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.
Disinheritance has long been a subject replete with interest. Is it a doleful mishap, a strange whim rooted in spite, a tragedy, or is it just desserts and a shield by which elderly persons can impose good behaviour on their successors? Charles Dickens was fascinated with the subject. From Great Expectations to Martin Chuzzlewit, many of his tales include fabulously wealthy testators, parasitical and destitute minor relatives, wronged rightful heirs, family bonds eroded by greed, artifice and deception – and often, in the end, a just outcome. Similar to how the poignancy of this theme stirred Dickens’ readers, aggrieved disinherited parties are often so stirred, to put it mildly, that they commence all-out legal warfare – quenching their scorn with the costly and sometimes blackened bread of estate litigation.
From the testator’s point of view, there is no foolproof method of disinheriting a child. It certainly helps if the child is not dependent, is an adult, has no basis for expecting anything, and there is a forceful, probative reason for the disinheritance (i.e. “so-and-so didn’t let me see my grandchildren”). It might be a good idea for a testator to explicitly state that he or she is disinheriting a child, lest the child later make the argument that the omission was a slip-of-the-mind rather than deliberate disinheritance. The testator may also include a clause explaining the rationale, though this can be dangerous – disinheriting someone out of racism (Spence v. B.M.O. Trust Company,  O.N.S.C. 615 at paras. 49-50).
Some drafting solicitors may suggest giving a small, nominal amount to the otherwise disinherited child – to partially appease the child, appear more moderate to a judge, or otherwise “save face”. The problem with this, however, is that as soon as someone is a beneficiary, he or she may be able to invoke beneficiary rights, such as objecting to the passing of accounts.
As for disinherited children, they may have legal recourse, such as section 58(1) of the Succession Law Reform Act, which gives the court discretion to determine if “adequate provision” has been made for a testator’s “dependants”. In Tataryn v. Tataryn Estate,  2 S.C.R. 807, the Supreme Court overturned the explicit disinheritance of a son and wife because it found that the testator failed his “moral obligation” to provide for them. If a dependant support claim leads nowhere, a disinherited child can always challenge the will, for the wellspring of arbitrary disinheritance is often incapacity or undue influence.
It is hard to lose a parent. Hard, too, is the loss of an inheritance. Keeping this in mind, testators who wish to prevent a conflagration of litigation might opt not to light the spark of disinheritance. If they feel the circumstances demand it, however, they should work with their estate planners to fortify their legal positions against the storms which might otherwise gather.
Thank you for reading,
Suzana Popovic-Montag and Devin McMurtry
Here’s a problem that was hardly imaginable a couple of generations ago. Sperm, ova or embryos are preserved for future use. The donor (or one of the donors) dies, but the preserved sperm, ova or embryo is used to conceive a child after the donor’s death. Does that child have rights under the donor’s estate plan?
The right of a child, conceived prior to but born after a parent’s death, is clearly established at law. However, the rights of children conceived after the death of a parent are less clear. Most jurisdictions have consistently denied inheritance rights to a child conceived with genetic material from an anonymous donor. However, where the donor is known, some experts argue that the contingent interest of a child conceived posthumously is equivalent to that of a child conceived prior to a parent’s death.
Enter the importance of a clear estate plan. Assuming the donor has provided written consent to posthumous use of their genetic material (which is a legal requirement in Canada), without instructions regarding a time limit for use, the estate trustee must decide whether to distribute the assets and exclude the potential unborn child, or to suspend distribution until the stored materials have been used or destroyed.
In short, it can get complicated and litigious if the estate plan is unclear. For that reason, it’s important for those who have stored genetic material – or whose beneficiaries have stored genetic material – to clearly address their intentions in terms of how potential biological children (or grandchildren) are to be treated.
One of our recent issues of The Probater https://hullandhull.com/wp-content/uploads/2017/03/March_10_2017_Probater_proof.pdf explores estate concerns relating to fertility in more detail, and provides a checklist that can help cover off fertility issues in the drafting of a will.
For a review of the issues related to the need for written consent to use genetic material posthumously, this article https://www.shebbearelaw.com/can-a-spouse-use-stored-sperm-eggs-or-embryos-after-their-partner-dies/ reviews a recent British Columbia case and provides some excellent tips for those who have stored genetic material for future use.
Thank you for reading … Enjoy the rest of your day!
As previously blogged about by Natalia Angelini, the All Families are Equal Act was introduced on September 29, 2016 and it was unanimously passed by the Ontario legislatively assembly on November 29, 2016.
We encourage those interested in this new Act to click here for the Ministry of Attorney General Newsroom release. According to the Ministry,
“The new law will:
- Provide greater clarity and certainty for parents who use assisted reproduction to conceive a child
- Provide a streamlined process for the legal recognition of parents who use a surrogate, together with requirements meant to protect the rights of all parties through independent legal advice and confirmation of the surrogate’s consent both before conception and after birth
- Reduce the need for parents who use assisted reproduction to have to go to court to have their parental status recognized in law.”
Thanks for reading!
Last month, an amendment to Minnesota’s Uniform Probate Code came into effect to limit the rights of children conceived after the death of one or more parents.
The addition under 524.2-120 of the Code states as follows (at Subdivision 10):
Notwithstanding any other provision of this section and subject to section 524.2-108, a parent-child relationship does not exist between a child of assisted reproduction and another person unless the child of assisted reproduction is in gestation prior to the death of such person.
The exception at section 524.2-108 provides that a child conceived before and born after death, who survives for a period of 120 hours, shall be treated as if living at the time of death of the deceased. However, the update in the legislation clarifies that a child conceived after death does not constitute a child and would not, therefore, be entitled to related rights to inherit on intestacy or as a member of a class of beneficiaries created under a will.
In many other jurisdictions, including Ontario, there is limited clarity with respect to the rights of individuals conceived after death of a parent. While the Succession Law Reform Act specifies (under the definition of “child” at section 1) that a child conceived before and born after death will be treated as if he or she had been living at the time of death of a parent or other family member, the same cannot be said of posthumously-conceived children with any certainty.
In certain circumstances, a surviving spouse may have the right to use genetic materials, being sperm or ova of the deceased spouse, to conceive a child in accordance with the terms of the Assisted Human Reproduction Act. However, there is no legislation in Ontario that explicitly provides or denies children conceived after death status as a child, as if conceived or born after death. Case law in other jurisdictions suggests that inheritance rights to a parent’s estate and entitlement to death-related benefits may be more likely to attach to a child conceived after death if (1) a genetic relationship between the deceased parent and child exists, (2) consent is given to the posthumous use of genetic materials for conception, and (3) the evidence available suggests that the deceased agreed to support a child conceived using the preserved genetic materials.
As rates of assisted reproduction continue to increase, it will be interesting to see how this area of estate law develops in Ontario to address the issue of rights of posthumously-conceived children.
Thank you for reading and have a great weekend!
Listen to The Surviving Spouse
This week on Hull on Estate and Succession Planning, Ian talks about an interview he did this week for a new website called Law is Cool and why he podcasts.
Ian and Suzana discuss the importance of preparing for the death of a spouse or for the welfare of your spouse upon your death. This preparation includes having a good idea of the assets you share and the importance of appointing a guardian for your children.
BREACH OF FIDUCIARY DUTY BY THE WILL MAKER – EXECUTOR AND TRUSTEE’S ROLE – WHAT TO DO ABOUT ABUSE CLAIMS? – PART III
As is sometimes the case, an unequal distribution of an estate as between children can arise from a testator who has had a long history of mental illness, chronic alcoholism or other such personal reasons, which may affect the testator’s state of mind over a period of many years.
For example, if a child who has been treated unequally grew up in a home where he or she suffered through instances of physical violence, as between the parents and him or herself, this may be the type of fact situation to consider when looking to pursue a claim for breach of fiduciary duty of parental obligations. Similarly, if the unequally treated child lived in a home that was constantly in turmoil, as a result of a chronically alcoholic parent, this situation should also be considered in the context of the fiduciary obligations of a parent.
In our view, one must find several compelling supporting facts to bolster any claim of breach of fiduciary duty or breach of parental obligation. Such facts should also be combined with a clear and identifiable estrangement as between parent and child.
In the decision of M. (K.) v. M. (H), the Supreme Court of Canada considered the whole concept of what is meant by the term "parental obligation".
The Court considered this issue in the context of a particularly gruesome and egregious set of facts.
In M.(K.) v. M.(H.), the Supreme Court of Canada examined the parent-child relationship in the circumstances of long-standing allegations of incest and abuse by a parent to a child.