Estate Planning

Considerations in Determining Dependant Support

By Hull & Hull LLP

The recent decision in Wilson v. DeBonis (Estate) involved the dependant support claim brought by the deceased's common law spouse and is a useful example of factors the court will consider when determining whether to order support.

The deceased left a will in which he made a bequest to his son, and gave the applicant a life interest in the condo (at her death or when the condo was sold, the deceased's share of the condo was to pass to his grandchildren) and the residue of his estate.

For reasons set out in the decision, the court decided that the applicant had not adduced sufficient evidence to prove that given her owns assets (and the value of her 50% interest in the condo) the deceased had made inadequate provision for her and it dismissed her claim.   

In making its decision, the court considered the applicant's means and expenses.  However, it also considered a couple of other factors that I found interesting. 

First, the applicant had argued that given the length of cohabitation (21 years), the deceased had a heightened obligation to provide for her support.  The court found that while the length of cohabitation weighed in the applicant's favour, it should not become a determining factor absent other evidence indicating a need for support. 

Second, the court also considered the deceased's intention to benefit others in his will.  Specifically, the court took into account that the deceased and applicant had purchased their condo as joint tenants, but later severed the joint tenancy.  It found that this consensual severance reflected the mutual interest of the applicant and the deceased to safeguard part of their assets for their respective grandchildren.   Even though none of the grandchildren were dependants, the court found this intention should be considered when determining the deceased's legal and moral obligation to provide for the applicant.   

Have a great day!

Megan F. Connolly   

Full post as published by Toronto Estate Law Blog on March 17, 2009 (boomark / email).