Service, Please: No Order for Dependant Support Unless “Interested Parties” Served

October 22, 2021 Paul Emile Trudelle Estate Litigation, Support After Death Tags: , , , 0 Comments

When a person makes a claim for dependant support from an estate, the application is usually commenced as against the estate trustee of the estate alone. The beneficiaries are not usually parties.

Rule 9.01 of the Rules of Civil Procedure provides that a proceeding may be brought against an estate trustee without joining the beneficiaries as parties (subject to certain exceptions as set out in the Rule).

However, special provisions of Part V of the Succession Law Reform Act, which addresses support of dependants, require service on others involved in the estate. Specifically, s. 63(5) of the Act requires that “all persons who are or may be interested in or affected by” an order for support must be served with the Notice of Application in accordance with the Rules of Civil Procedure before an order for support may be made.

Such an “interested person” is entitled to be present and to be heard at the hearing.

The court may dispense with the need for service where every reasonable effort has been made to serve those entitled to notice, and where it is not possible to identify all of the persons entitled to notice.

Who an “Interested party” is, is not defined. However, guidance may be taken from case law addressing who has standing to challenge a will. Clearly, beneficiaries named under a deceased’s will, or intestate heirs would be affected by an order for support, and would be entitled to notice.

Arguably, creditors of an estate would be affected by an order for support, as the support payments may take priority over their claim. See our blog on the priority of support orders, here.

Often, the dependant support claimant has limited information about the estate and who the “interested parties” in the estate might be. The estate trustee usually has this information. Therefore, the initial Order Giving Directions will often address this by requiring that the estate trustee arrange for service of the Notice of Application for dependant support on the interested parties known to the estate trustee.

As to the manner of service, as the person being served is not a party, “personal service” or an “alternate to personal service”, as defined in the Rules of Civil Procedure, is not likely required. Under Rule 16.01(3), the document can likely be served by mailing a copy to the interested party, or by email, if the court allows this. Good practice is to specify a manner for service in the Order Giving Directions.

Thanks for reading.

Paul Trudelle

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