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Wills... Cut Out Of The Will?

In the short term, unless the provincial government amends the Act to give clarity or other cases deal further with this issue, adult children who appear to be financially independent and have been excluded from a parent’s Will should think carefully before incurring the expense of asking a Court to order that they receive a share of a parent’s estate.

Kay Rhodenizer – July 2019

In Nova Scotia the Testators’ Family Maintenance Act allows judges to order an estate to pay “adequate maintenance and support” for “dependants” when a Will has not done that.  The Act defines “dependant” as the deceased’s widow, widower or child (including biological and adopted).  The definition of dependant in the Act does not refer to actual financial dependency, need or place an age limit on children who may apply, although among other things, judges are directed to consider the dependant’s financial circumstances when an application is made.

In effect, this law allows a judge to rewrite a Will, although our Courts have long recognized that freedom to choose how to distribute one’s estate is an important legal concept.  This can conflict with the law’s secondary purpose of ensuring that the state does not have to support dependants who could have been provided for in a Will, and some cases have referred to this as a “moral” obligation.  

The wording of the Nova Scotia Act created a “grey area” as to whether financially independent adult children (anyone 19 or over) could apply for a share of the estate.  In 2010 a Nova Scotia court confirmed that thinking in a case where a dependant wasn’t required to show “actual need” and instead  “need…was relative to the size of the estate and the strength of the other claims.” [1] 

As late as 2014, Nova Scotia cases stated that financially independent children potentially had claims although these were weaker than claims by a dependant child or spouse. [2]

A 2019 case appears to have changed the law [3].  The judge concluded financially independent adult children cannot apply, but the judge did not discuss the type of evidence an adult child would be required to demonstrate financial dependency.  Several situations (and there may be more) come to mind that the 2019 case did not resolve including whether adult children might potentially be eligible if:

In the short term, unless the provincial government amends the Act to give clarity or other cases deal further with this issue, adult children who appear to be financially independent and have been excluded from a parent’s Will should think carefully before incurring the expense of asking a Court to order that they receive a share of a parent’s estate.

This blog is not intended to be a comprehensive treatment of this topic or legal advice. Every case turns on its specific facts. If you or a family member believe you require support in this type of situation our MDW Law lawyers can help you determine what a judge might do in these particular circumstances.

[1]        McIntyre av. McNeil Estate, 2010 NSSC 135 (CanLII).

[2]          Welsh v. McKee-Daly, 2014 NSSC 356 (CanLII) 

[3]       Lawen Estate v. Nova Scotia (Attorney General), 2019 NSSC 162 (CanLII)

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