Which Part of Estate Should Bear Burden of Dependant’s Support Claim?
1. Introduction
Case law generally supports the principle that dependant support claims should normally be borne by the testator’s entire estate.[1] But it is not a fixed rule and in appropriate circumstances the court may exercise its discretion to direct that a specific part of the estate must bear the burden and not the whole of the estate. Indeed, section 68 of the Succession Law Reform Act[2] provides:
(1) Subject to subsection (2), the incidence of any provision for support ordered shall fall rateably upon that part of the estate to which the jurisdiction of the court extends.
(2) The court may order that the provision for support be made out of and charged against the whole or any portion of the estate in such proportion and in such manner as to the court seems proper.
For a case in which the court exercised its discretion to exempt certain bequests from liability for the award, see Moore v Hughes.[3] The issue was raised again in Teeple v Decaire.[4]
2. Facts
The testator, Stephen Thomsen, died in 2021, leaving a Primary and Secondary Will. The Primary Will made a number of specific bequests and left the residue to the testator’s five grandchildren. The Secondary Will disposed of the testator’s shares in a welding business, which he left to his two adult children living in Canada. The property disposed of in each will was significant.
Tracy Lee Teeple applied for dependant’s relief under the SLRA, claiming to be the testator’s spouse. Her claim was settled by mediation for an all-inclusive amount of $225,000. The Office of the Children’s Lawyer (‘OCL’) moved for approval of the settlement on behalf of the grandchildren under age 16, and for an order that the settlement be funded rateably by the beneficiaries under each will.
3. Analysis and Judgment
Justice MG Ellies concluded that the settlement was a prudent one considering that the applicant would likely be able to satisfy the definition of ‘spouse’. Hence, he approved the settlement but concluded that it be funded rateably only by the legatees of the Primary Estate and that the legatees under the Secondary Will should be exempt.
His Honour considered Randle v Randle Estate,[5] which considered the issue of whether the court may hold that only a part of the estate should bear the burden of a dependant’s support award. In that case the chambers judge had directed that, having regard to the scheme of the will, the burden of the maintenance award in favour of the widow should be borne by the residue. On appeal, the court noted:
30 I do not go so far as to say the scheme of the will should not be given some weight, but in my opinion, the test to be applied in deciding whether a part of the estate should be relieved from bearing its fair share of the incidence of the support and maintenance is to determine whether a reasonable testator would have provided for that relief. The test is an objective one, and unless the judge is satisfied that a reasonable testator, in the circumstances of the testator whose will is being considered, would have relieved any part of an estate from contributing its fair share, he should not interfere with the prima facie rule enunciated by the Legislature ….
The court concluded that the objective test had not been satisfied and therefore directed that the whole estate should bear the burden of the award.
Justice Ellies reviewed the evidence in the Teeple case and noted that the testator had made a number of Primary and Secondary Wills between 2013 and 2021. Each time he dealt with the shares of the welding company in the Secondary Will. And in the two estate plans in which he left money to the applicant, he directed that it pass under the Primary Will. His Honour took the view that the testator’s estate plan was a reasonable one and therefore it would be inappropriate to deviate from that plan. Consequently, he ordered that the burden of the dependant’s support claim should fall rateably only on the legatees under the Primary Will.
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[1] See, e.g., Re Nalywayko (1984), 17 ETR 151 (Ont Surr Ct); Quinn v Carrigan, 2014 ONSC 5682.
[2] RSO 1990, c S.26 (‘SLRA’).
[3] (1981), 37 OR 2d 785 (HC)
[4] 2024 ONSC 6360.
[5] (1976), 71 DLR 3d 208 (Alta SC App Div).
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Written by: Albert Oosterhoff
Posted on: April 28, 2025
Categories: Commentary
1. Introduction
Case law generally supports the principle that dependant support claims should normally be borne by the testator’s entire estate.[1] But it is not a fixed rule and in appropriate circumstances the court may exercise its discretion to direct that a specific part of the estate must bear the burden and not the whole of the estate. Indeed, section 68 of the Succession Law Reform Act[2] provides:
(1) Subject to subsection (2), the incidence of any provision for support ordered shall fall rateably upon that part of the estate to which the jurisdiction of the court extends.
(2) The court may order that the provision for support be made out of and charged against the whole or any portion of the estate in such proportion and in such manner as to the court seems proper.
For a case in which the court exercised its discretion to exempt certain bequests from liability for the award, see Moore v Hughes.[3] The issue was raised again in Teeple v Decaire.[4]
2. Facts
The testator, Stephen Thomsen, died in 2021, leaving a Primary and Secondary Will. The Primary Will made a number of specific bequests and left the residue to the testator’s five grandchildren. The Secondary Will disposed of the testator’s shares in a welding business, which he left to his two adult children living in Canada. The property disposed of in each will was significant.
Tracy Lee Teeple applied for dependant’s relief under the SLRA, claiming to be the testator’s spouse. Her claim was settled by mediation for an all-inclusive amount of $225,000. The Office of the Children’s Lawyer (‘OCL’) moved for approval of the settlement on behalf of the grandchildren under age 16, and for an order that the settlement be funded rateably by the beneficiaries under each will.
3. Analysis and Judgment
Justice MG Ellies concluded that the settlement was a prudent one considering that the applicant would likely be able to satisfy the definition of ‘spouse’. Hence, he approved the settlement but concluded that it be funded rateably only by the legatees of the Primary Estate and that the legatees under the Secondary Will should be exempt.
His Honour considered Randle v Randle Estate,[5] which considered the issue of whether the court may hold that only a part of the estate should bear the burden of a dependant’s support award. In that case the chambers judge had directed that, having regard to the scheme of the will, the burden of the maintenance award in favour of the widow should be borne by the residue. On appeal, the court noted:
30 I do not go so far as to say the scheme of the will should not be given some weight, but in my opinion, the test to be applied in deciding whether a part of the estate should be relieved from bearing its fair share of the incidence of the support and maintenance is to determine whether a reasonable testator would have provided for that relief. The test is an objective one, and unless the judge is satisfied that a reasonable testator, in the circumstances of the testator whose will is being considered, would have relieved any part of an estate from contributing its fair share, he should not interfere with the prima facie rule enunciated by the Legislature ….
The court concluded that the objective test had not been satisfied and therefore directed that the whole estate should bear the burden of the award.
Justice Ellies reviewed the evidence in the Teeple case and noted that the testator had made a number of Primary and Secondary Wills between 2013 and 2021. Each time he dealt with the shares of the welding company in the Secondary Will. And in the two estate plans in which he left money to the applicant, he directed that it pass under the Primary Will. His Honour took the view that the testator’s estate plan was a reasonable one and therefore it would be inappropriate to deviate from that plan. Consequently, he ordered that the burden of the dependant’s support claim should fall rateably only on the legatees under the Primary Will.
—
[1] See, e.g., Re Nalywayko (1984), 17 ETR 151 (Ont Surr Ct); Quinn v Carrigan, 2014 ONSC 5682.
[2] RSO 1990, c S.26 (‘SLRA’).
[3] (1981), 37 OR 2d 785 (HC)
[4] 2024 ONSC 6360.
[5] (1976), 71 DLR 3d 208 (Alta SC App Div).
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