Can Adult Children Sue an Estate for Support in Ontario?

Being left out of a parent's will is painful, and many adult children ask whether they can sue the estate. The answer turns on a narrow legal question: were you a dependant of the deceased?

This article explains how Ontario treats disinherited adult children, what a dependant claim under the Succession Law Reform Act (SLRA) requires, and what to do if you think you may qualify.

There is no automatic right to inherit

The Court of Appeal for Ontario has held that a competent testator has no statutory duty to provide in a will for an adult, independent child. Ontario law lets testators exclude children who are not dependants.

Testamentary freedom does have limits. It is limited by legislation and public policy, and courts will void testamentary conditions that offend public policy. They will not, however, go behind a testator's clear, unconditional choice of beneficiaries. Being a child, on its own, is not a basis for a claim.

When an adult child counts as a dependant

Under Part V of the SLRA, if a deceased person, with or without a will, has not made adequate provision for the proper support of their dependants, the court may order that adequate provision be made out of the estate.

A dependant is the deceased's spouse, parent, child, or brother or sister to whom the deceased was providing support, or was under a legal obligation to provide support, immediately before death. An adult child can claim support only if they meet that definition. Adult independent children are not entitled to dependant's relief.

• Think about whether the deceased was actually supporting you just before death.
• Think about whether the deceased was under a legal obligation to support you at that time.
• Gather proof of any regular financial help, housing or care costs the deceased covered.

The application may be brought by the dependant or the dependant's parent. Certain agencies, including the Ministry and municipalities, may also apply in specified circumstances.

The time limit and what happens to the estate

No application for dependant support may be made more than six months after the grant of letters probate of the will or of letters of administration. The court may allow a late application, but only against any portion of the estate still undistributed on the date of the application. This limit applies instead of the general two-year rule.

Once a personal representative has been served with notice of a dependant support application, they must not distribute the estate until the court has disposed of the application. Distribution is allowed if everyone entitled to apply consents or the court orders otherwise. The court may also suspend the administration of the estate, in whole or in part, for as long and to the extent it decides.

What the court looks at

The court sets the amount and duration of support by considering all the circumstances. The listed factors include the dependant's age and physical and mental health, the assets and means the dependant is likely to have in the future, and the claims of other dependants.

A signed agreement or waiver does not automatically block a claim, because a court can make a support order even if the dependant signed an agreement or waiver saying otherwise.

The size of the estate can also be affected by how assets were held. For these claims, money in a joint account that passes to a survivor, and property held as joint tenants, is treated as a testamentary disposition at the date of death. These count only to the extent the funds or consideration came from the deceased, and the dependant must prove that.

If you do not qualify as a dependant, other claims may exist on different grounds. For example, a claim for unjust enrichment, perhaps for services you provided, requires proof of an enrichment, a corresponding deprivation and no juristic reason for the enrichment. A monetary award on a fee-for-service basis is the default remedy and should usually be enough. Deadlines for such claims depend on the claim, so confirm them with a lawyer.

What to do next

• Find the date probate or letters of administration were granted, since the six-month period runs from that grant.
• Write down what support you received from the deceased and when it stopped.
• Collect bank records, receipts, messages and any agreements you signed.
• List your own age, health, income and assets, since the court looks at these.
• See a lawyer early, before the estate is distributed.

Frequently asked questions