Typically, the expectation when someone dies with a Will is that the beneficiaries named in the Will inherit the estate. Similarly, if someone dies without a Will, it seems reasonable to assume that the estate will be distributed to the beneficiaries established under the rules of intestacy in the Succession Law Reform Act.
While this is all true, there may be a person (or even more than one person) not named in the Will, or who isn’t a beneficiary according to the rules of intestacy, but who is still entitled to funds from the estate, if that person is considered a dependant of the deceased. These dependants may make a claim against the estate for funds, even if they aren’t estate beneficiaries.
When a dependant claims support from an estate, this may mean that beneficiaries end up inheriting a smaller portion of the estate than they otherwise would. It also means that assets that typically pass outside the estate, like an insurance policy, a registered account like an RRSP, or even a jointly owned property, may be considered part of the estate for the purpose of the dependant support claim. This is the case even if these assets have already been distributed to the beneficiaries.
But who qualifies for dependant support from the estate? There is a two-part test set out in the Succession Law Reform Act that helps answer this question. First, the person claiming support must be a dependant of the deceased, meaning they were either a spouse, parent, child, or sibling of the deceased to whom, immediately before death, the deceased was providing, or had a legal obligation to provide, support. Note that “spouse” includes a common-law spouse who was never married to the deceased.
If the person fits within the definition of “dependant”, the next part of the test is to determine whether the deceased made adequate provisions for proper support of that dependant. For example, is that dependant already a beneficiary of the estate receiving proper support? Or is that dependant a beneficiary of the deceased’s life insurance policy and already receiving proper support that way? If not, the dependant may be able to bring a court application for support from the estate.
Lawyers can advise potential dependants, as well as estate trustees, on whether there is a potential dependant support claim, when that claim must be brought, and how it may impact the distribution of the estate.
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.