An estate’s legal obligations are not the end of the story when it comes to supporting the deceased’s surviving children.
As a recent decision demonstrates, Ontario judges can enforce a parent’s moral duty to an adult child after death, even if no legal duty exists.
The case has its roots in the strained relationship between an Ottawa woman and her son, who was 34 when his mother died in 2021. The son was not a beneficiary under the will, which directed that the mother’s entire estate – around $65,000, plus a $500,000 home – should go to her brother.
The son, whose only income comes from his Ontario Disability Support Program benefits, applied to the court for dependant’s support, claiming that he regarded his mother’s property as his home, even though he did not live there.
Typically, individuals can only qualify as dependants of the deceased if they were receiving support from them at the time of their death. In this case, the judge found that the son’s arguments fell short, noting that he had not lived with his mother for more than a year before her death and there was evidence that she did not even want him in the house.
But that didn’t end the matter, the judge wrote, noting that “while parents may not be under a legal obligation to provide for their adult children in their Estate plan, there may be circumstances in which the Court may impose a moral obligation to do so.”
Considering all of the son’s circumstances, including his disability, limited income and difficulty maintaining employment, the judge concluded that this was one of those cases in which a moral obligation arises “as a result of society’s expectations of what a judicious person would do in the circumstances.”
In the end, the judge ordered the estate to pay the son $200 per month, continuing indefinitely or until further order of the court.
Ontario is traditionally one of the more hardline Canadian jurisdictions when it comes to respecting a deceased person’s wishes. However extreme the circumstances in this case – involving a disabled adult child in a financially precarious position – it should still serve as a reminder that an individual’s testamentary freedom is not absolute in this province.
The bottom line for will-makers is that they need to think long and hard before cutting out a person who expects to feature in their will, especially if they could qualify as one of your dependants. At the very least, it may be worth giving them some advance warning.
Children aren’t the only people who can be considered dependants under Ontario law. Spouses – common-law spouses in particular – are actually the more 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.
