Legal Question in Wills and Trusts in Canada

Law Applcable to the Estates of Deceased Persons

My son went to Canada on permanent resident visa in May,2001. He got married in India in Oct.2002. His wife got permanent resident visa and joined him in March,2003. In Nov.2003 they bought a house in Canada in joint name and funds were provided by my son and they borrowed loan from bank which was secured by a life insurance policy of both of them. On 2nd Jan.2004 they died in a car accident in Canada. They had no child. Loan on the house was paid by insurance company to bank. Their estate consist of bank accounts, insurance claims and house all in Canada. They had indian passports and were indian citizens holding permanent resident visas of Canada at the time of their death. I am advised by my lawyer that as per article 3 of ''Convention on the Law Applicable to Succession to the Estates of deceased Persons (Done at The Hague on August 1st,1989.)'' law of India will apply,in view of the fact that they were Indian nationals at the time of death and had stayed less than 5 years in Canada. Canadian Lawyer managing the estate does not agree and insist that law of Canada will apply as they were more closely connected with Canada as they were employed in Ontario and purchased a house there. Please advise the correct position of law.

Asked on 8/18/05, 9:01 am

2 Answers from Attorneys

Johanne Amonson Johanne L Amonson, Q.C. Prof Corp
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Re: Law Applcable to the Estates of Deceased Persons

The test set out in s.3 of the referenced Hague convention is one of close connection. The applicable law may well be the law of Canada (and the province in which the couple were living and owned land) since it appears they had established a domicile of choice in Canada and fixed an intention to remain in Canada, particularly where they owned land in Canada.

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Answered on 8/19/05, 1:33 pm
Balasubramanya Beeranna Balasubramanya&Ramesh Associates
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Re: Law Applcable to the Estates of Deceased Persons

The law of the land usually applies, but since these people did not reside for more than two to three years, it is assumed that the Indian law will apply.

Let us assume that Canadian law applies? what happens.

The estate will devolve on the legal heirs, who are left behind them. and in this case since no children are born the estate goes to the parents.

It is not clear whether the wife was also earning. though you state only security was given by her.

My advice is dispose of the property in canada and bring the proceeds back to india, after paying all the taxes to the Canadian Government.

once you bring all the proceeds to india, the Indian law applies, and if the property is bought by both the persons jointly, then it depends on how much the husband has contributed to the purchase of property.

Work out mutually and divide the proceeds between the husband and wife's parents.

Regards.

B.Balasubramanya.

Advocate.

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Answered on 8/21/05, 12:43 am

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