Time’s Up – Or is it? Key Developments in Dependant Support Claims

Dependant support claims

Under Section 61(1) of the Succession Law Reform Act (“SLRA”), an application for dependant’s support is required to be made within 6 months from the time that the estate trustee or executor gets probate for the estate. The legal term for “probate” is when a Certificate of Appointment of Estate Trustee is issued by the court. The court has the authority to grant an applicant an extension to this 6 month deadline, but only as to the portion of the estate which has not been distributed at that time.

Historically, the Court have interpreted this section to mean that if the estate has been fully distributed at the time the application is made, the claim is not allowed to proceed. This was the main issue in Weigand v. Weigand Estate. However, in this case, the dependant’s support claim was allowed to proceed, notwithstanding the fact that the estate assets had been fully distributed.


In this case, an application for dependant’s support was commenced by two of the three children of the Deceased from a prior marriage, who were 16 and 19 years old at the time of their father’s death. In his will, the Deceased left his entire estate to his common law spouse and provided nothing for his children. The main asset of the estate was a home which had been purchased years earlier by the Deceased’s father, for the Deceased and his family.

The application was brought by the children of the Deceased almost 16 months after the expiry of the time limit. During the intervening period of time, the common law spouse distributed all of the estate assets to herself and transferred ownership of the Deceased’s home into her name.

The Deceased’s children alleged that the reason they did not bring their application sooner was because the Deceased’s common law spouse (and estate trustee) made promises to them that she was going to sell the Deceased’s home and distribute the proceeds between the three children. They stated that they were promised this repeatedly over a two period, after which the common law spouse reneged on the promise and refused to sell the home. Their evidence was corroborated by their grandfather, who stated that he was also promised by the common law spouse that she would be selling the home and sharing the proceeds between his grandchildren.

The common law spouse denied all of these claims and argued that she only suggested she may have to sell the home, in order to satisfy a child support obligation of the Deceased under the Family Law Act.

As a result, the Deceased’s children brought an application seeking leave from the court to pursue their dependant’s support claim and an extension of the limitation period.

The Decision to Grant Leave

The test for whether the Court should grant an extension of the limitation is a question of “what is equitable as between the parties, in all of the circumstances”. The Court is to consider:

  • the amount of delay;
  • the reason for the delay; and
  • whether the estate would be prejudiced if the claim was allowed to proceed.

The Court must also consider the status of the distribution of the estate, as a claim would normally be barred from proceeding if fully administered, by virtue of section 61(2) of the SLRA.

In these circumstances, Justice George found that it would be wrong to allow the common law spouse to rely on the fact that the estate had been administered as the reason not to grant an extension. He found that if the version of events put forward by the Deceased’s children were true (which he could not conclude at this point), it would be unconscionable to disallow the claim due to a missed limitation period.

Justice George agreed that in the normal course, an extension should not be granted where the estate has been fully distributed. However, in such an instance where it is alleged that false promises were made by the estate trustee, who also happens to be the sole beneficiary in possession of the main asset at issue, this provision cannot be used to shield the estate trustee.

Further, Justice George found that the potential prejudice to the common law spouse did not outweigh that which would be suffered by the Deceased’s children if their application for leave were refused.

It should be noted that Justice George did not make a finding that the common law spouse did, in fact, promise to sell the house and give the proceed to the children, but that it was conceivable on the evidence that the ultimate trial judge could come to that conclusion.

As a result, an order was made extending the limitation period and granting leave to the Deceased’s children to pursue their claim.

Departure from Established Case Law

This case shows that the Court may be willing to allow dependant support claims to proceed after the time limit expires and even after the estate has been fully administered, where the right circumstances can be demonstrated.

While this is a significant departure from the previously established case law and the hard-line generally taken by the Court where there were no assets left in the estate, it is clear that allegations of bad faith on the part of executors are taken very seriously by the Court when assessing these types of claims.

The case has now been cited for the proposition that where it is alleged that the estate trustee and sole beneficiary of the estate made misrepresentations concerning the estate’s assets, the wording of section 62(1) of the SLRA with respect to “any portion of the estate remaining undistributed at the date of the application”, cannot be used by the estate trustee as a shield to bar a claim for support.

This case should be a warning to estate trustees everywhere, to make sure that they always act carefully, honestly and in good faith when dealing with both current and even potential beneficiaries of the estate. It will be interesting to see how this case impacts the outcomes of any similar cases in the future.

Thank you for reading.

For questions about this case or for advice and guidance on other Estate Litigation matters, contact the estate litigation lawyers at Eisen Law in Toronto to find out how we can help. Call us at 416-591-9997 or contact us online.