In estates law, your spouse and kids may not be your only 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. Under normal circumstances, these cases are brought by a spouse who was left out of the will, but the law also makes room for claims by other relatives of the deceased, as long as they can prove that they were receiving support from the testator immediately before their death.
And claims can sometimes span generations, as a recent Ontario Superior Court decision shows. The judge in the case ordered the estate of a 75-year-old man’s $1-million estate to transfer title to the deceased’s home into the name of his grandson after concluding that there was a relationship of dependency between them at the time of his grandfather’s death and for a significant time prior.
According to the ruling, the grandson was diagnosed with a learning disability at the age of 8 and is currently in receipt of Ontario Disability Support Program benefits. He had no relationship with his father and moved in with his grandfather at the age of 17, after leaving his mother’s care – staying there for more than a decade, until he was “wrongfully removed” by his mother and uncle, who were administering the grandfather’s estate following his death.
The deceased’s will made no mention the grandson at all, but this was because it was drafted before his birth. And while the grandfather had previously set up a $300,000 trust for his grandson’s benefit, the judge wrote that this was evidence of his desire “to take care” of his grandson.
Accepting expert evidence that the grandson’s existing funds would not be sufficient to meet his needs far into the future and his lack of employment prospects, the judge ordered the grandfather’s home be transferred to the grandson.
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 frequently updated will.
As I mentioned earlier, grandchildren and children aren’t the only people who can be considered dependants under the SLRA. Spouses – and partners you cohabitate with in particular – are the most frequent claimants under the law.
Partners you cohabitate with 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 cohabitation 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.
