02/13/2013 08:19 EST | Updated 04/15/2013 05:12 EDT

Does Your Will Leave Loved Ones With Enough?

Families are becoming more complex. People are living longer and entering into second and third marriages like never before. Coupled with increased wealth, this is leading to an increased number of family law claims against estates.

In our practice, we often see instances where surviving spouses are not adequately provided for. With more wealth comes an enhanced lifestyle and testators often fail to take this into account when drafting their wills. What is thought to be enough at the time might not be enough in actuality.

In Ontario, Part V of the Succession Law Reform Act (the "SLRA") provides a comprehensive scheme for claims for support by dependants of the deceased. The relevant section is s. 58(1), which states:

"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."

Section 57 of the SLRA sets out a two-part test as to who qualifies as a dependant. First, the dependant must be a spouse, parent, child or sibling of the deceased; and second, the dependant must also be a person to "whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death."

The terms "spouse," "parent" and "child" all have definitions under sections 57 and 1(1)-(2) of the SLRA. For example, "spouse" can include a former spouse, common-law spouse and a same-sex spouse. A "child" can include a grandchild or a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family (other than a foster child).

Section 62 of the SLRA lists a wide range of criteria for assessing support. Each case is determined on its facts as they relate to this list, which is made up of largely financial/budgetary criteria. However, the 2004 Ontario Court of Appeal decision of Cummings v. Cummings is widely viewed as adding "moral obligation" as a criterion for determining support and, furthermore, as a ground for declaration of dependency.

Dependants' support claims can often be a long and drawn out process, full of bitter infighting and disputes between the alleged dependent and the beneficiaries over how much (if any) should be paid for support. The length of time often involved in a litigious proceeding can lead to an obvious dilemma: If a person is truly a dependent of the deceased it means just that, that they are dependent on the deceased for their well-being.

If a person is truly dependant in every sense of the word, how will they support themselves while the application is still before the courts? Thankfully for a dependent in this situation, the SLRA allows the court to make an order for interim support pending the resolution of the application. Section 64 of the SLRA provides:

"Where an application is made under this part (Part V) and the applicant is in need of and entitled to support but any or all of the matters referred to in section 62 or 63 have not been ascertained by the court, the court may make such interim order under section 63 as it considers appropriate."

The test to determine if an alleged dependant of the deceased is entitled to interim support is essentially the same test as to determine if a dependant is entitled to support at all, as detailed above.

In order to avoid the expensive and stressful process of estate litigation that can arise from a dependant support claim, it is important to have a well thought out and well-drafted estate plan. It is wise to sit down with your family and the beneficiaries of your estate and have an open discussion about your plans. It is important to "do the math" and realistically determine what will be necessary to leave to a dependant, so that they may maintain their current lifestyle for the rest of their life.

*Ian Hull and Suzana Popovic-Montag are partners at Hull & Hull LLP, an innovative law firm that practices exclusively in estate, trust and capacity litigation. To watch more Hull & Hull TV episodes, please visit our Hull & Hull TV page.