Challenging a will for support in Canada: Ontario dependants' relief, BC wills variation, Alberta and Quebec
Who can claim support from an estate in Ontario (SLRA Part V), BC (WESA s. 60), Alberta and Quebec, the deadlines and what courts consider.
In Canada, you cannot always leave your estate to whomever you like. Ontario lets a dependant whom the deceased was supporting, or had a legal obligation to support, ask the court for adequate provision from the estate under Part V of the Succession Law Reform Act, generally within six months after the certificate of appointment. British Columbia goes further: under WESA s. 60, a spouse or any child, including an independent adult child, can ask the court to vary a will that does not make adequate, just and equitable provision, within 180 days after the grant. Alberta allows family maintenance claims by spouses, adult interdependent partners and certain children. Quebec lets a person who was entitled to support from the deceased claim a contribution from the succession within six months of the death. These claims override the will, and in Ontario they can reach assets outside it, such as joint accounts and insurance.
Part of the overview of mistakes and official sources. General information, not legal advice.
Ontario: SLRA Part V
Who is a dependant. A spouse (including a common-law partner who meets the cohabitation test), parent, child or brother or sister of the deceased, to whom the deceased was providing support, or was under a legal obligation to provide support, immediately before death. An adult child who was financially independent is generally not a dependant.
What the court can order (s. 58). If the deceased did not make adequate provision for a dependant's proper support, the court can order support from the estate as periodic payments, a lump sum, a transfer of property or other forms.
Deadline (s. 61). Six months from the grant of letters probate or letters of administration (now the certificate of appointment). The court can allow a later application against any part of the estate still undistributed.
What courts look at (s. 62). The dependant's current and future assets and means, capacity to contribute to their own support, age and health, needs, the length and nature of the relationship, contributions to the deceased's welfare, the deceased's other obligations and any agreement between them.
Assets outside the estate (s. 72). For a support claim, certain transactions are treated as part of the estate, including gifts made in contemplation of death, money in joint accounts with right of survivorship, life insurance and designated plan proceeds. This makes Ontario claims hard to defeat with probate avoidance.
Illustrative example. Leo, divorced, was paying his ex-wife $1,500 a month in court-ordered spousal support when he died, and supporting his 16-year-old daughter. His will left everything to his new partner. Both the ex-wife and the daughter are dependants; the court can order support from the estate, including from an insurance policy naming the partner.
British Columbia: WESA s. 60 wills variation
Who can claim. The will-maker's spouse (including a marriage-like partner of two years or more) and children, including adult and independent children. Stepchildren are not included unless adopted.
The test. Whether the will makes adequate, just and equitable provision for the spouse and children, judged by the standards of a judicious person and considering both legal obligations (what family law would have required) and moral obligations to adult children. The Supreme Court of Canada set out this approach in Tataryn v. Tataryn Estate (1994).
Deadline (s. 61). The claim must be started within 180 days after the representation grant is issued, and served on the executor within 30 days after that period. If a minor child or an incapable spouse or child is involved, the Public Guardian and Trustee must also be served.
Only the will. Wills variation applies to property that passes under the will. Joint property and designated assets usually fall outside it, although other claims (such as resulting trust) may still reach them.
Illustrative example. Mei leaves her $1.2 million BC estate to her son and nothing to her daughter, with whom she had a falling-out years ago. The daughter is financially secure. A BC court may still vary the will to give her a share, depending on the reasons and the history, because adult children have moral claims in BC.
Alberta: family maintenance and support
Under the Wills and Succession Act, a spouse, adult interdependent partner, minor child, adult child who cannot earn a living because of a disability, and certain grandchildren or great-grandchildren under 18 in the deceased's care, can apply for maintenance and support (as can a child aged 18 to 21 who is a full-time student, s. 72) if the will (or intestacy) does not provide adequately. The claim must be brought within six months after the grant of probate or administration, although the court may allow a later claim against property not yet distributed (s. 89). Independent adult children cannot claim simply because they were left out.
Quebec: survival of the obligation to provide support
In Quebec, a person entitled to claim support from the deceased (for example, a married or civil union spouse, a child, or an ex-spouse receiving support) can claim a financial contribution from the succession as support within six months after the death. The amount is calculated within limits set by the Civil Code, which depend on the claimant's relationship and what they already receive. De facto spouses, including parental union spouses, are not owed support under the Civil Code (art. 585), so they cannot claim; their children can (art. 684). A married spouse also has the family patrimony and matrimonial regime, which are settled first.
Comparison
| Ontario | BC | Alberta | Quebec | |
|---|---|---|---|---|
| Independent adult children can claim | No | Yes | No | No (only if entitled to support) |
| Common-law partners | Yes, if dependant | Yes (2+ years) | Yes (AIP) | No (unless another basis) |
| Deadline | 6 months after grant | 180 days after grant | 6 months after grant | 6 months after death |
| Reaches non-estate assets | Yes (s. 72) | Generally no | Generally no | Limited |
What executors should do
- Do not distribute before the deadline has passed if a claim is possible; in Ontario, a court can order the estate not to distribute once an application is made.
- Keep potential claimants informed and keep records.
- Get legal advice early if you are served. The estate usually defends through the executor, and legal costs may be paid from the estate.
What will-makers can do
- Leave a written, factual explanation of your reasons with your lawyer (it does not guarantee the result, especially in BC).
- Meet your legal support obligations, for example with life insurance for children and former spouses with support orders.
- Remember that probate avoidance does not defeat Ontario dependants' claims.
FAQ
Can a disinherited adult child in Ontario challenge the will?
Not as a dependant unless they were being supported. They might challenge validity (capacity, undue influence, formalities), which is a different claim.
Does a BC claim need a lawyer?
The procedure is complex and the deadline is strict. Most claimants use a lawyer; some use limited-scope services or legal aid if eligible.
Can I waive these rights in a marriage contract?
Partly, in some provinces, but courts may still intervene, especially for children. Get advice.
Sources
- Ontario e-Laws — Succession Law Reform Act, Part V (ss. 57–72)
- BC Laws — Wills, Estates and Succession Act, ss. 60–61
- Alberta King's Printer — Wills and Succession Act, family maintenance and support
- Éducaloi — support claims against a succession in Quebec
- Clicklaw — BC wills variation information
