When the court grants an order for dependant support, a beneficiary of the estate may wonder how the support will be paid, and more specifically, whether the order will impact their inheritance. The prima facie rule, set out in subsection 68(1) of the Succession Law Reform Act, is that dependant support orders are to “fall rateably upon that part of the deceased’s estate to which the jurisdiction of the court extends.” In other words, absent special circumstances, each beneficiary ought to expect to share the burden of the support order in proportion to the size of their inheritance.
However, the prima facie rule is not absolute – the court may relieve part of an estate from paying its rateable share of a dependant support order. Subsection 68(2) of the SLRA gives the court the power to override the rateable approach and order that “support be made out of and charged against the whole or any portion of the estate in such proportion and in such manner as to the court seems proper.”
This raises an interesting question, particularly for the beneficiaries of an estate subject to a dependant support order: When may the court exercise its discretion and relieve part of the estate from paying its rateable share of dependant support?
The “Reasonable Testator” Test
In Nalywarko, Re (1984), 17 ETR 151, the Ontario Surrogate Court answered this question by adopting the “reasonable testator” test articulated by the Alberta Court of Appeal in Randle v. Randle Estate, 1976 ALTASCAD 123. Justice Weiler quoted the following excerpt from Randle:
“… the test to be applied in deciding whether a part of the estate should be relieved from bearing its fair share of the incidence of the support and maintenance, is to determine whether a reasonable testator would have provided for that relief … Unless the judge is satisfied that a reasonable testator in the circumstances of the testator whose will is being considered would have relieved any part of an estate from contributing its fair share, he should not interfere with the prima facie rule …”
Justice Weiler ultimately directed the support order in Nalywarko to be paid rateably across the entire estate, concluding that the reasonable testator would not have exempted the specific legacies from bearing their fair share of the support order.
Exercising the Court’s Discretion
Last year in Teeple v. Decaire, 2024 ONSC 6360, the Superior Court of Justice confirmed that the reasonable testator test continues to guide Ontario courts. In this case, the testator utilized both a Primary Will and a Secondary Will to distribute his estate. There was also evidence before the court that, as part of his estate planning, the testator had consistently used a secondary will to deal with the shares of his company so they would pass independently of the rest of his estate.
Applying the reasonable testator test, Justice Ellies exempted the secondary estate from paying any of the dependant support order. In making this determination, Justice Ellies recognized that “[i]t is a common occurrence to see a testator use a Secondary Will to transfer the shares of a closely held corporation separately from the bequest made to beneficiaries in a Primary Will.” Finding that it would not be appropriate to deviate from the testator’s “reasonable intention” in this respect, the court directed the dependant support award be paid rateably across the primary estate only.
Other considerations may also be salient when applying the reasonable testator test. In Boje v. Boje (Estate of), 2005 ABCA 73, for example, the Alberta Court of Appeal held that when “determining whether it is just and equitable to provide relief from the presumption that … maintenance or support should fall rateably on the whole of the estate,” a variety of factors may be considered, including:
- the testator’s subjective intent regarding asset distribution;
- the impact a rateable distribution would have on other bequests;
- the impact a rateable distribution would have on the dependant’s award; and
- the extent to which the testator’s moral obligations to the dependant were unjustifiably unfulfilled.
In this case, the Court of Appeal upheld the chambers judge’s conclusion that “a reasonable testator in the shoes of the deceased would have made direct provision for his daughter,” who suffered from mental and physical disorders as a result of childhood abuse inflicted by the testator, and that it was “only fair and equitable that her awards come from the residue” of the estate. The specific bequests in this case, including a $100,000 gift to a church and a $300,000 gift to the testator’s son, only represented about 15% of the estate. The Court of Appeal affirmed that it was just and equitable to exempt the specific legacies from contributing to the support award, as the proportional impact on the bequests could be considerable. It was also appropriate to relieve those beneficiaries from contributing to the support award in light of the fact that the testator was aware of his daughter’s condition before his will was executed, and still chose to deliberately and unreasonably not provide her with support.
Key Takeaways
At the end of the day, if a beneficiary wishes to argue that part of an estate should be exempt from paying its rateable share of a support order, it will be necessary to establish that the “reasonable testator” also would have exempted that portion of the estate.
Thank you for reading, and have a great day!
Ian.