Dependant Support – Don’t forget to serve the beneficiaries

November 18, 2021 Stuart Clark Estate Litigation Tags: , , , , , , , , , , , , , , 0 Comments

Earlier this week I blogged about rule 9.01 of the Rules of Civil Procedure and the circumstances in which beneficiaries must be named as parties to estate litigation. Although rule 9.01(2) provides a fairly comprehensive list of the claims for which beneficiaries must be named as parties, the list is not exhaustive, as there are additional claims not mentioned by rule 9.01(2) for which the beneficiaries must be named as parties. Amongst these claims are claims for support as a dependant under Part V of the Succession Law Reform Act (the “SLRA”), which require you to serve all beneficiaries and other interested parties before any order for support may be made.

The requirement to serve all beneficiaries with any claim for support is directed by s. 63(5) of the SLRA, which provides:

The court shall not make any order under this section until it is satisfied upon oath that all persons who are or may be interested in or affected by the order have been served with notice of the application as provided by the rules of court, and every such person is entitled to be present and to be heard in person or by counsel at the hearing.”

The phrasing in s. 63(5) that you must serve all persons “interested in or affected” by the support order is broader than the phrasing under rule 9.01, as it could apply to individuals other than beneficiaries depending on the financial circumstances of the estate. I have previously blogged, for example, about the priority of support orders under s. 2(3) of the Creditors’ Relief Act over all other judgment debts other than those owed to the crown when an estate is insolvent. Should the circumstance arise in which funds which otherwise would have paid a debt or liability of the estate are instead paid to a dependant for support under the authority of the Creditors’ Relief Act you would arguably be required to have first served such affected creditors under s. 63(5) of the SLRA as an individual “interested in or affected” by the order.

Thank you for reading.

Stuart Clark

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