What You Need To Know
What options do the disinherited have? In some instances the disinherited can sue for support.
As a general rule, a testator has freedom to decide who gets his or her property after death. But Ontario law also recognizes that this concept of testamentary freedom is not absolute. During his/her lifetime, the testator may have entered into certain relationships. Notwithstanding the doctrine of testamentary freedom, Ontario law recognizes that responsibilities flow from those relationships and the testator is not relieved of his/her responsibilities at death.
Under the Family Law Act, Ontario recognizes financial responsibilities to spouses, parents and minor children. Under the Criminal Code parents are obligated to provide their minor children with the necessaries of life. Under the Succession Law Reform Act, the deceased and his estate may be ordered to pay adequate and proper support to spouses, parents and children. All of these obligations trump testamentary freedom.
Why? Because it is not the state’s obligation to make up for a spouse/parent’s refusal to comply with his/her legal and moral obligations. So for those that are disinherited, they might have the right to apply to court for support notwithstanding that the testator’s will is valid because the testator’s obligations to provide adequate and proper support to his/her dependants have to be honoured prior to the bequests mentioned in the will.
Should You Bring A Claim For Support?
So these are some of the questions you have to ask yourself to determine if you should consider bringing an application for support:
Are you a dependant?
Whether or not you qualify as a dependant can be complicated. It is a two pronged test.
- Are you a spouse or parent or child or sibling of the deceased?
- Was the deceased providing support or under a legal obligation to provide support immediately before his or her death.
It sounds simple – but it’s not.
For example – under the law a parent includes a grandparent. A spouse includes a common law spouse. A spouse also includes a person with whom the deceased has a relationship of some permanence if they are the natural or adoptive parents of a child. If you were a spouse of the deceased a domestic contract may have an impact in determining whether you are a dependant. A child includes a grandchild and a person whom the deceased has demonstrated a settlement intention to treat as a child.
What factors does a court take into account when it decides the amount of support to award?
This is a good question that is not easily answered. It will depend on a lot of things. For a complete list of factor taken into account Please see section 62 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 . Some key factors a court will consider:
- the dependant’s age and physical and mental health;
- the dependant’s needs, in determining which the court shall have regard to the dependant’s accustomed standard of living;
- the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
- the proximity and duration of the dependant’s relationship with the deceased;
- the circumstances of the deceased at the time of death. This includes the size of the estate;
- any agreement between the deceased and the dependant;
- the claims that any other person may have as a dependant;
- if the dependant is a spouse, a course of conduct by the spouse during the deceased’s lifetime that is so unconscionable as to constitute an obvious and gross repudiation of the relationship,
- the length of time the spouses cohabited,
The Next Steps
This short general overview is really just a basic introduction to the topic. It is far from complete. There are some legal texts entirely devoted to this topic. I mention this because this short article is not meant to be legal advice. Reading this article is only meant to be the first step for those who were disinherited and think they may be a dependant who can ask the court for support.
The next step is to meet with a qualified lawyer who will thoroughly investigate the facts and explain your legal options.
Based on the nature of our practice and experience our office deals with many potential clients who feel wronged and want support. For some we discourage proceeding because their case may be too weak or because the risk is not worth the reward. For others we point out facts and legal issues that they had not considered that bolster their case and merit proceeding to court.
The bottom line – nothing replaces seeking out the counsel of a qualified lawyer who specializes in this niche area of the law and has the expertise to guide you in your decision making process.
It’s not just about the law. It’s also about knowing the process well enough to determine whether the prospects of success warrant the economic and emotional investment.
