The law in Ontario acknowledges that there is a moral obligation for the needs of dependants, including children, parents and spouse to be given adequate support from one’s estate. Ontario law has acknowledged that certain relationships trump a testator’s freedom to distribute their assets as they wish.
The starting point is section 58 of the Succession Law Reform Act, which states, “where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the court, on application, may order such provision as it considers adequate to made out of the estate of the deceased for the proper support of the dependants or any of them.”
Who is a Dependant?
To determine whether you are a dependant of the deceased is a two-prong test:
- Are you a spouse, child, or parent of the deceased?
- Was the deceased providing support or under a legal obligation to provide support at the time of their death?Spouse includes common-law spouse or when there is a relationship of some permanence ie. you and the deceased have a child together.
Support includes financial, physical, or emotional support.
Amount of Support?
The amount of support awarded by a court depends on many factors and the amount of weight placed on each factor varies case by case. For a complete list of the factors taken into account please see section 62 of the Succession Law Reform Act,
Some key factors a court will consider:
- The dependant’s current assets and means
- The dependant’s capacity to contribute to his or her own support;
- the dependant’s age and physical and mental health;
- the dependant’s needs, in determining which the court shall have regard to the dependant’s accustomed standard of living;
- the measures available for the dependant to become able to provide for his or her own support and the length of time and
- cost involved to enable the dependant to take those measures;
- the proximity and duration of the dependant’s relationship with the deceased;
- the circumstances of the deceased at the time of death. This includes the size of the estate;
- any agreement between the deceased and the dependant;
- the claims that any other person may have as a dependant;
- if the dependant is a spouse, a course of conduct by the spouse during the deceased’s lifetime that is so unconscionable as to constitute an obvious and gross repudiation of the relationship,
- the length of time the spouses cohabited.
Section 61(1) of the Succession Law Reform Act, provides that an application for dependant’s support must be made within 6 months following the issuance of the Certificate of Appointment of Estate Trustee or more commonly known as “probate”. However, if more than 6 months has passed, you may apply to the court and obtain the court’s permission to proceed with your claim. Generally, case law has interpreted this to limit any claim made after six months to the remaining, undistributed portion of the estate, and to bar any claim made after the assets have been fully distributed. However, some case law does deviate from this notion and there has been instances where the court grants leave for an application for support, despite the assets of the estate being already distributed.
If a person who you were reliant on passed away without leaving you an inheritance, you may be eligible to apply for a dependant support claim from the deceased’s estate. Contact our office for a free consultation to consider your options.