AREAS OF PRACTICE

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Dependant Support Claims

 

While the law provides testators with the freedom to decide how and to whom they will leave their estate, they are nonetheless obliged to make adequate provision for any 'dependants'. The Succession Law Reform Act defines a dependant to be a spouse (or common-law or same-sex partner), parent, child, or sibling of the deceased, to whom the deceased was under a legal obligation to provide support immediately before his or her death. A 'child' includes a grandchild and a person whom the deceased demonstrated a settled intention to treat as a child of his or her family (other than a foster child). With respect to a parent's entitlement to claim support from a child, where the child is living the parent's claim is made under the Family Law Act. Where the child has predeceased the parent, however, the parent's claim is taken pursuant to the Succession Law Reform Act.

The purpose of dependant's relief is to provide support and maintenance to a dependant where the deceased was under a duty to provide such support and failed to make adequate provision for him or her on death. A dependant can initiate proceedings seeking an award from the estate on the basis that they have not been adequately provided for. An application for dependant support must be commenced within six months of the issuance of a Certificate of Appointment of Estate Trustee. The court does have discretion to allow an application to be commenced beyond the limitation period, but only in relation to any portion of the estate remaining undistributed. 

Support includes financial, physical and moral support, and what constitutes adequate or proper support is determined based on the circumstances of each individual case. The court is given considerable latitude to determine the issue of support, and may look to the adequacy of future support as well. A court may order periodic or lump-sum payments, or the transfer or assignment of any property in the estate. 

An application for dependant's relief is typically supported by affidavit evidence detailing support that was provided during the deceased's lifetime, or an account of the legal obligation that would have been imposed had the issue arose during the deceased's lifetime.