November is Make a Will Month in Canada, an event that, in part, emphasizes the importance of proactive estate planning to avoid future disputes. When someone passes away, their will often determines how their estate will be distributed.

However, in Ontario, there are circumstances where a person may challenge the distribution of an estate if they were financially dependent on the deceased and were not adequately provided for. This legal mechanism is known as a dependant support (also called a dependant’s relief) claim.

What Is a Dependant Support Claim?

In Ontario, dependant support claims are governed by the Succession Law Reform Act (SLRA). Under Part V of the SLRA, dependants of a deceased person can apply to the court if they believe that the deceased has not made adequate provisions for their proper support.

The purpose of this legislation is to ensure that individuals who relied on the deceased for financial support are not left destitute simply because they were omitted from a will or because the deceased died without a will (intestate).

Who Qualifies as a Dependant?

The SLRA provides a clear but expansive definition of who may qualify as a dependant. To make a claim, a person must demonstrate both a qualifying relationship with the deceased and that they received support from the deceased (or the deceased had a legal obligation to provide support) before their death.

Eligible dependants include:

• Spouses, including common-law partners
• Former spouses who are entitled to support
• Children, including grandchildren, adult children, and adopted children
• Parents
• Siblings

Crucially, the Act also allows adult children or even non-blood relatives to qualify as dependants if they were receiving financial support from the deceased.

Making a Dependant Support Claim

A dependant wishing to file a claim must commence an application in the Ontario Superior Court of Justice. This application must typically be made within six months of the grant of probate or administration. However, the court may extend this deadline in certain circumstances, particularly if estate assets have not yet been distributed.

The application must include:

• Evidence of the dependant’s relationship with the deceased
• Financial information demonstrating dependency
• Details of the estate assets and liabilities
• Reasons why the current distribution (under a will or intestacy) is inadequate

Factors Considered by the Court

When evaluating a dependant support claim, the court does not simply redistribute the estate equally. Instead, it undertakes a contextual analysis of what would constitute “adequate provision” for the dependant in the circumstances.

Section 62 of the SLRA sets out a non-exhaustive list of factors that a judge must consider:

• The dependant’s current and future financial needs
• The dependant’s age and health
• The dependant’s ability to become self-sufficient
• The size and value of the estate
• The deceased’s moral and legal obligations
• The relationship between the deceased and the dependant
• Competing claims from other beneficiaries or dependants

This analysis allows for a case-by-case assessment.

Outcomes of a Successful Claim

If the court finds that adequate support was not provided, it has broad discretion to order a redistribution of the estate. This could include:

• Lump sum payments
• Periodic payments (similar to spousal or child support)
• Transfer of specific assets
• Life interest in property (e.g., allowing a dependant to remain in the family home)

These orders can override the deceased’s will or alter the distribution scheme under intestacy rules.

The Role of the Estate Trustee

An estate trustee (also called an executor) is often caught in the middle of dependant support litigation. They have a legal obligation to administer the estate in accordance with the will or intestacy laws, but must also respond to valid claims.

When faced with a dependant support claim, estate trustees should promptly consult with legal counsel to avoid causing unnecessary cost or damage to the estate or personal liability on the trustee’s part. The estate trustee may have to pause distributions until outstanding claims are resolved.

Planning Ahead to Reduce the Risk of Claims

In the spirit of proactive estate planning, as emphasized by Make a Will Month, testators (the people making a will) can take proactive steps to minimize the likelihood of a successful dependant support claim against their estate:

• Make Adequate Provisions: If you know someone is financially dependent on you, make reasonable provisions for them in your will.
• Use a Letter of Wishes: While not legally binding, a letter explaining your decisions and relationships can help clarify your intentions if a dispute arises.
• Life Insurance or Trusts: Consider providing for dependants outside of the estate through life insurance or trust structures, which may reduce estate exposure.
• Document Support: If you are giving money to someone as a gift (not support), make that clear in writing. This can help rebut claims of dependency later.
• Update Your Will Regularly: Especially after significant life events, such as marriage, divorce, births, or estrangements.

Balancing Legal and Moral Duties

Dependant support claims in Ontario reflect a legal and moral recognition that people have obligations to those who rely on them financially. While testamentary freedom remains a cornerstone of estate law, it is not absolute. The SLRA ensures that vulnerable individuals are not unfairly left without resources upon the death of someone they depended on.

Whether you are someone seeking to challenge a will or an estate trustee managing a potential claim, it’s essential to understand how dependant support laws operate. A qualified estate litigation lawyer can help you navigate this process and ensure that both legal requirements and family dynamics are carefully considered.

Eisen Law: Toronto Estate Litigation Lawyers Advising on Dependant Support Claims

If you are considering a dependant support claim or are an estate trustee facing one, early legal advice is essential. Ontario’s dependant support regime is highly fact-specific, and missteps can affect both rights and estate assets. The estate litigation team at Eisen Law can help you assess your options, understand your obligations, and navigate the process with clarity and confidence. Contact us online or call 416-591-9997 to discuss your situation and protect your interests.