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.

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