Section 61(1) of the Succession Law Reform Act (the “SLRA”) provides that an application for dependant’s support must be made within 6 months from the issuance of the Certificate of Appointment of Estate Trustee (also known as “Probate”).
An application may be made beyond the six-month limitation period, with leave as, s. 61(2) of the SLRA provides the Court with discretion to allow an application to be made by a dependant “at any time with respect to any portion of the estate remaining undistributed at the date of the application”.
Generally, case law has interpreted s. 61(2) to limit any claim made after six months to the remaining, undistributed portion of the estate, and to bar any claim made after the assets have been fully distributed. Paul Trudelle previously blogged on this application of s. 61(2).
The recent decision of the Ontario Superior Court of Justice in Weigand v. Weigand Estate, 2016 ONSC 6201, deviates from this prior case law, in that it grants leave for an application for support, despite the fact that the assets of the estate had already been distributed.
In that case, the Deceased died on May 5, 2013. He was survived by his common law spouse and three children from a prior marriage. The Deceased left a Will, in which he named his common law spouse the Estate Trustee and sole beneficiary of his Estate. The Estate consisted of the matrimonial home, two promissory notes and the Deceased’s bank accounts.
The common law spouse obtained probate on November 5, 2013 and took steps to administer the Estate. Eleven months after the Estate had been fully administered, two of the Deceased’s three children brought an Application for leave to advance their respective claims for dependant support. They alleged to have been misled by the common law spouse and provided Affidavit evidence, which was corroborated by evidence from their grandfather. Specifically, they alleged that the common law spouse had told them she intended to sell the house and distribute the proceeds equally among the Deceased’s children. They relied on her promise, to their detriment, as the home was subsequently transferred into the common law spouse’s name after the limitation period had expired.
In deciding to grant leave, George J, stated that the discretion to extend (or refuse) is a question of what is equitable between the parties, in all the circumstances (para. 32). He stated that it would be wrong to allow the respondent to rely on the fact that she has distributed the Estate as a basis to not grant an extension and that it would be unconscionable to allow her to defeat a claim by virtue of a passed limitation period (para 34). He also reasoned that it was inconceivable that the language used in s. 61(2) was intended to shield administrators who engage in such behaviour (para 34).
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In making an award of dependant support, the court has a broad discretion under s. 58(1) and 63(2) of the Succession Law Reform Act.
Once a determination is made that a claimant is a dependant, and has not been adequately provided for by the deceased, the court has broad powers when ordering that provision for the dependant be made out of the estate. In addition to an expanded definition of the “estate” under s. 72, the court may make orders for lump sum payments, annual payments or otherwise, for a limited or indefinite period, or lump sum payments in addition to periodic payments, in addition to other powers.
A good example of the creative power of the court is demonstrated in Sorkos v. Sorkos Estate, 2012 ONSC 3196 (CanLII). There, the deceased died having an estate of approximately $2.6m. The claimant and the deceased appear to have been married for less than 10 years. The claimant was 69 years old, did not speak English, and was unable to work for medical reasons. The deceased had no other dependants.
In his Will, the deceased left the claimant $250,000. He also named her as the beneficiary of his RRIF, having a value of $287,000, and paying the claimant $1,200 per month. The residue of the deceased’s estate passed to the deceased’s siblings.
The court found that the claimant was a dependant, and that the deceased did not provide adequate support for her. In so finding, the court noted that it was not to undertake a strictly needs-based economic analysis. Further, the assessment of proper support was to be measured over the course of the dependant’s anticipated lifetime.
In making its award, the court reduced the bequest to the claimant from $250,000 to $150,000. However, the court awarded the claimant support of $3,000 per month ($36,000 per year) for the rest of the claimant’s life. As security, the estate was to purchase an annuity, payable to the Applicant, with a reversionary interest to the estate.
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Paul Trudelle – Click here for more information on Paul Trudelle.
Pursuant to dependant support legislation, courts have significant jurisdiction to provide support for those who qualify as dependants, and who have not been adequately provided for by the deceased. The remedies available to a dependant are broad, and the court has the jurisdiction to, essentially, rewrite the will so as to make adequate provision for the dependant.
The recent case of Soule v. Johansen Estate, 2011 ABQB 403 (CanLII) is a good illustration of such a rewriting of a will. There, the deceased died leaving a will that gave all of her estate, approximately $116,000, to the SPCA in Calgary, Alberta. The deceased intentionally disinherited her adult son. The son brought a proceeding against his mother’s estate, claiming that he was a dependant of the deceased and that he was not adequately provided for by the deceased.
In making its decision, the court referred to the common law recognition of a testator’s right to choose how to dispose of his or her property by will. However, the common law is changed by dependant relief legislation that seeks to balance testamentary autonomy with legal and moral obligations owed to dependant individuals in need. Under the legislation, a form of which is in effect across the country, a testator has a duty to make adequate provision for the proper maintenance and support of a surviving spouse and children. (In Ontario, the definition of “dependant” includes an even broader group.) If the testator fails to discharge this duty, the court may order provision from the estate that is “adequate, just and equitable”. Testamentary autonomy must yield, to the extent necessary, to provide such support to dependants.
In Soule, the court found that the son was a “dependant” under the legislation because he was unable by reason of mental or physical disability to earn a livelihood. (Note that the Ontario legislation does not contain the same definition of “dependant”.)
In the end, the court awarded $10,000 to the SPCA, and the remainder of the estate to the son.
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Paul E. Trudelle – Click here for more information on Paul Trudelle.
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Can a deceased person, immediately before his or her death, be found to have been in a common law spousal relationship with two persons, each of whom could assert a claim for support as a dependant? This was the interesting question recently considered on a motion for interim support under Ontario’s Succession Law Reform Act ("SLRA").
In Blair v. Cooke, the Applicant commenced an Application against the Estate seeking dependant support, and subsequently brought a motion seeking interim support from the estate. In support of her application, the Applicant filed an extensive affidavit describing the history of her relationship with the Deceased and argued that she is a dependant spouse of the Deceased, thus, entitled to support under the provisions of the SLRA. The court was also provided with numerous affidavits of friends and acquaintances confirming the Applicant’s 11-year relationship with the Deceased.
The Respondent is the estate trustee of the estate for the Deceased, and also argues that she is the Deceased’s common law spouse. It is important to clarify that the Respondent does not make a claim for dependant support, but rather opposes the Applicant’s application. In doing so, the Respondent filed her own affidavit and the affidavit of friends and acquaintances, which would corroborate that she was the Deceased’s common law spouse. The Respondent argued the court should not make any finding of entitlement to support for the Applicant, because doing so would preclude her from claiming support (if she decided to make a claim at a later date) or claiming that she was in fact the “spouse” of the deceased.
In considering whether or not a person could have two spouses for the purpose of making a dependant support claim, the court considered section 57 of the SLRA, more particularly the following definitions:
1. “Dependent” can be a “spouse of the deceased…to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death…”.
2. “Spousal” is further defined under the SLRA as “either of two persons who…are not married to each other and have co-habited…continuously for a period of not less than three years”; and
3. “Co-habit” is defined to mean living together “in a conjugal relationship”.
The “twist” that I found interesting in this case, was that the court found that there was enough evidence to conclude that the deceased may have co-habited with two different women, in different homes. The court stated that they did not have to determine that one party was a spouse and the other was not for purposes of awarding interim support; in fact both women could qualify. The Applicant was awarded interim support.
Rick Bickhram – Click here for more information on Rick Bickhram.
Part V of Ontario’s Succession Law Reform Act ("SLRA") establishes a mechanism whereby qualifying dependants can claim support from the estate of a deceased. Section 72 of the SLRA is a deeming provision that includes certain non-estate assets as part of the estate for the purposes of calculating the value of the estate, and allows such assets to be charged ("clawed back") by a support Order made under section 63 of the SLRA.
The recent case of Simson v. De Bartolo 2009 CanLII 38493 (ON S.C.) interprets section 72(1) and applies Cummings v. Cummings 2004 CanLII 9339 (ON C.A.), the Court of Appeals decision holding that support awards are subject to moral considerations. One issue following Cummings has been whether moral considerations justify a support award in and of themselves, or whether moral considerations are merely relevant to quantum of support following a determination that a support award is appropriate.
The applicant in Simson v. De Bartolo was litigation guardian for her child, born out of wedlock to the deceased and the actual support claimant. When the applicant told the deceased’s wife about their relationship and the child, the deceased transferred these properties to his wife (from joint ownership) and made a will disinheriting the child. Later, the deceased died virtually penniless. At issue in a motion was whether properties transferred by the deceased to his wife 10 years prior to his death could be deemed part of the deceased’s estate under any enumerated grounds in section 72(1).
Justice Lemon held that these assets could not be "clawed back" under s. 72(1). Most particularly, a transfer of land to another party in the absence of an express written trust instrument does not fall within section 72(1)(e). Of course, the transfer may still be impressed with a trust, as Justice Lemon pointed out, and if such trust pulls the asset into the estate, the SLRA provides for protection of the dependant pursuant to section 67. Moral considerations were relevant in determining quantum of support, but not whether an asset forms part of the estate.
The facts in Simson v. De Bartolo appear to have precluded the court from addressing the Cummings question, at least in the motion being heard. However, section 72 has been clarified.
Enjoy your day,
Chris M.B. Graham – Click here for more information on Chris Graham.
My colleague Natalia Angelini blogged on February 18 of this year about the increasing possibility that independent, adult children may be entitled to dependant support.
A 2009 Ontario Bar Association paper by Susan Woodley concluded that moral obligations of deceased parents in Ontario may require them to provide proper and adequate support to their children, spouse and dependants.
While the legislation in British Columbia clearly distinguishes any case from that province, a consideration of a recent case on point illustrates the roots of this evolving trend.
In Sikora v. Sikora Estate 2009 BCSC 195, two of four adult sons of the testator brought an action under B.C.’s Wills Variation Act. The Deceased had one child by his first marriage, three children with a subsequent common-law spouse, and at his death he was married to the defendant, San Meei Sikora. The Deceased’s residue to be divided amongst three sons equalled just over $11,500.
The two plaintiff brothers maintained contact with their father despite a difficult childhood. Each plaintiff provided evidence of respective incomes of about $90,000 and $35,000 and described their relationships with their father whom they assisted in his business and investment properties over the years. The Deceased’s wife’s responses created some credibility problems for her.
Justice Cullen reviewed the case law from the Supreme Court, Tataryn v. Tataryn Estate and a B.C. case, Clucas v. Clucas Estate (1999), 25 ETR (2d) 175 (BCSC) that summarizes the principles of the Wills Variation Act.
In Sikora, the Deceased’s wife accumulated her own assets while the Deceased did not. The plaintiffs showed that despite their independence their father had a moral obligation towards them. The residue of the Deceased’s estate diminished in a manner that favoured his surviving wife and his moral obligation to his spouse was less firmly established than in other cases.
The Deceased used his money to purchase the matrimonial home, allowing the defendant to invest her money and increase her own assets. The plaintiffs succeeded and were therefore registered as tenants in common on a property with a life interest to the defendant.
Thank you for reading this week. Enjoy your weekend.
A recent Ontario decision, MacDougall v. MacDougall Estate  O.J. No. 2930 (S.J.C.), dealt with the issue of adequate provision for proper support under Part V of the Succession Law Reform Act (“SLRA”).
The deceased died in 2004. His widow (his wife from a second marriage) commenced an application for support from the deceased’s estate. She claimed that the deceased had failed to make adequate provision for her. The deceased had left her over $1 million in assets, which represented a significant portion of his assets. The balance of the deceased’s estate was left to his children from his first marriage, and his grandchildren and great grandchildren. The court found that the deceased had given careful consideration to the disposition of his estate and the needs of his widow.
Although the widow qualified as a dependant at the time of the deceased’s death for the purposes of the SLRA, the court ultimately held that she was not entitled to support. The widow had not met the burden of satisfying the court that the deceased had failed to make adequate provision for her. Her current assets invested conservatively would generate $45,000.00 per annum net of tax. The court found that the widow’s claim for support was driven not by need, but by her wish to live the lifestyle she had enjoyed with the deceased prior to 1998 when the deceased became ill.
Have a great day!
Bianca La Neve
Listen to Dependant Relief.
This week on Hull on Estates, Natalia Angelini and Craig Vander Zee discuss dependant relief and reference a variety of cases that utilized the Succession Law Reform Act.
Today’s blog is the third in my series this week on cases in the post Cummings v. Cummings era.
Today’s case is Simpson v. Leardi,  O.J. No. 4282 (Ont. S.C.J.).
In Simpson, the deceased had left a substantial estate. The plaintiff had brought an Application pursuant to the Succession Law Reform Act seeking support in the amount of $3,750 per month. The plaintiff was already receiving $1,000 per month pursuant to the deceased’s Will, leaving an alleged deficiency of $2,750 per month. The Court ordered that the Application be converted to an action and made an order awarding the plaintiff $2,750 a month in interim support.
The parties were subsequently in agreement that the plaintiff’s personal financial circumstances had improved since the interim order. The estate of the deceased was worth $10 million and the plaintiff’s assets were worth approximately $3 million.
Last week, I presented a paper at the 10th Annual Estates and Trusts Summit on Dependant Support Claims. Afterwards, my colleague, Jordan Atin, brought an interesting case to my attention regarding the definition of "dependant" under Part V of the Succession Law Reform Act ("SLRA").
In Re Cooper *, the trial judge held that the applicant, Mrs. Hampton, had failed to fit herself within the definition of a "dependant" as defined in the Act. Mrs. Hampton appealed to the Divisional Court, which ultimately allowed the appeal.