Testamentary freedom is a deeply rooted common-law principle that allows a will-maker to choose who they wish to include in their will as a beneficiary of their estate and what they want each person to receive. Someone may decide not to include certain people for various reasons; for example, they are estranged from their child. However, the will-maker must support any dependents who rely on them. Certain family members may claim dependent support regarding their entitlement to a portion of the deceased’s estate if they are not included as a beneficiary.

Who is a dependent?

The Succession Law Reform Act states that a dependent may be a parent, child, sibling or spouse of the deceased, whom the deceased was supporting, or had a legal obligation to provide support to immediately before his or her death. For a dependent relief claim, a spouse may include a common-law or ex-spouse, parents include adoptive parents, and a child could be an adult child or grandchild.

While it appears relatively easy to identify who a dependent may be, disagreements often arise with respect to whether an individual is truly a dependent. Further, disputes may arise regarding whether the deceased supported an individual claiming to be a dependent. 

It is important to note that parents are not under a legal obligation to provide for their adult, independent child in their estate plan. However, there may be circumstances in which a court is willing to impose a moral obligation as such, particularly if the adult child was financially dependent immediately before the deceased’s death due to the inability to support themselves. 

What constitutes “proper support”?

If a person is found to be a dependent, the next issue is whether the deceased provided “proper support” for them. While this threshold will depend on the facts of each case, there is consideration given to the size and value of the estate, in addition to the living standard to which the dependent has become accustomed. In the case of Re Davies, the Court stated that proper support reaches beyond providing for only the basic necessities of life and may extend to support non-essentials and luxuries for the dependent.

When determining the adequacy of a support provision, the Court is entitled to consider future events that may render a will provision inadequate. In Lapierre v. Lapierre Estate, the testator’s wife did not require support at the date of the application hearing. However, in considering future events, the Court determined that she would need support as she grew older and could not work. 

What is a dependent relief claim?

Under the Family Law Act and the Succession Law Reform Act, an individual has an obligation to provide financial support for particular family members. In the event that a testator has passed away without providing sufficient support to someone to whom they have a statutory obligation, the dependent(s) may make a claim for the dependent’s relief. 

If a court grants relief, the estate must distribute such funds to the entitled dependent(s) first before the remainder is paid to named beneficiaries.  

Claims for dependent relief may also arise when a person dies intestate (without a will). While the deceased’s estate will be distributed according to the applicable laws of succession, a person not listed in the chain of succession may still be considered a dependent and may be allowed to make a claim for dependent relief. 

Establishing a claim for relief

In Cummings v. Cummings, the Ontario Court of Appeal noted that moral considerations may be a relevant factor when assessing claims for support and set out the following test for courts to apply when considering the circumstances of a claim application:

  1. “What legal obligations would have been imposed on the deceased had the question of provision arisen during his lifetime; and, 
  2. What moral obligations arise between the deceased and his or her dependent as a result of society’s expectations of what a judicious person would do in the circumstances.”

Courts must consider various factors when considering a person’s claim for dependent relief. When considering a potential spouse’s claim, the courts will likely consider the length of the relationship between the individual and the deceased and the individual’s ability to earn an income. The Ontario Superior Court of Justice in Perkovic v. McClyment held that an applicant must establish “some degree of entitlement to, and the need for, interim support.”

The claims process in Ontario

Dependent relief claims are time-sensitive. In accordance with s. 61 of the Succession Law Reform Act, a person must bring a claim for dependent relief within six months after an Appointment of an Estate Trustee has been issued. A court may only make an exception to this time frame if undistributed assets remain in the estate. 

The Succession Law Reform Act also provides that the distribution of estate assets may be frozen until a support claim has been determined. 

The applicant must support their claim with evidence establishing their need for support from the estate. Each claim is assessed based on the unique circumstances of the case. If a claim for relief is granted, the court will consider various factors as set out in s. 62 of the Succession Law Reform Act when determining an appropriate amount and duration of support. 

Contact the Estate Lawyers at Tierney Stauffer LLP in Ottawa, Kingston, Cornwall and North Bay for Assistance with Dependant Support Claims

At Tierney Stauffer LLP, our estate lawyers have considerable experience assisting clients with respect to various aspects of estate litigation, including will challenges and claims for dependent support. We help clients comply with their obligations to dependents and potential dependents and help ensure that beneficiaries obtain what they are owed. If you believe you or a family member may be entitled to dependent support, contact us online or call us at  1-888-799-8057 to schedule a consultation.


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