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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Dalton McGuinty has announced that, if re-elected, he intends to expand protected leave from work to employees to allow them to care for family members who cannot care for themselves due to serious injury or illness.
Currently, the Family Medical Leave plan allows employees to take up to eight weeks of unpaid leave to care for terminally ill family members. Under the expanded plan, employees would be entitled to the same eight week unpaid leave in order to care for ill or injured family members.
The plan is in addition to the eight weeks of protected leave afforded to employees with terminally ill family members.
Under the current plan, “family members” receives a broad definition: in addition to immediate family members, the definition includes foster children; siblings-in-law, uncles, aunts, nieces and nephews of the employee or the employee’s spouse; spouses of the employee’s grandchildren, uncles, aunts, nephews or nieces; and persons “who consider the employee to be like a family member”.
The employee must be “providing care” to the person. “Care” includes providing psychological or emotional support, or arranging care by a third party.
It is not clear whether the plan would allow employees protected leave to care for elderly or incapable family members. The press releases define the criteria for eligibility as “a serious injury or illness, including cancer or a stroke”.
At present, there is no corresponding Employment Insurance benefit during such leave (there is for leave for employees with terminally ill family members). The Ontario Government is calling on the federal government to extent Employment Insurance benefits to those taking advantage of the proposed expanded program.
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Paul E. Trudelle – Click here for more information on Paul Trudelle.
This week on Hull on Estates, Rick and David discuss procedure under the Substitution Decisions Act and review executor and attorney obligations as well as specific procedures permitting someone to compel an accounting.