Did they forget about me? A Primer on Dependent Support Claims

By Merovitz Potechin on Wednesday October 21, 2020.

In Ontario, if a testator (will-maker) fails to account for you in their will, and they had an obligation to support you, you can sue the deceased’s estate on the basis that you are a dependent of the deceased under Part V of the Succession Law Reform Act, R.S.O. 1990, c. S. 26 (“SLRA”).

You may qualify as a “dependent” if you can demonstrate that you are a spouse, ex-spouse, common law partner, child, parent, grandparent, grandchild or sibling of the deceased, to whom the deceased was (1) under a legal obligation to provide support immediately before their death and (2) they failed to make adequate provisions for you under their will.

Defining “Support”

Support under the SLRA does not only include furnishing food, sustenance, and the necessaries of life but has the secondary meaning of physical and moral support. Support also extends to include what some people might consider non-essentials or luxuries, which would allow you to continue living in your accustomed lifestyle. 

Dependent Support Claims

In order to make a dependent support claim, you must issue it within six (6) months of the estate trustee obtaining probate/the Certificate of Appointment of Estate Trustee, unless the Court provides for an extension.

The Court will consider a number of factors in deciding whether or not to grant you dependent support, including, but not limited to:

• Your current assets and means;
• The assets and means you are likely to have in the future;
• Your capacity to contribute to your own support;
• Your age and physical and mental health;
• Your needs and accustomed standard of living;
• The proximity and duration of the relationship you had with the deceased;
• Contributions you made to the deceased’s welfare;
• The circumstances of the deceased at their time of death; and
• Whether or not the deceased had other dependents at the time of their death.

It should be noted that support must not only be adequate today but must be adequate in the future as well.

If you are successful in bringing a dependent support claim against the deceased’s estate, the Court has the discretion to decide how you obtain support (examples include: a lump sum payment, a monthly or annual payment, or a transfer of property from the deceased to you). If you are unsure whether you have a claim for dependent support against a deceased’s estate, reach out to our Estate Litigation team at Merovitz Potechin LLP.