28 Year Old Separation Agreement Insufficient To Prevent Claim For Dependent's Relief Against Es
There is a general belief that separation agreements promote finality between a divorcing couple and allow both parties to move on. While that generally occurs, claims for Dependent's Relief under the Succession Law Reform Act provides an exception to the general rule. A 1999 Ontario Court of Justice decision illustrates this point.
The couple married in 1952 and were together for 19 years. During that time, the husband acquired a PhD and a position as a university professor. The wife worked to support the husband's educational goals and then became a full-time housekeeper and mother.
In 1971 at the end of the relationship, the couple executed a separation agreement. Both parties had independent legal advice. The agreement specifically stated that it was a complete and effective settlement of their rights and claims against each other. The agreement also provided that the wife was to receive $500.00 a month as long as she did not remarry.
A year later the couple divorced.
The husband died leaving his entire estate to his current wife. The former wife applied under the Succession Law Reform Act for Dependent's Relief claiming that the husband had not made adequate provision for her support.
The court first considered whether the 28 year old agreement was a contractual bar to awarding support and ruled that it was not. The wording of the Succession Law Reform Act is broad enough to award support notwithstanding the existence of a prior agreement or waiver.
The court then considered whether the provision made by the husband had been "adequate" and ruled it had not. In this consideration, the court determined that the wife had income of $995.00 a month and expenses of $1800.00. Moreover, the marriage was a long one during which the wife had worked to support the husband's educational objectives which allowed him some degree of financial success. Additionally, the estate was valued at approximately $700,000. The wife was awarded $1,500.00 a month in support.
The Lesson: In this author's opinion, the estate would have been better protected had the husband left some provision for his former wife. While $500.00 a month was likely adequate support in 1971, the passage of decades made that amount "patently inadequate" in the eyes of the court. It is recommended that, while drafting Last Will and Testaments, the testator consider ongoing support obligations and how the dependent will be effected when death occurs. Taking this type of obligation into account prior to decease will likely go a long way to protecting the estate.
Butts Estate v Butts, 1999 CarswellOnt 1435 (ON Ct. Just.)
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