Left Out of a Will in New Brunswick: Can a Dependant Claim Support?

Finding out that a will leaves you little or nothing can be a shock, especially if you depended on the person who died. Many people assume the will is the last word. In New Brunswick, it is not always.

There are different routes for different situations: a support claim for dependants, a separate property claim for married spouses, and a challenge to the will itself. This article explains how they differ, and why the timing matters so much.

This article covers the law of New Brunswick.

What the Provision for Dependants Act allows

Under the Provision for Dependants Act, a judge of the Court of King's Bench may order maintenance and support out of the estate where the dependant's resources are insufficient. The judge can do this even against the terms of a will.

The judge may also suspend administration of the estate while the claim is dealt with. The application is made by notice of application.

Who counts as a dependant

• The spouse of the deceased.
• A child of the deceased.
• Any other person who was a dependant of the deceased under the Family Law Act.

Common-law partners are not automatically left out. The Family Law Act applies the spousal support obligation to common-law partners who have cohabited continuously for not fewer than three years with one substantially dependent on the other, or who have cohabited in a situation of some permanence with a child born of whom they are parents. A partner who meets that test may apply to the Court of King's Bench within the four-month limit. Whether a particular partner qualifies depends on the facts, so it is worth getting advice.

The four-month deadline

No application under the Act may be made later than four months after the death. The clock runs from the death, not from the grant of probate, so you should not wait to see how the estate is administered.

There is a limited exception. A judge may allow a later application for any part of the estate still undistributed, if the judge considers it just. This is not something to count on.

Even a timely claim can fail. A judge may refuse an order if the applicant's character or conduct disentitles them.

Married spouses: a separate marital property claim

A surviving married spouse has another option. They may apply to the Court to have marital property divided in equal shares as against the deceased's estate. This is available to married spouses only.

That application must also be made within four months of death. The period can be extended if the spouse did not know of the death or was prevented by circumstances beyond their control.

Support claim versus challenging the will

A support claim does not ask the court to say the will is invalid. It asks for provision out of the estate despite the will. Challenging a will is different. Grounds such as lack of testamentary capacity, undue influence, fraud, or lack of knowledge and approval are decided under common-law principles.

Simply being disappointed or excluded is not itself a ground to set a will aside. On fraud or undue influence, the burden is on those attacking the will.

What to do next

• Note the date of death and count four months from it right away.
• Gather proof of your relationship and of your financial needs and resources.
• Find out whether the will has been probated and whether assets have been distributed.
• If you were a common-law partner, collect evidence of how long you lived together and any dependence or children.
• Speak to a lawyer promptly about which route fits your situation.

Frequently asked questions