What can you do when your loved one doesn’t provide for you in their Will?
Did you know that, in certain circumstances, if your loved one doesn’t provide for you in their Will, you can make what is called a “Dependant Support Claim” against their estate? This is an exception to what is known as “testamentary freedom”, being a person’s right to choose the people they want to include in their Will. In Ontario, the Succession Law Reform Act imposes an obligation on a person making a Will to ensure that they have made adequate provisions for the proper support of his or her dependants.
So how do you make a Dependant Support Claim? First you must be a “dependant” of the deceased. In Ontario, a dependant is the spouse of the deceased (including a common law spouse), a parent of the deceased, a child of the deceased (including a child conceived before, but born after the deceased’s death), or a brother or sister of the deceased, to whom the deceased was providing support or was under a legal obligation to provide support, immediately before the deceased’s death. Support means not only financial support, but also furnishing food, shelter, and the necessaries of life, as well as physical and moral support.
If you think you qualify as a dependant of the deceased, then you can make an application to the court and the court may order that you receive support out the deceased’s estate.
When a court considers the amount of support needed, the court must first determine the value of the deceased’s estate, as this would determine how much money is available to satisfy any dependent support claims. The Succession Law Reform Act contains a “claw-in” provision that provides that the value of certain assets of the deceased that normally flow outside of the estate (i.e. are not required to be probated) are clawed back into the estate in order to determine the estate’s value for the purposes of satisfying a dependent support claim. Some of these assets include joint accounts (i.e. bank accounts and investment accounts held by the deceased and another person), property held jointly by the deceased and another person, insurance proceeds, and registered policies with designated beneficiaries (i.e. TFSA, RRSP, etc.). This means that the amount of money available in the estate to satisfy any dependent support claims is likely larger than what is listed in the probate application (also known as the “Application for a Certificate of Appointment of Estate Trustee”).
Some of the factors the court will consider when determining the amount of support needed are:
• The dependant’s current assets and means.
• 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 in doing so, the court considers the dependant’s accustomed standard of living.
• Whether the dependant has a legal obligation to provide support for another person;
• The circumstances of the deceased at the time of death.
• Any agreement between the deceased and the dependant.
• The claims that any other person may have as a dependant.
• Any other legal right of the dependant to support, other than out of public money.
A final word to all you procrastinators out there: this is not something you want to sit and wait on. You only have six months from the date that a Certificate of Appointment of Estate Trustee is granted to make an application for dependant support against an estate. Once that six-month period is up, you can still make an application to the court, but your claim against the estate will be limited to the assets of the estate that have not yet been distributed and you won’t benefit from the claw-in provision in the Succession Law Reform Act referenced above. This is why it is important for you to speak to a lawyer as soon as possible after the deceased’s death so you can find out whether you have a claim for dependant support.
If you or a loved one is not adequately provided for by a deceased person, please reach out me and I will do my best to assist you.
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