When an estate has not provided adequate support

A dependant support claim seeks financial provision from an estate under Ontario’s Succession Law Reform Act. It can arise even where the will is valid, or where the deceased left no will.

Eligibility depends on both the family relationship and support circumstances. A spouse, parent, child, brother or sister may qualify if the deceased was providing support, or was legally obliged to provide support, immediately before death. The legislation extends some of these relationship definitions; being related or omitted from a will is not enough on its own.

Common-law partners and family obligations

A qualifying common-law partner may have a support claim despite lacking a married spouse’s automatic inheritance rights on intestacy or statutory equalization rights. Different definitions and tests apply to these forms of entitlement.

Does a support release prevent a claim?

A release in a separation agreement or other domestic contract does not necessarily prevent a dependant support award. Section 63(4) of the Succession Law Reform Act permits the court to order support despite an agreement or waiver to the contrary.

The agreement is not irrelevant: the court must consider agreements between the deceased and the dependant, along with other statutory factors. The applicant must also qualify as a dependant, including satisfying the requirement concerning support provided or legally owed immediately before death. A release may therefore be relevant to both eligibility and the assessment of the claim, even though it does not remove the court’s statutory power to award support to a qualifying dependant.

Existing support orders, separation agreements and insurance arrangements should be reviewed together before assessing a claim or a response.

Assessing a claim or responding to one

The assessment includes the claimant’s needs and resources, the estate and provision already made, the history of support, relevant agreements, and other competing claims. The legal analysis can extend beyond assets passing under the will.

For an estate trustee or beneficiary responding to a claim, the issues include eligibility, financial disclosure, the provision already made and appropriate treatment of the estate while the dispute is addressed.

Act promptly

The usual limitation period is six months from the grant of probate or administration, commonly evidenced by a Certificate of Appointment of Estate Trustee. This differs from the surviving spouse’s equalization election deadline, which ordinarily runs from death. A court may permit a late support application against estate property remaining undistributed, but that relief is discretionary.

Call 416-591-1354 to discuss your circumstances. Bring available wills, agreements, support orders, financial information and documents showing whether a certificate has been issued.

Related estate and family law advice

Estate litigation overview · Will challenges · Spousal equalization after death · Dependant support claims