Can an Executor Distribute an Ontario Estate While a Dependant Support Claim Is Pending?

You may be an executor who has just heard that a family member plans to ask the court for support from the estate. Or you may be that family member, worried that the money will be paid out before your claim is heard. Either way, the central question is the same: can the estate be distributed while the claim is pending?

In Ontario, the answer turns on a few rules in the Succession Law Reform Act (SLRA), Part V. This article explains who can claim, when distribution must stop, how the six-month deadline works, and what each side can sensibly do next.

This is general information, not legal advice. Estate facts vary, so it is worth confirming your situation with a lawyer.

Who counts as a dependant and who can apply

If a deceased person, with or without a will, did not make adequate provision for the proper support of their dependants, the court may order that adequate provision be made out of the estate. A dependant is the deceased's spouse, parent, child, or brother or sister to whom the deceased was providing support, or was under a legal obligation to provide support, immediately before death.

Two groups are included that people sometimes miss. A former spouse whose marriage to the deceased ended in divorce can count as a spouse for this purpose. An unmarried partner can also claim as a dependant spouse if they meet the Family Law Act s. 29 definition, and the SLRA defines 'cohabit' to include living together in a conjugal relationship outside marriage.

The dependant, or the dependant's parent, may apply for support. Certain agencies, including the Ministry and municipalities, may also apply in specified circumstances.

The bar on distributing after notice

Once a personal representative has been served with notice of a dependant support application, they must not distribute the estate until the court has disposed of the application. For an executor, this is the key point, and it is worth getting advice before paying anything out once a claim is possible.

There are two ways around the bar. Distribution is allowed if everyone entitled to apply consents, or if the court orders otherwise.

• Consent: everyone entitled to apply must agree, so one person's silence or refusal can prevent this route.
• Court order: distribution is also allowed if the court orders otherwise. How to approach the court in a particular estate depends on the facts, so it is worth confirming with a lawyer.
• Neither: the executor holds the estate until the application is decided.

Suspending administration and the six-month limit

The court may suspend the administration of the estate, in whole or in part, for as long and to the extent it decides. This gives a claimant a way to protect assets, and it gives the court flexibility to freeze only what is needed.

An application for dependant support may not be made more than six months after the grant of letters probate of the will or of letters of administration. This differs from the general two-year rule, because the Limitations Act, 2002 Schedule lists SLRA s. 61 as a period that applies instead.

The court may allow an application after the six months, but only against any portion of the estate still undistributed on the date of the application. That is why timing matters on both sides: a late claim can reach only what is still undistributed, and once notice is served, the executor must hold the estate until the application is decided unless consent or a court order allows otherwise.

What the court looks at, and what counts as the estate

The court sets the amount and duration of support by considering all the circumstances. The listed factors include the dependant's age and physical and mental health, the assets and means the dependant is likely to have in the future, and the claims of other dependants.

Assets that pass outside the will can still matter. For support claims, money in a joint account that passes to the survivor on death is treated as a testamentary disposition at the date of death, and the same applies to property held as joint tenants. These count in the net estate only to the extent the funds or consideration came from the deceased, and the dependant must prove that the funds or property belonged to the deceased.

A signed waiver or agreement does not necessarily end the matter. A court can make a support order even if the dependant signed an agreement or waiver saying otherwise.

Practical steps for each side

For executors:

• Note the date of the grant, because the six-month period runs from it.
• Before distributing, think about who might be a dependant, including a former spouse or common-law partner.
• If you are served with notice, stop distributing unless everyone entitled to apply consents or the court orders otherwise.
• Keep clear records of the estate's assets, including joint accounts and jointly held property that may be counted.
• Ask a lawyer before any distribution if a claim is possible.

For claimants:

• Act early, since the six-month limit runs from the grant, not from the death.
• Gather proof of the support you received or were owed immediately before death.
• Collect evidence of your needs and means, which the court weighs.
• If you are claiming against joint property, be ready to show it came from the deceased.
• Consider asking the court to suspend administration if assets are at risk.

Frequently asked questions