You Can’t Really Contract out of Dependant’s Relief

May 16, 2017 David M Smith Estate & Trust, Support After Death Tags: 0 Comments

The enactment of the Succession Law Reform Act, as its name implies, had a profound impact on the power of the Court to remedy injustice where testators fail to provide for their dependants.  Yet the true nature and extent of the power of the statute is not always fully appreciated

In Butts Estate v Butts (“Butts Estate”), the Court confirmed that “s. 63(4) gives the court a broad judicial discretion to award support to a dependant, as defined in s. 57, notwithstanding the existence of any prior agreement or waiver. The language of s. 63(4) could not be broader or clearer in its purpose and is obviously aimed at achieving justice and equity at the date of the hearing, notwithstanding what the parties might have agreed to earlier on.”

In Butts Estate, the deceased and the dependant spouse had entered into a separation agreement and later divorced. The separation agreement included a release by the spouse of the deceased’s estate, including any claims by her for dependant’s support, and also provided for the payment of $500.00 per month in personal support or maintenance by the deceased to his spouse.

The Court ultimately found that the support which was paid under the separation agreement was patently inadequate and must be corrected. The Court stated that “there is no reason why [the dependant spouse] should be denied a support order under the SLRA which would bring her out of such circumstances and enable her to live out her remaining years in some dignity and comfort.”

David Morgan Smith

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