Claiming Support as a Dependant From an Ontario Estate

When someone who supported you dies, the will may say nothing about you, or very little. Bills, rent and everyday costs do not stop, and it is natural to ask whether the estate owes you anything.

Whether you have a claim depends on your situation, and a lawyer can confirm it. This article explains how timing tends to work against you, what the estate trustee is doing in the meantime, and what to gather before you speak to a lawyer.

What a dependant's claim is

A dependant's support claim is a separate question from whether you are named in the will, and how it applies to you depends on your situation. It is a different thing from being a beneficiary. A beneficiary receives a gift under the will.

Estate trustees carry out the wishes set out in the will, and the estate is then distributed according to the will. Because of that, the will alone may not tell you where you stand, so it is worth confirming with a lawyer.

Who counts as a dependant, and how much support a court might order, depends on the facts of each family. That is the part a lawyer needs to look at with you, ideally before anything is paid out of the estate.

Why timing matters so much

How long you have to start a support claim depends on your situation, so confirm the exact deadline with a lawyer as soon as you can, rather than assuming you have time.

Meanwhile, the estate trustee is expected to get on with the job. Their duties include winding up the deceased's affairs, paying taxes, bills and other debts, and then distributing the estate according to the will. Estates are still presumed to be wrapped up within one year of death, although the court accepts that this can be unreasonable when an estate is complex.

In practice this means money can leave the estate while you are still deciding what to do. Raising your concern early is usually better than waiting.

Information you may be able to get

Someone applying for probate must send or give a copy of the application to everyone entitled to a share of the estate before filing it with the court. If you are not entitled to a share, you may not receive that notice, so do not count on it to tell you what is happening.

Any person who appears to have a financial interest in an estate may ask the court to order the estate trustee to pass accounts, which means to show how the estate was handled. Whether a dependant has that kind of interest depends on the facts. When a notice of application to pass accounts is issued, objections must be served at least 35 days before the hearing, and the court decides only the issues raised in filed notices of objection.

If you were the deceased's spouse

A surviving spouse of someone who died with a will has a separate choice. You must elect either to take under the will or to receive the equalization entitlement under the Family Law Act. The election must be in the prescribed form and filed with the Estate Registrar for Ontario within six months after the death.

If you do not file in time, you are deemed to have elected to take under the will or under the Succession Law Reform Act, unless the court orders otherwise on application. Generally no distribution may be made from the estate within six months of death unless you consent in writing or the court authorizes it.

Common-law partners are different. The Family Law Act property-division rules do not apply to common-law couples, and there is no equalization election for them. A common-law partner who relied on the deceased may still have other options, which is a good reason to get advice early.

What to do next

• Write down the date of death and the date you first learned about the will.
• Gather proof of how the deceased supported you: bank transfers, shared bills, rent, support agreements and messages.
• List your own income, expenses, debts and savings.
• Find out who the estate trustee is and whether probate has been applied for.
• Ask the estate trustee in writing to hold off on distributing assets while you get advice.
• Speak to a lawyer promptly to confirm your deadline and whether you qualify.

Frequently asked questions