In assessing a moral obligation, one may start by looking at the intention of the testator. It has been reiterated in Khemraj v. Khemraj, that the conduct of a testator can demonstrate their intention to provide support. (Khemraj v Khemraj, 2016 ONSC 7796).

Knowing this, Part V of the Succession Law Reform Act is important as it requires a ‘dependant’ to prove that the deceased was providing support immediately before their death (or was under a legal obligation to provide support), and that the deceased had not made adequate provision for the proper support of their dependant. (Succession Law Reform Act, RSO 1990, c S.26, s. 57). In the case of a surviving spouse, they must prove that they were actually a spouse of the deceased, that the deceased had been providing them support immediately before death, and that the deceased failed to provide adequate support for them in their testamentary documents.

In determining claims for dependant support under the Succession Law Reform Act, the Ontario Court of Appeal has clarified that there must be consideration for the dependant’s moral obligation claim for support, not just their claim for the bare necessities, or their legal claims. (Cummings v. Cummings, 2004 CanLII 9339 (ON CA)), This has been argued to have the effect of making a moral obligation claim become a legal claim. (Tataryn v. Tataryn Estate, 1994 CanLII 51 (SCC), [1994] 2 SCR 807).

The moral obligation claim has also been relied on in Morassut v. Jaczynski. In this case, a successful business owner revised her estate plan in the last few months of her life after she was diagnosed with breast cancer. She prepared two new wills. In her first new will, she had many of her assets moved to holding companies, leaving the residue of the estate to a family trust, which was created by the second new will. While she did not leave anything for her common-law spouse in either new will, the estate trustee did agree to pay him a lump-sum payment of $1 million. This was because in her previous will her common-law spouse had been provided a payment of $1 million. Her estate trustee argued that a single payment provided adequate support and that the dependant spouse should not qualify for further support under the Succession Law Reform Act. The court disagreed. Using Tataryn v. Tataryn as its guide, it found that the testatrix had “both a legal and moral obligation to continue to support” her dependant after death. As a result, the court ordered the dependant be awarded sole ownership of the property that he and the testatrix built together, as well as a yearly sum for the rest of his life and a smaller payment every 5 years so he could buy a new car. (Morassut v. Jaczynski, 2015 ONSC 502 (Div. Ct))

If you think you may have a claim of dependant support, please don’t hesitate to contact us to see how we can be of assistance.

Thank you for reading and have a great day!

Ian Hull & Geoffrey Sculthorpe