What is a Dependant Support Claim? What support obligations should you consider in your estate planning?

Disclaimer: This article discusses estate planning.  It is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

It is well-established in common law that you have the right to leave your estate to whomever you would like. This is referred to as “testamentary freedom.” 

However, this concept has a few exceptions – one of which is found in Section V of the Succession Law Reform Act. There, the law obligates you to ensure that you have adequately supported your dependants. 

Of course, this raises questions. Who are your dependants? If your relative has not provided adequately for you, do you have any recourse? What do you need to keep in mind? 

These are questions that this article will answer. Of course, each situation is unique, and this article aims to provide a broad overview. If you would like to discuss your estate or that of your loved one, we encourage you to book a call with our team. We would be more than happy to discuss this further during your complimentary consultation. 

What is a dependant support claim? 

A dependant support claim is an application brought against a deceased person’s estate to ensure continued support is provided.

In Ontario, the law ensures that specific people dependent on someone who has passed away have the right to seek support from that person’s estate, regardless of any inheritance they might receive through a will or intestacy laws. This means that dependants, such as spouses or children, can bring a claim for support separate from whatever they may inherit. If successful, the estate must prioritize fulfilling this support payment before distributing any remaining assets to other beneficiaries.

Who would qualify as a dependant? 

Section 57 of the Succession Law Reform Act sets out a two-part test to determine who qualifies as a dependant. 

Are you a dependant under section 57 of the Succession Law Reform Act? 

For the purpose of a dependant support claim, a dependant must be a spouse, parent, child or sibling. While that sounds simple enough, the law has some nuances that you should know. 

Additionally, in this scenario, spouses are not limited to married people. They also include common-law spouses, meaning two individuals who have cohabited for at least three years or are a child’s natural or adoptive parents. The court may consider a grandparent or grandchild equal to a child or a parent if the deceased demonstrated that they intended to treat that person as a child or parent of their family.  

Was the deceased providing (or legally obligated to provide) support immediately before their death? 

Secondly, the deceased must have been providing support (or should have been providing that support) immediately before their death. It may be that the deceased had a legal obligation to provide support, whether by an order for support or a domestic agreement. There may also be a moral obligation – meaning that a reasonable person would provide adequate provision and support in similar circumstances. 

For example, in the case of a minor child, a parent would have either been supporting their child or legally obligated to provide some level of support. Another example may be an ex-spouse who was receiving spousal support when the deceased passed away. The estate is responsible for providing that support as it would if the deceased were still alive.  The case law shows that the courts consider “support” to include financial, physical and moral support. 

How long do I have to bring a claim for support?

While we noted that the statute of limitations in other litigation matters is generally two years, Section 61 notes that an application must be brought within six months from the grant of letters probate of the will or letters of administration. 

Plainly speaking, this means you have six months from when the Certificate of Appointment of Estate Trustee is issued to bring an application forward. 

How does this impact your estate planning? 

Understanding the potential for dependant support claims is crucial when crafting a solid will.

Let’s use a hypothetical scenario: Joel is a divorced father of two children, Grayson and Rhys, who live in Ontario. Following his divorce, Joel and his ex-wife established a court-ordered child support agreement to ensure financial support for their children.

In preparing his will, we aim to draft it to minimize the likelihood of a dependant support claim being filed. It would be an understatement to say that no one wants Joel’s estate mired in litigation. Therefore, we would work to prevent such outcomes as much as possible while drafting his will.

That may include thoroughly reviewing Joel’s existing legal agreements, particularly the court-ordered child support arrangements, to fully grasp his current financial commitments towards his children. 

By gaining clarity on these obligations, we can tailor Joel’s will to align with his familial responsibilities and minimize the potential for disputes or dependant support claims in the future.

Beeksma Law: Strategic advice for all of your estate litigation needs  

At Beeksma Law, we specialize in handling various estate litigation matters, including dependant support claims. With our extensive experience and expertise in estate law, we can assist you in navigating complex legal processes and ensuring your estate plan reflects your wishes while minimizing the potential for disputes. For strategic legal advice, book a complimentary consultation with our team today!