Reference Articles > Statutory Rights and Common Law Claims Against An Estate

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This article reviews the various statutory rights that arise in Ontario upon the death of a person.

There are various categories of claims that can be made against an estate. Some are related to the testator or testatrix him or herself, as for example, alleging the testamentary document is invalid. Some arise out of statutory rights of the deceased’s spouse or dependants; still others relate to the services rendered to the deceased during his or her lifetime. This article focuses upon the latter two kinds of claims.

Statutory Right Claims

In Ontario there are two common rights arising out of statute that can give rise to estate litigation. One arises under the Family Law Act and the other under the Succession Law Reform Act.

Under the Family Law Act, the surviving spouse (as defined in the Act as there is a distinction between married and common law spouses upon death) has the right to claim an equalization payment against the estate. There are particular twists to this right, however, for the purposes of this article, it is sufficient to say that one must remember the limitation period: 6 months from the date the Certificate of Appointment of Estate Trustee with a Will (or without a Will) is issued.

Under the Succession Law Reform Act, a dependant (again as defined in the Act) has the right to make a claim against the estate for “support”. Again, support is a question of fact with the entitlement and quantum dependent upon the circumstances of each situation. Accordingly these depend claim whether the dependent making the claim or the estate trustee defending the claim, it is very different to predict an outcome.

Common Law Claims Against Estates

These are typically called claims for services rendered. These types of claims are framed in contract and/or equity. For example, a standard claim for services rendered would be made by a person who drove the deceased to the grocery store once a week, who took him or her to all her appointments and who did things for or with the deceased. In return, the person claims the deceased said he or she would be “looked after” either in their lifetime or upon death by a bequest. But when the deceased dies and the Will is read, it is found that nothing has been left to the person who rendered the services.

If this happens and the person wants compensation for the services rendered then a claim may be made on the basis of breach of contract, unjust enrichment, or quantum meruit. Sometimes a contract can be made out; but this can be difficult. If not the claim is that the person (and now his or her estate) was unjustly enriched by those services and restitution will be ordered. The Court will judge the claim on the basis of quantum meruit which means “payment on the merits”. If a valid claim is made, the court must then determine the “value” of the claim. This can be very difficult to quantify especially if records are not kept of the time spent. The court will look at such things the time spent, the degree of difficulty, the closeness of the relationship and the like to ultimately determine what it believes is “fair” compensation for the services rendered. The outcome can be unpredictable.

Claims of this nature are varied with unpredictable result. The consequences of such claims can have a fundamental effect on the distribution of the estate. It is important to understand the claims and as well to ensure proper planning in the first place. To learn more about other types of estate litigation (such as challenges to testamentary documents), how to avoid them and how to resolve them see the accompanying articles.