Structuring Dependant Support

June 20, 2012 Hull & Hull LLP Litigation, Support After Death Tags: , , , , , , ,

In making an award of dependant support, the court has a broad discretion under s. 58(1) and 63(2) of the Succession Law Reform Act.

Once a determination is made that a claimant is a dependant, and has not been adequately provided for by the deceased, the court has broad powers when ordering that provision for the dependant be made out of the estate. In addition to an expanded definition of the “estate” under s. 72, the court may make orders for lump sum payments, annual payments or otherwise, for a limited or indefinite period, or lump sum payments in addition to periodic payments, in addition to other powers.

A good example of the creative power of the court is demonstrated in Sorkos v. Sorkos Estate, 2012 ONSC 3196 (CanLII). There, the deceased died having an estate of approximately $2.6m. The claimant and the deceased appear to have been married for less than 10 years. The claimant was 69 years old, did not speak English, and was unable to work for medical reasons. The deceased had no other dependants.

In his Will, the deceased left the claimant $250,000. He also named her as the beneficiary of his RRIF, having a value of $287,000, and paying the claimant $1,200 per month. The residue of the deceased’s estate passed to the deceased’s siblings.

The court found that the claimant was a dependant, and that the deceased did not provide adequate support for her. In so finding, the court noted that it was not to undertake a strictly needs-based economic analysis. Further, the assessment of proper support was to be measured over the course of the dependant’s anticipated lifetime.

In making its award, the court reduced the bequest to the claimant from $250,000 to $150,000. However, the court awarded the claimant support of $3,000 per month ($36,000 per year) for the rest of the claimant’s life. As security, the estate was to purchase an annuity, payable to the Applicant, with a reversionary interest to the estate.

Thank you for reading.

Paul Trudelle – Click here for more information on Paul Trudelle

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