This Succession Law Reform Act overview explains who can claim dependant support, what courts consider, and Ontario’s strict six-month deadline.
When someone passes away, many assume the will is final and cannot be challenged. That belief is rooted in a long-standing common law principle known as testamentary freedom, which holds that a person making a will, also called a testator, generally has broad discretion to decide who inherits their assets and in what proportions.
Under this principle, individuals are free to leave their estate to family members, friends, charities, or anyone else they choose.
This approach differs from legal systems in countries such as Germany and Italy, where forced heirship regimes apply. In those jurisdictions, certain close relatives, typically spouses and children, are legally entitled to receive a fixed portion of the estate regardless of the terms of the will.
In Ontario, a dependant of the deceased may make an application for dependant support where they are dissatisfied with the provision made for them under the deceased’s will and seek additional financial support from the estate. These claims are governed by Part V of the Succession Law Reform Act (SLRA).
What Is a Dependant Support Claim?
A dependant support claim is a court application brought against a deceased person’s estate. It asks the court to determine whether the deceased made adequate provision for a dependant.
If the court finds that adequate provision was not made, it can order support to be paid from the estate even if the will provides otherwise.
While individuals enjoy significant freedom in estate planning, that freedom is subject to enforceable legal and moral obligations.
Who Qualifies as a Dependant?
A dependant is defined under section 57 of the SLRA as follows:
“Dependant” means,
- The spouse of the deceased;
- The parent of the deceased;
- A child of the deceased;
- A brother or sister of the deceased; and
to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.
Both components of the definition must be met. The individual must fall within one of the listed relationships, and there must have been actual support or a legally enforceable obligation to provide support immediately prior to death.
Who Is a Spouse?
Additionally, in this scenario, spouses are not limited to married people. They also include common-law spouses, meaning two individuals who have cohabited for at least three years or are in a relationship of some permanence.
What Counts as Support?
Support is interpreted broadly and can include financial, physical, and moral assistance. It is not limited to basic necessities but may also encompass non-essential items or even luxuries, depending on the lifestyle of the parties. The court will consider both the financial contributions the deceased made to the dependant and the future needs of the dependant. The analysis looks at what is reasonable in light of the dependent’s accustomed standard of living, rather than just a minimum level of support required for survival.
Factors Considered by the Court
Section 62 of the SLRA sets out factors that the court takes into account when assessing a claim. These include, among others:
- The financial resources and needs of the dependant, both now and in the foreseeable future.
- The age and physical and mental health of the dependant.
- The dependant’s standard of living and their capacity to contribute to their own support.
- The nature and duration of the relationship between the deceased and the dependant.
- Any contributions the dependant made to the deceased’s welfare or to the acquisition, maintenance, and improvement of the deceased’s property or business.
- Other relevant factors, including agreements between the deceased and the dependant, the circumstances of the deceased at the time of death, and any legal obligations the dependant has to provide support for another person.
Each case is unique, and the court weighs all relevant circumstances before determining whether support is adequate and, if not, what amount is appropriate.
Strict Time Limits Apply
Section 61 of the SLRA provides that an application for dependant support must be made within six months from the issuance of the Certificate of Appointment of Estate Trustee. It is possible to bring a claim after this point, but only with permission from the Court.
Final Thoughts
Ontario law strongly respects a person’s ability to decide how their estate is distributed. However, that freedom has limits. Where a dependant has not been adequately provided for, the court has the authority to order support from the estate. These claims are often complex, fact-specific, and time-sensitive. Contact Nadine Esaid, Associate Lawyer at Boardwalk Law to learn more: [email protected] / 365.747.3614
