Dying without a will in New Brunswick hands the distribution to a statutory formula. For a Muslim family this is the single most common way an estate ends up divided contrary to faraid.
What New Brunswick does
| Item | New Brunswick |
|---|---|
| Governing statute | Wills Act and Devolution of Estates Act |
| Court | Court of King's Bench (Probate Court) |
| Handwritten (holograph) wills | Valid |
| Probate cost | A probate TAX by value band: $200 on estates up to $20,000; $200 plus $5 per $1,000 (or part) on the portion between $20,000 and $100,000; and $600 plus $15 per $1,000 (or part) on everything above $100,000. On a $1,000,000 estate that is $14,100 — New Brunswick is a high-cost probate province, not a cheap one. |
| Spouse’s share on intestacy | There is no preferential dollar share in New Brunswick. The surviving spouse first takes the intestate’s interest in whatever is marital property under the Marital Property Act, and then takes half the residue if there is one child, or a third of the residue if there is more than one. A spouse with no surviving issue takes the whole estate. |
| Will registry | No government will registry, and no way to lodge a will with a court for safekeeping — we read the Wills Act, the Probate Court Act and the Probate Rules in full and none contains a registration or deposit provision. Families searching for a missing will ask the Law Society of New Brunswick to place a notice in its newsletter to the province’s lawyers. The free online Court Index shows probate cases since 2010 by name and location only — and not at all for Charlotte County. |
| Claims against the estate | Provision for Dependants Act claims. "Dependant" is defined to include the spouse or child of the deceased outright — with no age limit and no requirement that the deceased was actually supporting them — plus anyone who was a dependant under the Family Law Act. The gate is in the operative section instead: the applicant’s resources, counting everything they take under the will or on intestacy, must be insufficient to provide adequately for them. |
Why it does not match faraid
Provincial intestacy schemes are built around the surviving spouse and descendants. Faraid distributes more widely — parents take a share alongside children, and siblings can inherit in their own right. Three mismatches recur:
- Parents. Under faraid each parent generally takes one sixth where the deceased left children. Provincial intestacy usually gives parents nothing while a spouse and children survive.
- The spouse’s portion. Faraid fixes a wife at one eighth with children; a preferential share can hand a spouse the great majority of a modest estate.
- Sons and daughters. Provincial law divides equally among children; faraid gives a son twice a daughter’s share.
| Position | Hanafi | Maliki | Shafi’i | Hanbali |
|---|---|---|---|---|
| Share of a daughter | Half a son’s share | Half a son’s share | Half a son’s share | Half a son’s share |
| Wife, with children | One eighth | One eighth | One eighth | One eighth |
| Wife, no children | One quarter | One quarter | One quarter | One quarter |
| Husband, with children | One quarter | One quarter | One quarter | One quarter |
| Husband, no children | One half | One half | One half | One half |
| Bequest cap (wasiyyah) | One third | One third | One third | One third |
| Bequest to a fixed heir | Needs heirs’ consent | Needs heirs’ consent | Needs heirs’ consent | Needs heirs’ consent |
| Distant kin (dhawu al-arham) | Inherit | Classically to the treasury | Classically to the treasury | Inherit |
| Surplus returned (radd) | Yes | Classically no | Classically no | Yes |
None of this is fixed by intention. Only a valid will — that can be found — changes the outcome.
A worked example: a $600,000 estate
Take a man who dies leaving a wife, two sons, one daughter and his mother, with a net estate of $600,000 after debts and funeral expenses. Here is what New Brunswick does if he left no will, and what faraid does.
Under New Brunswick intestacy law
There is no dollar figure here, and that is the finding rather than a gap in it. The split turns on which assets are marital property and which are not, and two estates of identical total value divide completely differently depending on that. New Brunswick’s answer cannot be computed from an estate total, so this page does not pretend to.
- The spouse first takes the whole of the deceased’s interest in the marital property. Not a dollar share — the marital property itself: the marital home, household goods, family vehicles and everyday accounts, however they were titled (Devolution of Estates Act s. 22 (2)(a); Marital Property Act s. 1). Business assets, gifts between the spouses and inheritances from third parties are outside it.
- Only what is left after that is divided. The spouse takes one half of that residue where one child survives, and one third where more than one does (s. 22 (2)(b), s. 22 (2.1)(b)). A child who died before the deceased, leaving children of their own alive at the death, still counts in that number (s. 22 (3)) — so two children, one of them predeceased, is more than one child and the spouse takes a third. The children take the rest per stirpes (s. 23).
- Where no issue survive, the spouse takes everything. Parents and siblings take nothing (s. 24).
Statutory basis: s. 22, s. 23, s. 24.
Under faraid
| Heir | Qur’anic share | Amount |
|---|---|---|
| Wife | One eighth with children | $75,000 |
| Mother | One sixth — children or two or more siblings survive | $100,000 |
| Sons (2, shared) | Residue as asabah, two shares each | $340,000 |
| Daughter | Residue as asabah, one share each | $85,000 |
Whatever the sequence above produces, it does not produce a share for his mother: no Canadian intestacy scheme gives a parent anything while a spouse and children survive. Under faraid she takes $100,000 of this estate. Only a valid will changes that.
Figures are rounded to whole dollars and illustrate the structure only. Real estates involve debts, taxes, designations and jointly held property that change the arithmetic substantially.
Common questions
Do common-law partners inherit?
It depends on the province, and the differences are large. Some provinces treat a qualifying common-law partner as a spouse for intestacy; Ontario does not.
Do my parents inherit if I die without a will?
Generally not, if you leave a spouse or children. This is one of the sharpest departures from faraid, where each parent normally takes one sixth where the deceased left children.
Does an intestate estate get divided equally between sons and daughters?
Yes — provincial law divides equally among children. Faraid gives a son twice a daughter's share.
Citations & sources
Every factual claim on this page traces to a source below. Details change — check the original source before relying on any figure, fee or legal position. Anything under “further reading” is related material, not a source for what is stated here.
- What to do when someone has died — Canada Revenue Agency
- Devolution of Estates Act, RSNB 2012, c. 107 — New Brunswick Acts and Regulations
- Surah an-Nisa 4:11–12, 4:176 — Quran.com
- Book of Wills (Wasaya) — Sahih al-Bukhari, Sunnah.com
- Religion by census metropolitan area, 2021 Census — Statistics Canada
- Half siblings intestacy ontario — Treadstone Law
- Preferential share spouse intestacy ontario — Treadstone Law
- Holograph handwritten will ontario — Treadstone Law
- What is preferential share ontario intestacy — Treadstone Law
- Does common law spouse inherit without will ontario — Treadstone Law
- Wills & estates practice — Treadstone Law