As mobility becomes increasingly common, so too does the succession of cross-border estates. When a testator has assets in multiple jurisdictions, a question that may arise is which jurisdiction’s law will govern dependant support claims against the estate. Is the applicable law determined by where the deceased lived at the time of death? Or where their assets are located? Applicants may also wonder whether the law in the jurisdiction where they reside is at all relevant.
The Importance of the Deceased’s Domicile
Both succession and dependant support claims are governed by conflict of law rules. Therefore, as a general rule, the law of the deceased’s domicile at the time of death will govern both the administration of their estate with respect to moveables (personal property) and dependant support.
A person can only have one domicile – either their domicile of origin, typically their place of birth, or a domicile of choice, which arises when a person voluntarily establishes their primary residence in a new jurisdiction with the intention of remaining there indefinitely.
In cases where the deceased establishes a new domicile of choice prior to their death, the law in that domicile will be applicable to claims for dependant support, even if the deceased has assets in other jurisdictions.
Estates that Hold Real Property
Real property, however, gives rise to an important qualification to the above-noted rule. If the deceased had real property in a jurisdiction other than their domicile, the law of the place where the land is situated (the lex situs) will govern a dependant support claim against that real property, rather than the law of the deceased’s domicile.
This means that a dependant support claim may be brought in a jurisdiction where the deceased owned real estate – even if the deceased was domiciled elsewhere. However, the court’s authority to grant relief would be confined to the real property within that jurisdiction, as noted in Williams v Moody Bible Institute of Chicago, 1937 CanLII 211 (SK CA). Accordingly, if dependant support were granted, the court order would only apply to the portion of the estate over which the court has jurisdiction and would not bind the rest of the estate.
The Relevance of the Location of the Deceased’s Assets
With the exception of real estate, the location of the deceased’s moveable assets is not relevant to which jurisdiction’s laws apply to a dependant support claim. Similarly, where the claimant lives has no bearing on the applicable law, nor does the jurisdiction where the deceased made their final will, as demonstrated by Justice Myers’ recent decision in Bratusa v Doersam, 2025 ONSC 4726.
The deceased in Bratusa had relocated from Ontario to Costa Rica, obtained permanent residency there, and lived in Costa Rica until his death. Having made his will in Ontario years before he moved to Costa Rica, the deceased left no provision for his new partner or their child.
Following his death, the surviving partner and child moved to Ontario and sought dependant support under Part V of the Succession Law Reform Act, including access to insurance proceeds exceeding $4 million that had been left to the deceased’s children from his marriage.
Justice Myers held that the deceased had established Costa Rica as his domicile of choice and on this basis, any claim for dependant support would be governed by Costa Rican law. Unfortunately, this made it improbable that his surviving partner would obtain dependant support. Because the deceased was still legally married to his prior spouse at the time of death, his surviving partner could not be recognized as his “spouse” under Costa Rican law for the purpose of obtaining support from his estate.
This case underscores an important point – a change in domicile can effectively eliminate dependant support rights under the SLRA, even if the assets the claimant wishes to access are located in Ontario.
The Potential Impact of Choice of Law Clauses
It may be possible to choose the law which applies to dependant support claims, however, by drafting a will to include a choice of law clause. For example, in Torres v Ettinger et al, 2022 ONSC 3205, the court noted that Ontario law would apply to a dependant support claim against the deceased’s estate – even though the deceased had lived in Monaco for years prior to his death – because the will included a choice of law clause which stated that Ontario law would govern the estate.
That said, a choice of law clause can only determine the law applicable to dependant support claims with respect to the deceased’s personal property. If the testator held real property, a choice of law clause would not impact the law applicable to dependant support claims brought against that real property.
Practical Takeaways for Practitioners
In an increasingly global world, the intersection of mobility and estates law can give rise to complex jurisdictional questions. Regardless of whether counsel is advising a mobile client, or potential claimants who wish to seek dependant support from a cross-border estate, there are a few general rules to bear in mind:
- Domicile is generally determinative of the law governing dependant support claims. This means that a change in domicile can fundamentally alter dependant support rights.
- If the deceased held real property in a jurisdiction where they were not domiciled, a claimant may be able to bring a claim for dependant support in that jurisdiction. Under those circumstances, the law where the real property is situated would govern the dependant support claim.
- For clients who want to choose which law applies to dependant support claims made on their estate, it may be prudent to include a choice of law clause in their will. Though not foolproof, a choice of law clause may provide predictability, at least with respect to the law applicable to the moveable portion of the client’s estate.
Thank you for reading, and have a wonderful day,
Suzana.