In Ontario, you generally have freedom to decide who benefits from your estate. But that freedom is not unlimited. The law recognises that some people depended on the deceased and should not be left without support simply because a will (or the intestacy rules) failed to provide for them adequately. This is the purpose of dependant support claims.
The legal basis
Part V of the Succession Law Reform Act allows a "dependant" to apply to the court for support from the estate where the deceased did not make adequate provision for them. If the claim succeeds, the court can order support to be paid out of the estate, effectively overriding, in part, what the will or intestacy would otherwise do.
Who counts as a dependant
A dependant is a defined group and can include:
- A spouse — which, for this purpose, can include a common-law partner in a qualifying relationship.
- A child of the deceased, which can extend beyond minor children in some circumstances.
- A parent or sibling, where the deceased was supporting them or had a legal obligation to do so.
In each case, the key is that the deceased was providing support, or was under a legal obligation to provide support, to that person immediately before death.
What the court weighs
The court considers a wide range of factors in deciding whether support is owed and how much, including the dependant's needs and financial circumstances, their relationship to and history with the deceased, the size and nature of the estate, any legal or moral obligations the deceased had, and the interests of other beneficiaries. Courts have taken into account both the financial reality and the deceased's responsibilities.
Strict time limits
Dependant support claims are subject to firm deadlines, generally running from the grant of probate (the certificate of appointment of estate trustee). Missing the deadline can bar an otherwise valid claim, although courts have some limited discretion in defined circumstances. Because of this, anyone considering such a claim should get advice quickly.
For education only. Dependant support is fact-specific and time-sensitive, and both eligibility and the amount depend on the particular circumstances.
This article is general information for educational purposes only and is not legal advice. For advice on your situation, book a consultation.