“Dependant’s Support” may be the only way for the disinherited to obtain a share of an estate. But how does dependant's support work? This primer is designed to give you the basics.
Imagine a woman is so infuriated with her husband for his philandering, gambling and drinking that she disinherits him. Upon her demise, the husband commences an application for support under Part V of the Succession Law Reform Act (the “SLRA”). The husband qualifies as a dependant because he is a spouse and his wife had a legal obligation to support him. What impact, if any, would his past behaviour have on his entitlement to dependant’s support?
There is interplay between sections of the Family Law Act (“FLA”), and those of the Succession Law Reform Act (“SLRA”), in particular as it relates to the definition of “dependant”. That interplay may affect the second prong of the two prong test to determine who, in fact, is a dependant for the purposes of bringing a dependant’s support claim. The law is unclear on whether one may contract out of a dependant’s support claim by entering into a separation/domestic agreement upon the termination of a marriage or marriage-like relationship. The case law is very fact-specific, and below is a summary of some recent decisions.
Suppose a couple sign an agreement not to sue each other’s estate and one spouse did not get legal advice before signing the agreement. Would a judge hold that spouse to the agreement? In 2003, Justice Desotti, an Ontario Superior Court judge, said, “While I cannot conclude that there will be no agreement involving an unrepresented party that is not declared to be valid, I am certain that it will be the exception and not the rule.” Based on this decision it seems as if, as a general rule, when one of the spouses did not have a lawyer the agreement will be set aside. It’s 11 years later – let’s see how the law has evolved.
Is a prenuptial agreement that was not witnessed invalid? That is the exact question Ontario’s Court of Appeal addressed in Gallacher v. Friesen (“Gallacher”).
Suppose that prior to the death of your spouse the two of you signed an agreement where you both committed not to sue each other’s estate. Also imagine that you did not get legal advice before signing the agreement. Would a judge hold you to that agreement? It depends.
Lawrence Wilkes, a 62-year-old sophisticated businessman, proposed marriage to Mary. She was only 21 years old, developmentally handicapped and very unsophisticated. Lawrence took Mary to his lawyer where, without the benefit of independent legal advice or disclosure of Lawrence’s assets, she signed a prenuptial agreement. By so doing, Mary gave away her right to make any claims against Lawrence or his estate. When Lawrence died, Mary was left with nothing and she sued. Her lawyer said that the prenuptial agreement was “unconscionable” and should be set aside. The case was heard in Montana.
In the Verch case, Albert left his entire estate to his daughter-in-law Dianne by-passing his estranged son Ken – Dianne’s estranged husband – and his daughter Donna who resided in Alberta. Ken and Donna brought an application to have Albert’s Will set aside on numerous grounds. In their final submissions at trial, their lawyers included an argument that Albert had a legally enforceable moral obligation to provide for them in his Will. The Ontario court dismissed the application. Some might argue that this decision stands for the proposition that, in Ontario, moral claims of adult children against their parents’ estate are not legally enforceable.
Lawrence Wilkes, a 62-year-old sophisticated businessman, proposed marriage to Mary. She was only 21 years old, developmentally handicapped and very unsophisticated. Lawrence took Mary to his lawyer where, without the benefit of independent legal advice or disclosure of Lawrence’s assets, she signed a prenuptial agreement. By so doing, Mary gave away her right to make any claims against Lawrence or his estate. When Lawrence died, Mary was left with nothing and she sued. Her lawyer said that the prenuptial agreement was “unconscionable”
When wealthy people marry, their lawyers often advise them to ensure that their fiancé signs a prenuptial agreement. The goal is to protect the wealthy person’s family in case, G-d forbid, the marriage breaks up and/or when the wealthy spouse dies. So if the couple each hire good lawyers and the prenuptial agreement clearly spells out their agreement is that contract still open to challenge? Maybe. There is some question whether a surviving spouse can still sue for support even when she signed a valid prenuptial agreement. Let’s look at the law.