Dependant Support

Although testators are free to name their beneficiaries in their Will, Ontario legislation restricts that right where adequate provision has not been made in the Will for the support of the testator’s dependants. The Succession Law Reform Act allows a dependant to initiate proceedings to seek support from the estate.

In the case of common law spouses, a dependant support claim is one of the few ways that a non-married partner can make a claim against the testator’s estate.

A dependant is defined as:

• a married spouse;
• a common law spouse;
• a child;
• a person to whom the deceased was providing support or obligated to provides support before death.

Certain limitation periods apply to dependant support claims and it is important to file an application within that time frame. The Succession Law Reform Act provides a six-month window after the granting of a Certificate of Appointment of Estate Trustee (also known as obtaining probate), for the filing of a support claim. This is separate from pursuing relief under the Family Law Act, which is different, and must be brought earlier.

Sometimes there may be quite a delay in the named executor in the Will in applying for a certificate of appointment and there may be other issues involved, such as a challenge to the last made Will. In those cases, it may be that a series of relief may need to be requested of the court to force some steps to be taken in the administration of the estate.

When support claims are made, it is also possible to obtain a court Order freezing the estate’s assets and staying any distributions. It is important, however, to bring an application quickly. The law on this is complex and robust and professional guidance should be sought.