Providing for a Son With a Disability Without Losing His Benefits

The situation

Marek had spent thirty-two years as a front-desk supervisor at a hotel before retiring, and Mai had driven transit routes across the region for almost as long. Between a small workplace pension, government retirement benefits, and a paid-off house in Oshawa, they were comfortable, if not wealthy. Their estate, once the house was counted, sat somewhere in the $300,000 to $600,000 range depending on the market that year.

They had three adult children. Two were independent, working full-time and living on their own. The third, Tuan, had a developmental disability from birth and had lived with his parents his whole life. He received support through the Ontario Disability Support Program (ODSP), a provincial benefit that provides monthly income and health coverage to people with disabilities who have limited income and assets. Marek and Mai supplemented what ODSP covered — rent-free housing, food, transportation, and the extras that make a difference in daily life.

Marek and Mai had an old will, drafted decades earlier when the children were small, that simply split everything three ways. As they entered their seventies, they decided it was time to update it. Their instinct, like many parents, was fairness: split the estate equally among the three children, exactly as before. They came to Treadstone Law expecting a straightforward update — new executors, current addresses, maybe a change to the funeral instructions. They did not expect the will review to become the most consequential part of the conversation.

What the review found

During the intake call, our team asked routine questions about each beneficiary's circumstances — not to pry, but because how a beneficiary receives an inheritance can matter as much as how much they receive. When Tuan's ODSP status came up, two separate risks became clear.

The first was immediate and mechanical. ODSP has an asset limit for recipients, and it is low — roughly $40,000 in cash and investments for a single recipient at the time. If Marek and Mai's will left Tuan an outright one-third share of an estate in the middle of their expected range, that could mean well over $100,000 landing directly in his name. The moment that inheritance cleared, Tuan's assets would sit far above the ODSP limit, and his benefits — both the monthly income and, just as importantly, the health and dental coverage — would be suspended until the money was spent down. An inheritance intended to help him would instead disqualify him from the program he relied on every day, potentially for a year or more while the funds were drawn down through ordinary living expenses.

The second risk was less obvious but more serious in the long run. Ontario's Succession Law Reform Act allows a dependant — a spouse, child, parent, or sibling whom the deceased was supporting, or was under a legal obligation to support, immediately before death — to apply to the court for support from the estate if the will does not make adequate provision for them. Tuan, as a child with a disability who had been financially and practically dependent on his parents his entire life, was squarely within that definition. An outright one-third share might satisfy a court's idea of "adequate provision" in dollar terms, but only for as long as the money lasted — and if it were quickly consumed by an ODSP clawback and lack of any structure to manage it responsibly, a later challenge on Tuan's behalf, brought by a public guardian, a support worker, or even a sibling concerned about his welfare, was not far-fetched. The couple's plain, well-meaning instinct to split things evenly was, without realizing it, creating exactly the kind of inadequate and fragile provision the Act exists to catch.

Neither risk was hypothetical or invented for the sake of caution. Both were the predictable, well-documented result of leaving an outright inheritance to someone receiving means-tested disability benefits without any planning around it.

What we did

1. Explained the mechanics before proposing a fix. Before recommending any structure, we walked Marek and Mai through exactly how the ODSP asset limit works and why an outright bequest — however fair it looked on paper — would work against the very son it was meant to help. Understanding the mechanism mattered to them; they wanted to know why, not just what to sign.
2. Recommended a trust for Tuan's share instead of an outright gift. We drafted the will to leave Tuan's one-third share into a discretionary trust rather than directly to him. Commonly called a Henson trust in Ontario planning, this type of trust gives the trustee full discretion over whether and when to pay funds to or for the beneficiary, with no fixed entitlement Tuan could demand. Because Tuan has no vested right to the trust property — only the possibility that the trustee might use it for his benefit — the funds inside the trust are not counted as his assets for ODSP purposes. His benefits continue undisturbed while the trust quietly supplements his life with things ODSP does not cover.
3. Chose a trustee and set clear guidance. Marek and Mai named one of Tuan's siblings as trustee, with the other named as a backup. We drafted a letter of wishes alongside the will — a non-binding but detailed guide explaining how they hoped the trust would be used: dental work not covered by ODSP, a better wheelchair, occasional travel, a support worker's wages during a gap in public funding. A letter of wishes is not legally binding the way the will is, but it gives a trustee real guidance instead of a blank cheque of discretion, and it reduces the chance of disagreement between the siblings about what "for Tuan's benefit" actually means.
4. Addressed the dependant support risk directly in the will. Rather than leaving the adequacy of Tuan's provision to chance, we structured the trust with a value clearly proportionate to his share of the estate and documented, in the accompanying planning notes kept with the will, why the trust structure represented adequate and appropriate provision for him as a dependant. That contemporaneous record — showing the parents turned their minds to Tuan's needs and chose a structure a court would recognize as suitable, rather than simply omitting or shortchanging him — is exactly the kind of evidence that heads off a claim under the Succession Law Reform Act before it can be made.
5. Coordinated the other two children's shares to keep things balanced. To preserve the fairness Marek and Mai cared about, the other two children's shares were left outright, as originally planned, with the trust structure applied only where it was actually needed. We also made sure both wills named contingent trustees and explained to all three children, at the parents' request, why Tuan's share looked different — heading off any future sense that he had been treated as less than an equal.

The outcome

Marek and Mai signed the updated wills roughly six weeks after their first call. Nothing dramatic happened at signing — that was the point. The trust exists on paper, ready to receive Tuan's share whenever it is eventually needed, and until then it changes nothing about his day-to-day life or his ODSP eligibility.

What the planning prevented was a problem that would have surfaced only after both parents were gone, at the worst possible time to fix it. Without the trust, Tuan's inheritance would have triggered an ODSP suspension within weeks of the estate being distributed, forcing him or a guardian to navigate a benefits reapplication process while grieving. Without the documented reasoning behind the structure, the estate would have carried real exposure to a dependant support application — a court process that typically takes many months, draws on the estate's assets to pay for, and can leave siblings on opposite sides of a painful dispute. None of that will now happen, because the risk was caught while Marek and Mai were still able to choose how to address it.

They now review the letter of wishes every few years, most recently after Tuan moved into a day program that changed his weekly routine. Updating a letter of wishes is simple and does not require re-signing the will itself, which gives the family room to keep the plan current as Tuan's needs change over time.

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