A Common-Law Partner's Claim Against Their Son's Estate

The situation

Lan and Hua were named as co-executors of their son's estate after he died suddenly at 41. He had made a will eight years earlier, not long after finishing a professional program, leaving everything to his parents and naming them as estate trustees. It was a simple document, and at the time it made sense: he was single, renting, and had no children.

By the time he died, the picture had changed. He had been living with a partner named Biniam for a little over two years, sharing a rented apartment on Oshawa's east side. Lan and Hua, both retired – Lan from decades as a grocery clerk, Hua from a career as a transit operator – had met Biniam a handful of times at family dinners but did not know the details of the relationship. The estate was modest: a paid-off car, some savings, a small investment account, and no real property, valued in total at roughly $190,000 once debts and funeral costs were accounted for.

Six weeks after the funeral, Lan and Hua received a letter from a lawyer acting for Biniam. It stated that Biniam had been financially dependent on their son and was entitled to support from the estate as a dependant. The letter asked the executors to hold off on distributing any assets until the claim was resolved.

The legal question

Ontario's Succession Law Reform Act allows certain people – a spouse, a common-law partner in the right circumstances, a parent, a child, or a sibling – to apply to court for support from an estate if the deceased was supporting them, or was legally obligated to, immediately before death, and the will (or the rules that apply when there is no will) did not make adequate provision for them. This exists so that people who genuinely relied on someone financially are not left destitute simply because a will was never updated.

The definition of who counts is broader than many people expect. A common-law partner does not need to be named in a will, or even mentioned in it, to potentially qualify as a dependant. What matters is the nature and length of the relationship and whether real financial dependency existed. A partner who lived with the deceased for a substantial period, or who was raising a child with them, can meet the legal test even without a marriage certificate or a will that names them.

That meant Biniam's claim could not simply be dismissed as opportunistic. It had to be assessed against the actual facts: how long the couple had lived together, whether their finances were genuinely intertwined, and whether their son had, in practice, been supporting Biniam or sharing obligations with him. Lan and Hua, as executors, had a duty to investigate that fairly rather than assume the answer either way. They also could not safely distribute the estate to themselves while a live dependant support claim was on the table – doing so before the claim was resolved could expose them personally if a court later found the claim valid and the money was already gone.

Family court litigation over dependant support can run well into five figures in legal costs on each side and take a year or more to reach trial. On an estate of roughly $190,000, a contested court fight was a real risk to almost everyone's interests, including Biniam's own recovery if he had a genuine claim.

What we did

1. Reviewed the will and confirmed the executors' authority. Before responding to the claim, our team confirmed Lan and Hua's appointment as estate trustees was in order and that no distributions had yet been made, which protected them from personal liability while the claim was assessed.
2. Gathered the facts on cohabitation and dependency. Rather than accept or reject Biniam's claim on its face, we worked with Lan and Hua to assemble the lease history, utility accounts, and bank records available to the estate. The picture that emerged showed the couple had lived together for roughly two years, kept separate bank accounts throughout, and split rent and household bills close to evenly, with occasional gifts between them but no pattern of one person carrying the other financially.
3. Assessed the claim against the legal test. Two years of cohabitation with largely separate finances is a materially different situation from a longer relationship with genuine financial reliance. We advised Lan and Hua that Biniam's claim, while not frivolous, was weak on the dependency element the law actually requires – sharing a home is not the same as being supported by someone.
4. Responded directly, with the evidence, instead of a bare denial. Our team wrote to Biniam's lawyer setting out the cohabitation and financial records, rather than simply refusing the claim. Laying out the facts early, before either side had spent heavily on the process, gave both lawyers a realistic basis to evaluate the claim's actual value.
5. Negotiated a without-prejudice resolution. Given the cost and delay of a full court application for both sides, we proposed a modest lump-sum payment to Biniam in exchange for a full release of any claim against the estate – not because the estate owed it as a matter of legal entitlement, but because it cost less than litigating a marginal claim to a result that was likely to favour the estate in any event.
6. Documented the executors' decision. We prepared a written record of the investigation, the legal analysis, and the reasoning behind the settlement, so Lan and Hua had a defensible file showing they had acted prudently as trustees rather than simply paying to make the problem go away.

The outcome

Biniam's lawyer accepted a lump-sum settlement of $12,500 in exchange for a signed release, once shown the cohabitation and financial evidence and the realistic cost of pursuing the claim further. The estate closed roughly nine months after their son's death – slower than a straightforward estate with no claims, but far faster and cheaper than a contested support application would have been.

After the settlement, probate fees, and administration costs, Lan and Hua received the estate largely as their son's will intended: just under $170,000 between them, held toward retirement and, at their request, a portion set aside for their grandchildren. Biniam received a payment that reflected the real, if limited, financial connection between him and their son – not the open-ended support order his initial letter had implied was coming.

The result was a clear one: the strategy of investigating before reacting, and negotiating from documented facts rather than instinct, meant the claim was resolved on terms that matched what the law actually supported, at a fraction of the cost of finding that out in court.

Lan and Hua later said the hardest part was not the negotiation itself but the waiting in the middle of it – the months when they could not touch the estate, plan around it, or explain to extended family why everything was on hold. Being able to point to a clear paper trail, showing exactly what had been checked and why the settlement figure was what it was, made that waiting easier to live with, and gave them confidence that agreeing to pay something was a considered decision rather than a concession made under pressure.

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