Ontario law provides that someone who was dependent on the deceased can made a claim against the estate for support separate and apart from what the dependent might inherit (under the Will or under the laws of intestacy). When successful these are claims for support not inheritance, and the estate must pay the support before the remainder of the estate is divided among the beneficiaries of the estate.
A successful claim requires proof that the deceased has been providing support to the claimant immediately before death, or the deceased was under a legal obligation to provide support to the claimant.
Dependents in the following categories can make a dependent’s claim against the estate of the deceased under the Succession Law Reform Act:
In this context, “spouse” includes married and common law spouses who have cohabited for at least 3 years.
Children include grandchildren and any person who the deceased demonstrated a settle intention to treat as a child (and thus can include stepchildren who have not been formally adopted).
Generally, a claim by a dependent must be made against the estate within 6 months of the grant of probate. Thus, if a dependent might make a claim, a prudent estate trustee should not distribute the estate until after this 6 month period has expired.
Once an application is made, the Court will assess whether the deceased has made adequate provisions for the dependent(s). The Court will consider what was given under the will, or on intestacy, and determine what is adequate. The Succession Law Reform Act sets out a list of the factors to be considered in determining what is adequate.
Can a dependent claim be made after more than 6 months of grant of probate? Yes. The Court has the discretion to allow a dependent claim after 6 months of the grant of probate but the claim will only pertain to the undistributed portion of the estate.
Ex-spouses and common law partners
Dependent support claims are of increasing relevance in the case of blended families.
Note that spousal and child support that was due before the death of the testator is a debt due by the estate, and should normally be pursued as a debt claim not a dependent support claim.
Dependent support claims are separate from claims from spousal or child support.
Dependent support claims can be very important for a wide range of people, including:
- Common law spouses in the case of intestacy (no will) who otherwise have no right to inherit;
- Common law spouses not mentioned in an old will;
- Former spouses (separated or divorced), whether or not there was a separation agreement or court order for support; and,
- Children of the deceased still pursuing education.
Dependent support is separate from inheritance, and it is possible to bring a dependent support claim even if you are a beneficiary of an estate (the requirement is ‘inadequate provision by the deceased’ not ‘no inheritance at all’).
For estate trustees
If a dependent support claim is possible, the estate trustee should be very careful prior to distributing the estate assets, and should never distribute all of the estate at least until 6 months after probate (the soft limitation period for these claims to be made).
For financial institutions
If a dependent support claim is possible, a financial institution should be very careful prior to paying out a ‘plan’ (insurance, RRSP, RRIF etc.) to a designated beneficiary until 6 months after probate (the soft limitation period for these claims to be made).
If a dependent support claim has been made is likely to be considered, great care should be exercised prior to distributing a plan to anyone, including an estate trustee prior to 6 months after probate.
Dependent support claims are very powerful. They reach a wide range of assets that otherwise might be outside the estate. They are ‘equitable’ relief, and thus focus on what is fair in light of the assets of the deceased and the needs of the dependent.
Dependent support claims are different from ‘will challenges’ but are often much more relevant, and easier to pursue. Someone who was financially dependent on the deceased and who has received an inadequate provision from the deceased should move quickly to assert their claim – the sooner it is made the better, and it definitely should be made before the ‘6 months after probate’ limit.
In a dependent support claim, the Court needs a full picture. This requires:
- evidence about all relevant assets of the deceased, including assets that pass outside the estate by joint ownership (real estate, bank accounts) and by beneficiary designation (life insurance, TFSA, RRSP, RRIF etc.)
- evidence about the income and assets, ‘needs and means’, of the dependent (including tax returns, bank statements, and ‘vouchers’ for expenses such as living expenses);
- evidence, if possible, about the income and assets/needs and means of other beneficiaries of the estate;
- whether anyone else was dependent on the deceased and whether they will also make a claim.
Depending on the circumstances, it is possible to get ‘interim relief’ quickly for a dependent.