Providing for Dependants after death
To a large extent a testator has testamentary freedom to leave his assets for whomever he or she wishes to leave them for. There are instances where because someone has not been made a beneficiary under a testator’s will this can create hardship especially where that person was being taken care of by the testator prior to his or her death.
Even in cases where a will was not made and the individual dies intestate the beneficiaries under the laws of intestacy may not include some persons who have been dependants of the deceased. This can happen in instances of common law union where the common law spouse is not a spouse for the purposes of intestacy. Therefore if the deceased has not made a will and dies leaving a common law partner it is very likely that the common law partner may not benefit under his estate. Another scenario that may occur is that of step children who were being taken care of by the deceased prior to his death but who cannot benefit from his estate along with his children.
Section V of The Succession Law Reform Act ensures that persons who were being supported by a deceased prior to his death and who would otherwise not benefit from his estate can apply to the court for provision. The Act states specifically that :” where a deceased whether testate or intestate has not made adequate provisions for 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’.
Many claims under section 58 of the Succession Law Reform Act are brought by common law spouses who were dependants of the deceased. In the case of Stevens vs Fisher, Ms. Stevens had been the common-law wife of the deceased for 11 years. He left nothing for her in his will and she made an application to the Superior Court of Ontario to be paid the proceeds of his insurance policy which was valued at $84,000. Although the deceased’s daughter had been named the beneficiary of the insurance policy the Court found that Ms. Stevens had indeed been a dependant of the deceased and that the deceased failed to leave her adequate provision. The Court ordered that $75,000 out of the insurance policy should be paid to Ms. Stevens and that the remaining $9,000 should be paid to his daughter. This case shows that in the appropriate circumstances the court can override testamentary freedom to ensure that dependants obtain adequate provision from the estate of a deceased.
To benefit under this provision one must firstly qualify as either a spouse, parent, child or sibling of the deceased. Spouse for the purpose of this Act includes common law spouse with whom the deceased had cohabited for not less than three years and child includes grandchild or any other child that the deceased had treated as a child of the family. The deceased must have been supporting these persons or was legally obligated to supporting these persons prior to his or her death.
Finally it is important to note that an application for support from the estate of a deceased must be brought before the Court within six months after an estate trustee has been appointed to administer the estate.
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