IS THERE SUPPORT AFTER DEATH? – Part I

June 23, 2006 Suzana Popovic-Montag Archived BLOG POSTS - Hull on Estates, Support After Death Tags: , , , , , , , 0 Comments

In an effort to discuss claims against an estate that relate to dependant support and to claims of the surviving spouse, we thought it would be interesting to embark on a mini-series on the topic.

Family Law Act Claims

Subject to a contract to the contrary, section 6(1) of the Family Law Act provides for the right of the surviving spouse to make an equalization claim against the assets of the estate.

Since the 1970s, a general statutory proposition prevails that the value of "family property" should be split up equally when the marriage ends, regardless of which spouse holds to the property.

With the coming into force of the Family Law Reform Act, 1986 (R.S.O. 1980, c.152 (repealed and replaced by the Family Law Act 1986, S.O. 1986, c.4)), Ontario established a deferred community of property regime, which added a new dimension in relation to its impact upon surviving spouses and estates of deceased spouses and other persons who have an interest in their estates.

While the deferred community of property regime (the rest of the Provinces have similar legislation, for example: Alberta: Matrimonial Property Act, R.S.A. 1980, c.M-9, British Columbia: Family Relations Act, R.S.B.C., c. 121, Pt. 3 (Sections 43-55), Manitoba: Marital Property Act, R.S.M. 1987, c.M 45, Saskatchewan: Matrimonial Property Act, S.S. 1979, c. M-6.1) did not change the substantive law of succession, it had the effect of adding to or taking away property and rights to property previously thought to be those assets of a testator and surviving spouses.

The impact affected the rights of the estate of a deceased spouse and a surviving spouse, and had a serious impact upon the entitlement of other persons interested under estates of a deceased spouse.

Support of Dependants under Part V of the Ontario Succession Law Reform Act – Restriction on Testamentary Power

Since the early 1900s, legislators in the common law jurisdictions began to give to the court a discretionary power to order proper maintenance and support out of the assets of an estate in circumstances where the testatrix had failed to make adequate provision for the support of dependants. In Ontario, the Dependants’ Relief Act, R.S.O. 1970, c.126 and the successor provisions of the Succession Law Reform Act, R.S.O. 1990, c.S.26, set out the statutory provisions whereby a testator’s power to do what he or she wishes with his or her assets is restricted.

 In a future blog, we will continue to explore these important claims against an estate.

All the best, Suzana and Ian. ——–

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