Family Relief Act in Newfoundland and Labrador: Who Can Claim

Finding out that a will leaves you little or nothing can be painful, especially if you relied on the person who died for support. Newfoundland and Labrador has a statute meant for this situation, the Family Relief Act, and it can apply whether or not there is a will.

This article explains who the Act covers, how adult children and partners fit in, how long you have, and what a judge looks at. Every estate is different, so treat this as a map and not a prediction of what a court would do.

This article covers the law of Newfoundland and Labrador.

What the Family Relief Act does

A dependant may apply to court where a will does not make adequate provision for their maintenance and support, or where the share they receive on an intestacy (no will) is inadequate. The focus is on support, not on whether the will seems fair in a general sense.

If the court agrees, it can order provision from the estate despite what the will says. It can also suspend administration of the estate. Once notice of an application is served, distribution of the estate can be stopped.

The word grant matters here because the deadline is tied to it. A grant is the court's authority for someone to deal with the estate. Probate is not legally required in Newfoundland and Labrador, but an executor who wants to dispose of estate assets needs Letters of Probate to prove the right to do so. Where there is no will, the court appoints an administrator, and the order of priority runs from the spouse to children, parents, siblings, grandparents, then creditors and the Crown, subject to the judge's discretion.

Who counts as a dependant

The Act names a spouse, a cohabiting partner or a child as a dependant who may apply. Whether someone outside those categories can apply depends on the facts, so it is worth confirming with a lawyer.

• Spouse: a married spouse is the most straightforward case.
• Cohabiting partner: you need continuous conjugal cohabitation outside marriage for at least 2 years, or at least 1 year if you are together the biological or adoptive parents of a child.
• Child: the Act lists children as dependants.

Adult children often ask whether they can claim. Because the Act speaks of a dependant who needs maintenance and support, an adult child's position usually turns on the facts, such as their finances and their relationship with the person who died. A lawyer can tell you how courts have treated situations like yours.

The Family Law Act has its own meaning of spouse. It covers persons married to each other, persons in a voidable marriage that has not yet been voided, and persons who went through a good-faith void form of marriage and are cohabiting or cohabited within the preceding year. For applications it also includes a widow or widower.

What a judge considers

The judge looks at a list of factors, including the conduct of the parties, other support available, the dependant's relationship with the deceased, the dependant's finances, claims by other dependants, provision the deceased made during life, services the dependant provided, contributions they made, and any rights under the Family Law Act. How these apply to your situation depends on the facts, so it is worth confirming with a lawyer.

Surviving spouses should know that their Family Law Act rights are in addition to rights under a will or an intestacy. A surviving spouse may apply to divide matrimonial assets equally within 1 year after the first spouse's death, and that deadline can be extended on certain grounds.

If there is no will, the Intestate Succession Act sets the starting shares. A spouse with one child receives 1/2 of the estate, and a spouse with more than one child receives 1/3. Whether a cohabiting partner inherits on an intestacy is worth confirming with a lawyer, because that can affect whether the share is inadequate.

Deadlines and appeals

A Family Relief Act application must be made within 6 months after the grant, although a judge may allow an application for any part of the estate that has not yet been distributed. Because the clock runs from the grant, not the date of death, it helps to find out early whether an application for probate or administration has been made.

A Family Relief Act claim is different from arguing that a will is invalid. A person who opposes a grant enters a caveat in the registry. If you think you may have both kinds of concern, a lawyer can help you sort out which steps apply to you.

What to do next

• Write down the date of death and find out whether a grant has issued.
• Gather the will, if you have a copy, and a list of what you know about the estate.
• Collect proof of your income, expenses, health and how you relied on the person who died.
• Note any support you received or services you provided while they were alive.
• Keep a record of key dates, including when any grant was made, so you can work out your deadline.
• Speak with a lawyer promptly, because the 6-month period can run out quickly.

Frequently asked questions