Dependant’s Support – Preserving Estate Assets
Applications for support under Part V of the Succession Law Reform Act (the “SLRA“) can often be a highly emotional affair. While you would hope that an Estate Trustee would not do anything to jeopardize assets against which a claim has been made while the Application remains ongoing, often when the Estate Trustee in question is a beneficiary of the estate, or has taken a strong adversarial position against the Applicant, the Applicant may begin to have concerns that the Estate Trustee may do something to jeopardize estate assets while the Application remains ongoing. Should such concerns arise, the provisions of the SLRA may be able to provide some safeguards to the Applicant.
In accordance with section 67(1) of the SLRA, once an Application for dependants support has been served upon the Estate Trustee, the Estate Trustee may not make any distribution from the estate unless the court orders otherwise, or all parties consent. Specifically, section 67(1) provides:
“Where an application is made and notice thereof is served on the personal representative of the deceased, he or she shall not, after service of the notice upon him or her, unless all persons entitled to apply consent or the court otherwise orders, proceed with the distribution of the estate until the court has disposed of the application.”
While section 67(1) should ensure that the estate will not be distributed to the beneficiaries until the Application has been resolved, it does not necessarily mean that the Estate Trustee may not sell a specific asset in the estate while the Application is ongoing. In the event that as part of their Application, the Applicant has sought the transfer of a specific asset into their name (whether under section 63(2)(c) of the SLRA or otherwise), more action may be required by the Applicant to safeguard such an asset while the Application is ongoing. Should such a situation arise, an Order suspending the administration of the estate in accordance with section 59 of the SLRA may be required. Section 59 provides:
“On an application by or on behalf of the dependants or any of them, the court may make an order suspending in whole or in part the administration of the deceased’s estate, for such time and to such an extent as the court may decide.”
Unlike section 67(1), section 59 is not automatic, such that in the event that it appears that the suspension of the estate will be necessary as it relates to a certain asset, and the Estate Trustee will not voluntarily agree to such an Order, it is likely that the Applicant will be required to bring a Motion for an Order suspending the administration of the estate in accordance with section 59 of the SLRA.
Thank you for reading.