Dependents Relief

Protection of Testator’s Family

Compiled by Eric B. Appleby:

In General, statutory provisions

The degree of freedom of testamentary disposition provided by English law sometimes resulted in a testator disregarding the needs of dependents. Many jurisdictions have enacted legislation that prevents a testator from disregarding such family obligations. In Canada such legislation is usually called the Dependents Relief Act or the Testator’s Family Maintenance Act or the Family Relief Act or the Marital Property Act. Usually such legislation provides that a dependent of a testator may apply to a court for relief if adequate provision for maintenance and support has not been made in the testator’s will. The interpretation of this legislation has resulted in a significant body of case law.

For example:

• the moral obligation of a testator to dependents was the issue in 32 cases in six print reporters since 1978 ;
• what constitutes “proper maintenance and support” of dependents was the issue in 33 cases in eight print reporters since 1974
• whether the claimant was a “dependent” was the issue in 29 cases in nine print reporters since 1980 ;
• the economic status of the claimant was the issue in 15 cases in seven print reporters since 1981;
• the entitlement of a common law spouse was the issue in 19 cases in eight print reporters since 1984.