Dependants Relief Act Claims in Manitoba: What the Court Considers

Sometimes a person relied on someone for support, and then discovers the will leaves them little or nothing. Manitoba has a statute for this, The Dependants Relief Act, which lets certain people ask the court for support from the estate.

This article explains who counts as a dependant, what the court weighs, what kinds of orders it can make, and how the deadline and the executor's duties work. It is general information, and results depend heavily on the facts.

This article covers the law of Manitoba.

What the Act does

Under the Act, the court is the Court of King's Bench. If a dependant is in financial need, the court may on application order that reasonable provision for maintenance and support be made out of the deceased's estate.

The Act applies whether the person died with a will or without one, and despite the will or The Intestate Succession Act. What is reasonable is assessed as of the date of the hearing, not the date of death. The Act applies to deaths on or after 1 July 1990, and The Testators Family Maintenance Act continues to apply to earlier deaths.

Who counts as a dependant

The definition includes the spouse, a former spouse with a subsisting maintenance order or agreement, certain common-law partners, children who were under 18, unable to support themselves or substantially dependent, and substantially dependent grandchildren, parents, grandparents and siblings.

• Spouse: this includes a person in a voidable or void marriage entered into in good faith.
• Common-law partner: someone who registered the relationship under The Vital Statistics Act and has not dissolved it, or who lived with the deceased in a conjugal relationship for at least three years, or at least one year if they are parents together.
• Child: this includes a child conceived before the death and born alive afterward, and a child the deceased treated as their own. Certain paid foster placements are excluded.
• Adult children: there is no automatic claim. A child qualifies only if under 18, unable to support themselves, or substantially dependent, and must also be in financial need.

A surviving spouse or common-law partner has other rights under The Homesteads Act and Part IV of The Family Property Act, which rank ahead of dependant rights under this Act. A person entitled to equalization may still apply under this Act.

What the court weighs

The court focuses mainly on the dependant's financial needs. It considers, among other things, the size and nature of the estate, the dependant's assets and foreseeable resources, the steps and cost needed to become self-sufficient, and the dependant's age, health and capacity to support themselves.

• Property received under The Homesteads Act or The Family Property Act, for spouses or common-law partners.
• Entitlements from the estate outside the Act, other claims on the estate, and provision the deceased made during life.
• A child's education aptitude and prospects.
• For a child the deceased treated as their own, the natural parents' primary duty to support and whether they met it.

The court may inquire into any relevant matter, order more evidence, and accept evidence of the deceased's reasons for the will or for not providing, including a signed written statement. It weighs such statements by looking at all circumstances bearing on their accuracy.

What orders the court can make

Support may come from income, capital or both. It can take the form of periodic payments, a lump sum paid or held in trust, transfer of specified property, use of property for life or a period, security such as a charge on property, or any other method the court considers appropriate. The court may also attach conditions and directions.

No order can be made until everyone affected has been served with notice and may attend and be heard, although the court may waive notice if reasonable efforts failed or the person cannot be identified. Unless the court orders otherwise, the cost of the provision is borne by the beneficiaries in proportion to their interests, or the court may charge it against all or part of the estate.

If the applicant urgently needs financial help before the court decides the full application, the court may make an interim order after service on the personal representative. Later, an order can be varied, suspended or reduced, and a dependant may apply to increase it if changed circumstances would cause undue hardship and an increase would not be inequitable to others.

Deadlines, executors and next steps

An application is subject to a limitation period of up to six months from the grant of probate or letters of administration, and generally no application may be made after that. The court may allow a later application against the undistributed estate if the dependant did not learn of the death until after the period ended, did not need support until then, or was prevented by circumstances beyond their control.

Once notice is served on the personal representative, they must not distribute the estate until the court decides, unless all eligible persons consent or the court orders otherwise, and a representative who distributes in breach is personally liable. They may still advance funds for the immediate needs of dependants who are beneficiaries. The court can also suspend all or part of the administration.

• Find the date of the grant of probate or letters of administration.
• Gather proof of your relationship, your dependency, and your income, assets and expenses.
• Note whether any dependant or beneficiary is a minor or has an intellectual disability, as notice must go to the Public Guardian and Trustee.
• Speak with a Manitoba lawyer early about whether and how to apply.

Frequently asked questions