Dependants Relief Claims Against an Estate in Manitoba

If someone supported you financially and died leaving you little or nothing, you may wonder whether the will is the end of the story. In Manitoba, The Dependants Relief Act gives certain people a way to ask the court for support from the estate.

This article explains who qualifies, what the court considers, what it can order and the deadline that catches many people out. It is general information, so a lawyer should confirm how it applies to you.

This article covers the law of Manitoba.

The basic claim

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 court is the Court of King's Bench.

The Act applies whether the person died with a will or without one, and despite the will or The Intestate Succession Act, which is how a court can vary a will's terms. What counts as reasonable provision is assessed as of the date of the hearing, not the date of death.

Who counts as a dependant

The Act's 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.

• A spouse includes a person in a voidable or void marriage entered into in good faith.
• A common-law partner is 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.
• A child includes one conceived before the parent's death and born alive afterward, and one the deceased treated as their own. Certain paid foster placements are excluded.
• An adult child has no automatic claim. They must fit the definition and also be in financial need.

What the court weighs and can order

The court focuses mainly on 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 to become self-sufficient, age, health and capacity to support themselves. It also looks at property received under The Homesteads Act or The Family Property Act, other entitlements and claims on the estate, provision the deceased made during life, and a child's education aptitude and prospects. For a child treated as the deceased's own, it considers the natural parents' primary duty to support.

The court may accept evidence of the deceased's reasons for the will or for not providing, including a signed written statement, and weighs it by considering all circumstances bearing on its accuracy.

Support may come from income, capital or both, as periodic payments, a lump sum, transfer of specified property, use of property for life or a period, security such as a charge on property, or another method the court considers appropriate. If you urgently need help before these matters are decided, the court may make an interim order after service on the personal representative.

Deadlines, notice and the estate

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 period ends. The court may allow a later application against the undistributed estate if you did not learn of the death until after the period ended, did not need support until after it ended, or were prevented by circumstances beyond your 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. They may still advance funds for the immediate needs of dependants who are beneficiaries. The court may also suspend all or part of the administration.

No order may be made until everyone affected has been served and may be heard, though notice can be waived if reasonable efforts failed or a person cannot be identified. If a dependant or beneficiary is a minor or an adult with an intellectual disability, notice must go to the Public Guardian and Trustee.

Special situations and next steps

A surviving spouse or common-law partner's rights under The Homesteads Act and Part IV of The Family Property Act rank ahead of dependant rights, but a person entitled to equalization may still apply. Unless the court orders otherwise, the cost of provision is borne by the beneficiaries in proportion to their interests. Orders can later be varied, suspended or reduced, and a dependant may apply to increase one if changed circumstances would cause undue hardship and an increase would not be inequitable to others. The Act applies to deaths on or after 1 July 1990.

• Note the date probate or letters of administration were granted, and count the six months.
• Gather proof of the support you received and your current finances.
• Collect the will, if you can, and a list of estate assets.
• Ask a lawyer promptly about notice, interim help and your deadline.

Frequently asked questions