Pursuant to dependant support legislation, courts have significant jurisdiction to provide support for those who qualify as dependants, and who have not been adequately provided for by the deceased. The remedies available to a dependant are broad, and the court has the jurisdiction to, essentially, rewrite the will so as to make adequate provision for the dependant.
The recent case of Soule v. Johansen Estate, 2011 ABQB 403 (CanLII) is a good illustration of such a rewriting of a will. There, the deceased died leaving a will that gave all of her estate, approximately $116,000, to the SPCA in Calgary, Alberta. The deceased intentionally disinherited her adult son. The son brought a proceeding against his mother’s estate, claiming that he was a dependant of the deceased and that he was not adequately provided for by the deceased.
In making its decision, the court referred to the common law recognition of a testator’s right to choose how to dispose of his or her property by will. However, the common law is changed by dependant relief legislation that seeks to balance testamentary autonomy with legal and moral obligations owed to dependant individuals in need. Under the legislation, a form of which is in effect across the country, a testator has a duty to make adequate provision for the proper maintenance and support of a surviving spouse and children. (In Ontario, the definition of “dependant” includes an even broader group.) If the testator fails to discharge this duty, the court may order provision from the estate that is “adequate, just and equitable”. Testamentary autonomy must yield, to the extent necessary, to provide such support to dependants.
In Soule, the court found that the son was a “dependant” under the legislation because he was unable by reason of mental or physical disability to earn a livelihood. (Note that the Ontario legislation does not contain the same definition of “dependant”.)
In the end, the court awarded $10,000 to the SPCA, and the remainder of the estate to the son.
Can a deceased person, immediately before his or her death, be found to have been in a common law spousal relationship with two persons, each of whom could assert a claim for support as a dependant? This was the interesting question recently considered on a motion for interim support under Ontario's Succession Law Reform Act ("SLRA").
In Blair v. Cooke, the Applicant commenced an Application against the Estate seeking dependant support, and subsequently brought a motion seeking interim support from the estate. In support of her application, the Applicant filed an extensive affidavit describing the history of her relationship with the Deceased and argued that she is a dependant spouse of the Deceased, thus, entitled to support under the provisions of the SLRA. The court was also provided with numerous affidavits of friends and acquaintances confirming the Applicant’s 11-year relationship with the Deceased.
The Respondent is the estate trustee of the estate for the Deceased, and also argues that she is the Deceased’s common law spouse. It is important to clarify that the Respondent does not make a claim for dependant support, but rather opposes the Applicant’s application. In doing so, the Respondent filed her own affidavit and the affidavit of friends and acquaintances, which would corroborate that she was the Deceased’s common law spouse. The Respondent argued the court should not make any finding of entitlement to support for the Applicant, because doing so would preclude her from claiming support (if she decided to make a claim at a later date) or claiming that she was in fact the “spouse” of the deceased.
In considering whether or not a person could have two spouses for the purpose of making a dependant support claim, the court considered section 57 of the SLRA, more particularly the following definitions:
1. “Dependent” can be a “spouse 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...”.
2. “Spousal” is further defined under the SLRA as “either of two persons who...are not married to each other and have co-habited...continuously for a period of not less than three years”; and
3. “Co-habit” is defined to mean living together “in a conjugal relationship”.
The “twist” that I found interesting in this case, was that the court found that there was enough evidence to conclude that the deceased may have co-habited with two different women, in different homes. The court stated that they did not have to determine that one party was a spouse and the other was not for purposes of awarding interim support; in fact both women could qualify. The Applicant was awarded interim support.
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. Cummings2004 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.
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 Estateand 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.
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.
This week on Hull on Estates, Natalia Angelini and Craig Vander Zee discuss dependant relief and reference a variety of cases that utilized the Succession Law Reform Act.
Natalia Angelini: Hello and welcome to Hull on Estates. You’re listening to Episode 117 on Tuesday, July 1st, 2008.
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.
Natalia Angelini: Hi and welcome to another episode of Hull on Estates. I’m Natalia Angelini.
Craig Vander Zee: And I’m Craig Vander Zee.
Natalia Angelini: If you want to be heard on Hull on Estates you can participate in our discussion by leaving a comment, give us a call at 206-350-6636. The number is in the show notes along with our e-mail address, hull.lawyers@gmail.com or you can visit our blog page at estatelaw.hullandhull.com. So welcome everyone, it’s Canada Day.
Craig Vander Zee: Happy Canada Day to you, Natalia.
Natalia Angelini: Thank you. I’m thrilled to be at work on Canada Day and podcasting with you, Craig.
Craig Vander Zee: It’s certainly my pleasure as well.
Natalia Angelini: Great. So why don’t we get started. Today we’re talking about dependants relief and in particular, we’re going to be discussing the case of Cummings and Cummings and some of the subsequent cases that have applied it.
Craig Vander Zee: Well starting off, Natalia, as we know, the Succession Law Reform Act governs the rights of beneficiaries to receive support and other benefits upon the death of an individual. And more specifically, without getting into the wording of Section 58, it’s Section 58 which enables one to make this application to the Court for dependant support.
Natalia Angelini: That’s right and that’s what happened in Cummings and Cummings and perhaps, Craig, you can tell our listeners what the decision was in that case.
Craig Vander Zee: Well I think before heading into the decisions on Cummings and Cummings, it’s really important to really understand what we’re talking about today, that whether moral and ethical considerations find their way into the consideration of a judge in the Court when a dependant support claim is being considered. And what is certainly, Cummings is well recent in jurisprudence, it’s certainly not recent in the sense of it just coming out. But what was interesting in Cummings is that the Court of Appeal said that prior to 1978, while moral and ethical considerations were important in dependant support claims, or at least that they were thought of as considerations, the Ontario Court of Appeal had not considered to what extent they’re taking into consideration given the new legislation. Because prior to 1978, and prior to the Succession Law Reform Act, Ontario had a prior Act which was called the Dependant’s Relief Act. And in 1978, when the Succession Law Reform Act came into being, Section 58 was then the enabling Section in the legislation and what the Court of Appeal was saying is, that this particular aspect, moral and ethical consideration, had not been specifically considered by that Court and how it would affect the actual Section. And that’s why Cummings is important, because it’s really the first time in excess of 20 years that the Court took a look and actually focused on how and in what manner moral and ethical considerations are to be regarded when a dependant’s support claim is brought.
Natalia Angelini: Exactly, great point, Craig. And what the Court of Appeal did find in Cummings was that when examining all of the circumstances of a dependant support application, the Court has to consider two things. Firstly, what legal obligations would have been imposed on the deceased had the question of provision arisen during his or her lifetime. And secondly, what moral obligations arise between the deceased and his or her dependants as a result of society’s expectations of what a judicious person would do in the circumstances.
Craig Vander Zee: And the Court found its way to that reasoning, in part, based on the Supreme Court of Canada’s decision in Tatteron and Tatteron which was a 1994 decision by the Supreme Court of Canada. And what distinguishes Tatteron is it was a decision that arose out of B.C. and was a decision that was considered in the context of British Columbia’s Wills Variations Act. And the Court, at that point in time the Court being the Supreme Court of Canada, found that a deceased’s moral duty towards his or her dependants is a relevant consideration in a dependant’s relief application and that judges are not limited by simply conducting a needs based economic analysis in determining what disposition to make.
So, while the thought might have been prior to Cummings, at least in Ontario, that it’s a needs based decision, the Court said in Cummings, no, we’re going to rely on what the Supreme Court of Canada said in Tatteron that takes it one step beyond a needs based analysis. And while there were differences perhaps, obviously between the British Columbia Wills Variation Act and the Succession Law Reform Act, the Ontario Court of Appeal just essentially came to the conclusion that those disparities weren’t important and certainly not important enough to have this not being a consideration. And so clearly then, the Court of Appeal enunciated that a needs based analysis is not the end test. The end test is to consider moral and ethical considerations. And with that, I think we then turn to the Cummings decision and the facts to see why the Court might have come to that decision.
Natalia Angelini: Okay, great. Why don’t I turn to the facts of the case? So, I’ll just succinctly set them out. Essentially Mr. Cummings died leaving a widow, a former spouse and two children, Paul and Elizabeth. And they were children from his marriage to his former spouse. So, his children were dependants under the SLRA, there was no dispute about that. And one of the children, Paul, even though he was an adult, he suffered from Muscular Dystrophy, so it was also not in dispute that his future care would far exceed the value of the deceased’s estate.
Craig Vander Zee: I think what’s important in Cummings to point out is that the two children, the daughter was 18, she was attending university, and the son, who you’ve just mentioned who was unfortunately suffering from Muscular Dystrophy, was 24 years old. And it wasn’t argued as between the parties that the son’s future care wouldn’t exceed the assets in the estate. And what happened was that the widow and the first wife both did not make dependant support claims. It was essentially clear, my understanding that they didn’t need support and had agreed, or at least weren’t making dependant support claims. So that it was really the claims being advanced on behalf of the children. And the actual claims themselves were for payment of arrears of child support ordered in the judgment for divorce. I guess the deceased had arrears outstanding. And then also to provide for a trust as set out in the Will for both of the children, and then also seeking additional payments for support. Now the twist on this is that there was only $135,000 in the estate, unless you clawed back assets under Section 72 of the Succession Law Reform Act that would allow for the estate to be of an increased value. And when the assets, being a cottage property and the matrimonial home and the deceased’s RRSPs, all of which the widow had interest in or was a designated beneficiary of, were clawed back in, at least his portion, the estate had a value of $637,000. And so that’s what the Court was left with in deciding how to deal with that amount.
Natalia Angelini: Right, and the Court concluded that in all of the circumstances, that the support should be set at $250,000 and that was to be payable by way of a lump sum with a maximum of $10,000 for the daughter to complete her Master’s degree and the balance of it to go to care for the adult son. In addition, the Court also ordered that support arrears, in just over $50,000 should be paid to the former spouse.
Craig Vander Zee: And really, one of the important things, what the Court tried to do, was to balance the varied interests of the parties before the Court. And the Court of Appeal held that moral considerations are not something to be contemplated in addition to or in isolation from the factors that are listed in the Succession Law Reform Act when considering an application. And so it is something that, in the context of a dependant support claim, that needs to be at the forefront of the parties. And while there have been a number of decisions about Cummings since Cummings came out and again, it’s a 2004 decision, really the aftermath of Cummings is yet to completely unfold. There have been a number of cases, but in many of these cases as might be anticipated, you have situations where you would think that dependant support would be given in the context. And so it’s difficult to actually, perhaps, isolate the exact amount that’s factored or that’s being included because of a moral based decision versus an economic needs based analysis. But a couple of those decisions we can talk about briefly right now, Natalia.
Natalia Angelini: Great, so why don’t we start with an interesting case by the name of Simpson and Leardi. It’s a 2005 decision of the Ontario Superior Court of Justice. And in that case, the deceased had left a substantial estate of about $10 million and the plaintiff, herself, had about $3 million. But she was seeking support under the SLRA and she had already been awarded interim support of about $2700 a month.
Craig Vander Zee: Yeah, I think the important thing there is that the Will left her $1,000 per month and that she had already brought an interim support proceeding where the Court granted her $2750 per month. And at this point, that is, the point in time where it was before the Court, the estate trustees were bringing on a motion to cease, terminate that increased support on the basis that she no longer had a need for it.
Natalia Angelini: Right and the plaintiff was defending that motion and cited Cummings to support her argument that when the moral duty of the deceased is to take her into account, that she should get her fair share of the wealth. And she did concede, however, that on a needs based analysis, she would not likely obtain a support order. However, she still maintained that the interim order should continue.
Craig Vander Zee: And the judge here took a look at the situation and said, well no, what you’re really trying to do is to expand upon Cummings here. The plaintiff was making the argument that really what should be done is you’re taking into account the respective wealth of the parties and reapportion that wealth in a fair manner because the estates were $10 and $3 million respectively. And the Court said, no, no, no, we’re not going that far on this. We’re going to terminate the interim support. The application for support is still ongoing so it’s important to remember here that the judge wasn’t making a decision in a final way as to the support. But the judge just said on an interim basis, no, you’re not going to make an argument here based on equalization of wealth. That’s not what Cummings stood for. And as a result, the interim support was cancelled but the application for support continued and that might be pursued by the plaintiff.
Natalia Angelini: Right and one of the things that the Court might have taken into account when making that decision was that the plaintiff’s personal financial circumstances had improved since the interim order. So that might have just been one nuance that assisted in that determination being made.
Craig Vander Zee: One other case to consider, Natalia, is the case of Broderick I’m going to have problems here pronouncing this one, so thank you for letting me be the one to pronounce the name, Papathousiou. Anyways…
Natalia Angelini: No, no, no, Papathanasiou.
Craig Vander Zee: Okay, well…
Natalia Angelini: for all the Greek people out there, I hope haven’t offended.
Craig Vander Zee: What I can say is it’s a 2006 case, the Ontario Superior Court of Justice. And in this case, Miss Broderick contended that she had lived with the deceased in a common-law relationship for eight years prior to his death, and the deceased had not provided for her in his Will, or even during her lifetime. Miss Broderick had earned even in some years more money than the deceased, but they lived in residences owned by the deceased. I guess they had moved a couple of times but on each occasion, the funds for the residence and the ownership of the residence was in and had been provided by the deceased. And she brought a dependant support claim asking the Court for an order that support be provided to her under the Succession Law Reform Act.
Natalia Angelini: So the Court essentially found in favour of Miss Broderick in this matter and it found that contributions by her to the deceased, both to his personal and financial well-being to the detriment of her own finances, should be recognized by an award from the estate. And the Court, in making this decision, cited Cummings. However, making that determination, the Court also found that there weren’t enough assets in the estate to provide for Miss Broderick so it ordered that the deceased’s condominium be sold and that she get one-half of the net proceeds in recognition of her contributions.
Craig Vander Zee: And it’s, you know, in these kinds of cases, sometimes it’s difficult to know if Cummings had not been a case that had come around in recent years what she would have received. But, you know, clearly the Court found that she had contributed to both the personal and financial well-being of the individual. And also, what is intriguing about these types of cases is that they appear to be situations where there would have been a possibility of dependant support. In this particular one, they had found that she had contributed to the finances and to his personal well-being and had not been compensated, although that was clearly to her detriment. So the Court, in making that finding, as you said, Natalia, relied on Cummings and the deceased’s moral duty towards her as a dependant and that being a relevant decision.
Given our time today, I don’t think we’re going to get into the other cases. But there are some others to consider which are: Reid v Reid, it’s a 2005 Ontario Superior Court of Justice case. And then also the case of Pirelli and Foley Estate, which is a 2006 decision of the Ontario Superior Court of Justice. And what’s interesting, just quickly about Pirelli is that it appears to expand on the reasoning in Cummings where the judge, in this particular case, said after you look and identify all the dependants who make a claim on an estate, then the Court must tentatively value those claims of those dependants by considering the factors set out in the legislation and the legal and moral obligations of the estate to the dependants. But, and here is what seems to be the addition to it, is that the Court must identify those non-dependant persons who may have a legal or moral claim to a share of the estate. And then the Court must attempt to balance the competing claims to the estate by taking into account the size of the estate, the strength of the claims and the intentions of the deceased amongst other things. And so while it is unclear, for sure, where Pirelli leaves us, and whether that would be followed in another case, it does give us some view into a crystal ball as to where these types of claims may be going in the future. And so, again, the aftermath of Cummings is not yet known, but certainly and without a doubt, it’s being applied by Courts in Ontario.
Natalia Angelini: Absolutely. Thanks, Craig.
Craig Vander Zee: And with that, I bid you a good Canada Day and I hope you enjoy the fireworks tonight.
Natalia Angelini: It was a pleasure podcasting with you and we look forward to hearing from our listeners. So you can send us an e-mail at hull.lawyers@gmail.com or just pick up the phone and leave us a message on our comment line at 206-350-6636. Be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of estate law. We hope you enjoyed the show. I’m Natalia Angelini.
Craig Vander Zee: And I’m Craig Vander Zee. Until next week, so long.
Natalia Angelini: So long.
This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.
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Today’s blog is the third in my series this week on cases in the post Cummings v. Cummings era.
Today’s case is Simpson v. Leardi, [2005] O.J. No. 4282 (Ont. S.C.J.).
In Simpson, the deceased had left a substantial estate. The plaintiff had brought an Application pursuant to the Succession Law Reform Act seeking support in the amount of $3,750 per month. The plaintiff was already receiving $1,000 per month pursuant to the deceased’s Will, leaving an alleged deficiency of $2,750 per month. The Court ordered that the Application be converted to an action and made an order awarding the plaintiff $2,750 a month in interim support.
The parties were subsequently in agreement that the plaintiff’s personal financial circumstances had improved since the interim order. The estate of the deceased was worth $10 million and the plaintiff’s assets were worth approximately $3 million.
The defendants, the estate trustees of the estate of the deceased, then brought a motion seeking the termination of the interim order for the support of the plaintiff.
The plaintiff cited Cummings as support for her position that when the moral duty of the deceased to her is taken into account, the plaintiff should receive her fair share of the deceased’s wealth. The plaintiff conceded that based on a “needs based” analysis, she would not likely obtain a support order. The plaintiff contended, however, that the interim order should be maintained.
The Judge terminated the interim support, declining to accept the plaintiff’s argument that Cummings allows a court to take into account the respective wealth of the parties and reapportion that wealth in a “fair” manner.
The judge noted that it was important that after the parties’ positions are put forward at trial, a judge may well determine that the plaintiff is entitled to more support than the $1,000 stipulated in the deceased’s Will. The plaintiff had not established, however, at the time of the motion, a continued need for interim support.
Last week, I presented a paper at the 10th Annual Estates and Trusts Summit on Dependant Support Claims. Afterwards, my colleague, Jordan Atin, brought an interesting case to my attention regarding the definition of "dependant" under Part V of the Succession Law Reform Act ("SLRA").
In Re Cooper *, the trial judge held that the applicant, Mrs. Hampton, had failed to fit herself within the definition of a "dependant" as defined in the Act. Mrs. Hampton appealed to the Divisional Court, which ultimately allowed the appeal.
Mr. Cooper died intestate such that his insurance and pension monies would go to Mrs. Cooper (his first wife) and the Cooper children would inherit the balance of the estate.
Mrs. Hampton and Mr. Cooper had been living together in a common-law relationship for over 7 years right up until Mr. Cooper's death. The evidence made it clear that Mr. Cooper and Mrs. Hampton acted like a normal married couple.
The most interesting aspect of the case to me is that the Divisional Court held that the issue of support was not contingent on one person making a greater financial contribution than another. In sharing common expenses, a couple, married or not, were supporting each other.
According to the Divisional Court, Mrs. Hampton was a dependant of the deceased within the meaning of the SLRA. Mr. Cooper was also providing support, or was under a legal obligation to provide support, immediately before his death. The court determined that the obligation to provide support to the other spouse remained as long as the relationship of the two parties as spouses continued notwithstanding that Mrs. Hampton was not receiving actual support from Mr. Cooper before his death and regardless of whether Mrs. Hampton could have successfully made a claim for support while Mr. Cooper was alive.
Re Cooper stands for the proposition that a spouse (married, common-law, or same sex) automatically qualifies as a dependant. The issue then becomes whether the spouse is entitled to a dependant support order in the circumstances.
Thanks for reading.
Justin
* Link not available - see 7 E.T.R. 118, 30 O.R. (2d) 113
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,
(v) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
(vi) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse had devoted the time spent in performing that service in remunerative employment and had contributed the earnings to the family's support,
(vii) the effect on the spouse's earnings and career development of the responsibility of caring for a child,
(viii) the desirability of the spouse remaining at home to care for a child; and
(s) any other legal right of the dependant to support, other than out of public money.
(2) Evidence - In addition to the evidence presented by the parties, the Court may direct other evidence to be given as the Court considers necessary or proper.
(3) Idem - The Court may accept such evidence as it considers proper of the deceased's reasons, so far as ascertainable, for making the dispositions in his or her will, or for not making adequate provision for a dependant, as the case may be, including any statement in writing signed by the deceased.
(4) Idem - In estimating the weight to be given to a statement referred to in subsection (3), the Court shall have regard to all the circumstances from which an inference can reasonably be drawn as to the accuracy of the statement.
Tomorrow we will begin to look at how these legislative terms are being applied by the Courts.
