The Curtailment of Testamentary Freedom in the Interest of Dependant’s Claims

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As seen in the previous publication the principle of testamentary freedom is not an absolute one and the courts in Canada may interfere with that freedom in several ways. One way in which testamentary freedom is curtailed is by the provision of the Succession Law Reform Act of Ontario (SLRA).  Section 57 of the Act provides that where a deceased has not made adequate provisions for his dependants the court may order such provisions as it considers adequate to be made out of the estate of the deceased. For the purposes of the SLRA the term’ dependants’ refers to the deceased’s spouse, parent, child or brother and sister to whom the deceased was providing support at the time of his or her death.

The interpretation of ‘providing support at the time of death’ is quite broad and therefore not necessarily limited to provision of financial support. In the 1979 case of Davies and Davies, the court stated that ‘support’ is not limited to providing food and other necessities but also includes moral and physical support. In that regard, anyone who has received any kind of support, financial or otherwise, from the deceased, may be deemed to have been a dependant who was being supported by the deceased at the time of death.

Case law has also shown that the court does not necessarily base its decision on the fact that the dependant may already have ‘sufficient’ means of support.  The case of Morassut v. Jaczynski et al., 2013 ONSC 2856 illustrates this point. In that case the Applicant brought a claim under section 58 of the SLRA for support from the estate of his deceased common law spouse. Evidence before the court was that the applicant was bequeathed $1,000,000.00 by the deceased. The Applicant also owned several vehicles and had TFSA and RRSP accounts valued in excess of $200,000.00. He also left a home valued in excess of $400,000 upon the death of his common law spouse.  It was clear that the Applicant was relatively comfortable financially even though at fifty five years of age he would have found it difficult to obtain employment.  By comparison, the value of the deceased’s estate was in excess of $17,000,000.00.

Although the Applicant has sufficient assets the Court determined that he was not left ‘adequate support’ given the size of the deceased’s estate. The court ordered that he should be paid $100,000.00 per year from the Estate of the deceased.

In his reasoning Justice Greer stated that the court views  ‘dependants’ in succession cases differently from how it views ‘dependant’ in family law cases. In the latter, the court will take into account the dependant’s ability to work and support himself. In succession law cases the question is whether ‘adequate provision’ has been made for the dependant, regardless of whether or not the dependant has financial means of his own or has the ability to work and support himself.  The dependant is therefore under no obligation to become self-sufficient. This was reiterated when the case was appealed in 2015. The only time the court is required to examine the dependant’s capacity to take care of himself is when the amount of support needs to be determined.

In determining the entitlement to receive support the court considers all the circumstances of the case and takes a very broad view of the issues. To that end, the court not only considers the legal obligation of the deceased to make provision for his dependant but also the moral obligation.


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