August 13, 2014
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One of the most cherished icons of the law affecting the making of one's Will in this country is the freedom to leave your estate to whomever you want. It had a certain appeal in a pioneer society such as Canada at the turn of the 20th century, but Canada was also a country where the tax base had hardly evolved to the point where familial obligations assumed by its citizens during their lifetime could be left on the doorstep of the state after death in response to this need. The provinces began to create legislation to allow the courts to impose these obligations on a testator who failed to make adequate provision for the support of his dependants.

Any legislation to remedy this problem naturally leads to the question of who is a dependant, and what is a reasonable level of support for that dependant in the context of the family circle to which the dependant belongs. Under the Succession Law Reform Act (SLRA), a dependant can come from any one of the following groups: a surviving spouse; a brother or a sister of the deceased; a former spouse of the deceased; a child or grandchild of the deceased; or a person who has come to be treated by the deceased as his or her child during the course of the deceased's marriage to his or her parent. The spousal category has been expanded to include common law spouses.

One can easily see a small crowd of applicants forming at the courthouse, except that the legislation also contains the caveat that the dependant must have been someone to whom the deceased, at the time of death, was providing support, or was under a legal obligation to provide support. The court has to go through the crowd to determine if the deceased was, or should have been, providing support to the potential dependant and failed to make adequate provision for them in a Will. The list of circumstances that the court must consider is found in the SLRA and is not exhaustive; although it may be exhausting for the judge who has to explore the minutiae of the relationship between the deceased and the putative dependant.

Some examples of the criteria considered by the court include the current assets and means of the dependant while residing with the deceased, the measures available for the dependant to provide for his or her own support, and the length of time that would be required to enable the dependant to achieve those measures to become independent. Contributions made by the dependant to the deceased's property or business may also qualify the dependant for support, but that is reflected in the actual benefit achieved and enjoyed by the deceased as a result of these efforts.

The court often struggles in coming to a reasonable and responsible conclusion in the face of so many competing interests. Not everyone who applies for support as a dependant is successful in obtaining money. There is a trend in recent cases for courts to treat the issue of dependant's relief as a morality play to provide a broader level of justice and equity between the parties than is afforded by the stricter language of the legislation. For more information, read my full article, You Can't Always do What You Want: Outlining Familial Obligations on Death, as published in Fifty-Five Plus Life Magazine.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.