“WHAT EVERY FAMILY LAW LAWYER SHOULD KNOW ABOUT ESTATE LAW”*
A. SUCCESSION LAW REFORM ACT
Part V of the SLRA governs claims for support.
Section 58(1) provides as follows:
Where a deceased, whether testate or intestate, has not made adequate provision
for the proper support of his dependants or any of them, the court, on application,
may order that such provision as it considers adequate be made out of the estate of
the deceased for the proper support of the dependant or any of them.
For the purposes of this section, the term “dependant” is defined to mean:
(a) The spouse or same-sex partner of the deceased;
(b) A parent of the deceased;
(c) A child of the deceased; or
(d) A brother or sister of the deceased
to whom the deceased was providing support or was under a legal obligation to provide support
immediately before his or her death.
It should be noted that in order to qualify as a dependant a claimant must satisfy two tests:
(a) he or she must stand in a certain relationship to the deceased; and
(b) the deceased must have been either providing support or under a legal occupation
to do so immediately before death.
With regard to the relationships of a claimant to the deceased it should be noted that the terms,
“spouse”, “child” and “parent” all have extended meanings.
A spouse includes a common-law spouse and as well a person whose marriage to the deceased
was terminated or declared a nullity. Thus, a deceased person could have more than one
“spouse” for purposes of the dependant relief provision of the SLRA. As well, as of March 1,
2001, the definition of spouse was amended to include a same-sex partner.
The term “parent” includes a grandparent and a person who also demonstrated a settled intention
to treat the deceased as a child of his or her parents.
The term “child” includes a grandchild and a person to whom the deceased has demonstrated a
settled intention to treat as a child of his or her family except under arrangements where the child
is placed for valuable consideration in a foster home by a person having custody. In Rechellew
v. Public Trustee6, a dependant child was also determined to include a child of any age where the
deceased was actually providing support before death or was under a legal obligation to do so
even if there was no actual dependency. However, see subsection 62(i)(q) of the SLRA, where it
is directed that a court must take into consideration whether a child who has attained the age of
sixteen years or more has withdrawn from parental control.
The criterion that there has to have been a pre-existing support obligation is comprised of two
components, namely, that the deceased was either actually providing support at the date of death
or alternately was under a legal obligation to provide support at the time of death. Thus for
example, even if a spouse was not receiving support at the date of death of a deceased, it might
be argued that the deceased was under a legal obligation to provide support immediately before
5 The term same-sex partner is defined to mean “either of 2 persons of the same sex who have co-habitated (a)
continuously for a period of not less than 3 years or (b) in a relationship in some permanence if they are the
natural or adoptive parents of a child”.
(a) What is “adequate” support?
In determining whether a deceased made adequate provision for his or her dependants, a court
must first evaluate what was given under the will or on intestacy and then must determine what
is ”adequate” support. Here again, the consideration of what constitutes adequate support is
based on the facts and circumstances of each case and not simply on what is adequate at the
present time but also what would be adequate in the future. The court also considers not simply
the necessities of life but also the lifestyle of the parties.
(b) When must an action be commenced?
Subsection 61(1) of the SLRA provides that an action must be commenced within 6 months after
the Certificate of Appointment of Estate Trustee has been issued. The court has the discretion to
extend the limitation period but in such a case the dependant’s claim only extends to the
undistributed part of the estate. The case law discloses that the court’s decision as to whether it is
appropriate to extend the time for making an application is very fact driven.
A common probate planning technique is to have two wills - one to deal with assets that require
probate to deal with them (the probatable will) and another to deal with assets that do not require
probate (the non probatable will). The intention is that the latter will is not probated thus saving
probate tax on the value of assets passing under that will. Assets commonly dealt with under
non-probatable wills include private company shares and often these comprise the most valuable
assets of the deceased.
Presumably since the limitation period for an SLRA claim is six months after the issuance of the
Certificate of Appointment of Estate Trustee and because no Certificate of Appointment will be
sought in respect of assets dealt with by the non probatable will, there is no limitation period for
SLRA claims in respect of this part of a deceased’s estate
(c) Effect of commencement of application on distribution of estate.
Subsection 67(1) provides for an automatic stay of the distribution of the estate once the
application is commenced and the estate trustee is served with notice. Subsection 67(2) provides
an exception for “reasonable advances for support of dependants who are beneficiaries”. If an
estate trustee violates the provision of subsection 67(1), he/she is personally liable for the
amount so distributed.
(d) Determination of amount of support:
Subsection 62(1) sets out the criteria a court must consider in determining the amount and
duration of support. The criteria are set out in schedule “A” to this paper.
The court is not required to consider every criterion that is listed, but instead must consider only
those that are relevant to the facts of each particular case. The court may also take into account
any other evidence it considers appropriate with respect to the reasons the deceased may have
had for making the dispositions in his/her will or for not making adequate provision for the
dependant.9 Thus, it may be prudent for the lawyer preparing a will for a client who is making or
not making provisions for a person who may qualify as a dependant, to suggest that the client
articulate the reasons for her/his decision in a written statement. It is interesting to note that the
court can take into consideration ethical factors such as past conduct that is unconscionable.
One of the factors that the court must consider in the case of a dependant who is a spouse is “any
agreement between the deceased and the dependant.” Thus, a court must consider agreements
such as cohabitation agreements, separation agreements and minutes of settlement of a divorce.10
However the court is also given the discretion to enforce or not enforce such agreements.
Subsection 62(4) provides that “an order under this section may be made despite any agreement
or waiver to the contrary”. The cases are fact driven but it would appear that the courts do give
weight to such agreements and appear reluctant to allow dependant relief claims to be used as a
means to alter such agreements absent compelling reasons. Another criteria that the court is
directed to consider (again in the context of a dependant who is a spouse) is the conduct of the
applicant spouse toward the deceased “that is so unconscionable as to constitute an obvious and
gross repudiation of the relationship.”11
With respect to child support applications, the courts also look to agreements between the
spouses, as in many cases such agreements contain not only provisions for spousal support but
also deal with child support obligations between the spouses. As in the case of applications for
spousal support, the courts seem to give considerable weight to the fact that such agreements
exist, as well as the content of their terms, in determining not only whether a dependant who is a
child of the deceased has standing to make an application for support but also in respect of the
entitlement to support.
(e) Making an Order for Support
In making an order for support of a dependant under the SLRA, the court has broad discretion
and may impose such conditions and restrictions as it considers appropriate.12 Subsection 63(2)
provides for various types of awards that a court can make, but the court is not limited by the
types of awards listed. These awards include periodic payments, lump sum payments, payments
for life or a term of years, transfers of property outright or in trust, and payments to third parties
for the benefit of the dependant. In the context of an estate, sometimes a lump sum payment is
preferred so as not to hold up the administration and wind up of an estate, notwithstanding that
historically periodic payments orders most closely resemble traditional “support”.
Another factor that the courts can take into account is other benefits received from the deceased.
In the case of DeWinter, for example, the applicant had brought an FLA equalization claim as
well as an SLRA dependant relief claim. An award was made under both statutes but the court
took into account the income that the equalization payment would generate.
The recent introduction of the Child Support Guidelines raises the question of their applicability
to dependant relief claims. The relatively few cases that address the issue are inconsistent.
However, despite these inconsistencies, there appears to be a clear position that it is not
appropriate to apply the Guidelines in the context of a dependant relief application brought on
behalf of a child. The reasons are twofold.
Firstly it has been acknowledged that the Guidelines “ do not fit well with a claim against the
estate because they are premised on a living support payor who has or could and should have
annual income.” In addition, there is no continuing income stream on which to calculate what
would constitute proper payment.
[T]he difficulties with such an analysis in the case were that the father was dead
and his estate was composed of capital that would generate minimal income to
pay future child support and the mother had not taken any steps to increase
support until shortly before the husband’s death…(the judge did not explain) how
he deemed the father alive and attributed income to him. In the end, it appears
that Perkins J. awarded support pursuant to the dependants’ relief provisions of
the Succession Law Reform Act under the guise of making a child support order
under the Guidelines. Because the deceased’s estate had insufficient income to
pay support according to the Guidelines Tables, Perkins J was forced to order
support based on the estate’s capital, an outcome that is inconsistent with the
Another recent development is the consideration by the courts of the moral obligations of the
deceased when determining an order for support, whether spousal support or child support. The
consideration of moral obligations in the context of dependant relief is not new in Canadian
jurisprudence. Over the years the courts in British Columbia have evidenced a willingness to
chip away at the concept of testamentary freedom in favour of ensuring that “adequate, just and
equitable” provision be made for dependants. The courts in Ontario have not been as
forthcoming, due in large part to the fact that the wording of the Wills Variation Act in British
Columbia is different from that of the dependant relief provisions of the SLRA.
However, the recent case of Cummings v. Cummings may be an indication of a shift in the
weight to be given to the moral obligations of the deceased in Ontario. In the Cummings case,
the adult children of the first marriage of the deceased brought an application for support. The
son, aged 24, suffered from a severe neuromuscular disease, and his prospects for long term
employment were dim. His health care needs would become more costly as the years went on.
The daughter, age 18 at the time of her father’s death, was in school and intended to pursue a
university education. The will provided for a fund of $125,000 to be set aside for the children
with the balance of the estate to go to the deceased’s second wife. The value of the estate was
deemed to be $650,000 for purposes of the dependant relief application.
At trial, Cullity J. agreed that the deceased had not made adequate provision for his dependants.
He also acknowledged that even the full value of the estate would not be sufficient to satisfy all
of the current and future needs of the son. He set the level of support at a lump sum amount of
$250,000, payable by way of a lump sum to the mother of the children in trust, to provide a
maximum of $10,000 to the daughter to allow her to complete her Master’s degree and the
balance to be held in trust for the care and welfare of the son. In coming to his decision, Cullity
J. considered the needs and means of the children, the size of the testamentary and notional
estates, the legal and moral claims of the children, as well as those of the first and second wives,
notwithstanding that the second spouse did not appear to be in need of support and had not in
fact made a claim. The appeal of the children for a 2/3 / 1/3 distribution was dismissed .
At trial, Cullity J. articulated the law of Ontario as follows:
I believe that apart from any residual value that is to be attributed
to freedom of testamentary disposition and the direction in section
62(1)(k) to consider the existence of a legal obligation to support
another person, moral considerations continue to have a part to
play in the analysis although, if due consideration is given to the
differences in the wording of the legislation of this province and
that of British Columbia, they may not be given the same
significance as in the courts of the latter.
The Court of Appeal agreed with Cullity J. that this represents the law in Ontario, but held that
moral considerations are as important in Ontario as in British Columbia, and that the disparities
between the British Columbia and Ontario statutes are “not sufficiently telling to preclude the
application of Taratyn in this province.”
In the earlier Taratyn case referred to above,20 the Supreme Court of Canada determined that a
deceased’s moral duty toward his or her dependants is a relevant consideration on an application
for dependant relief and that judges are not restricted to a needs based economic analysis when
determining what support is proper.
While the full impact of the Cummings case is not yet known and the question of whether it will
be applied narrowly or in a more expansive manner is still to be determined, a number of
decisions have considered the case which provide some indication of future developments in this
In the case of Simpson v. Leardi, the plaintiff asserted that because the estate had increased
significantly due to a sale of property (the sale had also increased the plaintiff’s assets, though to
a lesser degree than the estate) that the plaintiff was entitled to an increased support order. The
plaintiff argued that Cummings expanded the scope of a judge’s review from a needs based
analysis to a review of the moral duty of the deceased. The court rejected the argument of the
plaintiff for a continuation of the support order and held that the Cummings decision applied only
to situations where the court was weighing the competing claims of a number of dependants
against an estate that contained insufficient assets to satisfy those claims.
The decision of Juffs v. Investors Group Financial Services Inc. relied on Cummings and
considered moral obligations in calculating the amount of support to be awarded under the
dependant relief provisions of the SLRA. The applicant was the child of the deceased, who was
seeking to claim arrears in child support payments that were owed by the deceased to the
applicant’s father. The court determined that since the arrears were legally owed to the
applicant’s father, the entire amount was not recoverable. However, upon considering the moral
obligations of the deceased, the court awarded half of the full amount of arrears to the applicant.
In Madore-Ogilvie (Litigation guardian of) v. Ogilvie Estate23 there were competing claims
against the deceased’s estate by three of the deceased’s children, each a child of different
mothers. The court used the Cummings decision as “the established approach” to examine the
circumstances of an application for dependant’s relief.24 In accordance with this approach, the
court considered the obligation of the deceased to act as a “judicious person” when providing for
his dependants, and held that the estate should be divided into three equal shares in favour of the
Another recent case to apply the Cummings analysis was Perilli v. Foley.25 In this case, the
deceased provided in his Will for his common-law spouse to receive a monthly payment of $500,
20  2 S.C.R. 807.
21  O.J. No. 4282.
22  O.J. No 3872.
23  O.J. No. 5774.
24 Ibid. at para. 37.
25  O.J. No. 465.
- 8 -
up to a total amount of $30,000. When examining the common-law spouse’s claim for
dependant relief, the court cited the Cummings analysis as authority:
It is clear from that long list [the factors set out in subsection 62(1)
of the SLRA] that the court must do more than conduct a simple
needs-based analysis to determine the issue of “proper support”.
The need of the dependant is only one factor to be considered.
Moreover, the Ontario Court of Appeal has held that the court
should use the “judicious father and husband” test in determining
the appropriate disposition, as opposed to a needs-based analysis.
See the case of Cummings at paragraph 40.
In addition to the consideration of the moral duty owed by the deceased to his or her dependants,
the Court in Perilli also reiterated the Cummings principle that the court must also consider any
legal or moral obligations of the deceased to his or her non-party/independent spouses and
children. In Perilli, the court found that the deceased had not satisfied his moral duty to
adequately support his common-law spouse, and awarded the applicant a lump sum based on her
monthly needs for the duration of her life.
In the case of Reid v. Reid26, the deceased had left her estate to her two children equally. The
applicants were one of the deceased’s children (a daughter) and her two children. The daughter
and one of her children were mentally challenged and the other child was a minor. The main
asset of the estate was a house in which the daughter and her two children were living. The court
held that by providing shelter, the deceased had been providing support to the applicants prior to
her death, as support provided by the testator need not be direct financial support. The court then
concluded that there was a “subtle intention by the testator’ to provide support for all three
applicants. The court therefore readjusted the distribution of the estate to provide for an equal
division four ways among the son, the daughter, and the daughter’s two children. It would
therefore appear that while the analysis in this case follows the Ontario statute in focusing on the
“subtle intention” of the testator, the comment that the support need not be direct financial
support demonstrates that the Taratyn and Cummings approach is beginning to filter into
Although the dictates of brevity do not allow a thorough analysis of the differences between the
British Columbia and Ontario legislation in this area, the introduction of the Cummings and
Taratyn approach into Ontario jurisprudence raises a number of interesting questions. For
example, are there any circumstances in which a testator’s moral obligation, if existent, would
cease? For example, would a testator have a moral obligation towards an abusive adult child?
Would the same testator have a moral obligation towards an adult child who not only refuses to
have a relationship with the testator but also refuses to allow the testator to have a relationship
with his or her grandchildren? Further, how exactly will the court interpret the behaviour of a
“judicious” testator? Will a testator who explicitly wishes to leave her estate in a non-judicious
manner have restraints placed on her testamentary freedom by the existence of ongoing moral
obligations to adult children? Will the perceived existence of such moral obligations prevent a
26  O.J. No. 2359.
- 9 -
testator from exercising his or her freedom to distribute his or her assets in a capricious or flighty
(f) What assets are available for a support order?
Subsection 58(1) of the SLRA provides that the source of the payment of a support order is “out
of the estate” of the deceased. Section 72 has the effect of “clawing back” the capital value of
certain assets which would not typically be considered part of the estate , but which can be
deemed to be part of the estate not only for purposes of determining the value of the estate but
also for purposes of being available to be charged for payment of a support order. The list of
assets in section 72 includes the following
(i) Gifts mortis causa;
(ii) Money on deposit in the name of the deceased in trust for another;
(iii) Money in a joint account which passes by survivorship;
(iv) Any disposition of property made by the deceased whereby property is
held at death by the deceased and another;
(v) The proceeds of a life insurance policy on the life of the deceased and
owned by the deceased and any amount payable under a group life
(vi) Any amount payable under a beneficiary designation on an RRSP or
Subsection 72(3) provides that the burden of proving that such assets belonged to the deceased
rests with the person claiming to be a dependant. It is interesting to note that because generally
such assets are not considered to be part of the estate of the deceased, they are not available to
satisfy the claims of the deceased’s creditors. Section 72 of the SLRA therefore creates a right
for dependants that is above that of other creditors of the deceased and surprisingly even above
those who may have been designated to take ownership of the property on the death of the
B. THE FAMILY LAW ACT: ELECTIONS AND THEIR EFFECT ON THE
ADMINISTRATION OF AN ESTATE -
The second statute that impacts on the administration of an estate is the Family Law Act and the
possibility of claims for equalization and support obligations. It is assumed for the purposes of
this paper that the terms net family property and property are familiar to this audience. In
addition, valuation and tax issues will not be dealt with in the material that follows.
Part I of the FLA, at section 6, provides that when a spouse dies leaving a will, the surviving
spouse must elect to either take under the will or to receive the entitlement under section 5 of the
- 10 -
FLA. If the spouse dies without a will, then the election is between the entitlement under the
intestacy rules (Part II of the SLRA) and the entitlement under the FLA. It should also be noted
that the term spouse refers to two persons who are married to each other or who have entered
into marriage that is voidable or void in good faith. The definition of “spouse” does not
contemplate a common law relationship.
Subsection 5(2) of the FLA provides that when a spouse dies, if the net family property ("NFP")
of the deceased spouse exceeds the NFP of the surviving spouse, the surviving spouse is entitled
to one half of the difference between them. It should be noted that the right to the equalizing
payment only arises in the death situation if the surviving spouse’s NFP is less than that of the
deceased spouse. The valuation date for the purposes of determining equalization on death is the
date before the date on which one of the spouses dies leaving the other spouse surviving,
assuming that none of the other valuation dates has occurred (such as the date of the separation
of the spouses or the date that both spouses die simultaneously).
An application to determine entitlement to an equalization payment that was commenced before
the death of the applicant spouse may be continued by or against the deceased spouse’s estate.
Subsection 7(2) of the FLA provides that entitlement under subsections 5(1), 5(2) and 5(3) is
personal as between the spouses, but an application based on subsections 5(1) or 5(3)
commenced before a spouse’s death may be continued by or against the deceased spouse’s
estate, and an application based on subsection 5(2) may be made by or against a deceased
The question of whether to elect or not is not a straightforward one. In addition to having to
determine NFP, consideration has to be given to the fact that in addition to any property received
pursuant to an election, a surviving spouse is entitled to
(i) any property outside the estate which may fall to him or her;
(ii) any gifts made pursuant to the terms of the will in addition to any
entitlement under section 5 of the FLA, but only if the will expressly so
provides. (see subsection 6(5) of the FLA) If the will does not so provide,
then the spouse must effectively choose to take the benefits under the will
or the entitlement under section 5 of the FLA. The FLA provides is that if
the surviving spouse elects to take his or her equalization payment, the
will is to be read as if that surviving spouse had predeceased the testator.
If the provisions of the will leave a life interest in the estate of the
deceased spouse to the surviving spouse, it is often difficult to determine
whether it is better to elect to take the FLA entitlement or be a beneficiary
under the will.
(iii) insurance proceeds of a policy of life insurance on the life of the deceased
spouse and owned by the deceased spouse or which was taken out on the
lives of a group of which he or she was a member, or a lump sum payment
under a pension or similar plan on the death of the deceased spouse so
long as a written designation by the deceased spouse provides that this is
in addition to the entitlement under section 5. If that written designation is
- 11 -
not made, the payment must be credited against the surviving spouse’s
entitlement under section 5 ( See subsection 6(6) of the FLA)
The election must be filed within 6 months of the date of death of the deceased spouse unless an
extension of time is granted.. The election must be in prescribed form and filed with the office
of the Estate Registrar for Ontario. Failure to file the election will result in the spouse being
deemed have elected to take under the will, the SLRA or both, unless the court orders otherwise.
It should be noted that subsection 2(8) of the FLA provides that a court may extend a time
prescribed by the Act (i.e. the six month election limitation period) if it is satisfied that:
(i) there are apparent grounds for relief;
(ii) relief is unavailable because of delay that has been incurred in good faith;
(iii) no person will suffer substantial prejudice by reason of the delay.27
(a) Can a person acting under a power of attorney file an election?
Questions have arisen as to whether a person acting under a power of attorney of a surviving
spouse has the authority to file an election on behalf of the surviving spouse. In the case of
Anderson v. Anderson Estate28 the plaintiff surviving spouse executed a power of attorney in
favour of her daughter and son-in-law after her husband’s death. She became incompetent after
she signed the power of attorney but within the 6 month limitation period. The attorneys elected,
within the limitation period, to receive the plaintiff’s entitlement under the FLA rather than the
benefits under the will. The court upheld the ability of the attorneys to make the election for the
(i) the legislature could not possibly have intended that an incompetent
surviving spouse should be deprived of his or her right to elect simply
because he or she was under a disability;
(ii) it is not the right to elect that is personal but rather the right to entitlement
that is personal; and
27 See Varga v. Varga Estate (1987) 26 E.T.R. 172 (Ont H.C.), where a widow made a document
purporting to elect for one-half of the estate under the FLA rather than the provisions of the Will of her deceased
husband. The widow’s lawyer mailed the document to the lawyer for the estate with instructions to file it with the
court. It was mailed to the court clerk but was then returned as no affidavit of execution was included. The
document was later mailed to court and retained by the office but was never recorded in the usual way. The court
eventually held that election not properly filed and recorded and thus no election made.
28 (1990) 74 OR (2d) 58 (Ont HCJ).
- 12 -
(iii) an election by an attorney acting under a valid power of attorney upon the
mental incompetency of the donor is indistinguishable from the case of an
election by the Public Trustee (now the Public Guardian and Trustee) on
behalf of a mentally incompetent person.29
In the case of Rosenberg v. Romberg,30 the issue was whether a personal representative of a
surviving spouse who dies within the 6 month limitation period without having elected is entitled
to file the election and make application for the equalization payment. The court held that the
right to make an election is personal between the spouses and could not be exercised by the
personal representative. Thus, the court held that the surviving spouse’s right to elect died with
The court in the Anderson case distinguished the Rosenberg case on the grounds that in the
Anderson case the surviving spouse was still alive and therefore her right to elect was also still
alive. The fat that she was incompetent to make the election personally did not diminish that
Another issue is whether it is possible to incorporate a provision in a power of attorney to restrict
the attorney from the obligation to bring a FLA claim in the above situations. Consistent with
the fiduciary duty of an attorney acting under a power of attorney , there is a duty to consider
whether the FLA claim is in the best interests of the donor. An individual who is appointed as an
attorney may be in a conflict of interest regarding the estate of the donor. For example, he or she
may be acting as an attorney for a surviving spouse and also be a named beneficiary under the
will of the deceased.
So, the question arises. Can the power of attorney restrict the donee of the power from making
such an election? The Substitute Decisions Act 31 (the “SDA”) contemplates that the scope of a
power of attorney can be limited or general and that conditions and restrictions can be provided
for in a power of attorney.32 Thus it appears that there is no provision in the SDA preventing
such a restriction. The flip side of the issue is to consider whether, if discretion is given to the
attorney to either elect or not elect under the FLA, it may be prudent to also provide that the
donor recognizes the conflict the attorney may be under and that there is still authorization for
him or her to make the decisions he or she is empowered to make as donee of the power of
29 See Cronkwright Estate v. Maltby 1988 O.J. No. 686 (Ont CH), in which it was held that the Public Trustee acting
as committee of a spouse under the Mental Health Act had authority to make an election. See also Ward v.
National Trust Company (1990) (Ont. Gen Div.) in which it was held that a committee appointed under the
Mental Incompetency Act had the authority to make an election.
30 (1989 ) 70 OR (2d) 146 (Ont CA).
31 S.O. 1992, c. 30.
32 Ibid. at s. 7(6).
33 See Grunnerud v Grunnerud Estate (2002) 2 SCR 417, where the Supreme Court of Canada determined that the
Public Trustee of Saskatchewan could not bring an equalization claim on behalf of an incompetent surviving spouse
who was living in a publicly funded institution and owned only her personal belongings and a small bank account on
the basis that: it was in her best interests to remain in the public facility; that her wishes with respect to the family
- 13 -
(b) Is the Election Revocable?
There is nothing in the FLA to indicate that an election once filed with the office of the Estate
Registrar for Ontario is capable of being revoked. However, it would appear that the Estate
Registrar for Ontario has at times accepted such revocations and has even permitted amendments
to elections.34 However see also Re Bolfan35, where the court held that an election once made
could not be revoked.
Some care must be taken in considering whether to elect in circumstances where no Certificate
of Appointment of Estate Trustee with a Will has been issued. Consideration should be given to
deferring the filing of the election until after the Certificate of Appointment is issued. Where
there is litigation over the validity of a will or difficulty in locating a will, it may be appropriate
to apply for an extension of time for filing the election beyond the six-month period.36
Of particular concern is in the situation where a prior will provides for greater benefits than the
will which is signed later and which appears to be the last will of the deceased. In the case of Re
van der Wyngaard,37 the solicitor for the surviving husband, faced with this fact situation, tried
to cover all the bases by having the election to take the equalization payment filed with the court
but also filing a caveat challenging the later will on the grounds that the deceased lacked
testamentary capacity. The court permitted the caveat but indicated that the better approach
would be to file for an extension of time until the question of the validity of the will was
One writer38 has suggested that where the surviving spouse wishes to take the rights under the
will or on intestacy, the right approach might be to file no election. In that case the FLA deems
the spouse to have elected to take under the will or on intestacy.39 Presumably the court would
have the jurisdiction to reverse the deemed election at a later date if a later will surfaces or if the
later will is declared invalid and an earlier will is reinstated with the effect that the surviving
spouse would have had greater rights under the FLA and might have made a different decision.
(c) Effect of an Election
farm were protected by the provisions in her husband’s will; and that he had left her sufficient funds to take care of
her needs. The estate of the husband had a value of $1.5 million and his will left the bulk of the estate to the son and
a $100,000 fund for the wife.
34 See Money & Family Law Vol 3 No. 8 and Vol 3 at 69-70 and R Harrison Smith v Harrison (May 24, 1989) Ont
35 (1992) 87 DLR (4th) 119. 45 ETR 23 (Ont Ct (Gen Div).
36 See Barry S. Corbin, “The Impact of the Family Law Act on Estate Administration” (LSUC Bar Admission
Course Materials, 2005).
37 (1987) 59 OR (2d) 195 7 RFL (3d) 81 (Sur Ct).
38 See Corbin, supra note 34.
39 FLA at s. 6(11).
- 14 -
If the surviving spouse elects to take under the FLA, unless the will provides that the benefits
under the will are in addition to the benefits under section 5(2) of the FLA, the gifts made under
the deceased spouse’s will are revoked and the will is to be read as if the surviving spouse had
predeceased the testator. In addition, the spouse shall be deemed to have disclaimed an
entitlement under Part II of the SLRA (the rights under the intestacy rules).40
(d) Elections and Executorship
For many years there was uncertainty as to whether a surviving spouse, named as an executor
under the Will of a deceased spouse, automatically forfeited the position of executor by filing an
election. However, the decision of Reid Martin v. Reid41 confirmed that subsection 6(8) of the
FLA, which provides that when a surviving spouse files an election, the will of the deceased
spouse is to be interpreted as if the surviving spouse was predeceased, should be given its plain
meaning and that therefore a surviving spouse who elects for equalization cannot act as executor.
It is possible to draft a will in order to allow a surviving spouse to both elect for equalization and
continue to serve as executor, but as one author has commented, in order to get around the
application of subsection 6(8) of the FLA, rather complex Will drafting is required. For
example, the will of the deceased spouse must provide for bequests to the surviving spouse
conditional upon his or her election, while also providing that such bequests are in addition to
any equalization entitlement they may receive.42
Estate administration issues can also arise when a surviving spouse who is also a named executor
of the estate files an election for equalization. For example, what is the proper procedure for
removing a surviving spouse who has applied for a Certificate of Appointment prior to electing
for equalization? Is the procedure analogous to that when a trustee dies in office or is an
application to remove the surviving spouse required? This is not necessarily a theoretical issue
in some cases, as it may be necessary for a Certificate of Appointment to be acquired before the
surviving spouse has an opportunity to determine whether to elect for equalization. For example,
the deceased spouse may have passed away immediately prior to the closing of real estate
transaction, and in order for the deal to be finalized; a Certificate of Appointment has to be
acquired. This may take place before the surviving spouse has had an opportunity to even
consider whether or not he or she wishes to elect for equalization under the FLA.
(e) Elections and Intestacy
As noted earlier, the effect of an election in favour of equalization by a surviving spouse in a
situation of intestacy, whether partial or total, is that the surviving spouse forfeits his or her
rights to entitlement under Part II of the SLRA. If there is a partial intestacy, even if the will
40 FLA at s. 6(8).
41 (1999) 25 E.T.R. (2d) 267, 11 R.F.L. (5th) 374 (Ont. Div. Ct.).
42 See Corbin, supra note 34.
- 15 -
provides that its benefits are to be in addition to equalization this forfeiture of SLRA entitlement
will still occur. In a situation of intestacy, the SLRA does not necessarily apply to the surviving
spouse’s right to property outside of Ontario. Therefore, dependent on the laws of the
jurisdiction in which the assets are situated, it is possible that a surviving spouse who files an
election in a situation of intestacy may still be able to access certain assets of the deceased
spouse located outside of Ontario.
(f) Effect of an Election on a Dependants’ Relief Claims
The surviving spouse’s right to dependent relief under Part V of the SLRA is not affected by his
or her decision to elect in favour of equalization. It is important to note the possible interaction
of the SLRA and the FLA, since as noted above, a condition of a dependant’s right to support
under the SLRA is that the deceased spouse did not make adequate provision for him or her. In
the event a surviving spouse determines to elect to take his or her entitlement under the FLA and
in so doing makes a serious error (i.e. his or her equalization entitlement was far less than what
the deceased spouse had provided in the Will), is it possible for such a surviving spouse to still
claim that the deceased did not make provision for adequate support for the purposes of a
dependant’s relief application? Subsection 58(4) of the SLRA provides that adequate support is
to be determined on the date of the hearing of the application, thereby suggesting that the fact
that the surviving spouse forfeited his or her entitlement is not relevant but the consequences of
the election in regard to his or her need is relevant.
(g) The Priority of an Equalization Claim
Pursuant to subsection 6(12), a surviving spouse’s entitlement to an equalization claim has
priority over the following:
(i) the gifts made in the deceased spouse’s will, if any, subject to subsection
(ii) a person’s right to a share of the estate under Part II of the SLRA;
(iii) an order made against the estate under Part V of the SLRA, except an
order in favour of a child of the deceased spouse.
However, according to subsection 6(13) of the FLA, the surviving spouse’s entitlement does not
have priority over a gift by will made in accordance with a contract that the deceased spouse
entered into in good faith and for valuable consideration, except to the extent that the value of the
gift, in the court’s opinion, exceeds the consideration.
In addition, it should be noted that the spouse’s equalization claim does not necessarily stand
behind all of the claims of creditors of the deceased. Although the spouse’s claim presumably
ranks below those of secured creditors and creditors preferred by law, it is debateable where it
stands in relation to unsecured creditors.43
43 See Corbin, supra note 34.
- 16 -
(h) Effect of Equalization on the Distribution of the Estate
Subsection 6(14) of the FLA provides that no distribution shall be made in the administration of
a deceased spouse’s estate within six months of the spouse’s death, unless:
(i) the surviving spouse gives written consent to the distribution; or
(ii) the court authorizes the distribution.
In the event that a personal representative of the deceased receives notice that an application for
equalization has been made pursuant to Part I of the FLA, no distributions can be made out of the
(i) the applicant gives written consent to the distribution; or
(ii) the court authorizes the distribution.
If the court extends the time for a spouse’s application for equalization under subsection 5 (2) of
the FLA, any property of the deceased spouse that is distributed before the date of the order and
without notice of the application shall not be brought into the calculation of the deceased
spouse’s net family property.
It should be noted that the foregoing restrictions on distribution do not, pursuant to subsection
6(17) of the FLA, prohibit reasonable advances to dependants of the deceased spouse for their
Pursuant to subsection 6(19) of the FLA, if the personal representative makes a distribution that
contravenes these restrictions against distributions, the court will make an order against the
estate. If the undistributed portion of the estate is not sufficient to satisfy the order, the personal
representative is personally liable to the applicant for the amount that was distributed or the
amount that is required to satisfy the order, whichever is less.
In addition, on motion by the surviving spouse, the court may make an order suspending the
administration of the deceased spouse’s estate for the time and to the extent that the court
The foregoing discussion represents only a brief overview of the complexities of the SLRA and
FLA and their impact on the administration of estates. Numerous family and estate law issues
can arise upon the death of a family member, and forethought should be paid to these issues
during the planning process so that they do not develop into unnecessary problems at a later date.
“62. (1) Determination of amount - In determining the amount and duration, if any,
support, the court shall consider all the circumstances of the application, including,
(a) the dependant’s current assets and means;
(b) the assets and means that the dependant is likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the dependant’s age and physical and mental health;
(e) the dependant’s needs, in determining which the court shall have regard to the
dependant’s accustomed standard of living;
(f) the measures available for the dependant to become able to provide for his or
her own support and the length of time and cost involved to enable the dependant
to take those measures;
(g) the proximity and duration of the dependant’s relationship with the deceased;
(h) the contributions made by the dependant to the deceased’s welfare, including
indirect and non-financial contributions;
(i) the contributions made by the dependant to the acquisition, maintenance and
improvement of the deceased’s property or business;
(j) a contribution by the dependant to the realization of the deceased’s career
(k) whether the dependant has a legal obligation to provide support for another
(l) the circumstances of the deceased at the time of death;
(m) any agreement between the deceased and the dependant;
(n) any previous distribution or division of property made by the deceased in
favour of the dependant by gift or agreement or under court order;
(o) the claims that any other person may have as a dependant;
(p) if the dependant is a child,
(i) the child’s aptitude for and reasonable prospects of obtaining an
- 18 -
(ii) the child’s need for a stable environment;
(q) if the dependant is a child of the age of sixteen years or more, whether the
child has withdrawn from parental control;
(r) if the dependant is a spouse,
(i) a course of conduct by the spouse during the deceased’s lifetime that is
so unconscionable as to constitute an obvious and gross repudiation of the
(ii) the length of time the spouses cohabitated,
(iii) the effect on the spouse’s earning capacity of the responsibilities
assumed during cohabitation,
(iv) whether the spouse has undertaken the care of a child who is of the
age of eighteen years or over and unable by reason of illness, disability or
other cause to withdraw from the charge of his or her parents,
(v) whether the spouse has undertaken to assist in the continuation of a
program of education for a child eighteen years of age or over who is
unable for that reason to withdraw from the charge of his or her parents,
(vi) any housekeeping, child care or other domestic service performed by
the spouse for the family, as if the spouse had devoted the time spent in
performing that service in remunerative employment and had contributed
the earnings to the family’s support,
(vi.1) [Repealed 2005, c. 5, s. 66(10).]
(vii) the effect on the spouse’s earnings and career development of the
responsibility of caring for a child.
(viii) the desirability of the spouse remaining at home to care for a child;
(s) any other legal right of the dependant to support, other than out of public
62(2) Evidence - In addition to the evidence presented by the parties, the court may
direct other evidence to be given as the court considers necessary or proper.
“62(3) Idem - the court may accept such evidence as it considers proper of the
deceased’s reasons, so far as ascertainable, for making the dispositions in his or her will, or for
not making adequate provision for a dependant, as the case may be, including any statement in
writing signed by the deceased.”
- 19 -
62(4) Idem - In estimating the weight to be given to a statement referred to in
subsection (3), the court shall have regard to all the circumstances from which an inference can
reasonably be drawn as to the accuracy of the statement.