If my parent was paying child support before s/he passed away, am I entitled to support from her/his estate? Can I contest a will in Ontario?

There are situations whereby a parent, who was before death, legally obligated to pay child support, dies and leaves nothing in a will for the children. In this type of a case, the children may have rights against the estate of their deceased parent.

If your parent was a resident of British Columbia when s/he passed away, it is possible that s/he is obligated, under British Columbia law, to name his children beneficiaries in his will.

In contrast, other provinces, such as Ontario, do not require an individual to name his or her children as beneficiaries of their estate and assets. If you were not named a beneficiary, and your parent was under a legal obligation to support you, it is possible for you to challenge or contest your parent’s will.

This is, however, extremely difficult to succeed at. When an individual writes their will, they are granted the ability and right to leave their assets with whomever they choose. In order to contest a will in Ontario, you must have a legal basis to do so.

An example of a legal basis upon which you can contest a will in Ontario, is if you fall under the criteria of having a right to your parent’s estate under the Succession Law Reform Act. The criteria an individual requires in order to contest a will in Ontario under these circumstances include being a member of a specific class, along with having a specific kind of relationship with the deceased. Then, the individual must prove that their parent was supporting them, or was legally obligated to provide support for them.

When the court is assessing your case to contest a will in Ontario, they will take into account your ability to support yourself, your heath, your needs, how close you and your parent were before the death, etc.

Then, the court will take your claim and balance it against the claims of other individuals (including other individuals that your parent supported before death and the beneficiary’s situation as outlined in the will).

Every case depends on factors that are case specific. Factors that affect the decision of the court include, but are not limited to, the relationship between the individuals and the deceased prior to passing away, the deceased’s mental health when the will was drafted, if it was a re-draft, your claims, as well as the claims of other individuals, and so on.

If you wish to contest a will in Ontario, you must do so within six months from the time that the court has issued a Certificate of Appointment of the will (ex: within six months of the court legitimizing the will as legally binding). If you do not apply within this designated time period, and the estate has already been distributed, you will not be able to contest for the items already distributed.

For more information on contesting a will, contact Krol & Krol at 905.707.3370.