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.
