There are limits on the freedom of a testator to dispose of her estate as she chooses. One of the limits is imposed by statute: a deceased must provide adequate provision for the proper support of her dependants. The Succession Law Reform Act, RSO 1990, c S.26 (SLRA) defines a dependant as (a) the spouse of the deceased; (b) a parent of the deceased; (c) a child of the deceased; or (d) 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 his or her death. A child of the deceased includes a grandchild and a person whom the deceased has demonstrated a “settled intention” to treat as a child of the family. The courts recognize not only the legal obligation but also the moral obligation owed by the deceased to her dependant. However, the testamentary intentions of the deceased will be considered by the court in determining the “adequate provision” for the “proper support” of the dependant.
In the case of Shapiro v. Shapiro, 2025 ONSC 2781 (CanLII), the court considered the dependant’s relief claim of the surviving husband. The husband and deceased wife were married for 53 years. They had two children of the marriage: a son and daughter. The husband was the primary income earner throughout the marriage. The husband and wife made significant inter vivos gifts to each of their children, but particularly to the son. The husband and wife prepared mirror wills in 2008, leaving each other the residue of their estate. However, unbeknownst to the husband the wife made 5 sets of changes to her will from 2013-2018, each time successively decreasing the bequest to her husband (from $1 million to $250,000). The wife disinherited her daughter entirely. The condo in which the husband and wife lived was left to the wife after the death of her mother. Despite the wife promising her husband that she would add him as a joint owner to the condo, she never did. The husband and wife moved into the condo after gifting their house to the son. In addition to inheriting the condo, the wife inherited approximately $10 million from her parents.
In the court’s analysis of whether the husband was adequately provided for, the court found that the husband’s monthly income after expenses left him in a deficit. His savings were less than what his wife believed them to be, and his savings were significantly depleted by legal fees (including gifting his daughter money to challenge his wife’s will – she was unsuccessful). Importantly, the court found the condo to be a matrimonial home and that the husband had a strong legal and moral claim to the condo. The court balanced the needs of the husband with the wife’s testamentary intentions to leave her estate to her son and not benefit her daughter. After receiving the condo and the $250,000 bequest, and fulfilling the other bequests in the wife’s will (to her son’s children), the court found that the husband would receive roughly $1,090,000 and the son roughly $4.75 million. The end result for the son would be to receive 69% of his mother’s estate. The court found that was in keeping with the wife’s testamentary intentions and would not constitute a major revision to the wife’s wills, while providing the husband with adequate support.
