October 24, 2024
By its very name, a will is supposed to reflect the desires of the testator- the person whose will it is.
This discretion to leave your assets to whoever you wish is not unlimited.
In Ontario, two laws limit your ability to write the will you want.
Under the Family Law Act, a spouse may elect to take what they are left under the will, or to treat death like the breakdown of the marriage and seek an equalization payment. In cases involving long term marriages in particular, this protects the spouse who has less property in their name and is consistent with the philosophy that a marriage is, among other things, an economic partnership, where sharing the value of assets accumulated during the marriage is usually assumed to be fair. This applies just as much when death occurs as when there is a separation or divorce.
You may be aware of the provision of the Family Law Act, but you are less likely to be aware of the dependents relief provisions of the Succession Law Reform Act (the SLRA).
The SLRA replaced and updated the provisions of the Wills Act, which was a venerable- some might say outdated- statute. At the same time, the provisions of the Dependents Relief Act were updated and included in the SLRA.
This notably includes a modernized definition of a dependent. Which now reads:
“dependent” means,
(a) The spouse of the deceased,
(b) A parent of the deceased,
(c) A child of the deceased, or
(d) A brother or sister of the deceased,
To whom the deceased was proving support or was under a legal obligation to provide support immediately before his or her death.
Both “spouse and “child” have extended meanings which match the FLA and the Children’s Law Reform Act.
“Spouse” includes:
either of two persons who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act
as well as married couples.
“Child” includes:
a grandchild and a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody;
In addition to spouses and children, parents and siblings may be dependents.
The SLRA then goes on to provide that :
Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependents or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants or any of them.
How does this work in practice?
Consider the case of Isenor, by his litigation guardian v. Isenor in their capacity as Estate Trustees et al.. The deceased had left his biological son, 15 at the date of death, $1000,00 in the will. However, the deceased had been paying monthly support of $225.00. The judge easily found that the provision was inadequate, being slightly more than four months’ support. It was agreed that adequate support would run until the son graduated high school, which translated to a lump sum of $8,100.00.
There was an argument over an allowance for post-secondary education. The value of the estate was approximately $1.5 million. Both the child and his mother are obligated to contribute to the cost of education but have limited ability to pay. Given the value of the estate, it was ordered to contribute 80% of the estimated costs, or another $33,943.00.
Full indemnity of the mother and son by the estate for legal costs was also ordered, since the judge ruled that the court case was solely the fault of the deceased or the estate to make adequate provision for the child.
TAKEAWAYS
- In drafting your will, you need to make adequate provision for your dependants.
- Failing to do so may result in an expensive day in court .
- Complex or blended family situations benefit from a lawyer’s expertise in will drafting.
WHAT WEILERS LLP CAN DO FOR YOU
Our skilled will drafting lawyers will discuss your situation, and craft a will in language that reflects your goals and provides for dependants.
If you are confronted by a situation where you are an estate trustee or potential beneficiary in a dispute over a will, our experienced and knowledgeable estate litigation lawyers are here to help. We have ready access to our experienced family law lawyers to address the support aspects of the dispute.
Give us a call and see if we are the right lawyers for you.