Rights of excluded parties

(a) What are the legislated rights in Ontario for a claim by a spouse or a child to the estate of a spouse or parent?

Summary

A deceased individual’s spouse may elect to receive one-half of the net family property rather than the amount provided for in the deceased’s will or the applicable intestacy rules. Any person who is a dependant of a deceased individual may make a dependants relief claim.

Discussion

The ON FLA provides that a spouse may elect to receive an equalization of the net family property, rather than receiving under the deceased’s will or under the applicable intestacy rules (see ON FLA s. 6). The electing spouse receives one-half of the difference between his or her net family property and the deceased’s net family property.

The SLRA provides that where a deceased (whether testate or intestate) has not made adequate provision for the proper support of his or her dependants, a court may make an order for the provision of such support as it considers adequate (see SLRA s. 58(1)). A “dependant” means any 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 deceased’s spouse, common-law spouse, former spouse, parents, children, grandchildren, persons whom the deceased has demonstrated a settled intention to treat as his or her children (in certain circumstances further discussed in question 11), and siblings (see SLRA s. 57). The Court will consider all of the circumstances of the application in determining the amount of support, as further enumerated in SLRA s. 62.

For clarity, except where such person is found to be entitled to receive dependant’s support under the SLRA, a child of the deceased is not entitled to receive any assets from the estate other than as set out in the will or, where there is no will, as provided under the SLRA in an intestacy.

(b) What are the dependants relief rules in Ontario? Can life insurance proceeds paid to a named beneficiary be “clawed back” to satisfy a dependant’s claim?

Summary

A person who is a “dependant” of a deceased person, and who did not receive adequate support under the deceased person’s will or under their intestate estate, may bring an application to court for support. Life insurance proceeds can be “clawed back” to satisfy a dependant’s claim.

Discussion

The SLRA provides that where a deceased (whether testate or intestate) has not made adequate provision for the proper support of his or her dependants, a court may make an order for the provision of such support as it considers adequate (see SLRA s. 58(1)).

A “dependant” means:

(a) one of the following family members of the deceased:

(i) married spouse;

(ii) divorced spouse;

(iii) common-law spouse;

(iv) parent;

(v) child (or grandchild, or any child that the deceased had a settled intention to treat as a child of his or her family); or

(vi) brother or sister; and

(b) to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.

An application for dependant support must be made within six months after probate is granted, although the court may allow an application after six months if there is a portion of the estate that remains undistributed at the time of the application (SLRA s. 61).

If a court determines that a person is a dependant of the deceased, and that adequate support was not made, the court will determine the amount and duration of support the applicant is entitled.

The court will consider all of the circumstances of the applicant in determining the amount of support, as further enumerated in SLRA s. 62.

Certain transactions effected by the deceased before his or her death, whoever it benefited, are included as testamentary dispositions as of the date of death of the deceased and are deemed part of the estate for the purposes of determining the value of the estate for dependant support. The legislation specifically names the amount payable under a policy of life insurance (SLRA s. 72).

(c) Do stepchildren of the deceased who are not legally adopted have any rights to challenge the will?

Summary

Interested beneficiaries with a financial interest in an estate may challenge a will. However, only natural and adopted children are entitled to receive from an intestate estate.

Discussion

Any person who appears to have a financial interest in an estate can bring a request for formal proof of a testamentary instrument, or file a notice of objection to issuing a certificate of appointment (i.e., probate), under Rule 75 of Ontario’s Rules of Civil Procedure. This could apply if a stepchild benefitted under a prior will of a deceased person, and the stepchild wished to challenge the last will propounded by someone. The law regarding a will challenge is complicated and legal advice should be obtained by interested parties.

The SLRA only includes natural and adopted children as children for the purposes of intestacy provisions. However, dependant relief rules include a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family (except where the person was a foster child) (see SLRA s. 57). If a person did not have an obligation to provide support immediately before his or her death to a stepchild that was not adopted (for example, if the stepchild is an independent adult), then there is no legal obligation for the deceased to benefit the stepchild.

(d) Can the validity of a will be challenged for reasons such as lack of capacity and undue influence?

Summary

Yes, the validity of a will may be challenged on the basis that the testator (the person who executed the will) lacked capacity or was unduly influenced.

Discussion

A person must be of “sound mind, memory and understanding” to have testamentary capacity. Included in this obligation is that a testator must understand the nature and effect of a will, must have some knowledge about his or her assets, and must know who might be expected to benefit under his or her will.

The presence of “undue influence,” if proven, can be sufficient grounds to invalidate a will. Undue influence has been described as influence of such a degree that the execution of the will pretends to express the testator’s mind, but which “really does not express his mind, but something else which he did not mean” (Vout v. Hay, 2 S.C.R. 876).