In Ontario, the Succession Law Reform Act (SLRA) governs the distribution of a deceased person’s estate. While individuals have the right to create a will to express their wishes for the distribution of their assets, the SLRA also provides protections for specific individuals, including children. This blog post will explore what happens when a will does not adequately provide for a dependant family member and the potential legal remedies available under the SLRA.

Testamentary Freedom vs. Dependant Support

The Succession Law Reform Act recognizes the principle of testamentary freedom, which allows individuals to dispose of their property as they see fit. However, this freedom is not absolute. The SLRA imposes certain obligations on individuals to provide adequate support for their dependants.

Section 58 – Order for Support

Section 58(1) of the SLRA is particularly relevant to the issue of inadequate provision for children. It states:

Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate the deceased for the proper support of the dependants or any of them.

What Is “Adequate Provision”?

The term “adequate provision” is not defined explicitly in the SLRA. However, courts have developed guidelines to determine whether a will has adequately provided for a dependant. These guidelines consider a variety of factors, including the dependant’s financial needs, age, health, relationship with the deceased, and the deceased’s moral obligations to the dependant.

Grounds for Challenging a Will: Inadequate Provision for Children

A dependant may challenge a will under the Succession Law Reform Act if they believe the will does not adequately provide for their support. This type of legal action is known as a Dependant Support Claim.

Eligibility for a Dependant Support Claim

To bring a Dependant Support Claim, the family member must meet the following requirements:

• They must meet the definition of “dependant”: The SLRA defines a dependant as a spouse, parent, child, or sibling of the deceased.
  • If the dependant in question is the deceased’s child, they can be a child conceived before and born alive after their parent’s death. They can also be a grandchild or a person whom the deceased “had demonstrated a settled intention to treat as a child of his or her family”. This can include an adult child, step-child or adopted child, but not foster children.
• They must be dependent on the deceased for support: This means the deceased provided, or was under a legal obligation to provide, support to the dependant.
• The will must not make adequate provision for their support: As discussed above, the court will consider various factors to determine whether the will has made sufficient provision for the dependant.

If a dependant meets these requirements, they can file an application with the Superior Court of Justice. The court will then consider the circumstances of the case and determine whether the will has adequately provided for them. If the court finds that the will has not made adequate provision, it may order the estate to provide additional support to the dependant.

Factors the Court Considers in a Dependant Support Claim

When considering a Dependant Support Claim, the court will carefully examine various factors to ensure a fair and just outcome. These factors include, but are not limited to:

• The dependant’s financial needs: This includes current needs, such as food, clothing, and shelter, as well as future needs, such as education and healthcare.
• The dependant’s age and health: For example, younger children and children with disabilities may have more significant needs than older, healthy children.
• The size of the estate: A larger estate may allow for more generous provisions for a dependant.
• The relationship between the deceased and the dependant: The strength of the relationship between the deceased and the dependant may influence the court’s determination of what constitutes adequate provision.
• The deceased’s moral obligations to the dependant: The court may consider any moral obligations that the deceased had to the dependant, such as a promise to provide for a child’s education or to leave them a specific asset.

The court’s goal is to ensure that the dependant receives adequate support to meet their reasonable needs and maintain a standard of living consistent with their relationship with the deceased and the overall circumstances of the estate.

Time Constraints for Bringing a Dependant Support Claim

It is crucial to be aware of the strict time limitations imposed on bringing a Dependant Support Claim under section 58 of the Succession Law Reform Act (SLRA). Typically, a claim must be initiated within six months of the date the probate or administration of the deceased’s estate is granted. However, there may be specific circumstances where the court can extend this deadline.

It is advisable to consult with an experienced estate litigation lawyer to determine the exact time limits applicable to your particular case and to ensure that your claim is filed within the prescribed timeframe. Failure to adhere to these deadlines may result in losing your right to pursue a Dependant Support Claim.

Evidence to Establish a Dependant Support Claim

To establish a Dependant Support Claim, the claimant must demonstrate the provisions made in the will fall short of what would be considered reasonable and fair, considering the dependant’s circumstances and the deceased’s moral and financial obligations.

To strengthen their case, claimants may utilize expert testimony from financial advisors, medical professionals, or other relevant experts. These experts can provide valuable insights into the dependant’s economic needs, medical conditions, or other pertinent factors. Additionally, claimants may submit a variety of supporting documentation, such as financial records, medical reports, educational records, and employment records. This evidence can help to illustrate the dependant’s specific circumstances and demonstrate the inadequacy of the provisions made in the will.

Remedies Available to a Successful Claimant

If a court finds that a will has not made adequate provision for a child, it may order a variety of remedies, including:

• A lump sum payment: This is a one-time payment to the dependant.
• Periodic payments: These are regular payments to the dependant, such as monthly or annual installments.
• A trust: A trust is a legal arrangement where assets are held by a trustee for the dependant’s benefit.
• A combination of these remedies: Depending on the circumstances of the case, the court may order a combination of these remedies.

Essential Considerations for Estate Planning

To avoid potential challenges from dependants, it is important to carefully consider the distribution of your estate when creating a will. Some important considerations include:

• Consult with an estate planning lawyer: An estate planning lawyer can help you create a will that complies with the Succession Law Reform Act and reflects your wishes.
• Consider the financial needs of your children and other dependants: Review your dependants’ current and future financial needs and make provisions for them in your will.
• If you wish to disinherit a family member, consult with a lawyer: If you decide to disinherit a child, it is important to consult with a lawyer to ensure that your will is legally sound and that you have taken steps to minimize the risk of a successful challenge.
• Keep your will up-to-date: As your family circumstances change, updating your will to reflect your current wishes is essential.

Contact NULaw for Trusted Advice on Dependant Support Claims & Will Challenges in Toronto

NULaw provides comprehensive, pragmatic advice about Dependant Support Claims and will challenges. Our Toronto wills and estate lawyers represent clients on either side of these disputes and executors who are faced with handling competing interests in an estate. We also create innovative estate plans that proactively address inheritance issues and complex family dynamics to mitigate the risk of costly estate litigation and depleted estate assets. To schedule a confidential consultation, please contact us online or call 416-481-5604.