Dependant Support Claims - Can You Leave Someone Out of Your Will?
When Testamentary Freedom Has Limits
One of the basic principles of estate planning is testamentary freedom.
Generally speaking, you are free to decide who should inherit your property after you die.
But that freedom is not absolute.
Ontario law recognizes that certain people may have been financially dependent upon the deceased and may be entitled to seek support from the estate.
These claims are known as dependant support claims.
What Is a Dependant Support Claim?
Part V of Ontario's Succession Law Reform Act allows certain dependants to make a claim against an estate where the deceased did not make adequate provision for their proper support.
This can arise where a dependant receives too little under a Will.
It can also arise where the dependant has been left out of the Will entirely.
The existence of a Will therefore does not always provide the final answer as to how an estate will ultimately be distributed.
Who Can Be a Dependant?
Not every disappointed family member can make a dependant support claim.
Under the Succession Law Reform Act, a dependant may include a:
spouse;
parent;
child; or
sibling
of the deceased whom the deceased was providing support to, or was under a legal obligation to provide support to, immediately before death.
The statutory definitions can also be broader than they first appear.
For example, a spouse may include certain common-law partners, while the definition of a child can extend beyond a biological or legally adopted child in some circumstances.
Whether someone qualifies as a dependant will therefore depend upon the particular facts.
Can You Leave an Adult Child Out of Your Will?
In many circumstances, yes.
An adult child does not automatically have a right to inherit simply because they are your child.
An independent adult child who was not being supported by a parent immediately before the parent's death may be in a very different position from a minor child or an adult child who remained financially dependent upon the parent.
This distinction is important.
Ontario law does not simply allow courts to rewrite every Will that a family member considers unfair.
What Will the Court Consider?
Where a dependant has not received adequate provision for their proper support, the court has the power to order that support be paid from the estate.
In deciding what is appropriate, the court may consider a wide range of circumstances.
These can include the dependant's income and assets, age and health, accustomed standard of living, relationship with the deceased, contributions made to the deceased or the deceased's property, previous gifts, agreements between the parties, and the needs of other dependants.
Every case is different.
A court considering a dependant support claim therefore looks beyond the wording of the Will and examines the broader relationship between the deceased, the dependant, and the estate.
There Are Time Limits
A potential dependant should not wait indefinitely before obtaining legal advice.
Generally, an application for dependant support must be commenced within six months after a Certificate of Appointment of Estate Trustee has been issued.
Although a court may have some ability to permit a later claim against portions of the estate that have not yet been distributed, delay can create significant problems.
Anyone considering a dependant support claim should therefore seek legal advice promptly.
Planning Ahead
Dependant support claims are also an important consideration when preparing a Will.
If you intend to leave little or nothing to someone who is financially dependent upon you, simply excluding that person from your Will may not prevent a future claim.
Careful estate planning can help identify these potential issues before they become disputes.
Final Thoughts
Testamentary freedom remains an important principle of Ontario estate law.
However, it exists alongside legal obligations toward certain dependants.
Whether someone can successfully be left out of a Will depends upon much more than their relationship to the deceased. Their financial circumstances, the support they received, the size of the estate, and the competing interests of others may all be relevant.
Understanding those obligations while you are still able to plan can help reduce uncertainty and the possibility of litigation after death.
If you would like advice about dependant support claims or how potential support obligations may affect your estate plan, Tonelli Estate Law would be pleased to assist - BOOK A FREE CONSULT TODAY.
This article is for general informational purposes only and does not constitute legal advice.
