Can Dependant Support Claims Reach Joint Accounts and Property in Ontario?

You may have just learned that the estate holds almost nothing because the bank accounts and the house were in joint names. If you relied on the deceased for support, that can feel like a dead end. Or you may be the surviving joint owner, holding assets that came to you outside the will, and you have heard that someone might make a claim.

Ontario law treats these assets in two different ways. For ordinary estate purposes, survivorship assets go straight to the survivor. For a dependant support claim, the law can count some of them as if they were still part of the estate. This article explains how that works in general terms.

Why joint assets usually stay outside the estate

When a person dies, property passes to their estate trustee only if no other person has a right to take it by survivorship. Property with a right of survivorship generally goes to the surviving owner, and this overrides what the will says. One exception applies to a matrimonial home: if a spouse dies owning an interest in it as a joint tenant with someone other than the other spouse, such as a child, the joint tenancy is deemed severed immediately before death and the deceased's share goes into the estate instead of to that person by survivorship. So a joint tenant's interest goes to the surviving joint tenant or tenants, not to the beneficiaries named in the will.

Ontario also treats jointly owned property that passes automatically to the other owner as outside the value of the estate for estate administration tax. That is why an estate can look small or empty on paper even when the deceased had significant wealth.

Not every asset in two names has survivorship. Land in two or more names is presumed to be held as tenants in common unless the document shows they are to take as joint tenants, and spouses and common-law partners hold as joint tenants only if the deed says so. Whether an asset really passes by survivorship is the first question to settle.

Who counts as a dependant and what the court can order

If a deceased person has not made adequate provision for the proper support of their dependants, the Superior Court of Justice may, on application, order adequate provision out of the estate. A dependant is a spouse, parent, child, or brother or sister of the deceased to whom the deceased was providing support, or was legally obliged to provide support, immediately before death.

For this purpose, "spouse" has a wider meaning than in property division. It covers unmarried partners who lived together continuously for at least three years, or who are in a relationship of some permanence and are the parents of a child. It also includes former spouses whose marriage ended in divorce.

What section 72 adds back to the net estate

For a support claim only, section 72(1) of the Succession Law Reform Act deems the capital value of certain transactions made before death to be part of the net estate. The list includes:

• Money deposited in an account in the deceased's name and another person's.
• Property held at the date of death by the deceased and another as joint tenants.
• Trust accounts in the deceased's name in trust for others.
• Life insurance on the deceased's life that the deceased owned.

This does not change who legally owns the asset. It widens the pool the court looks at when deciding what provision is adequate. Whether a particular asset falls within the section depends on how it was created and held, which is worth confirming with a lawyer.

Proof, banks and the survivor's own contribution

For joint deposits, only the portion of the funds that belonged to the deceased immediately before the deposit is counted. The dependant making the claim must prove the funds belonged to the deceased. If the dependant was themselves the other party to the transaction, they must prove their own contribution.

If you are a surviving joint owner, this makes records important. Statements, deposit history and proof of where the money came from can show what you contributed.

Banks and other holders are not required to freeze everything on their own. Payments under a section 72 transaction may still be made unless a certified copy of a suspensory order has been personally served on the holder. Section 72 also does not affect creditors' rights in any transaction where they have rights.

Deadlines and the rule against distribution

No support application may be made more than six months after the grant of the certificate of appointment, which is letters probate or administration. The court may still allow an application at any time for any part of the estate that remains undistributed on the date of the application. That exception covers only what is still undistributed, so waiting carries real risk.

Once a notice of application is served on the personal representative, they generally must not distribute until the court decides, unless everyone entitled to apply consents or the court orders otherwise. Joint accounts and joint-tenancy property that section 72 adds back are counted in the net estate for a support claim even though they are no longer in the estate. How a claim made after the estate has been dealt with applies to a particular asset depends on the facts, so it is worth confirming with a lawyer.

What to do next

Acting early matters, because the deadline runs from the certificate of appointment and money can move quickly. These steps are a general starting point:

• Find out whether a certificate of appointment has been issued and on what date, so you can count the six months.
• Gather proof that you were receiving support from the deceased, or that they were legally obliged to support you.
• List every joint account, jointly held property, trust account and owned life insurance policy.
• If you are a joint owner, collect records showing what you put into each joint account.
• Search the land registry records of any real estate through OnLand to see how title was actually held.
• Speak with a lawyer before any money is distributed or withdrawn, since the facts of each asset decide whether it counts.

Frequently asked questions