A Testator's Obligation to Support an Adult Disabled Child
I recently attended a seminar where estate planning to provide for adult disabled children was discussed. Once of the topics which arose was the extent to which parents are obligated to provide for an adult disabled child in their Wills.
It is settled law in Ontario, that a testator has an obligation to make adequate provision for her dependants in her Will. Where she does not do so, those dependants can bring an application for support under Part V of the Succession Law Reform Act.
Section 57 of the SLRA provides that a dependant is a spouse, parent, child, or sibling to whom the deceased was providing support or was under a legal obligation to provide support immediately before her death.
In its decision in Cummings v. Cummings Estate, the Ontario Court of Appeal recognized that the moral duties that a deceased owes a dependant are relevant in determining support.
So then, do parents have a legally enforceable “moral obligation” to provide for an adult disabled child?
The answer is that it depends on whether that child would otherwise qualify as a dependant. That is, were they receiving support or legally entitled support immediately prior to a parent’s death? If the answer is “yes”, the child may be successful in bringing a claim. However, if the answer is “no”, the mere fact the child is disabled will not be sufficient to give rise to a right to support.
Have a great day!
Megan Connolly
