Dependency Claims and Estate Planning

Author: Fred Fenwick, Q.C.

One of our estate litigators in Calgary, Fred Fenwick, Q.C., recently recovered a judgment in excess of $500,000.00 in favour of a medically disabled, adult biological child as against the estate of her estranged biological father. 

The case was unusual as the biological relationship had never been acknowledged (although it was suspected) and although medically disabled as an adult, the claimant had no support relationship with the deceased during his lifetime.  Notwithstanding all that, the provisions of the Dependent’s Relief Act (now continued into the Wills and Succession Act) require an estate to support “family members” which includes not only the usual and expected family members (spouses, adult inter-dependent partners, minor children) but also “a child of the deceased who is at least 18 years of age at the time of the deceased’s death and unable to earn a livelihood by reason of mental or physical disability”. 

Notwithstanding the lack of any support connections during the deceased’s lifetime, the Claimant was medically disabled at his death and was eventually proven by DNA evidence to be “a child” and therefore under the statutory definition qualified for support.

The case was factually difficult and required the development of DNA evidence from the living disabled adult child (not difficult these days) but as well from the deceased who had passed away in 2009 (found in a hairbrush!).  The case also required the development of complicated medical evidence including expert opinion as to the lifespan of a medically disabled person which became an element of contest at the hearing.  You can imagine how unpleasant it was at the hearing  for the disabled person to hear strangers debating just how short their life was doomed to be.

How you felt about the success of the case at the end of the day would of course depend on what side you stood.  On the one hand, a genuinely medically disabled person was able to be lifted out of poverty and provided a modest level of comfort and support.  In addition, she was taken off the welfare rolls and all of our taxes went down by a miniscule amount.  On the other hand, this claim “came out of the blue” for the deceased and his other children and the final distribution of the estate and payment to the residual beneficiaries of the estate was delayed and of course reduced by the amount of the award and legal costs.

From an estate planning point of view, the case points out the necessity of a close, candid, and confidential relationship with your lawyer and other advisors when planning your estate and drafting your Will.  As in this case, you may not have disclosed to your family or your lawyer the identity and the nature of your dependants, or the extent of their dependency.  In other situations, it may not be immediately apparent that the property you think is yours may be   jointly held, or perhaps held by a corporation.  Accumulating debts such as deferred taxes or child and spousal support have the potential to eat into an estate before intended payments to beneficiaries are available.  There are many, many examples which point out how planning and administering an estate also law involves corporate, tax, family and litigation law.

The Wills and Estates Department at McLennan Ross LLP practices with lawyers and  staff with specific experience in estate planning, Wills drafting and probate but also practices with leading counsel in family law, corporate law, taxation, litigation and the other areas that you may not have been considering, but often do influence both the planning of your estate and the practical administration of it years later.