Disinherited Child in Ontario: Can They Still Make a Claim?

Learning that a parent left you out of their will is painful, and it often raises a practical question: is there anything you can do? In Ontario, the answer depends on your circumstances and on what the estate holds.

This article explains one main route, a dependant's support claim, and why the assets that pass outside the will matter. It cannot say whether you qualify, because that depends on facts a lawyer will need to review.

Being left out is not the end of the question

A will generally states who receives what, but it is not the only thing that decides who may have a claim against an estate. Ontario law gives some people the right to apply to court for support from the estate even though the will says otherwise.

Whether an adult child can make such a claim depends on personal facts, such as your relationship with the deceased and your financial situation. A lawyer can assess those facts. Other challenges to a will can also exist, and these also turn on the specific circumstances.

The dependant's support claim

For a dependant's support claim, life insurance owned by the deceased and amounts payable under a plan designation are deemed part of the net estate. Designated assets that skip probate can still be reached by a dependant.

There is a time limit. A dependant's support application generally cannot be made more than six months after the grant of letters probate or administration. The court may allow a later application against any part of the estate that is still undistributed.

Because the clock is tied to the grant, it helps to find out early whether an application for probate has been made or a grant issued.

Assets that pass outside the will

Many people assume the will controls everything. It often does not. When a beneficiary is designated, the insurance money does not form part of the insured's estate and is not subject to the claims of the insured's creditors.

For Estate Administration Tax, the estate value excludes assets with a beneficiary designation, jointly owned assets that pass automatically to the other owner, real estate outside Ontario, and registered plans (RPP, RRSP, RRIF, TFSA) with a beneficiary designation.

• Ask what insurance, registered plans and joint assets the deceased had.
• Find out who was named as beneficiary on each.
• Keep in mind that a support claim may still reach designated assets.

What happens in the estate while you decide

An estate trustee collects the estate assets, pays taxes and debts, and distributes the residue to those entitled. If the deceased owned real property or assets held by a financial institution, the estate normally has to be probated through a Certificate of Appointment of Estate Trustee.

A legal representative should get a CRA clearance certificate before distributing estate property, and anyone who distributes without one is personally liable for unpaid amounts, up to the value of the assets distributed. Distribution can therefore move at a measured pace, but you should not assume that the estate will wait for you. Raise your concerns promptly.

What to do next

• Gather the will, if you have a copy, and any information about the estate trustee.
• Find out whether a certificate of appointment has been applied for or issued.
• Make a list of the deceased's assets and any beneficiary designations you know of.
• Write down your financial circumstances and your history with the deceased.
• Speak to a lawyer soon, because the time limit for a support application is short.

Frequently asked questions