dependant's relief - Toronto Estate Law Blog

Family Obligations

Hull and Hull LLP — Wed, 19 Jan 2011 05:00:00 -0500

Moral and legal obligations overlap when the Legislature or the Courts make laws respecting the governance of family relationships. For example, science tells us that we have a moral obligation to care for our minor children hardwired into our DNA. And the common law has clearly defined the fiduciary duty that overlays this moral obligation.

Conversely, at the other end of our life, the reciprocal duties between parents and their adult children are not always as clear cut. As my colleague Natalia Angelini pointed out in a recent blog, the Courts in British Columbia have applied the applicable provincial statute to legally enforce a parent's moral obligation to provide a fair share of his or her estate to their adult children. In Ontario, where there is not the same statutory authority, the Court of Appeal has nonetheless observed the existence of moral obligations that exist between parents and children.

While, in Ontario, the legal enforcement of the moral obligation to provide support to adult children from one's estate appears to first require dependency, the situation is less clear where parents are in need of support from their adult children. This may be a developing area of law for the family law bar. More than one commentator has predicted an increase in the seldom used provision of the Family Law Act mandating adult children to support their parents as the demographic shift to a more aged population continues.

On a closing note it is interesting to note that China is considering imposing a legal obligation on adult children to visit their aged parents. As reported by CNN: "A draft amendment to China's 'Elderly Law' requiring the children of elderly Chinese to visit home more often is being considered by the government. If passed, it would require children to care for their parents' “spiritual needs and cannot neglect or isolate them.”

David M. Smith - Click here for David Smith.

Common Law Spouse of Popular Author questions Sweden's inheritance laws

Hull and Hull LLP — Wed, 02 Sep 2009 06:23:15 -0500

I recently finished reading The Girl with the Dragon Tattoo by Swedish author, Stieg Larsson. Larsson is one the world’s best selling authors, having sold 20 million books worldwide. He is currently on both the hardcover and paperback fiction bestsellers lists for the Globe and Mail and the New York Times.

In 2004, shortly after entering into a publishing agreement, Larsson unexpectedly died at the age of 50. His three bestselling novels were published posthumously and have been immensely popular both in Sweden and internationally.

The drama behind his estate has also captured Sweden’s attention pitting Larsson’s common law spouse of thirty years, Eva Gabrielsson, against Larsson’s other surviving relatives.

While at the time of his death, Larsson’s estate was modest, the success of his books has resulted in a windfall for his estate. A Will made in 1977, leaving his estate to the Communist Workers League, was found to be invalid and Mr. Larsson was found to have died in intestate. Larsson’s father and brother inherited his full estate.

Gabrielsson inherited nothing from Larsson’s estate and has become a symbol for what many see as unfair inheritance laws. She is currently writing a memoir on her experiences and is working to change Sweden’s inheritance laws to include rights for common-law spouses.

In Ontario, common law spouses are not included in Part II of the Succession Law Reform Act, which governs intestate succession. A common law spouse can bring a dependant’s relief claim to sue the estate for support or bring a claim for unjust enrichment, constructive trust, or quantum meruit claim against the estate.

Thanks for reading,

Diane Vieira

Diane Vieira - Click here for more information on Diane Vieira.

A Look at the Moral and Legal Obligations to Dependants

Hull and Hull LLP — Wed, 30 Apr 2008 05:03:06 -0500

An Alberta case, Re Boychuk, looks at the legal and moral obligations to provide support to a dependant of the estate.

The testator executed his Will in 2003 when he was 89 years old leaving his entire estate, just over $62,000.00, to two of his five children and leaving nothing to his wife of 71 years who resided in a nursing home. The testator’s wife suffered from dementia and a stroke and had been living in a long term care facility since 1997.

Alberta’s Office of the Public Trustee, as the trustee of the wife’s property, brought an application pursuant to Alberta’s Dependant’s Relief Act for an order that the residue of the estate be paid to the Public Trustee for the proper maintenance and support of the wife. The Respondents were the executors of the testator’s estate.

The Court found that the wife was a dependant of the estate and adequate provisions were not made for her maintenance. The Court rejected the Respondents’ argument that the support claimant currently had a surplus of income over expenses for each month, including a trust for unanticipated expenses, and no need for any additional support. The Court found that while the support claimant may presently be able to meet her expenses it does not mean that she will always be able to nor does it mean that she should be deprived of her entitlement and stated that the testator had both a legal and moral obligation to provide support to his wife. The Court also noted the length of the marriage and the extensive contributions the wife had made to her husband’s estate.

Thanks for reading,

Diane Vieira