If There’s a Will There’s a Way: Family Maintenance and Support Claims

The law grants broad discretion for people to do as they please with their property after death. However, this does not mean that the loved ones of the deceased will be satisfied with the allocation of property. In some instances, a will may not adequately provide for family members. The Wills and Succession Act, RSA 2010 cW-12.2 (the “WSA”) specifies how and to whom property is transferred when a person dies. Under Section 88 of the WSA, family members can apply to the court to override the will of the deceased to the extent it is required to make adequate maintenance and support to certain family members. This is called a Family Maintenance and Support (“FMS”) claim.

A family member of the deceased includes a spouse, adult interdependent partner, child, or grandchild. FMS claims should be brought within 6 months after a grant of probate or administration is issued. However, the WSA does grant the court discretion to allow FMS claims outside of this time period provided the property has not yet been distributed.

The court considers a number of enumerated factors set out in Section 93 of the WSA when determining FMS claims:

1. the nature and duration of the relationship between the family member and the deceased,
2. the age and health of the family member,
3. the family member’s capacity to contribute to his or her own support, including any entitlement to support from another person,
4. any legal obligation of the deceased or the deceased’s estate to support any family member,
5. the deceased’s reasons for making or not making dispositions of property to the family member, including any written statement signed by the deceased in regard to the matter,
6. any relevant agreement or waiver made between the deceased and the family member.
7. The size, nature and distribution of
   1. The deceased’s estate, and
   2. Any property or benefit that a family member or other person is entitled to receive by reason of the deceased’s death,
8. Any property that the deceased, during life, place in trust in favour of a person or transferred to a person, whether under an agreement or order as a gift or otherwise, and
9. Any property or benefit that an individual is entitled to receive under the Family Property Act, the Dower Act or Division 1 of this Part by reason of the deceased’s death.

The court will aim to balance the wishes of the deceased set out in the will with the need to provide adequate support for family members. FMS claims are not automatic, and the court retains absolute discretion to determine whether overriding the will is appropriate in the circumstances.

If you believe you may have a claim for FMS, we strongly encourage obtaining legal advice. The Estate team at Vogel LLP is prepared to answer any questions you may have and are available by appointment.