One of the many benefits of preparing a will or estate plan is the opportunity to direct how your assets should be distributed on your death. However, as each individual’s circumstances are different, your freedom to have your instructions followed may be affected by obligations your estate will eventually owe to others.
Provincial legislation enables dependants of a deceased person who feel they have been inadequately provided for to apply to the Court for support. The Court may, in turn, order that the estate of the deceased provide what the Court feels is proper support to one or more of the dependants. But to what extent are moral and ethical issues considered in such an application?
In Tataryn v. Tataryn,  2 S.C.R., 807, the Supreme Court of Canada held that relevant British Columbia legislation must be read in light of modern values and expectations. Furthermore, the first consideration in determining what is “adequate, just and equitable” in the circumstances of the case must be the deceased’s legal responsibilities during his or her lifetime and thereafter, their moral duties toward spouse and children. In the end, the Court order changed the estate plan outlined in the deceased’s will with respect to gifts that were to be given to the surviving spouse and children.
Who is a Dependant?
The relevant Ontario statute states that a dependant is a spouse, parent, child, or brother or sister of the deceased, to whom, immediately before death, the deceased was providing, or had a legal obligation to provide support.
In addition, the statute stipulates that:
- a spouse is either of two persons who are married to each other or either of two persons who have cohabitated continuously for not less than 3 years or cohabited in a relationship of some permanence, if they are the natural or adoptive parents of a child.
- a child includes a grandchild and anyone else the deceased has demonstrated a settled intention to treat as a child of the family. There is no age restriction on children who are eligible to apply for support from the estate of the parent.
- support includes financial, physical and moral support as set out in the case law concerning dependant support claims. The deceased must have been providing support immediately before death, or must have been under a legal obligation to provide support either through Court order or by virtue of case law.
Factors the Court will consider in determining the amount and duration of the support, if any, include, but are not limited to, the dependant’s:
1. current assets and means;
2. likely future assets and means;
3. ability to contribute to his or her own support;
4. age and physical and mental health;
5. needs, including accustomed standard of living;
6. relationship with the deceased, including proximity and duration of the relationship;
7. contributions to the deceased’s welfare, including indirect and non-financial contributions;
8. contributions to the acquisition, maintenance or improvement of the deceased’s property or business.
To discuss whether you have made adequate provision for your dependants in your will or estate plan and the factors that would be considered in this regard, please contact Andrea P. Kelly.