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SUPPORT - EVEN AFTER DEATH?

Everyone is familiar with the concepts of child support and spousal support in a separation or divorce situation, but did you know these obligations may carry on even after the death of the payor?   

There is a duty on all individuals to ensure that upon their death, any dependants are sufficiently provided for.  In the event that this is not done, an application can be brought before the court under the Dependants Relief Act (formerly the Family Relief Act).  The Dependants Relief Act provides that if a person dies without making adequate provisions in their Will for the proper maintenance and support of their dependants, an application may be brought and a judge may order whatever they deem appropriate for the support of the dependants, regardless of the provisions of the deceased's Will.  This legislation also applies where a person dies intestate (without a Will). 

Under the Dependants Relief Act  "dependant" means:

• the spouse of the deceased;
• the adult interdependent partner of the deceased;
• a child of the deceased who is under the age of 18 at the time of the deceased's death, and;
• a child of the deceased who is 18 or over at the time of the deceased's death, but is unable to earn a livelihood due to mental or physical disability.

This doesn't mean that if you fall into one of the above categories, you'll automatically get a share, or a bigger share, of the estate.  It simply means that you're eligible to make a claim.  Caution must be taken when considering a claim however, as costs may be awarded against unsuccessful parties.  Some situations, such as those involving a minor child, are fairly predictable - if you die without making provisions for the support of your minor child, the court is going to do it for you.  The only question is going to be "how much" is adequate for support, and how will it be paid.  Other situations are not so predictable.  It's worth keeping in mind that no matter what the application, the Judge has complete and total discretion in all aspects.

The legislation uses the phrase "proper maintenance and support", but doesn't go on to define what that might be.  Caselaw indicates that it is not limited to bare necessities, and also sets out a number of factors that may be considered, such as:

• the size of the estate;
• the other dependants;
• the age and state of health of the dependants;
• the station in life of the parties;
• the character of the applicants;
• the likelihood of their needs increasing;
• the likelihood of inflation;
• the other sources of income of the applicants;
• the mode of life to which they ought to become accustomed;
• the cost of living; and
• the claims of others against the estate

This list is not exhaustive, and none of the above factors are determinative on their own.  Basically each application is considered on a case-by-case basis in accordance with the facts a Judge determines relevant.

It's good to know that there's legislation like the Dependants Relief Act available in situations where it's needed however, it makes more sense to provide for your dependants adequately in your Will so that a "stranger" isn't the one making decisions that affect your dependants and your estate, you are.

By Danielle Elder
October 1, 2003