Dependant's Claim Against an Estate in New Brunswick

A will does not always have the last word. If someone you relied on for support died and left you little or nothing, New Brunswick law gives certain people a way to ask for support out of the estate.

This article explains who can make a dependant's claim, what a judge can order, and the short time limit. It is general information, and the time limit makes it worth getting advice quickly.

This article covers the law of New Brunswick.

Who counts as a dependant

Under the Provision for Dependants Act, a dependant is the spouse or child of the deceased, and any other person who was a dependant of the deceased under the Family Law Act.

Common-law partners are a special case. Family Law Act s. 14(2) applies the spousal support obligation to common-law partners who have cohabited continuously for not fewer than three years with one substantially dependent on the other, or who have cohabited in a situation of some permanence with a child born of whom they are parents. Because the Provision for Dependants Act includes dependants as defined by the Family Law Act, such a partner may apply within the four-month limit. Whether a particular partner qualifies depends on the facts.

What a judge can order

A Court of King's Bench judge may order maintenance and support out of the estate where the dependant's resources are insufficient, even against the terms of a will. The judge may also suspend administration of the estate. An application is made by notice of application.

The judge may refuse an order if the applicant's character or conduct disentitles them. This is a claim for support, not a right to a particular share.

This is separate from the Probate Court, which is distinct from the Court of King's Bench and deals with grants such as Letters Probate and Letters of Administration. The executor or administrator appointed through that process is the person who carries out the administration of the estate.

The four-month time limit

No application under the Act may be made later than four months after the death. The clock runs from the death, not from the date probate is granted. A judge may allow a later application for any part of the estate that is still undistributed, if it is just.

Because of this, waiting to see what the executor does can use up much of the time you have. Distribution of the estate may also make a late claim harder.

Other claims that may overlap

• Married spouses: a surviving spouse may apply to the Court to have marital property divided in equal shares as against the deceased's estate. This must be done within four months of death, extendable if the spouse did not know of the death or was prevented by circumstances beyond their control. It is available to married spouses only.
• Common-law partners: there is no intestate share, because the intestacy provisions refer only to a widow or widower. A dependant's claim, if you qualify, may be the main route.
• No will: where there is a spouse and no children, the whole estate goes to the surviving spouse. With a spouse and one child, the spouse takes the intestate's interest in marital property plus one-half of the residue.
• No will, spouse or children: the estate goes to the father and mother equally, then to brothers and sisters, then nephews and nieces, then next of kin of equal degree.

These routes can be used in different combinations depending on your relationship to the deceased, so it helps to have the whole picture reviewed together.

What to do next

• Note the date of death and count four months from that date right away.
• Gather proof of your relationship, such as a marriage certificate, birth certificate or evidence of cohabitation.
• Put together your income, expenses, debts and assets to show whether your resources are sufficient.
• Collect records showing how the deceased supported you.
• If you need a death certificate, the long form is $45 in person or by mail and $40 online through Vital Statistics.
• Ask the executor or administrator not to distribute the estate until your claim is dealt with, and speak with a lawyer promptly.

Frequently asked questions