Deadline for a Dependant Support Claim Against an Ontario Estate

If someone who supported you has died, and the will or the estate leaves you little or nothing, you may be able to ask the court for support from the estate. The right is real, but timing matters a great deal, and the estate may be paid out to others while you wait.

This article explains who can claim, the deadline, what happens if you are late, and how a claim can stop the estate from being distributed. It is general information, and a lawyer can confirm how it applies to your situation.

Who can claim dependant support

Under Part V of the Succession Law Reform Act (SLRA), if a deceased person, with or without a will, did not make 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. The key question is support at the time of death.

• Former spouses: a former spouse whose marriage to the deceased ended in divorce is included in the meaning of spouse.
• Unmarried partners: an unmarried partner who meets the Family Law Act s. 29 definition can claim as a dependant spouse, because cohabit includes living together in a conjugal relationship outside marriage.

The dependant, or the dependant's parent, may apply, and certain agencies, including the Ministry and municipalities, may also apply in specified circumstances.

The six-month deadline

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 clock runs from the grant, not from the date of death.

This is not the general two-year limitation period. The Limitations Act, 2002 Schedule lists SLRA s. 61 as a limitation period that applies instead of the general two-year rule. You should not assume you have two years.

What if the six months have passed or the estate is distributed

The court may allow an application after the six months, but only against any portion of the estate still undistributed on the date of the application. Anything already paid out to beneficiaries may be out of reach.

That is why delay carries a real cost. Even within the six months, the estate can be distributed unless the trustee has been served, so acting early protects the money that a support order could draw on. Whether a late claim is allowed depends on the facts, so get advice promptly.

How a claim stops distribution

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.

There are two exceptions: distribution is allowed if everyone entitled to apply consents, or if 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.

How the court sets support, and waivers

The court sets the amount and duration of support by considering all the circumstances of the application. 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
• the claims of other dependants

What to do next

• Find out whether and when letters probate or letters of administration were granted, since the six months runs from then.
• Gather proof of the support the deceased provided, or was legally obliged to provide, just before death.
• Collect information on your own income, health, assets and needs.
• Speak to a lawyer quickly, before the estate is distributed.
• Ask the lawyer how and when notice of your application should be served on the estate trustee.

If the deadline has passed, still get advice. A late claim may be possible against what remains undistributed.

Frequently asked questions