Category: Support After Death
The commencement of an Application for support as a dependant under Part V of the Succession Law Reform Act (the “SLRA”) can be an extremely stressful event for the Applicant. Not only is the Applicant likely commencing court proceedings against fellow family members and/or close friends of the deceased, but there may also be a sense of urgency to the Application to ensure that steps are taken before the estate has otherwise been administered and/or distributed to those who would be entitled to the estate but for the support Application. As a result of these concerns it is not uncommon for the Applicant in the early stages of the Application to seek some form of court intervention to stop and/or stay the administration of the estate until the Application has been adjudicated, thereby ensuring that there are assets remaining in the estate to satisfy any support award should it ultimately be made. But is such court intervention actually necessary?
Under section 67 of the SLRA, once an Estate Trustee has been served with an Application for support under Part V they are automatically required to cease all distributions from the estate unless certain conditions are met. Specifically, section 67(1) provides:
“Where an application is made and notice thereof is served on the personal representative of the deceased, he or she shall not, after service of the notice upon him or her, unless all persons entitled to apply consent or the court otherwise orders, proceed with the distribution of the estate until the court has disposed of the application.”
Section 67(3) provides that any Estate Trustee that makes a distribution in violation of section 67(1) once they have been served with an Application under Part V of the SLRA is personally liable to pay any shortfall should a support order ultimately be made. As a result, any distribution made by the Estate Trustee once an Application for support has been commenced would be at great potential personal liability, as they could personally be required to pay any support order.
Although section 67 of the SLRA automatically stops any external distributions being made once an Application for support has been commenced, it does not stop the internal administration of the estate itself. As a result, the Estate Trustee would, for example, still be at liberty to collect and/or liquidate any estate assets, including any real estate. They just could not distribute those funds to the beneficiaries once the assets had been liquidated. In the event the Applicant should seek a particular asset as part of their support order, such as the transfer and/or use of particular real property, additional steps would need to be taken by the Applicant to ensure that the Estate Trustee did not dispose of the asset while the Application remained before the court. These additional steps would likely be in the form of an order under section 59 of the SLRA, while allows the court to issue an order “suspending” the administration of the estate either in whole or in relation to a particular asset (i.e. the real estate) for such time as the court may decide.
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I came across an interesting report on Alberta’s succession law and what is perceived as a gap that has affected family maintenance and support in the province. The report was published by the Alberta Law Reform Institute (ALRI) and can be found here.
In accordance with the Family Law Act in Alberta, a child can apply for and may be entitled to support from a person standing in the place of a parent, when a couple separates. Under the Wills and Succession Act, however, which applies when a person dies, there is no provision addressing the distinction of a “person standing in the place of a parent”. What that means is that while a person who is characterized as a “person standing in the place of a parent” is alive, the child can apply for support under the Family Law Act but if this person dies, that same child has no ability to seek support from the Estate of this person “standing in the place of a parent”.
Consequently, the ALRI is of the view that there is a gap in the law that ought to be rectified on the basis of an equality argument, alone. This report was apparently recently sent to the province of Alberta but there has been no response, as of yet.
In comparing the provisions of the Succession Law Reform Act here in Ontario, it appears that the very issue raised by the ALRI is addressed by section 57(1) where the definition of a “child” includes a grandchild and a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where a child is placed for valuable consideration in a foster home by a person having lawful custody.” [emphasis added]
Certainly, it is important that children be able to bring a support claim against the estates of their parents, where not appropriately provided for out of the estate, even where not formally adopted but clearly treated as a child.
It will be interesting to see what happens and what the province of Alberta will do, if anything, in response to this report from the ALRI.
Thanks for reading!
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Yesterday I blogged about the recent Deleon v. Estate of Raymond DeRanney (“Deleon“) decision wherein an individual who was not the Deceased’s biological or adopted child was declared to be a dependant “child” of the Deceased in accordance with Part V of the Succession Law Reform Act (the “SLRA“) due to the Deceased having shown a “settled intention” to treat the Applicant as their child during their lifetime. Although my blog from yesterday went into some of the detail of what the court considered when determining that the Applicant was in fact a “child” of the Deceased who was entitled to support, it did not get into the quantum of support that the Applicant was entitled to receive as a “dependant child”.
The factors that the court is to consider in determining the quantum of support for a dependant are established by section 62 of the SLRA, and include:
- the dependant’s current assets and means;
- the assets and means that the dependant is likely to have in the future;
- the dependant’s capacity to contribute to his or her support;
- the proximity and duration of the dependant’s relationship with the deceased; and
- the dependant’s needs, in determining which the court shall have regard to the dependant’s accustomed standard of living.
In Deleon the Deceased died intestate with one biological child leaving an estate valued at approximately $1.5 million, which under normal circumstances would be distributed solely to the biological child on an intestacy. Upon being declared a dependant “child” of the Deceased in accordance with Part V of the SLRA, the Applicant attempted to argue that she should equally share the Deceased’s estate with the biological child akin to if she was a biological child of the Deceased on an intestacy, an argument which, if accepted, would result in the Applicant receiving approximately $750,000 from the Deceased’s estate.
In support of her position that she should be entitled to receive 50% of the Deceased’s estate in support, the Applicant cites to Supreme Court of Canada’s decision in Tataryn v. Tataryn Estate, in which the court confirms that it can consider “moral” obligations and what is “adequate, just and equitable” under the circumstances when determining the quantum of support, and that the court is not necessarily limited to the factors delineated in section 62 of the SLRA. The Applicant also pointed to the accustomed standard of living which she had enjoyed while previously living with the Deceased.
Upon reviewing the jurisprudence in reference to the Applicant’s circumstances, Madam Justice Dietrich ultimately determines that the appropriate sum of support to be paid to the Applicant is the lump sum of $40,955, with such an amount being justified as being enough to get the Applicant through the remainder of her University degree, with the Applicant being required to be independent thereafter. Such an amount is of course notably less than the approximate $750,000 sought by the Applicant in the Application.
The Deleon case provides an excellent reminder that just because you are a “dependant” of the Deceased it does not necessarily follow that you will receive a significant sum in any support payment, as the court will consider your specific circumstances when setting the quantum of support.
Thank you for reading and stay safe and healthy.
The average “family unit” (if such a thing ever truly existed) is becoming harder to define in 2020. With the rise of concepts such as “co-parenting“, as well as the growing ubiquity of step-parents from second (or third, or fourth) marriages, the expectations and reality associated with the parent/child relationship is evolving. Although such an evolution is almost certainly predominantly for the better, it can create some unique complications should one of the “parents” die unexpectedly, particularly should they die without a Will. Such a scenario is exactly what was recently before the court in Deleon v. Estate of Raymond DeRanney (“Deleon“).
In Deleon, the Deceased died intestate with no married spouse and one biological child, such that the entirety of their estate would under normal circumstances be distributed to their biological child. The Applicant, who was not the Deceased’s biological child but was rather the child of the Deceased’s ex-girlfriend from approximately 20 years prior, commenced an Application for support under Part V of the Succession Law Reform Act (the “SLRA“) alleging that the Deceased had treated her as his “child” and had provided her with support during his lifetime. In support of such a claim, the Applicant cited to the fact that the Deceased had allowed her and her mother to reside with him for several years prior to his death even though the Deceased and her mother were no longer romantically involved, and that, although she was not residing with him at the time of his death, the Deceased was subsidizing her rent to the tune of approximately $500 per month. She also cited to the fact that the Deceased had historically paid for things such as the Applicant’s extra-curricular activities, summer school, groceries and vacations throughout the Applicant’s childhood, and had encouraged her to attend University which she was in the process of attending.
The definition of “child” within Part V of the SLRA includes someone who the deceased individual had a “settled intention” to treat as their child. As a result, if an individual can show that a deceased individual had a “settled intention” to treat them as their child, and the individual otherwise meets the remainder of the factors required to be a “dependant” of the deceased, the individual can receive support as a dependant child notwithstanding that they are not biologically related to or legally adopted by the deceased.
In considering whether the Applicant met such a “settled intention” definition in Deleon, Madam Justice Dietrich considers the factors delineated in Hyatt v. Ralph, which include:
- did the “parents” pool their income into a joint account?
- did the “parents” pay the expenses for all children out of this same account?
- did the child in question refer to the man as “daddy” or the woman as “mommy”?
- did the “parents” refer to themselves as “mommy” and “daddy”?
- did the “parents” share the task of disciplining the child?
- did the child participate in the extended family in the same was as a biological child?
- was there a change in surname?
- did the “parent” express to the child, the family and the world, either implicitly or explicitly, that he or she is responsible as a parent to the child?
Perhaps interestingly in the Deleon decision, although Madam Justice Dietrich found that the relationship between the Deceased and the Applicant did not generally meet any of the factors to be considered from Hyatt v. Ralph (the Applicant referred to the Deceased as “Uncle Raymond” who undoubtedly spoiled her but did not necessarily fulfill the “typical” parental role), Madam Justice Dietrich nonetheless found that the Deceased’s conduct in relation to the Applicant demonstrated a “settled intention” on the part of the Deceased to treat the Applicant as a “child”, and that as the Applicant otherwise would receive nothing from the Deceased’s estate on an intestacy she was entitled to support from the Deceased’s estate as the Deceased’s dependant “child”. In coming to such a conclusion Madam Justice Dietrich states:
“In my view, [the Deceased’s] support of [the Applicant] in these ways rises above affection and generosity. Despite the atypical family relationships between [the Deceased, the Applicant’s mother, the Deceased’s biological child, and the Applicant], [the Deceased’s] support of [the Applicant] demonstrates his settled intention to treat her as a member of his unconventional family. I find that [the Applicant] is therefore a dependant for the purposes of the SLRA.”
Thank you for reading and stay safe and healthy.
In the recent decision of Gabourie v Gabourie, 2019 ONSC 6282, the court considered a motion for (among other things) interim support by the deceased’s separated spouse.
The applicant wife had separated from her spouse (now deceased) approximately two years prior to his death in March 2018. At the time of the deceased’s death, he and the applicant had been in the process of negotiating the terms of their separation and divorce. They had already entered into an interim separation agreement, which dealt with the proceeds from the sale of their matrimonial home. After the deceased’s death, the applicant and the respondent (who was the deceased’s sister, estate trustee, and sole beneficiary) were able to agree on the issue of equalization of net family property, and a payment was made to the applicant. The issue of spousal/dependant’s support remained outstanding.
The applicant sought a lump sum interim support payment of $50,000.00. Ultimately, the court awarded the applicant interim support of $30,000.00.
Providing Support or Under a Legal Obligation to Provide Support
The fact that the spouses had been separated at the time of the deceased’s death was considered as part of the court’s determination of whether the applicant was a “dependant” (specifically as to whether the deceased was providing support to her, or was under a legal obligation to provide support to her, immediately before his death) and whether the deceased made adequate provision for the applicant’s support.
The court found that there was no evidence that the Deceased had been actually providing support to the applicant prior to his death. They had been separated for two years; in that time the deceased had several health complications and lost his job. He was not supporting the applicant, nor was the applicant relying on him for support. However, spousal support remained an issue to be resolved as part of the separation between the deceased and the applicant. The court stated that there was no evidence that the applicant had waived her right to spousal support, and that, as a married spouse, the deceased was under a legal obligation to support the applicant.
Amount of Interim Support
In arriving at the amount of interim support awarded to the applicant, the court considered the financial circumstances of the deceased’s estate, and of the applicant. Based on preliminary disclosure from the respondent, the Deceased’s estate had a value of approximately $650,000.00, as well as an insurance benefit of $75,000.00. The applicant’s net worth was around $220,000.00, and she earned only a modest part-time income. The applicant also had a significant amount of debt relative to her assets, which the applicant submitted she was required to incur as she was not receiving spousal support and was unable to meet her expenses.
However, the court was mindful of the amount of support sought relative to the value of the estate. The applicant sought $50,000.00, stating that this amount was sought for legal fees that she had incurred in pursuing her dependant’s support claim.
The court was disinclined to award the applicant the full amount sought given the stage of the proceeding, and that it was not yet known whether the applicant would succeed on her application, stating that it was nearly seven percent of the value of the deceased’s estate.
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My father used to have a saying: “Whatever drags gets dirty.” He would trot it out whenever one of us waited too long to do something and as a result, doing that thing became messy, complicated or impossible. For example: I was supposed to mail a letter. I didn’t mail the letter. Now I can’t find the letter. “Whatever drags gets dirty!”. Thanks, Dad.
Growing up, I thought that this was a widespread adage. Apparently, it isn’t. I searched it up on the internet and most of the results referred to Rupaul’s “Drag Race”.
The adage may fittingly sum up the lesson contained in the decision of the Nova Scotia Court of Probate in Kelly Estate, 2019 NSPB 1 (CanLII).
There, the deceased’s daughter and estate trustee, Carrie, brought an application for the possession of an urn containing the cremated remains of the deceased. The deceased died 13½ years before the application. Probate was granted 8 years before the application.
In the deceased’s will, cremation was requested, and Carrie was expressly given “the powers to decide what will happen with the said ashes.” This was consistent with the court’s observation that “Disposition of the deceased is one of the most fundamental tasks an executor/rix can undertake on behalf of the deceased.”
However, after the deceased’s death, the ashes were taken by Carrie’s sister, Cheryl. They remained at Cheryl’s home, apparently with the acquiescence of Carrie. The court noted that there was no evidence to suggest that there were prior attempts by Carrie to regain custody and control of the ashes over the 13½ years since death.
The court cited the BC decision of Re Popp Estate, 2001 BCSC 183 (CanLII) where the deceased’s husband, as estate trustee, was said to be entitled to control the disposition of the deceased’s remains, provided he did not act capriciously. As the husband was acting capriciously, he lost the right to deal with his spouse’s remains.
The court went on to find that by allowing the urn to remain in Cheryl’s possession for 13½ years, Carrie as estate trustee had in fact determined the disposition and final resting place of the urn: with Cheryl. A change of Carrie’s decision this late in the game “seems capricious at best or malicious at worst”, and the court was not prepared to order a transfer of the urn from Cheryl to Carrie.
When administering an estate, as in life in general, don’t let things drag.
Thanks for reading.
“There is no love lost between sisters [K] and [A].” So starts the endorsement in Nutzenberger v. Pryde, 2019 ONSC 5030 (CanLII).
There, the parents made a loan to A of $75,000. In their wills, the residue of the estate is to pass to the surviving parent. Both wills contained a clause that provided that if the other spouse was not living on the 30th day following the first spouse’s death, the $75,000 was to be forgiven.
Mother died on September 25, 2015. Father died on May 30, 2016.
K, as estate trustee of mother’s estate, brought a claim against A for the repayment of the loan. A moved for summary judgment on the claim.
Justice Harris agreed that summary judgment was appropriate. There were no primary facts in dispute, and no credibility issues. He dismissed the claim on two basis: first, mother’s estate had no standing to bring the claim, and second, the loan had been forgiven according to the terms of the wills.
On the first point, the loan came from father’s assets. Any interest that mother had in the loan passed to father under the terms of her will. Only father, or father’s estate had standing to pursue the loan.
Secondly, although the terms of the wills forgiving the loans were not “a model of drafting dexterity, to put it mildly”, the court interpreted the wills to mean that the intention of the parents was that either one could call in the loan while alive, but upon the death of the survivor, if no action was taken, the loan would be forgiven.
In determining the intention of the parties, the court looked at other terms of the wills. One term in both wills gave the estate trustee the discretion to pursue a loan. Another term acknowledged that a certain advance was in fact a gift. The term in question was “an awkward hybrid”. However, the court was able to conclude that the intention was that the loan would be forgiven if the surviving parent did not take any steps to collect on it.
As usual, more careful drafting may have avoided the litigation.
Thank you for reading.
There are three ways in which a joint tenancy may be severed (Hansen Estate v. Hansen):
- Unilaterally acting on one’s own share (e.g. selling or encumbering it).
- A mutual agreement between the co-owners.
- Any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.
In Marley v. Salga, the Court addressed the third manner in which to sever joint title – by course of dealing. In this case, there were competing applications brought by Ms. Marley, the deceased’s widow, on the one hand, seeking sole legal and beneficial ownership of the matrimonial home, and by the deceased’s children from a prior marriage, on the other hand, seeking an order that the estate is entitled to a half interest in the property as a tenant-in-common.
The Court declared that the estate was entitled to a half-interest in the property as a tenant in common. The evidence considered to determine the issue included a deathbed conversation between deceased and Ms. Marley, in which Ms. Marley acknowledged the deceased’s wish to divide the property 50:50 between his children and Ms. Marley. The Court seemed to place great weight on this evidence, finding that the deceased and Ms. Marley “were in agreement as to how the property should be handled on his death.” One commentator criticizes the Court for accepting that Ms. Marley was prepared to compromise her property rights “…on the basis of soothing words spoken to her husband on his deathbed without fully understanding her rights, without the benefit of any advice as to the consequences that would result to her and without any compensation or consideration for the loss of those rights.”
Another consideration for the Court was the language of the deceased’s Will, which allows Ms. Marley to occupy the deceased’s half of the property on certain terms, purports to terminate her rights in certain circumstances, and provides for the sale of the property. The Will’s language assisted in swaying the Court, as the Court treated it as a piece of evidence used to discern if there was a common intention, and it inferred that the provision in the Will was known to Ms. Marley. This rationale has been the subject of debate as (i) a testamentary disposition cannot sever a joint tenancy and should not be relied upon as evidence of a mutual intent, and (ii) there does not seem to have been evidence of both spouses taking steps showing a mutual treatment of their co-ownership as a tenancy in common.
If appealed, we may get some helpful clarification on this important issue.
Thanks for reading,
In researching common errors in will drafting, we recently stumbled (as one often does through research) on the following question:
In the case of mutual wills, what happens in the event of remarriage?
Mutual wills operate as a contract. Simply put, the terms of the contract are that absent any revocation during the joint lives of the parties, the survivor will not revoke thereafter. The conundrum then becomes: If a will by its very nature is revocable, and wills are automatically revoked by marriage, what then happens to the agreement in the event of a second or third marriage?
The question at hand is best described with an example:
Jane has two children from a prior marriage, as does John. John and Jane get married and draft wills. The wills of Jane and John are identical except for some names and dates and include an agreement that says in part, that if John dies, all assets will be transferred to Jane absolutely, and when Jane dies all assets shall be divided equally among their four children. When John dies, his assets vest in Jane, and her will is now locked such that changing it would frustrate the terms of her agreement with her now deceased husband. But what if then Jane meets and marries Oscar? If all prior wills are null. . . Now what?
The courts have wrestled with the concept of mutual wills since the death of Lord Horatio Walpole in 1797. In his will of 1756, a nephew of the English author and statesman, George Earl of Walpole, demonstrated intent to enter in to a “compact” with his late uncle for the disposition of his and his uncle’s estates to the benefit of their respective families. The question that arose then, as it still does today, is upon what terms the two parties were transacting, and how should they be bound? Or, to quote a commentary from the turn, “How far in law and equity was each at liberty to repent, and to recall his share of the testamentary exchanges between them?”
204 years later, the question continued to be addressed in a seminal decision of the Ontario Superior Court of Justice. In 2001’s Edell v. Sitzer, Cullity J, was tasked with unpacking a bitter family dispute where an alleged agreement not to depart from equal division of assets was at stake. The question before the court then (in part) was, do the facts give rise to a constructive trust? Justice Cullity set out the test for mutual wills thusly:
- The mutual wills were made pursuant to a definitive agreement or contact not only to make such wills, but that the survivor shall not revoke.
- Such an agreement is found with certainty and preciseness.
- The survivor has taken advantage of the provisions in the mutual will.
If the test is satisfied, the court can impose a constructive trust. Rooted in the law of equity, an implied or constructive trust aims to remedy any unjust enrichment by one party of a contract (a surviving spouse, for example) over another.
But what consistently seems to trouble the conscience of the court, is the idea of “contracting-away” one’s testamentary freedom. There is no restriction for a will made in defiance of such an agreement, but in equity, the court is almost bound to treat mutual wills as a single testamentary instrument. This was the problem in the 2016 ONSC case of Rammage v. Estate of Roussel: Alf and Ruth Roussel had made mutual wills 13 years prior to Alf’s death in February of 2009, agreeing in part to divide their estate equally among their four children (both Ruth and Alf went into the marriage with 2 children each). One year after Alf’s death, Ruth made a new will, disinherited Alf’s children, and left everything to her own two kids. Upon the death of Ruth, the litigation began.
The court in Rammage determined that the wills of the deceased testators amounted to mutual wills, imposed a constructive trust, and divided the assets according to the terms of the first wills of Ruth and Alf. If the court is satisfied that the wills are mutual, any property disposed of in a subsequent testamentary document is subject to a constructive trust in favour of the named legatees, and the subsequent will fails.
Returning to the question of remarriage, one could expect the need for administration and ultimately judicial intervention, should all the beneficiaries not consent to the changes in subsequent wills. Like many decisions that seem like “a good one at the time,” mutual wills should be considered very carefully and with the advice of independent counsel. A decision to enter into a contract that prohibits one from ever changing their last will and testament must be considered from all sides. To quote the late Horatio Walpole, the 4th Earl of Orford: “The wisest prophets make sure of the event first.”
Thanks for reading!
David M. Smith & Daniel Enright (Summer Law Student)
I recently came across an article discussing a court’s decision in respect of what appears to be a claim for dependant’s support in Tasmania. In the decision of Booth v Brooks  TASSC 35, the deceased died with a Will that did not leave anything to his estranged daughter. The deceased was also survived by a long-term partner and two adult sons, who were mentioned in his Will.
The daughter made a claim under a Tasmanian statute, the Testator’s Family Maintenance Act 1912 (the “TFMA”). Section 3(1) of the TFMA states as follows:
3 (1) If a person dies, whether testate or intestate, and in terms of his will or as a result of his intestacy any person by whom or on whose behalf application for provision out of his estate may be made under this Act is left without adequate provision for his proper maintenance and support thereafter, the Court or a judge may, in its or his discretion, on application made by or on behalf of the last-mentioned person, order that such provision as the Court or judge, having regard to all the circumstances of the case, thinks proper shall be made out of the estate of the deceased person for all or any of the persons by whom or on whose behalf such an application may be made, and may make such other order in the matter, including an order as to costs, as the Court or judge thinks fit.
By comparison, section 58(1) of Ontario’s Succession Law Reform Act, (the “SLRA”) seems to have quite similar language. Section 58(1) provides:
58 (1) Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants or any of them.
Under the SLRA, in order to qualify as a “dependant”, one must be a spouse, parent, child, or brother or sister of the deceased, to whom the deceased was providing support or was under a legal obligation to provide support immediately before his death. The TFMA, on the other hand, provides in section 3A that the persons who may make an application pursuant to section 3(1) are the:
- parents (if the deceased person dies without a spouse or children); and
- person who had a certain relationship with the deceased, and who was entitled to receive maintenance from the deceased at the time of his or her death.
In Booth v Brooks, the court concluded that the daughter had been left without adequate provision. One of the factors that lead to this conclusion was that the deceased had not had a good relationship with the daughter throughout her life and had not provided her with any direct financial support. In particular, the court stated that the deceased’s “abnegation of parental responsibility during childhood increases the moral obligation of the testator to the child”.
It seems that the key difference in the law in Tasmania versus Ontario that came into play in the Booth v Brooks decision, which would likely have resulted in a different outcome had the scenario arisen in Ontario, is that the TFMA does not require that a spouse, child, or parent be receiving or entitled to support or “maintenance” at the time of the deceased’s death. Interestingly, the Tasmanian law seems to lean the other way—if the deceased has not provided adequate support during his or her lifetime, it may increase the ability of a child or spouse to obtain support from the deceased’s estate.
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