Redress Risk Management (post until May 31/19)
Estates & Wills & Trusts

Case illustrates why wills are vital for dependants

A recent matter where the common-law spouse of a man who died without a will was awarded the entire estate highlights the importance of dependant support claims, Toronto trusts and estates lawyer David Mills tells

“There's no hard and fast formula for determining support,” says Mills, managing partner with Mills & Mills LLP. “In this case, the judge went through and analyzed the circumstances of the person claiming to be a dependant and determined quite easily that she was.”

The matter involved a 62-year-old applicant who lived with and had a 20-year relationship with a man up until his rather sudden death from cancer in 2015. At the end of his life, she took care of his needs in his final illness, the decision states.

Because the man died without a will, his heirs at law were his surviving brother and sister and the two sons of his predeceased sister. The man’s common-law spouse applied for support under the Succession Law Reform Act.

Only the man’s sister took part in the application and claimed that of the $285,000 worth of assets of the estate, the applicant had already received $203,965. This amount, combined with the pensions, should enable the woman to live at the standard she claims if she only gets a full-time job for minimum wage, she said.

Justice James Ramsay noted there was no suggestion that the sister had any need or moral claim on her brother’s assets and he found it unreasonable to expect the woman to take an entry-level job at age 62.

“Even if it were possible, it would only raise her earnings to the low $40,000 range, which would still not be enough to continue the modest standard to which she was accustomed. I do not think that the intestate made adequate provision for the proper support of the applicant,” Ramsay ruled.

He ruled that a judicious spouse would have left her the entire estate, such as it is.

Mills, who was not involved in the matter and comments generally, says it’s clear this was a modest estate and that there was need on the part of the common-law spouse.

“This is exactly the type of situation that dependants relief legislation is for,” he says. “If you were dependent on a deceased person within the meaning of the legislation, then the court can make such orders as is necessary to ensure your proper support.

“The only logical way to do that in this case was to give the common-law spouse all of the assets. There was not enough to give some to her and then have anything left over to spread among other beneficiaries who were not dependants,” Mills adds.

He says a situation like this highlights the benefits of getting a will drawn up, no matter how small your estate.

“An experienced estates lawyer will coach you through what to do when there are spouses or children involved to make sure that dependants are adequately provided for.”

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