Toronto Estate Law Blog : Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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When commencing dependant support applications that involve minors, a few things to keep in mind are:

·                    In Toronto, applications are to be brought on the Estates List;

·                    Although it is a good idea to commence an application within the six-month limitation period from the issuance of probate, minor children’s claims are not bound by this limitation period; that said, if an estate is administered prior to the claim being commenced, the relief sought may be difficult to obtain;

·                    Where one dependant commences a claim, insofar as the limitation period is concerned, it is deemed to be an application on behalf of all persons who might apply;

·                    Minor children can not sue or be sued without a litigation guardian in place - the title of proceeding should reflect this and the materials filed should comply with the requirements of Rule 7 of the Rules of Civil Procedure;

·                    The proper respondent in a dependant support application is the estate trustee, not the beneficiaries, although the beneficiaries must be served with the application materials; and, where a minor is a beneficiary, The Children’s Lawyer must be served with the materials; and

·                    If writing to The Children’s Lawyer prior to commencing a dependant support claim, it is helpful to include a family tree, the names and birthdates of the children, copies of relevant documentation, a copy of probate, detailed financial information about the child’s surviving parent and a summary of the facts.

Additional information about The Children’s Lawyer and its role in respect of dependant support claims can be found in the materials from The Dependant’s Support Application: From Notice of Application to Trial, held on September 27, 2011.

Have a good day,

Natalia R. Angelini - Click here for more information on Natalia Angelini. 

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The British Columbia Supreme Court in Laing v. Jarvis 2011 BCSC 1082, recently spoke of the issues surrounding the moral obligations of a Deceased.

This matter was brought before the courts by the plaintiff, Ms. Laing, the daughter of the Deceased. The Deceased had passed away on June 3, 2007 and was survived by her son, Mr. Jarvis, the defendant, and Ms. Laing. The Deceased left a Last Will and Testament dated December 10, 2003, which named her son as the sole beneficiary and Estate Trustee.   Ms. Laing was completely disinherited. 

Ms. Laing sough a variation of the Will under the Wills Variation Act, RSBC 1996, c. 490, s. 2, which section provides the British Columbia courts with the jurisdiction to amend a will, where it is determined that the Deceased made inadequate provision for the maintenance and support of her children or spouse under her Will.

As Mr. Jarvis did not take steps to obtain Probate, the Province was appointed as the official administrator with a Will annexed on June 8, 2010. This matter appeared before the court with little documentary evidence, and without the benefit of Mr. Jarvis’ presence. Upon a thorough review of the family history, the Court determined that the two children of the Deceased ought to be treated equally. However, the Court went further and commented on Mr. Jarvis’ actions and lack of involvement in the administration of the Estate, and made an order that the costs incurred as a result of his inaction ought to be borne by him personally and not by the Estate. This matter is to be brought back before the Court for a determination as to the final disposition of the assets of the Estate, once they have been fully identified.

Although Ontario does not have legislation in the exact same vein as the Wills Variation Act, we are certainly seeing the Courts give more credence to the ‘moral obligation’ consideration.

Thanks for reading,

Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz. 

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There is a tension in the case law between respecting the rights of testators to freely dispose of their estates upon death, and ensuring that a testator’s dependants are provided for in an adequate manner. Past blogs and podcasts on our website have explored this tension. 

In a recent decision out of New Brunswick, Johnson v. Johnson Estate, the court held that a testator had failed to meet his high moral obligation towards his wife of 45 years. Prior to his death, the testator had executed a Will in which he left his entire estate to his eldest son, subject to a life interest in the marital home in favour of his wife for as long as she chose to reside there. If the wife left the marital home, it would be sold and she would be entitled to half of the net proceeds. Given the little provision made for her, the wife commenced claims pursuant to New Brunswick’s Marital Property Act and the Provision for Dependants Act. 

The Court ultimately awarded the wife the marital home, along with its contents and four vehicles, and certain sums of money from various RRSPs and bank accounts. The Court found that the testator’s distribution of his estate further to his Will did not reflect the very high moral obligation that society would expect of a husband towards his dependant wife of 45 years. In the Court’s opinion, society would have expected the testator to leave the bulk (if not all) of his estate to his spouse. In this case, the Court ruled that testamentary freedom had to yield to the interests of a dependant and what is adequate provision for their support. 

Thanks for reading,

Bianca La Neve

Bianca V. La Neve - Click here for more information on Bianca La Neve.

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Part V of Ontario's Succession Law Reform Act ("SLRA") establishes a mechanism whereby qualifying dependants can claim support from the estate of a deceased.  Section 72 of the SLRA is a deeming provision that includes certain non-estate assets as part of the estate for the purposes of calculating the value of the estate, and allows such assets to be charged ("clawed back") by a support Order made under section 63 of the SLRA. 

The recent case of Simson v. De Bartolo 2009 CanLII 38493 (ON S.C.) interprets section 72(1) and applies Cummings v. Cummings 2004 CanLII 9339 (ON C.A.), the Court of Appeals decision holding that support awards are subject to moral considerations.  One issue following Cummings has been whether moral considerations justify a support award in and of themselves, or whether moral considerations are merely relevant to quantum of support following a determination that a support award is appropriate.

The applicant in Simson v. De Bartolo was litigation guardian for her child, born out of wedlock to the deceased and the actual support claimant.  When the applicant told the deceased's wife about their relationship and the child, the deceased transferred these properties to his wife (from joint ownership) and made a will disinheriting the child.  Later, the deceased died virtually penniless.  At issue in a motion was whether properties transferred by the deceased to his wife 10 years prior to his death could be deemed part of the deceased's estate under any enumerated grounds in section 72(1). 

Justice Lemon held that these assets could not be "clawed back" under s. 72(1).  Most particularly, a transfer of land to another party in the absence of an express written trust instrument does not fall within section 72(1)(e).  Of course, the transfer may still be impressed with a trust, as Justice Lemon pointed out, and if such trust pulls the asset into the estate, the SLRA provides for protection of the dependant pursuant to section 67.  Moral considerations were relevant in determining quantum of support, but not whether an asset forms part of the estate.

The facts in Simson v. De Bartolo appear to have precluded the court from addressing the Cummings question, at least in the motion being heard.  However, section 72 has been clarified.

Enjoy your day,

Chris Graham

Chris M.B. Graham - Click here for more information on Chris Graham.

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Yesterday, I set out the fact situation in Turner v. DiDonato (2009), 95 O.R. (3d) 147 (Ont. C.A.).

The trial judge decided that Dilia was entitled to the difference between the insurance proceeds that she received and the $100,000 insurance policy that was supposed to be in place. The trial decision was upheld on appeal.

The trial judge held that there was a clear breach of the Separation Agreement, and that the remedy was appropriate in order to put Dilia in the position that she would have been in had the contract been performed.

The Court of Appeal did not agree that the trial judge did not give properly interpret the Separation Agreement. In particular, it did not agree that the clause allowing Dilia to have a first charge against the estate for in the event that Albert died without insurance provided Dilia with the appropriate remedy. This clause, the Court of Appeal held, did not apply because Albert did, in fact, have insurance – it was simply insufficient. 

The Court of Appeal also dismissed the suggestion that the insurance policy was simply security for the support payments. Firstly, the Separation Agreement did not express that it was security. Secondly, the Separation Agreement did not allow Albert to reduce the amount of insurance as the support obligations diminished. Thirdly, it was held that allowing Dilia less under the Separation Agreement as a result of its breach by Albert than Dilia would have received but for the breach was “counterintuitive”. Fourthly, the estate’s suggestion that it would have a claim against Dilia for any insurance proceeds in excess of the support obligations was “at odds” with the stated intention of the parties in the Separation Agreement to fully settle their rights and obligations.

The Court of Appeal agreed that Dilia’s admission that her understanding was that the insurance policy was security for the support payments was not relevant. The Separation Agreement was unambiguous, and contained an “entire agreement” clause, and extrinsic evidence was irrelevant. Further, as such, corroboration under s. 13 of the Evidence Act was not required, as the decision was based on the interpretation of the agreement, and not the evidence of Dilia. Finally, the Court of Appeal dismissed the suggestion that Dilia received a windfall: it held that Dilia received simply what she was to receive under the Separation Agreement.

Did you concur or are you in dissent?

Paul Trudelle

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Today I will set out a fact situation and let you determine the outcome. Tomorrow I will let you know how the trial judge and Court of Appeal decided the matter.

(As observed by a judge in Newmarket recently, being appointed a judge is like going to heaven – all lawyers want to go there, but just not yet.)

The Facts:

Albert and Dilia separated. They entered into a Separation Agreement whereby Albert was to pay spousal support to Dilia until she turned 65. He was also required to maintain a policy of life insurance benefitting Dilia in the amount of $100,000 until Dilia turned 65. The policy also provided that in the event that Albert died without insurance in effect, then his support obligations would be a first charge on the estate.

Albert died before Dilia turned 65. At the time of his death, he didn’t have the required life insurance. Dilia only received insurance proceeds of $43,507.15. She then sued Albert’s estate and his second wife, claiming the difference between the $100,000 that she was to receive under the Separation Agreement, and the amount that she in fact received.

Albert’s estate and second spouse argued that the policy of insurance was only security for the spousal support that Dilia was to receive, and that the insurance proceeds that Dilia received were in excess of her support entitlement. (It was an agreed fact that the support obligations until the age of 65 were less than the insurance proceeds received.) They argued that an award of $100,000 would be a windfall to Dilia.

What did the Court (and Court of Appeal) do? Tune in tomorrow.

(For those who can’t wait, see Turner v. DiDonato (2009), 95 O.R. (3d) 147 (Ont. C.A.).)

Paul Trudelle

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My colleague Natalia Angelini blogged on February 18 of this year about the increasing possibility that independent, adult children may be entitled to dependant support.

A 2009 Ontario Bar Association paper by Susan Woodley concluded that moral obligations of deceased parents in Ontario may require them to provide proper and adequate support to their children, spouse and dependants.

While the legislation in British Columbia clearly distinguishes any case from that province, a consideration of a recent case on point illustrates the roots of this evolving trend. 

In Sikora v. Sikora Estate 2009 BCSC 195, two of four adult sons of the testator brought an action under B.C.'s Wills Variation Act.  The Deceased had one child by his first marriage, three children with a subsequent common-law spouse, and at his death he was married to the defendant, San Meei Sikora. The Deceased’s residue to be divided amongst three sons equalled just over $11,500.

The two plaintiff brothers maintained contact with their father despite a difficult childhood. Each plaintiff provided evidence of respective incomes of about $90,000 and $35,000 and described their relationships with their father whom they assisted in his business and investment properties over the years. The Deceased’s wife’s responses created some credibility problems for her.

Justice Cullen reviewed the case law from the Supreme Court, Tataryn v. Tataryn Estate and a B.C. case, Clucas v. Clucas Estate (1999), 25 ETR (2d) 175 (BCSC) that summarizes the principles of the Wills Variation Act.

In Sikora, the Deceased’s wife accumulated her own assets while the Deceased did not. The plaintiffs showed that despite their independence their father had a moral obligation towards them.  The residue of the Deceased’s estate diminished in a manner that favoured his surviving wife and his moral obligation to his spouse was less firmly established than in other cases.

The Deceased used his money to purchase the matrimonial home, allowing the defendant to invest her money and increase her own assets. The plaintiffs succeeded and were therefore registered as tenants in common on a property with a life interest to the defendant.

Thank you for reading this week.  Enjoy your weekend.

Jonathan

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My mother used to volunteer with Goodwill, where one of the projects was a contents sale. A team from Goodwill would organize a home’s contents for sale – I have a frying pan purchased from one of those sales.

Several organizations exist to assist with different aspects of the moving process. One such example is Marsha’s Helping Hand, which helps when clients, particularly elderly people, want to downsize.   

There are a lot of memories to manage and items to be packed up, distributed or possibly sold. Often the house itself must be sold. Many scenarios are possible – elderly people are downsizing or a home is being sold as part of an estate. 

Estate sales can be slow however.  Recently, the New York Times focused on this issue: delays can occur in transactions because of the dynamics between distant beneficiaries and the estate trustee, or even because of the emotional energy required by heirs who are assisting with the removal of the Deceased’s belongings. 

There are understandable reasons for the delays in the estate sale process. Not least of which is that often the people who want to do the job are themselves busy with multiple responsibilities, be it child care or parent care or the demands of a paying job. Help is available though.  Organizations, which cater to these increasing needs can assist, according to a recent Globe and Mail article.

These practical issues often dovetail with legal duties of the Estate Trustee, a role that may be more manageable when a plan is in place. Costs should always be considered though because ultimately, the Trustee has a duty to account to beneficiaries.

Enjoy your day.

Jonathan

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 A recent decision from British Columbia, Desbiens v. Bernacki, 2008 BCSC 696 is a good reminder that a limitation period is a shield, not a sword. 

In Desbiens, the deceased had four children from a first marriage.  After his first wife left him, he placed three of his children in foster care; one child was adopted.  The deceased never provided financially for his children.  He eventually married his second wife.  His Will left his entire estate to his second wife.  His executrix later learned of the existence of the four children and found addresses for them among the deceased's belongings.  She mailed notices in the form prescribed by British Columbia's Estate Administration Act, along with copies of the Will.  None of the children received the notices, as the addresses were outdated.  The executrix did not apply to the court for directions and apparently took no active steps to verify the addresses or the current whereabouts of the children.  Three years after the deceased's death, three of the children commenced an pplication under British Columbia's Wills Variation Act.  The executrix and second wife sought to have their application dismissed, on the basis that the limitation period had expired.

The Court ultimately concluded that the executrix and the second wife were estopped from invoking the limitation period defence.  The Court held that the executrix did not meet the statutory degree of diligence required when giving notice and failed to "deliver" the notices as required by the Estate Administration Act.  Simply mailing the notices to unconfirmed addresses was insufficient, and the executrix should have made reasonable inquiries into the current whereabouts of the children.

Have a great day!

Bianca La Neve

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 A recent Ontario decision, MacDougall v. MacDougall Estate [2008] O.J. No. 2930 (S.J.C.), dealt with the issue of adequate provision for proper support under Part V of the Succession Law Reform Act (“SLRA”). 

The deceased died in 2004.  His widow (his wife from a second marriage) commenced an application for support from the deceased’s estate.   She claimed that the deceased had failed to make adequate provision for her.  The deceased had left her over $1 million in assets, which represented a significant portion of his assets.  The balance of the deceased’s estate was left to his children from his first marriage, and his grandchildren and great grandchildren.  The court found that the deceased had given careful consideration to the disposition of his estate and the needs of his widow. 

Although the widow qualified as a dependant at the time of the deceased’s death for the purposes of the SLRA, the court ultimately held that she was not entitled to support.  The widow had not met the burden of satisfying the court that the deceased had failed to make adequate provision for her.  Her current assets invested conservatively would generate $45,000.00 per annum net of tax.  The court found that the widow’s claim for support was driven not by need, but by her wish to live the lifestyle she had enjoyed with the deceased prior to 1998 when the deceased became ill. 

Have a great day!

Bianca La Neve

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Entertainment media has recently focused its eye on the death of celebrity pop-icon, Anna Nicole Smith. In one of last week’s blog entries Megan Connolly commented on the estate litigation left in her wake.

Today I wish to discuss another personality whose death has made headlines - legendary soul singer, James Brown.

Brown sadly died of heart failure on December 25, 2006. Although it has been almost eight weeks since his death, his body has yet to be buried. This is reportedly due to a dispute between relatives and his former partner, Tommie Rae Hynie over burial procedures and rights to the assets of the estate.

Brown's Will excludes Hynie and their 5-year-old son. Hynie maintains that she is Brown’s widow and ought to receive half of his estate. Brown’s attorneys claim that the marriage was not official because Hynie was married to another man at the time.

If Brown and Hynie’s marriage is not ultimately recognized, she may be awarded nothing from the estate. Their son, on the other hand, will most likely be entitled to share in the portion of the estate gifted to Brown’s other six children.

It will be interesting to see how and when this dispute resolves itself so that Brown can at long last receive a proper burial. Until then, as the National Post reports, Brown’s body will be held in a temporary crypt in an undisclosed location.

Until tomorrow,

Natalia Angelini

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As you know, we have dedicated a few recent blogs (see our June 30, 2006 and July 3, 2006 posts) to the Ontario Court of Appeal's decision in Cummings v. Cummings.

Perhaps, most notably, in determining the quantum of support to award in this decision, the Ontario Court of Appeal endorsed the concept of dependant's support as a re-distribution of family wealth or property.

In this regard, the Court stated (at paragraph 48):

There is another reason why the Tataryn approach fits in Ontario as well. The view of dependant's relief legislation as a vehicle to provide not only for the needs of the dependants (thus preventing them from becoming a charge on the estate) but also to ensure the spouses and children receive a fair share of family wealth, was also important to the Court's analysis in that case.

Just how awards for support under the Family Law Act will be affected by the Cummings v. Cummings decision remains to be seen. In resolving that problem, however, consideration of both the Tataryn and the Cummings cases must be given.

We hope you enjoyed our review of this important turning point in the area of dependant's relief, and we intend to continue to follow the issue and discuss further developments in future blogs.

All the best, Suzana and Ian. --------

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In Cummings v. Cummings, the Court of Appeal affirmed the decision made by the application judge at first instance.

In coming to this conclusion, the Court of Appeal was strongly influenced by the concepts set out in the decision of the Supreme Court of Canada in Tataryn v. Tataryn Estate ([1994] 2 S.C.R. 807 (S.C.C.)).

The decision in the Tataryn case held that moral considerations were applicable to a determination as to the amount of a dependant's support award in the context of the British Columbia statute (The Wills Variation Act, R.S.B.C. 1979, c. 435).

Until the Cummings v. Cummings decision, the approach to quantifying dependant's relief claims in Ontario was to essentially ignore the Tataryn moral considerations approach. This was as a result of the fact that the Tataryn decision was an appeal from the British Columbia Court of Appeal and was in respect to section 2(1) of the Wills Variation Act, which included substantially different wording than that of the SLRA. The Wills Variation Act assists dependants where there is a will which does not "in the Court's opinion, make adequate provision for the proper maintenance and support of the testator's wife, husband or children".

It is this language that has allowed the British Columbia Courts to approach the whole question of quantifying dependant's relief on a very different basis and on a moral conviction approach. The language in the Wills Variation Act is broadly drafted and essentially allows the Court to do what it thinks is adequate, just and equitable in the circumstances.

With the Cummings v. Cummings decision essentially embracing the decision of Tataryn, a very different approach must be considered in respect of quantifying dependant's relief claims in Ontario.

We hope this case gives you an idea of the application of the basics legal definitions and terms.

All the best, Suzana and Ian. --------

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No review of the area of dependant's relief is complete without considering the leading Ontario Court of Appeal decision in Cummings v. Cummings (on the application for support, see (2004), 5 E.T.R. (3d) (81) (Ont. S.C) (Cullity, J.); on the appeal to the Ontario Court of Appeal, see (2004) 5 E.T.R. (3d) (97) (Ont. C.A.).

 As a result of Cummings v. Cummings, the Court has forced the Estate's Bar to reconsider matters of support under Part V of the Succession Law Reform Act ("SLRA").

Historically, claims relating to support of dependants under Part V of the SLRA were a fundamental restriction on testamentary power.

As to the question of the power of the Court itself, section 58 (1) of the SLRA confers on the Court the ability to make an order for support where a deceased has not made adequate provision for the proper support of his/her dependants. In McSween v. McSween ((1985), 21 E.T.R. 195 (Surr.Ct.)), Justice Carnwarth sets out the appropriate guidelines in considering "adequate provision for the proper support of a dependant".

The case of Cummings v. Cummings was a most difficult one for the judges to determine as the facts were somewhat unusual and were as follows:

Bruce Norman Cummings (the "deceased") died on June 22 1998, survived by his first wife, Mary Anne, whom he married in 1968, and from whom he was separated in 1986 and from whom he was divorced in 1992.

They had two adult children, Paul, 28, and Elizabeth, 22, both of whom were dependants. Paul was 24 years of age at his father's death and was seriously and permanently disabled to the extent that it would take many times the value of all of the assets of the estate, both real and notional (as clawed back pursuant to section 72(1)(d) of the SLRA), to properly support him for the rest of his life. The deceased was under an obligation to provide support by Court order to Paul.

His daughter, Elizabeth, was eighteen years of age at her father's death and was attending university and was entitled to support under the Court order as well.

The deceased and his second wife, Ruta, commenced living together in 1988 and were married in 1997.

At the time of the divorce from his first wife, the deceased was earning approximately $300,000 per year and his employment was terminated in 1994.

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As to the adequacy of support, section 62(1) of the Succession Law Reform Act provides as follows:

62. (1) Determination of amount - In determining the amount and duration, if any, of support, the Court shall consider all the circumstances of the application, including,

(a) the dependant's current assets and means;

(b) the assets and means that the dependant is likely to have in the future;

(c) the dependant's capacity to contribute to his or her own support;

(d) the dependant's age and physical and mental health;

(e) the dependant's needs, in determining which the Court shall regard to the dependant's accustomed standard of living;

(f) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(g) the proximity and duration of the dependant's relationship with the deceased;

(h) the contributions made by the dependant to the deceased's welfare, including indirect and non-financial contributions;

(i) the contributions made by the dependant to the acquisition, maintenance and improvement of the deceased's property or business;

(j) a contribution by the dependant to the realization of the deceased's career potential;

(k) whether the dependant has a legal obligation to provide support for another person;

(l) the circumstances of the deceased at the time of death;

(m) any agreement between the deceased and the dependant;

(n) any previous distribution or division of property made by the deceased in favour of the dependant by gift or agreement or under Court order;

(o) the claims that any other person may have as a dependant;

(p) if the dependant is a child,
(i) the child's aptitude for and reasonable prospects of obtaining an education, and
(ii) the child's need for a stable environment;

(q) if the dependant is a child of the age of sixteen years or more, whether the child has withdrawn from parental control;

(r) if the dependant is a spouse,

(i) a course of conduct by the spouse during the deceased's lifetime that is so unconscionable as to constitute an obvious and gross repudiation of the relationship,
 
(ii) the length of time the spouse cohabited,
 
(iii) the effect on the spouse's earning capacity or the responsibilities assumed during cohabitation,
                                                                                                                        
(iv) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

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One of the first considerations that must be carefully reviewed when considering a support claim is the question of "Who is a dependant?" Section 57 of the Succession Law Reform Act defines a "dependant" as:

(a) the spouse of the deceased,

(b) a parent of the deceased,

(c) a child of the deceased, or

(d) a brother or sister of the deceased,

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

Each of the terms "child", "parent" and "spouse" is further defined by section 57 as follows:

"child" means a child as defined in subsection 1(1) and includes a grandchild and a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody;

"parent" includes a grandparent and a person who has demonstrated a settled intention to treat the deceased as a child of his or her family, except under an arrangement where the deceased was placed for valuable consideration in a foster home by a person having lawful custody;

"spouse" means a spouse as defined in subsection 1(1) and in addition includes either of two persons who,

(a) were married to each other by a marriage that was terminated or declared a nullity, or

(b) are not married to each other and have cohabited,

(i) continuously for a period of not less than three years, or

(ii) in a relationship of some permanence, if they are the natural or adoptive parents of a child.

The definitions provided allow for some scope with respect to a class of dependants.

There are also questions as to the meaning of the requirement that the deceased was "providing support" and the meaning of the phrase "immediately before his or her death".

We will look into these legal questions in the context of the definitions and the case law in future blogs.

All the best, Suzana and Ian. --------

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(a) the deceased's wife or husband;

(b) a brother or sister of the deceased;

(c) a former wife or husband of the deceased;

(d) a child or grandchild of the deceased; and

(e) a person treated by the deceased as a child of the family in relation to any marriage of the deceased.

58. (1) Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the Court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants or any of them.

(a) support claims are paid out of testate or intestate estates;

(b) "proper support" is truly a term of art and we will explore it in future blogs;

(c) the "Court" means the Superior Court of Justice;

(d) the claim must be made on Application;

(e) much like "proper support", "adequate provision" is a term of art that needs careful consideration; and

(f) the claim may be paid out of the assets of the estate, meaning estate assets in the usual sense plus any "clawed back" assets referred to in section 72.

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In an effort to discuss claims against an estate that relate to dependant support and to claims of the surviving spouse, we thought it would be interesting to embark on a mini-series on the topic.

Family Law Act Claims

Subject to a contract to the contrary, section 6(1) of the Family Law Act provides for the right of the surviving spouse to make an equalization claim against the assets of the estate.

Since the 1970s, a general statutory proposition prevails that the value of "family property" should be split up equally when the marriage ends, regardless of which spouse holds to the property.

With the coming into force of the Family Law Reform Act, 1986 (R.S.O. 1980, c.152 (repealed and replaced by the Family Law Act 1986, S.O. 1986, c.4)), Ontario established a deferred community of property regime, which added a new dimension in relation to its impact upon surviving spouses and estates of deceased spouses and other persons who have an interest in their estates.