Generally speaking, everyone is free to decide who will inherit their property after their death. This is called testamentary freedom. However, this right is not absolute; the law in Ontario (and elsewhere in Canada) imposes limits on testamentary freedom in certain circumstances, and in particular, where the will of the deceased excludes or fails to make adequate provision for someone who was a “dependant” of the deceased. Alternatively, where a person dies without a will (or intestate), the beneficiaries of the deceased’s estate are predetermined by law, such that someone who might otherwise be a dependant of the deceased may not be entitled to an inheritance.
This begs the following questions: (i) what does it mean to be a dependant; and (ii) what remedies are available to a dependant who is excluded or inadequately provided for under the will of the deceased, or who is not entitled to inherit from the estate of a deceased who died without a will? As is explained in more detail below, the dependant may apply to the court for “dependant’s support”.
The Definition of “Dependant”
Under Part V of Ontario’s Succession Law Reform Act (“SLRA”), a person is considered a dependant if they meet a two-part test: (i) a dependant means a spouse, parent, child or sibling of the deceased (ii) “to whom the deceased was providing support or was under a legal obligation to support immediately before his or her death.” In many cases, it will be obvious whether someone qualifies as a dependant. In other cases, the analysis is more complex.
With respect to the first part of the test, the definition of spouse, parent and child is broader than it sounds since:
- a parent also includes a grandparent;
- a spouse includes a married spouse, but also a common law spouse who had cohabited continuously with the deceased for a period of not less than three years, a person with whom the deceased had been married but then divorced, or a person with whom the deceased had a relationship of some permanence if they are the natural or adoptive parents of a child; and
- A child includes a grandchild, or a person towards whom the deceased had demonstrated a settled intention to treat as a child of his or her family (except a foster child).
Regarding the second part of the test, the dependant must show that the deceased was providing support to him or her immediately before death. Support is not only financial, but can also be physical and moral support.
The Support Available to a Dependant
Once a person meets the definition of a dependant, s. 58 of the SLRA allows a dependant to make an application to the court for support from the deceased’s estate. The court may order such provision as it considers adequate be made from the estate of the deceased for the proper support of the dependant.
Under s. 61 of the SLRA, a dependant’s support application must be commenced within six months of a certificate of appointment of estate trustee being issued (i.e. of probate). However, the court has the discretion to allow any application to be made at any time with respect to any portion of the estate that remains undistributed at the date of the application.
In considering an application for dependant’s support, the court will evaluate what the deceased left the dependant under his or her will (if anything) or what the dependant is entitled to receive on intestacy (if anything), and then determine what constitutes adequate support (either a lump sum or periodic support payments for a period of time). Under s. 62 of the SLRA, the court takes numerous factors into account in determining the amount of support, including, but not limited to:
- the dependant’s age and physical and mental health;
- the dependant’s needs, having regard to the dependant’s accustomed standard of living;
- the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
- the proximity and duration of the dependant’s relationship with the deceased;
- the circumstances of the deceased at the time of death. This includes the size of the estate;
- any agreement between the deceased and the dependant;
- the claims that any other person may have as a dependant;
- if the dependant is a spouse, a course of conduct by the spouse during the deceased’s lifetime that is so unconscionable as to constitute an obvious and gross repudiation of the relationship; and
- the length of time the spouses cohabited.
Section 63 of the SLRA gives the court very broad discretion to determine the manner in which the support is to be paid from the estate. The court may order payment from either income or capital of the estate, or, as the court considers appropriate, the court may make any number of orders, including: that an amount be payable annually or otherwise, whether for an indefinite or limited period, or until the happening of a specified event; that a lump sum be paid or held in trust; the transfer or assignment of property to the dependant, whether for life or a term of years; and a lump sump payment to supplement or replace periodic payments.
Under s. 64 of the SLRA, where the dependant needs and is entitled to support, but any or all of the matters referred to in ss. 61 or 62 have not been ascertained, the court may make an order for interim support, which grants the court a broad discretion as the court may make any order for interim support it deems appropriate.
There are other complexities to a dependant’s relief application which are beyond the scope of this blog; however, the above provides a broad overview of the matters the court takes into account in considering a dependant’s support application. In summary, a dependant who was excluded or inadequately provided for by the deceased may bring a dependant’s support application under Part V of the SLRA. Whether a person qualifies as a dependant is the first hurdle to overcome. After that, the court must then determine the sufficiency and duration of the support to be paid to the dependant and the manner in which it is to be paid.