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.
For a claim to be made, it has to be shown that the deceased has been providing support immediately before death, or the deceased has been under a legal obligation to provide support.
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 (not married spouses who have cohabited for no less than 3 years).
Children include grandchildren and any person who the deceased demonstrated a settle intention to treat as a child.
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.