When preparing a Will for a person who may have dependants, the first issue is to identify any potential dependants.

Qualifying as a potential dependant

In Ontario, there is a two part test:

1. First, to qualify as a dependant under Part V of the Succession Law Reform Act, the person must be related to the Testator as either:

a) Spouse

• married
• common law
• ex-spouse by divorce

b) Child

c) Grandchild

d) Parent

e) Grandparent

f)  Sibling

There is no age restriction to be a dependant. 

2. The second part of the test is centered around providing "support".

"Was the deceased actually providing support at the time of death?"

What qualifies as “support”?

• e.g. giving money to your child each month 
• e.g. providing lodging to the dependant rent-free
• e.g.  sending gifts regularly – can qualify as ongoing support 

If the deceased was not actually providing support, was he under a "legal obligation" to support the dependant?

A legal obligation can be statutory, such as under the Family Law Act, which requires spouses to provide support to one another, or a contractual obligation to support, such as one pursuant to a separation agreement.

Should the Court order Support?

Once the person qualifies as a "Dependant" under the 2 part test, the next question is: Did the Deceased make adequate provision for the proper support of the Dependant?

If the answer is no, a Court may order that such provision as it considers adequate be made. The amount of discretion and subjectivity in this area is significant.

What assets can be affected and how is the amount of court ordered support calculated?

The following assets can be affected by a dependant support claim: 

• Estate assets
• Life insurance (individual or group)
• RRSPs/RRIFs/LIFs/LIRA
• Pensions
• Jointly held property (if made joint after original purchase)
• Jointly held “money” deposited
• In limited cases, “Trust” funds

What does a court consider to be adequate provision for proper support?

There are 16+ factors, including:

• Dependant’s assets
• Size of estate
• Health and age
• Usual standard of living/needs
• Moral factors

There are also additional factors to consider if the dependant is a child or spouse.

The Court may also consider whether the Deceased had obligations to other dependants.

Effect of a Claim On Administration

A claim can be brought within 6 months of the issuance of Certificate of Appointment. There is a personal risk of distribution within 6 months. Once the claim is served, there is a stay of distribution.

The Court also has the power to grant Interim Orders, including interim support payments and even interim payments of legal fees.

The Court has a very broad discretion to fashion a remedy for a dependant.

Advising Testators on Potential Claims

We recommend advising your clients as follows:

• Identify potential dependants
• Explain that there is no way to completely prevent a claim
• A domestic contract or waiver of support is not determinative, but is a factor to consider 
• Stop providing support prior to death
• Make adequate provision for any dependants 
• A no contest clause will not work 

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