Estate Litigation: which country’s law applies?

Deceased estate disputes are inevitably difficult for all parties involved, but where estate litigation involves other jurisdictions, disputes can get particularly complicated and costly.  However, some welcome clarification has emerged from the courts concerning when a country may have jurisdiction over which parts of the case.

The experienced Estate Litigation lawyers at Rogerson Law Group deal with sometimes extremely complex international estate litigation, yet we have a proven track record in successfully bringing difficult cases to an early and satisfactory conclusion for our clients.

Jurisdiction and conflict of laws

Where there is more than one jurisdiction (the geographic area over which a country’s laws extend) involved in court litigation, the issue of ‘conflict of laws’ arises.  A conflict of laws exists where there are competing laws of different countries on the same issue.  When there is a conflict of laws, it is sometimes necessary for a court to decide which country’s law should apply.

In a recent case1, Ontario’s Divisional Court clarified that where a court has jurisdiction over one aspect of a case, this does not necessarily mean the court will have jurisdiction over every aspect. Generally, disputes over real property are to be governed by the law of the country where the property is, but where the issue arises in the course of estate litigation, the testator’s intention is – said the court – also a relevant factor.

In this case, the deceased owned significant real property in both Ontario and California but his Will did not properly provide for distribution of the estate.  In fact, the Will only made two specific bequests to two children.

The executor named in the will applied for rectification of the will and a declaration that the estate’s administrator hold the Ontario assets in trust for her, partly on the basis that the lack of a residuary clause (disposing of what is ‘left over’) in her favour was a drafting error.  She also argued that there was a trust over the real estate that may or may not be valid, and that the deceased bought her assets using her money.

Meanwhile, the estate administrator (the deceased’s son) filed a petition in California to deal with entitlement to the estate distribution, and filed a cross-application to stay the Ontario application while the outcome of the California petition was awaited.

The Ontario Divisional Court decided that the issue relating to the real estate stemmed from the questions regarding the will and rectification was the key issue. Depending on the outcome of that issue, proceedings related to ownership of the property might be resolved.  There were two separate issues (the Will, and ownership of the real estate) and these could be easily separated. This meant each jurisdiction would deal with the issues they were each best suited to consider, partly for reasons of convenience and costs: rectification by California; the real estate in Ontario.

This decision is good news for clients and lawyers because less time and costs will be spent arguing over matters of jurisdiction where there are a number of aspect in an estate dispute.

How can we help?

If you are an estate trustee, executor or a potential beneficiary involved in an international estate dispute, contact the experienced Cross Border and Estate Administration lawyers at Rogerson Law Group.

Rogerson Law Group provides cross Border Estate Litigation services in the entire GTA including Toronto, Scarborough, Mississauga, Vaughan, Brampton, Richmond Hill, Etobicoke, and Barrie and surrounding areas with offices located in downtown Toronto, Barrie, and an associated office Ottawa.

Contact us now at

1Park v. Myong, 2015 ONSC 2287