All About Estates

Interim Support and the “Bare Minimum”

Should a widow have to deplete her meager savings and income before being entitled to interim dependant support from her late husband’s estate? In Anderson v. Anderson, 2019 ONSC 5627 (CanLII), the court’s answer was unsurprisingly “no”.

The deceased had been married to his second wife for almost 20 years. Both had children from their previous marriages. Under the deceased’s will, his widow was the estate trustee and could live in his house until her death. If she wished, she could sell the house and use the net proceeds of sale to buy a new house. It appears that the house was the entirety of the deceased’s estate. The general upkeep of the house was paid for by the deceased’s son (the deceased had made his son the joint owner of a large GIC)

The situation worked until the widow needed to move into an assisted living facility. As the widow has modest income and savings, she brought a dependant support application against the deceased’s estate (it is not clear whether an estate trustee during litigation or litigation administrator has been appointed, as the widow is the named estate trustee). Her stepson opposes the application and has brought his own application for reimbursement of expenses he paid for from the house since the deceased’s death.

The widow brought a motion for interim support. Her stepson opposed the motion as the widow entered into a marriage contract with the deceased. The stepson also argued that no interim support should be ordered, as the widow could cover her minimal expenses for about 15 months (at which time, optimistically, the application could be heard). Alternatively, he argued that the widow should have to put her entire income towards her expenses and the estate should only cover the shortfall. The stepson also argued that the application was out of time (as it had been brought long after probate was granted) but did not argue this on the motion.

Justice Dietrich found that the widow was a dependant, as she was the married spouse of the deceased who provided her with a residence and paid its expenses. The deceased did not provide her with proper support, as his will did not contemplate a situation where the widow did not live in a residence but in an assisted living facility. As such, her Honour found the widow had an entitlement to interim support.

Her Honour noted that the issue of the marriage contract could be adjudicated at the hearing. For the purposes of interim dependant support, her Honour was content to rely upon s. 63(4) of the Succession Law Reform Act, which allowed a court to order support despite any agreement or waiver to the contrary.

Then Justice Dietrich turned to quantum. The widow was asking for support to cover her assisted living facility rent, laundry and a locker (not television, outside food, taxis, clothing and hair care). In her Honour’s words this was the “bare minimum”. The will intended that the widow had a roof over her head and that the associated costs would be paid for from the deceased’s assets. As such, her Honour ordered payment of these minimal expenses of the estate as interim support.

This case demonstrates the need for good estate planning. Because the deceased’s will did not anticipate the possibility of the widow living in an assisted care facility, litigation ensued. The court also sent a message that interim support should at least cover dependants’ “bare minimum” expenses and they should not have to dip into their own savings and income in situations where the dependant has meager savings and income.

About Jacob Kaufman
Jacob Kaufman is a lawyer with de VRIES LITIGATION LLP. Jacob assists clients with will challenges, dependant support claims, guardianship applications, power of attorney disputes and other estate and trust litigation matters. He has appeared before various levels of court, including the Superior Court of Justice and the Court of Appeal for Ontario. Jacob obtained his law degree from the University of Western Ontario (with distinction) after completing an Honours Bachelor of Arts degree from Queen’s University in history (with distinction). He has written articles for the International Law Office, Legal Alert and the OBA’s Deadbeat. Email: jkaufman@devrieslitigation.com

1 Comment

  1. Ian Keay

    October 23, 2019 - 4:14 pm
    Reply

    Very informative. Thank you.

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