When it comes to your estate, your kids don’t need to be minor to be dependants.
Ontario’s Succession Law Reform Act allows dependants of the deceased to make a claim against the estate if they are inadequately provided for in the will. Typically, these cases are brought by a spouse who was left out of the will, but the law also makes room for claims by children of the deceased, as long as they can prove that they were receiving support from the testator immediately before their death.
And age is no barrier to a claim, as a recent Ontario Superior Court decision shows. The judge in the case ordered the executors of a 93-year-old woman’s $3-million estate to pay her 67-year old son an extra $1,250 per month in monthly support after finding that the $1,700-per month allowance she provided for him was inadequate to meet her youngest child’s needs.
According to the ruling, the son did not live with his mother, but the judge was still convinced that he qualified as her dependant after concluding that she “systematically provided” him with money and in-kind support, such as frequent meals and housing.
Before her 2019 death, the mother had established an annuity for her son and directed her other children to pay him the proceeds from a family-owned coin laundry, which were together worth around $1,200 per month. Her will stipulated an extra $500 per month should go to her son from the estate’s rental income.
But the judge concluded that those sources of income fell short of allowing the son to live the life he had become accustomed to prior to his mother’s death, ordering the estate trustees to make additional monthly support payments of $1,250, adjusted annually for inflation.
“I conclude that this award meets [the mother’s] moral and legal obligations to [the son] as a dependant,” the decision reads.
This case and other more conventional claims for dependant’s support are a reminder of how important it is to clarify your relationships and detail your intentions in a will.
As I mentioned earlier, children aren’t the only people who can be considered dependants under the SLRA. Spouses – common-law spouses in particular – are the most frequent claimants under the law.
Common-law spouses can often be left in a tricky position following the death of their partner – especially if they died without a will – since estates law offers no automatic entitlements to them, which is a fact that comes as a surprise to many.
Depending on the case, a first or second spouse could qualify as a dependant, as well as children from different relationships, or even a new partner’s children from a previous relationship.
Separation agreements or domestic contracts signed by the testator will often offer clarity about who they have a duty to account for in their will, but not all relationships are clear-cut, especially if they ended bitterly.
Whatever your individual circumstances, it’s important to find an experienced professional who can ask the right questions about your spousal and family situation, and ensure that everyone who needs to be is accounted for in the will.
Disclaimer: The content on this website is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this website are advised to seek specific legal advice by contacting members of Laredo Law (or their own legal counsel) regarding any specific legal issues.
