Can a Spouse or Child Claim Support From an Estate in New Brunswick?

When someone dies, a spouse or child can be left without enough to live on, for example where the will leaves them little or nothing. New Brunswick law has a specific route for that situation. It is aimed at support, not at proving the will was wrong.

This article explains who can bring a claim, where it is brought, how tight the deadline is, and how it differs from other estate disputes. Each situation turns on its own facts, so treat this as a map and not a verdict on your case.

This article covers the law of New Brunswick.

What the claim is

The Provision for Dependants Act lets a judge of the Court of King's Bench order maintenance and support out of a deceased person's estate where a dependant's own resources are not enough. The judge can do this even against what the will says. The judge may also suspend administration of the estate while the claim is dealt with.

An application is made by notice of application. The claim is not about whether the will was properly made. It asks whether a person who depended on the deceased has been left without adequate support.

Who counts as a dependant

A dependant is the spouse or child of the deceased, and also any other person who was a dependant of the deceased under the Family Law Act.

• Spouse: the deceased's spouse is a dependant under the Act.
• Child: a child of the deceased is a dependant under the Act.
• Others: anyone who was a dependant of the deceased under the Family Law Act.

Common-law partners are not listed by name, but they may qualify through the Family Law Act. Section 14(2) of that Act applies the spousal support obligation to common-law partners who have cohabited continuously for at least three years with one substantially dependent on the other, or who have cohabited in a situation of some permanence and have a child born of whom they are the parents. Because the Provision for Dependants Act includes Family Law Act dependants, such a partner may apply within the four-month limit. Whether a particular partner qualifies depends on the facts.

The four-month deadline

No application under the Act may be made later than four months after the death. The clock runs from the date of death, not from the date probate is granted. That matters, because probate can take place well after the death and the time may already be running while the family waits.

There is a limited exception. A judge may allow a later application for any part of the estate that is still undistributed, if it is just to do so. Do not count on this. Once assets have been distributed, they are generally out of reach for a late claim.

What a judge considers, and related claims

A judge may refuse an order if the applicant's character or conduct disentitles them. Support is not automatic simply because you are a spouse or child.

A married spouse may have a second, separate right. When a spouse dies, the surviving spouse may apply to the Court to have marital property divided in equal shares as against the estate under the Marital Property Act. That application also has a four-month limit from death, which can be extended if the spouse did not know of the death or was prevented by circumstances beyond their control. This claim is available to married spouses only.

If you are a married spouse, ask about both claims at the same time, because the deadlines run together.

A support claim is not a will challenge

People often assume that being left out or left too little is enough to overturn a will. It is not. Simply being disappointed or excluded is not itself a ground to attack a will. Challenges to the will itself, such as lack of capacity, undue influence, fraud or lack of knowledge and approval, are decided on common-law principles, and the burden of proof differs depending on the ground.

A support claim works differently. It asks for an order for support out of the estate, which can operate against the will. Whether a family has grounds for a support claim, a will challenge or both depends on the facts, and a lawyer can help sort out which route fits.

A caveat is a separate tool. A caveat against a grant may be lodged with the Registrar or a probate office clerk. It stays in force six months after lodging unless withdrawn, vacated or a notice of intent to contest is filed. How a caveat fits with a support claim depends on your situation, so it is worth confirming with a lawyer.

What to do next

• Write down the date of death today, and count four months forward from it.
• Do not wait for probate or for the executor to act before getting advice.
• Gather proof of your relationship to the deceased, such as a marriage record, birth record, or evidence of living together.
• Collect records of your income, expenses, debts and assets, and how you relied on the deceased for support.
• Find out whether estate assets have already been distributed, since that affects any late application.
• If you were a common-law partner, note how long you lived together and whether you have a child together.
• Ask a lawyer promptly whether a caveat, a dependants claim, a marital property claim, or a combination makes sense.

Frequently asked questions