoid costly, perhaps fruitless, litigation.

C. The Intestate Succession Act: Subsections 1(3) and 6(1)

The Intestate Succession Act should be amended to require of survivors conceived before and born after the death of an intestate and of posthumously conceived children, the 15 day survival which is required of survivors alive at the death of an intestate.

D. The Intestate Succession Act: Subsections 4(5) and 4(6) and Section 5

The Intestate Succession Act should be amended to provide, when the survivors in the nearest degree of kinship are issue of either grandparents or great-grandparents, and are all of the same generation, that they share the estate equally.