Under the Succession Law Reform Act, a deceased is forced to make adequate provision for their dependents upon their death. Section 58 of the Succession Law Reform Act states:
Where a deceased.has not made adequate provision for the proper support of his dependents,the court.may order such (support) as it considers adequate
Dependents means the spouse, the parent, a child or a sibling of the deceased whom the deceased was providing support or was under a legal obligation to provide support immediate before his or her death.
A spouse includes the same definition as can be found in the Family Law Act, namely a common law partner with whom the deceased had lived continuously for no less than three years or in a relationship of some permanence and had a child together.
It is important to note that any such application must be made within six months from the date that the deceased’s Will is probated.The court has the ability to look at many different factors in determining what is appropriate but in the end, common sense is suppose to prevail. The court has wide latitude in making almost any kind of an Order. It can order a lump sum, periodic payments, payments to third parties or even mortgages against property.
One also should note that you cannot contract out of this right. It does not matter what a separation agreement states, this right cannot be extinguished or bartered away.It is important to note that what forms part of the deceased’s estate is quite wide and wider than what one would have thought have. Assets that the deceased held as joint tenants forms part of the assets. Life insurance proceeds is another common example. The court can freeze any money that it believes forms part of that estate from being administered or distributed.
Recently, the Superior Court of Justice in Ontario also injected a component of a moral obligation over and above that of simple dependency. Justice Di Tomaso in the Stevens v. Fisher case, held that a common law spouse who arranged no coverage and left nothing in their old Will to their common law spouse of eleven years, had clearly not made adequate provision for their dependent. Not only that, for eleven years, the common law spouse had been a devoted caregiver and wife. There was an old insurance policy for $84,000.00 which the deceased had named as a beneficiary his previous common law spouse.
The court was not impressed and ordered virtually all of the insurance policy left by the deceased be paid to Ms. Stevens, the devoted common law spouse of eleven years.It may very well be that the deceased simply forgot to do a new Will and to change the beneficiary of his insurance policy.These claims are complex and require the assistance of a lawyer experienced in estate litigation. The lawyers at Dale Streiman Law LLP would be pleased to assist in any claims following under this interesting legal umbrella.
By: Fred Streiman