Can I claim support from an estate?
The definition of “dependent” includes a spouse, common-law spouse, parent, grandparent, sibling or child (including a child conceived before and born alive after the parent’s death), and grandchild, to whom the deceased was providing support or under an obligation to support.
If a person meets the definition of “dependent”, he/she must then establish an entitlement to support. This requires, first, that the deceased did not make adequate provision for the dependent upon his death (whether by the Will, beneficiary designations, gifts or otherwise); and if that threshold is reached, then the Court would make a determination of what “adequate” support would be.
The case law is clear that “adequate” does not mean “basic necessities”, especially, but not exclusively, in the case of dependent children. There are a number of criteria the Court looks at when determining what “adequate support” may be – and the size of the Estate is just one of those factors.
In addition, the Act provides an expanded definition of “Estate” for the purposes of determining the amount of support for a dependent, such that certain assets (for example, life insurance, joint property, etc.) may be notionally “clawed back” into the Estate for these purposes. Accordingly, a deceased person cannot avoid his support obligations on death by gifting his property to others.