Time Limit to Sue an Estate for Support in Ontario

If you were left out of a will, or the estate does not provide for you, and you relied on the deceased for support, the clock may already be running. The deadline for asking a court to order support from an estate is short.

This article explains the six-month rule, who can claim, what happens if you are late, and what happens to the estate while a claim is pending.

The six-month deadline

Under the Succession Law Reform Act (SLRA), the court may order that adequate provision be made out of the estate if the deceased, with or without a will, did not make adequate provision for the proper support of their dependants. 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.

The six months run from the grant, not from the death. The Limitations Act, 2002 lists SLRA s. 61 as a limitation period that applies instead of the general two-year rule. You should not assume you have two years.

For comparison, the general rule is that most claims must be started within two years after the day the claim was discovered. Claims by or against a deceased person's estate for torts or injuries, other than libel and slander, must be started within two years of the death. Which period applies to your situation depends on the type of claim, so it is worth confirming with a lawyer.

Who counts as a dependant

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.

• Former spouses: for these claims, spouse includes a former spouse whose marriage to the deceased ended in divorce.
• Common-law partners: an unmarried partner who meets the Family Law Act s. 29 definition, including living together in a conjugal relationship outside marriage, can claim as a dependant spouse.
• Adult children: adult independent children are not entitled to dependant's relief, and can claim only if they meet the definition of dependant.

The dependant, or the dependant's parent, may apply, and certain agencies, including the Ministry and municipalities, may also apply in specified circumstances. There is no general duty to provide in a will for an adult, independent child.

Can you apply late?

Sometimes. 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. Once the estate has been paid out, a late claim may have little to attach to, so waiting carries real risk.

Whether the court will permit a late application depends on the facts, and it is not something to count on. Get advice quickly if the date has passed.

What happens to the estate while a claim is pending

A court can make a support order even if the dependant signed an agreement or waiver saying otherwise.

Joint property and next steps

For these claims, a joint account that passes to the survivor, and property held by the deceased and another as joint tenants, are treated as testamentary dispositions at the date of death. They count toward the net estate only to the extent the funds or consideration came from the deceased, and the dependant must prove that.

• Find out whether letters probate or letters of administration have been granted, and the exact date.
• Count six months from that date and note it where you will see it.
• Gather proof of how the deceased supported you before death.
• List the estate assets you know of, including joint accounts and property.
• Speak with a lawyer promptly, especially if the six months may have passed.

A person with a financial interest in an estate can file Form 74P to ask the court to notify them when someone starts a proceeding involving the estate. Whether that step suits your situation depends on the facts, so it is worth raising with a lawyer.

Frequently asked questions