Today’s blog is written by Jessica J. Butler, Law Clerk at Fasken LLP

TV legend Bob Barker passed away on August 26, 2023 at the age of 99 – just 4 months shy of his 100^th birthday.  Bob was probably most well known for being the legendary host of the long-running game show The Price is Right (and, like me, you may also have the image of Bob’s right hook connecting with Adam Sandler’s jaw in Happy Gilmore burned into your psyche), but he was also an animal advocate and philanthropist.  Bob’s famous catchphrase at the end of every episode of The Price is Right reminded us all to get our pets spayed or neutered to help reduce the amount of animals living in inhumane circumstances.

Charitable Giving

It will come as no surprise that Bob’s Estate will provide for charitable bequests to animals’ rights organizations.  What may be surprising is that the entirety of his Estate, estimated to be worth approximately $70 million USD, is purported to be donated to various animals’ rights organizations.   In line with Canadian law, charitable bequests in the US can be utilized towards a deduction in an estate’s gross value thereby reducing the amount of estate tax to be paid on the fair market value of the property owned at death – my colleague, Courtney Lanthier, discussed the effect of charitable bequests in wills in her latest blog post here.

No Share to Common Law Spouse – Dependant Support?

Bob was predeceased by his wife of 36 years. His longtime girlfriend, Nancy Burnet, has been named executor of Bob’s Estate, however Nancy does not stand to inherit as a beneficiary of the Estate.  Bob provided a charitable bequest to United Activists for Animal Rights, which Nancy is currently the president of.

While there is nothing yet to suggest that Nancy was surprised or upset to hear she was not receiving a share of Bob’s estate, I found myself wondering what recourse, if any, she may have if she were an Ontario resident and was expecting to inherit a share of Bob’s Estate.

Part V of the Succession Law Reform Act, RSO 1990 c S.26, (the “SLRA”) deals with dependant support claims.  Dependant support claims occur when a person has passed away (with or without a will) and a person who is a dependant of the deceased believes the deceased person did not make adequate provision for the dependant’s support.  .  Section 57(1) of the SLRA defines who is considered a “dependant” for these purposes.  It includes the spouse, parent, child, or sibling of the deceased person.  Section 57(1) goes on to clarify that for the purposes of Part V of the SLRA, spouse has the same meaning as in section 29 of the Family Law Act, RSO 119, c. F.3, (the “FLA”).

Section 29 of the FLA defines spouse to include inter alia “two persons who are not married to each other and have cohabited continuously for a period of not less than three years”.  Nancy, while not legally married to Bob, would therefore be considered a spouse under S.29 of the FLA and for the purposes of Part V of the SLRA (assuming Nancy and Bob were not separated and still cohabitating at the time of Bob’s death), and potentially fall under the definition of a dependant as it relates to support obligations (being considered a spouse is not the only test!).

The SLRA provides that if a deceased person has not made “adequate” provision for the proper support of their dependants, support may be awarded by the court. A court may hypothetically find that Bob had not made adequate provision for Nancy by donating his entire Estate to charity, not providing a share of his Estate to her, and may subsequently order support in favour of Nancy.

However, what constitutes “adequate” provision for the proper support of dependants is considered a factual inquiry which is determined based on the unique circumstances of each case. The court will take into account a variety of factors when making a determination as to whether “adequate” provision was made.  Section 62(1) of the SLRA provides guidance on that point, however the court will consider all circumstances of the application when making such a determination.  In the case of a dependant spouse (and remember, for the purposes of a dependant support claim, two persons that cohabitated are considered spouses!), considerations include, but are not limited to: i) the dependant spouse’s current assets and means as well as their future anticipated assets and means; ii) the length of cohabitation; and, iii) if the dependant spouse’s earning capacity was impacted by the responsibilities assumed during cohabitation with the deceased spouse.

Wrapping Up

While I’ll keep an eye on TMZ for any potential developments with Nancy Burnet,  it seems more likely that Bob (with his history of philanthropy, particularly for the benefit of animals) was decisive with his estate plan and provided support for Nancy in alternative ways.

Bob had founded the now-defunct DJ&T Foundation whose goal was to finance clinics that specialize in spaying and neutering  — a goal that we know was near and dear to Bob’s heart. To honour Bob and his love of animals, donations could be made to the Spay Neuter Initiatives Association, or the Ontario SPCA and Humane Society.

Thanks for reading!