Tierney Stauffer LLP Lawyers

When creating a will, most people choose to leave the bulk of their estate to family, such as a surviving spouse, and/or one’s children. However, while this is a common practice, not every person opts to do things this way. There could be various reasons for leaving one’s estate to beneficiaries other than one’s family members. In some cases, a person may be estranged from their spouse or child or may wish to leave the entirety of their estate to a charitable or religious organization. In general, a person is free to designate their beneficiaries as they wish. However, for certain family members, a case can be made that they are entitled to a portion of the estate, resulting in a claim against the estate for dependent’s relief after the testator has died.

What is Dependent’s Relief in Ontario?

A person has an obligation to provide financial support for certain family members under various statutes in Ontario, including the Family Law Act and the Succession Law Reform Act. In cases where a testator has died without providing adequate support, those entitled to support can make a claim for dependent’s relief. If granted, the estate will be distributed to the dependent(s) first, before any remainder is paid to the named beneficiaries.

Dependent relief claims may also be made in cases where a person dies intestate, or without a will. In these cases, the estate is distributed in accordance with the laws of succession, which awards the bulk of an estate to a spouse, followed by any children of the deceased. An eligible person who is not named in the chain of succession and may be considered a dependent of the deceased can make a claim for relief.

Who Can Make a Dependent’s Relief Claim?

The Succession Law Reform Act indicates that the following people may be considered ‘dependents’ of a deceased person:

  • a spouse
  • a child
  • a parent, or
  • a sibling

In order to be considered a dependent, the person must also be able to demonstrate that the deceased was providing them with financial support or had a legal obligation to provide them with support, immediately prior to their death. For these purposes, a spouse may be a spouse by marriage, or common-law.

Can Adult Children Make a Claim?

While it may come as a surprise to some, parents have no legal obligation to leave a portion of their estate to an adult, independent child. However, while there is no legal requirement to provide for non-dependent children, courts are willing to impose a moral obligation in some cases. However, if an adult child was financially dependent on the deceased just prior to the deceased’s passing, they will likely be successful in making a claim. For example, in the case of a child who is unable to support themselves due to medical issues, they would likely be entitled to receive a portion of their parent’s estate.

How Are Claims Assessed?

Claims for dependent’s relief are assessed in accordance with various factors, depending on the person making the application. For example, in the case of a spouse, a court will examine the length of the relationship with the deceased, the impact of the relationship on the serving spouse’s ability to earn an income. For example, if the surviving spouse dedicated their time to taking care of children or providing other support which enabled the deceased to pursue their own career, this would have an impact on the amount of support awarded.

For children over the age of 16, a court will consider the child’s relationship with their deceased parent, and whether they had withdrawn from their parent’s control prior to the death.

Factors that will be considered in relation to any applicant for support include:

  • the dependant’s current assets and ability to earn income;
  • 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 and accustomed standard of living;
  • the nature and duration of the dependant’s relationship with the deceased;
  • the contributions made by the dependant to the deceased’s welfare, including indirect and non-financial contributions;
  • any contributions by the dependant to the realization of the deceased’s career potential;
  • the circumstances of the deceased at the time of death; and
  • any agreement between the deceased and the dependant.

Contact the Estate Lawyers at Tierney Stauffer LLP in Ottawa or Arnprior for Comprehensive Estate Planning, Administration & Litigation Services

Claims for dependent’s relief must be brought within six months of a court granting an Appointment of Estate Trustee. In some cases a court will allow a claim to be brought after the limitation period, but only if there are undistributed assets remaining. For this reason, any person who thinks they may have a valid claim should speak with a lawyer as soon as possible after the death of the deceased to avoid missing the limitation period.

Tierney Stauffer LLP uses a client-focused approach and provides innovative guidance through the estate planning and administration processes. Our lawyers provide practical and honest advice to clients and represent their interests in all levels of court in addition to other forums. We have extensive experience working with clients in estate planning matters and represent clients in litigation related to wills and estates should it become necessary. Call us at 1-888-799-8057 or contact us online to set up a consultation with a member of our team.

Ottawa

Fax: 613-728-9866
510-1600 Carling Avenue
Ottawa, Ontario
K1Z 0A1

Arnprior

Fax: 613-623-9166
62 Elgin Street West
Arnprior, Ontario
K7S 1N5

Cornwall

Toll-Free: 1-888-799-8057
340 Second Street East
Cornwall, Ontario
K6H 1Y9

Kingston

Toll-Free: 1-888-799-8057
556 O’Connor Drive
Kingston, Ontario
K7P 1N3