- A dependant can ask the Superior Court of Justice for adequate provision from the estate if proper support was not provided.
- For a support claim, certain joint assets, including joint tenancies and joint deposits, are deemed part of the net estate.
- The usual deadline is six months after the certificate of appointment is granted, with limited room for late claims.
Perhaps you were a spouse or child of someone who died, and the house and bank accounts went to someone else by survivorship. The will gave you little or nothing. You may wonder whether those assets are out of reach.
In Ontario, they may not be. The support rules can count some joint assets as part of the estate for your claim. This article explains how, and what you may need to prove.
Who can make a dependant's support claim
If a deceased person did not make 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 includes unmarried partners who cohabited 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.
How joint assets are counted
Survivorship property normally passes outside the estate. For a support claim, though, the Succession Law Reform Act deems the capital value of certain transactions the deceased made before death to be part of the net estate.
| Item | Counted for support |
|---|---|
| Money deposited in an account in the deceased's name and another person's | Yes, under s. 72(1)(c) |
| Property held at death by the deceased and another as joint tenants | Yes, under s. 72(1)(d) |
| Trust accounts in the deceased's name in trust for others | Yes, under s. 72(1)(b) |
| Life insurance on the deceased's life that the deceased owned | Yes, under s. 72(1)(f) |
Whether a particular holding is caught can depend on how it was created, so a lawyer should review the details.
What you may have to prove
For joint deposits, only the portion of the funds that belonged to the deceased immediately before the deposit is counted in the net estate. A dependant who brings the claim must prove the funds belonged to the deceased. If a dependant was the other party to the transaction, they must prove their own contribution.
Banks and other holders may keep making payments unless a certified copy of a suspensory order has been personally served on them. Creditors' rights in any transaction where they have rights are not affected.
Deadlines and protecting the estate
No support application may be made more than six months after the grant of the certificate of appointment. The court may allow an application at any time for any part of the estate still undistributed on the date of the application.
Once a notice of application is served on the estate trustee, they generally must not distribute until the court decides, unless everyone entitled to apply consents or the court orders otherwise.
Married spouses have another route. A surviving spouse may elect equalization of net family property, and if the deceased's net family property was larger the survivor is entitled to one-half the difference. Property received by survivorship is credited against that entitlement, unless a written instrument says it is in addition. The election must be filed within six months after the death. Unmarried partners cannot elect equalization.
What to do next
- Find out whether and when a certificate of appointment was granted, because the six-month period runs from that date.
- List jointly held land and accounts, and gather evidence of who contributed the money.
- Collect proof of the support the deceased provided or was obliged to provide.
- If you are a married spouse, compare equalization with a support claim.
- Speak with an estate lawyer promptly, since delay can limit your options.
Frequently asked questions
Do jointly owned assets count in a support claim?
They can. For a support claim, property held by the deceased and another as joint tenants and money in joint accounts are deemed part of the net estate. The details of how the asset was created can matter, so get advice.
Does the survivor keep money they put into a joint account?
For joint deposits, only the portion that belonged to the deceased immediately before the deposit is counted. A dependant who was the other party to the transaction must prove their own contribution.
What is the deadline for a support claim?
Generally no application may be made more than six months after the certificate of appointment is granted. The court may allow a late application for any part of the estate still undistributed on the date of the application.
Can an unmarried partner claim support?
Yes, in some cases. For support, spouse includes unmarried partners who cohabited continuously for at least three years, or who have a relationship of some permanence and are parents of a child. Unmarried partners cannot elect equalization.
Sources
- Estates Administration Act, R.S.O. 1990, c. E.22, s. 2(1) (e-Laws) — Ontario e-Laws
- Family Law Act, R.S.O. 1990, c. F.3, ss. 5(2), 6(1) (e-Laws) — Ontario e-Laws
- Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 1(1) (e-Laws) — Ontario e-Laws
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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