Managing a dependant’s relief claim

In estate administration, an advisor may at some point come across a claim for dependant’s relief – that is, an order for support for a particular dependant from the estate of a deceased person. While the definitions may differ between provinces, in Ontario, a dependant can be one or more of the following, to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death:

• The spouse of the deceased (a “spouse” may be a spouse by marriage or a common-law partner, after continuous cohabitation of not less than three years or in a relationship of some permanence, if the spouses are the natural or adoptive parents of a child);
• A parent of the deceased;
• A child of the deceased (a “child” includes a child conceived and born after the parent’s death, and includes a grandchild and a person to whom the deceased demonstrated a settled intention to treat as a child of his family. There is no age restriction on a child’s claim.); or
• A brother or sister of the deceased.

While the law and definitions may differ somewhat in other provinces, the concept of dependant’s relief is much the same.

Situations of dependency

Some of the most difficult cases involve adult children. Situations of proven long-term financial dependency between a parent and adult child can ultimately interfere with a parent’s ability to dispose of his or her estate to others or to include others in the proportions the testator would like. That said, the fact that an adult child hasn’t succeeded in life, or is not as successful as his or her siblings, doesn’t necessarily qualify him or her as a dependant with a viable claim for dependant’s relief. Situations where the de-ceased would be considered to be providing support or to be under a legal obligation to provide support immediately before his or her death include:

• Where there’s an outstanding family law support order – either up-to-date or in arrears;
• Where spouses are separated but no order for support has yet been made; and
• Where the claimant was receiving money or monies worth (a benefit, good or service paid for by another) in a reasonably significant and consistent pattern before the deceased’s death.

In the final regard, gifts on special occasions or even further periodic gifts or loans would not typically qualify as providing support before death. On the other hand, money or monies worth – such as is represented by the claimant’s rent having been paid consistently for some period of time or the claimant having been provided with room and board — would typically qualify as providing support before death.

Awarding a claim

In Ontario, where a deceased, whether dying with a will or without, has not made adequate provision for the proper support of his or her dependants, the court may order such provision as it considers adequate to be made out of the deceased’s estate.

A court will determine dependant’s relief as of the date of the hearing. Accordingly, circumstances such as whether the claimant’s need has increased and/or the size of the estate has decreased will be taken into consideration.

While demonstrable need, in relation to the claimant’s expenses, is a significant factor, it’s not the only factor that will be considered. Future needs may also be considered.

In a long-term spousal relationship, for example, the surviving spouse is typically able to claim sufficient monies to satisfy his or her needs to maintain the lifestyle the spouses enjoyed together and to provide comfort in the future, if the size of the estate allows.

Also, the larger an estate, the more the award of dependant’s relief may be. But while a small estate will typically limit the quantum of dependant’s relief awarded, a large estate doesn’t mean there are no limits. Each case will still be decided on its own merits.

When a court makes a determination as regards a dependant’s relief claim, it looks at all the existing entitlements or claims against the estate. This includes not only that of the person or persons making a formal dependant’s relief claim, but also the entitlements of beneficiaries under the deceased’s last will or those who are statutorily entitled to take on an intestacy. It further includes the entitlement of a spouse, if any, who, although he or she may not be making a claim, has support and property entitlements or the ability to make such claims against a deceased’s estate.

Essentially, the court attempts to balance the rights of all competing interests.

And not every dependant’s relief claim will succeed. For instance, a deceased may have made provision for a dependant, but the dependant takes the position that it’s not enough. In light of the dependant’s needs, the size of the estate and competing claims, the provision made by the deceased may be found to have been adequate.

Lump sum or periodic payments?

There’s often debate about whether the award of dependant’s relief should be by way of periodic payment or lump sum. Most frequently, the courts award a lump sum. This enables the administration of the estate to be concluded at an earlier date. The lump sum may be placed in a separate trust, rather than being awarded directly to the claimant.

On the other hand, those opposing a dependant’s relief claim may take the position that a lump sum has the effect of enabling the claimant to leave an estate to others, and goes beyond dependant’s relief.

An award of periodic payments may result in an estate paying less, or possibly more over time, than it would have paid if the award had been by lump sum. An award of periodic payments requires that the estate be kept open to enable such payments to be made. As well, if the award is by way of periodic payments, the claimant could conceivably seek a variation or increase of such periodic payments at a later date, based on a material change in circumstances. The same could not be said if the award is by lump sum.

For purposes of an award of dependant’s relief, it’s not simply the value of a deceased’s residuary estate that’s available to be charged for the payment of support. Rather, the capital value of further and other transactions effected by a deceased before his or her death are deemed to be part of the net estate for the purposes of ascertaining its value.

These include:

• Gifts in contemplation of a death;
• Money in the name of the deceased in trust;
• Money on joint account;
• Money to which survivorship rights attach;
• Money payable under a policy of insurance effected on the life of the deceased; and
• Any money payable under certain designations of a beneficiary.

The foregoing are available to be charged for the payment of support, along with the residuary estate of the deceased.

Effect on estate

Where notice of an application for dependant’s relief is given, the executors of the estate can’t make any further distributions pending a resolution or determination. If the estate has already been distributed, before the application was made, there may be nothing available for the claimant to pursue.

In Ontario, no application is to be brought once six months have elapsed from the granting of a certificate of appointment of estate trustees. But the court may allow a claim to proceed against any undistributed portion of an estate, even after that date.

Where a person’s estate plan breaks his or her estate down into residuary bequests and specific bequests, an order for support is supposed to fall rateably upon the whole of the deceased’s estate. In practice, this means the entire burden of a support award shouldn’t fall upon the residue. Rather, it’ll be shared by the residue and other gifts proportionately.

The effect of an award of dependant’s relief is that it reduces the value of an estate, and may take away from monies that would otherwise pass outside the estate but are deemed to be a part thereof. As a result, the beneficiaries or those who would have received such monies will receive less.

Dependant’s relief cases are often hard-fought. While executors of an estate often take the lead in defending them, that’s not always the case. Sometimes the beneficiaries do so. In any event, they may wish to retain their own counsel to ensure their interests are protected and their views advanced in the litigation.

AWARDING OF DEPENDANT’S RELIEF

The quantum of an award of dependant’s relief is very fact-sensitive. It’s difficult to predict the outcome of one case from the outcome in another. Circumstances that will be considered by the court, however, include:

• The claimant’s current assets and means;
• His or her ability to contribute to support;
• Age and physical and mental health;
• Needs and an accustomed standard of living;
• Measures available to become self-sufficient;
• The proximity and duration of the relationship with the deceased;
• The deceased’s other support obligations;
• Any agreement between the claimant and the deceased; and
• Previous receipt of property from the deceased.

While a domestic contract releasing support rights on death may not be a bar to a claim, it will, however, be taken into consideration.

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Daniel J. Dochylo is a partner in the Toronto office of Borden Ladner Gervais LLP. He is also National Chair of the Estate and Family Law Litigation Focus Group.

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