A recent decision of Penny J. (Re Estate of Viola Eva Gyorgy, unreported, May 6, 2014) reviews the issue of limitation periods as they apply to dependant support claims.

Under the Succession Law Reform Act (“SLRA“) s. 61(1), no application for dependant support may be made after six months from the grant of letters probate of the will or of letters of administration. Section 61(2) of the SLRA provides that the court may allow an application to be made any time as to any portion of the estate remaining undistributed at the date of the application.

As noted in Gyorgy, the Supreme Court of Canada in Gilles v. Althouse, 1974 CanLII 206 confirmed that the six month limitation serves to limit a claim made after six months to the remaining, undistributed portion of the estate. 

As stated by Penny J., “In my view, the six month limitation does not, therefore, operate like a typical limitation to bar any proceedings at all.  The court is afforded discretion to grant leave to commence application provided it does not involve assets of the estate which have already been distributed.”

Penny J. went on to consider the fact that the Applicant had explained why the application was not commenced within the six month period following probate, and found that there was no prejudice in allowing the application to proceed with respect to the undistributed portion of the estate.  (None of the assets of the estate had, in fact, been distributed.)  Leave to proceed with the application was granted.

The decision also addresses other common issues that arise in dependant support claims, such as interim support, removal of the existing estate trustees, and the right of estate trustees to be indemnified from the estate for costs of defending the application.

I will post the link to the decision once it is available.

Thanks for reading.

Paul Trudelle