The short answer is “no” – it is not new law. However, it is very fact specific. I talk about this when I teach estate planning: Beware who may be able to claim dependant relief due to your actions. What you do during your lifetime has an impact when you pass. You may only want to help but this may be setting up the possibly of such a claim succeeding before the courts, and leading to issues within your family.
A recent decision in Ontario shows how the Court has the power to help people who need it (if they are overlooked in an estate plan or Will), and you don’t need to be a spouse. Kids can get it too.
In the case of Shafman v. Shafman, the mother died in 2019, leaving three sons. Her youngest son, Herbey, who was 67 when his mother died, filed an application for dependent support under The Succession Law Reform Act. Not often used by children, but certainly available depending on the circumstances.
Section 57(1) of the SLRA says that a child of the dead is a dependant if the child “to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.”
Section 58 of the SLRA says that the Court has the power to give support “where a deceased, whether testate or intestate, has not made adequate provision for the proper support or his dependants 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”
Therefore, the son had to show two things:
1) that his mother was taking care of him right before she died and
2) that she had not made enough arrangements for him in her Will or Estate Plan.
The assets of the mother were worth about $3 million, but they were split between Herbey’s brothers, Jerry and Allan. Instead, she bought Herbey an annuity in 2013, which gave him a fixed income of $1,070.29 each month. In the her Will, Jerry and Allan are also required to give Herbey $500 every month from the rental money made by the Estate’s assets. Both sides agreed that the deceased told Herbey to take $160 from the deceased’s coin-operated laundry room every month. Herbey got $1,730.29 from these sources of money, which he said wasn’t enough to meet his needs.
The Court decided that the pension and money from the coin-operated laundry room were proof that the person who died was taking care of Herbey right before she died.
The Court also agreed that the dead usually gave Herbey money and sometimes a place to live.
Even though Herbey did not live with the deceased, the Court agreed that he slept at her home more than once a week and was given food. The Court also looked at a letter that the dead woman wrote to her lawyer in 2014. In it, she said that she had been helping Herbey for 25 years.
The court decided that Herbey needed his mother to take care of him and that $1,730.29 per month was not enough to meet his needs. To make up for the gap, the Court told the Estate Trustees to pay Herbey an extra $942.05 each month on an ongoing basis.
Although, not often used by a child, this legislative remedy is available depending on the circumstances.
The key takeaways are:
1) This remedy is not automatic;
2) This remedy is only available to an actual “dependant” – the Applicant has to prove it; and
3) The court will look at all circumstances prior to death, and the treatment by the deceased of that “dependant” before their passing.
This is one of the many reasons why you should talk to lawyer to plan for your estate as we will delve into this possibility and many others.
For any estate or estate planning question, contact us at 343-888-8913 or advice@ottawa.law to set up an initial consultation.
