Who Can Make a Dependants' Relief Claim Against a Saskatchewan Estate?

Being left out of a will, or left far less than you expected, can feel unfair, especially if you depended on the person who died. Saskatchewan law gives certain family members a way to ask for more, but only some people qualify, and the process is not the same as fighting the will.

This article explains who counts as a dependant, how a claim differs from a will challenge, and how timing affects the executor and the estate. Every estate turns on its own facts, so use this as a map and not a verdict on your situation.

This article covers the law of Saskatchewan.

Who counts as a dependant

Under The Dependants' Relief Act, 1996, a dependant can claim against an estate where the will makes inadequate provision for them. Dependants include:

• A legal spouse, a common-law spouse or a same-sex spouse.
• Children under 18.
• Adult children who are unable to support themselves because of a disability.

Whether another adult child, for example one who is healthy and self-supporting, can claim depends on the facts and on how the Act applies, so it is worth confirming with a lawyer. Whether someone fits a category, and what counts as inadequate provision, also depends on the facts. A lawyer can confirm how the Act applies to your family.

A relief claim is not a challenge to the will

A dependants' relief claim argues that the will makes inadequate provision for a dependant. What the court can do about that depends on the facts of your case, and a lawyer can confirm it.

Attacking the will itself is a different route. Saskatchewan courts allow a will to be proven in solemn form, and a caveat can be filed. If a will was properly signed and witnessed, the person who made it is presumed to have had capacity. Suspicious circumstances can shift the burden to the person putting the will forward. For undue influence and fraud, the burden stays on the people attacking the will.

The six-month delay before distribution

Executors are not expected to hand everything out right away. Distribution may be delayed six months after Letters are obtained where a dependant may claim under The Dependants' Relief Act, 1996. The same delay can apply where a spouse may apply for division of family property.

If you think you may have a claim, do not assume you can wait indefinitely. Once an estate has been distributed, getting funds back can be harder. Speaking with a lawyer early is sensible.

The separate deadline for a spouse's family property claim

A surviving spouse may have a different claim under The Family Property Act. Under s. 30(2), an application by a surviving spouse for a family property order may not be started more than six months after the grant of probate or administration.

There is an exception. Spouses who signed a valid waiver cannot apply. A spouse who may qualify for both a family property claim and a dependants' relief claim should ask a lawyer how the two fit together, and should confirm the current wording of the section.

The executor cannot make a final distribution until the CRA clearance certificate is received. If an executor distributes before getting it and tax is still owing, they can be held personally liable up to the value of what was distributed. That is one reason the estate cannot simply be closed quickly. The Court of King's Bench says the average estate takes about a year.

What to do next

• Find out when Letters were granted, since a spouse's family property application has a six-month limit from the grant.
• Gather proof of your relationship to the person who died, and of any disability or reliance on their support.
• Get a copy of the will and ask the executor for a list of the estate's assets.
• Note whether you were a spouse, and whether you ever signed a waiver.
• Speak with a lawyer promptly about whether to claim, challenge the will, or both.

Frequently asked questions