BY PAUL ADAM, ASSOCIATE LAWYER
Many people are familiar with the obligations to provide support for a spouse and for children that can arise when two people separate. There is a fairly equal, but perhaps less well known, obligation for the Estate of a deceased person to provide financial support for a spouse and other dependants, after the deceased is gone.
The
Succession Law Reform Act is the law of Ontario that dictates how people may create a Last Will. It also determines what happens when someone doesn't create a Last Will, and establishes other laws that govern the transfer of property from an estate to people receiving an inheritance.
Unlike succession law in
other provinces, Ontario's
Succession Law Reform Act gives the Court little power to vary, change or override the terms of a
properly executed last will, that is in all other respects
morally acceptable.
One major exception to this, however, is where a Will has not adequately provided for the financial support of the deceased's dependents.
If a deceased person has left a Last Will that is formally valid, but the Estate does not provide for adequate support of a dependant, the Court can impose terms on the estate to provide the support necessary, possibly at the expense of parts of other bequests in the estate. A "dependant" in this sense can be a spouse, parent, child, or sibling of the deceased, who was financially dependant on him or her on the deceased's date of death.
There are many factors that an Estate Court must consider when awarding support, (
a full list can be found in the legislation) similar to awards made for spousal and child support. Some factors include:
- The Dependant's needs and standard of living
- The Dependant's ability to support him/herself
- The Dependant's prior agreements with the deceased as to support
- What contribution the Dependant made to the deceased's business, household, education, career advancement or child rearing.
If a person dies
intestate (without a Will). there are set rules that divide the Estate between the closest relatives of the deceased. If the ordinary division under an intestacy, however, would leave some dependants without adequate support, the Court could override this distribution, as well. For example, if a person died, leaving behind two young children and an elderly mother he was supporting, and the person did not make a Last Will, the children would stand to inherit the whole estate, but the mother would be entitled to bring an application to the Court for financial support.
If you care for a child, spouse, or relative with a disability or who is dependent on you financially, you should speak to an
experienced wills and estates lawyer about what obligations your estate may have to support that person after your death, and to consider how you can use your Last Will to set up mechanisms to care for your dependant after your death.
Taking this step can save your estate from an expensive and complicated Court proceeding, that can drain money that could otherwise help a loved one in need.
- Paul Adam, Associate Lawyer, Toronto
