The death of a breadwinner does not extinguish the promises they made. Ontario’s Succession Law Reform Act (“SLRA”) requires the estate to provide “adequate and proper support” to dependants. Forty-five years ago the Court of Appeal made clear in Re Davies and Davies (1979 CanLII) that “support” is not confined to subsistence; it also captures “the secondary meaning of giving physical or moral support,” which can include services and comforts the deceased supplied in life. That broad conception still frames dependant’s relief.

But how do promises made by the deceased impact dependancy? A key example of how such promises are upheld posthumously is found in Francis v. Allan Estate (1918 CanLII 8 (SCC), 57 SCR 373). Although the case significantly pre-dates the advent of dependant’s relief legislation, the Supreme Court found a way to benefit an individual who was financially dependent on a deceased person. In this case, Helen, the niece of Allan, had been financially supported by him throughout his life. Even though she was omitted from his final will, her claims were supported by notes that Allan had signed, promising to provide for her and her mother. The court ruled that these notes were more than informal promises; they were binding contracts reflecting Allan’s intention to support Helen financially. Despite her exclusion from the will, the court found the promissory notes enforceable, as they clearly expressed the deceased’s intent to provide for her.

In certain cases, conflicting documents can complicate matters. That was the conundrum in Middleton Estate v Middleton (2020 ONCA 552), where one document required repayment on death and the other, signed six days later, purported to forgive the same debt. The trial judge preferred the first note, and the Court of Appeal agreed. Lauwers J.A. wrote that no email, witness, or surrounding-circumstance evidence “diminished the direct evidence that the July 16 instrument, prepared by experienced counsel and executed by the deceased, embodied the parties’ agreement”. The case shows the court’s readiness to sift through conflicting paperwork and enforce the instrument that best reflects the maker’s settled intention.

Can promissory notes and the intention of the testator, for instance, to forgive debts as evidenced by such notes, be treated as legitimate proof of dependancy under the SLRA? Are such documents sufficient to demonstrate a deceased’s commitment to their dependants? While there may be limited caselaw on this issue, it is a question that may become increasingly important in future cases involving dependant support claims.

Thanks for reading!

Tiansheng Wen & David Morgan Smith