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Support for Dependants Not Adequately Provided For in a Will

Signing Legal Documents

28 Jul Support for Dependants Not Adequately Provided For in a Will

By: Xenos Chu
Published: July 28, 2020

Meet Brett. Brett has been in a common-law relationship with Aaliyah for 20 years. Over the course of their relationship, Aaliyah has always been the primary income earner in their household. Aaliyah has recently passed away leaving her estate to her children from a previous marriage and completely disinheriting Brett. The sudden and dramatic decrease in household income has left Brett in a financially precarious position. Since Brett and Aaliyah were not legally married, Brett cannot elect to equalize their net family properties. What can Brett do? Is he condemned to a major decrease in his standard of living?
While testamentary freedom is the prevailing principle in estates law and the courts usually do their best to give effect to the intentions of the deceased, the Succession Law Reform Act (the “SLRA”) specifically allows persons who were dependent upon the deceased prior to their death, but who were not adequately provided for in their Will, to seek support from the deceased’s estate.

In order to qualify as a “dependant”, a claimant must satisfy two requirements. Specifically:

1. the claimant must have been a spouse, parent, child, or sibling of the deceased; and
2. the claimant must have been someone to whom the deceased was providing support (or under a legal obligation to provide support) immediately before the death of the deceased.

It is worth noting that spouses and common-law partners are different from children and siblings in that they automatically fall within the definition of “dependant”, without needing to prove they were actually dependant on their spouse or common-law partner.

Once a claimant has established themself as a “dependant”, the court will determine the appropriate amount of support to be granted by weighing an extensive number of factors. Examples of these factors include, but are not limited to:

• the size of the estate;
• the dependant’s current and future capacity to support themself;
• the dependant’s contributions towards the deceased’s welfare and property;
• considerations with regards to children;
• any agreement between the dependant and the deceased; and
• the claims of any other dependants.

The courts will also consider any “moral obligations” the deceased may have had to provide for the dependant. For example, in Tataryn v. Tataryn Estate, the Supreme Court of Canada stated that “although the law may not require a supporting spouse to make provision for a dependant spouse after his death, a strong moral obligation to do so exists if the size of the estate permit”.

Having made all the relevant considerations, the court may grant a wide range of remedies in its dependant support order. These include, but are not limited to:

• a lump sum to be paid or held in trust;
• amounts payable at specific time intervals for an indefinite or limited period of time; and
• an interest in or possession to any specific property.

Anyone who suspects they may be eligible for dependant support should not delay in seeking legal advice, as there is a 6-month limitation period to bring a claim for dependant support from the time of grant of certificate of appointment of estate trustee (often known as probate). After the expiry of this limitation period, the claimant will need to obtain permission from the court before bringing their claim. Another reason not to delay is that the executor of the estate is only prohibited from distributing the estate assets when a notice of application for dependant support is served upon them. Although certain distributed assets can be “clawed back” to satisfy the dependant support order, it is generally wise to impose the prohibition on distribution as early as possible.

Please note that this article is not legal advice and no solicitor-client relationship is created between our firm and readers of the contents herein. If you believe you may be entitled to dependant support from the estate of a recently deceased person, please contact us for a consultation.