Should an estate have an obligation to support a dependant in circumstances where the dependant had entered into an agreement which, on its face, released the estate from any such obligations?
Section 62(1)(m) of the Succession Law Reform Act (“SLRA“) states: “In determining the amount and duration, if any, of support, the court shall consider all of the circumstances of the application including…any agreement between the deceased and the dependant [emphasis added]
And section 63(4) of the SLRA states: “An order under this section may be made despite any agreement or waiver to the contrary [emphasis added]. The reference to “this section” is section 63, which deals with the power of the court to make an order for the provision of support.”
In Virey v Virey, the Court held that Minutes of Settlement and a Divorce Judgment, while relevant documents to factor into the analysis, were not determinative and did not oust the Court’s jurisdiction.
As part of its analysis, the Court looked to the decision in Butts v Butts Estate, where the court held 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 have agreed to earlier on”.
The Court in Virey concluded that, even if the Deceased’s legal obligation ended on his death, the Court is not precluded from ordering support payable by the Estate under the SLRA.
In turning to the analysis regarding quantum, the Court considered Cummings v Cummings: the Court must consider not only the Applicant’s needs but also their moral entitlement in the context of the all of the factors in s. 62(1) of the SLRA.
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