Claims by Dependants

Claims Under the Wills and Succession Act

We advise and represent trustees, executors, personal representatives, dependants, spouses, family members, adult interdependent partners, attorneys, guardians, beneficiaries, and other claimants in disputes involving estates.

If a family member has not been fairly provided for within a deceased’s estate, they may be eligible to bring a claim under the Wills and Succession Act. Our estate litigation lawyers act for all sides in these disputes, including executors, beneficiaries and claimants.

Just because a will provides a certain amount or percentage to a dependant beneficiary does not mean that the court will accept the sufficiency of the gift. This is a complex area of the law and at Carbert Waite LLP our estate lawyers have experience successfully dealing with all types of claims by dependants.

 

 

Do I have options if I have been left out of a will?

If a person is not sufficiently provided for in a will or on an intestacy and that person was dependant on the deceased at the time of death, there may be a claim under the Wills and Succession Act (WSA) for maintenance and support. These claims used to be advanced under the Dependant’s Relief Act until the WSA came into force in 2012. Our estate litigation lawyers have extensive experience negotiating and litigating maintenance and support claims against estates.

Who can bring a claim?

The classes of persons who can bring a claim against an estate is set out in the WSA through the definition of “family member”:

72(b) “family member” means, in respect of a deceased,

(i) a spouse of the deceased,

(ii) the adult interdependent partner of the deceased,

(iii) a child of the deceased who is under the age of 18 years at the time of the deceased’s death, including a child who is in the womb at that time and is later born alive,

(iv) a child of the deceased who is at least 18 years of age at the time of the deceased’s death and unable to earn a livelihood by reason of mental or physical disability,

(v) a child of the deceased who, at the time of the deceased’s death,

  1. a) is at least 18 but under 22 years of age, and
  2. b) is unable to withdraw from his or her parents’ charge because he or she is a full‑time student as determined in accordance with the Family Law Act and its regulations, and

(vi) grandchild or great‑grandchild of the deceased

  1. a) who is under 18 years of age, and
  2. b) in respect of whom the deceased stood in the place of a parent at the time of the deceased’s death;

Whether there is a will or whether the deceased’s estate will be distributed in accordance with the intestate provisions of the WSA, claimants who feel they have not been properly provided for can bring a claim against the estate. Regardless of any language in the will, the court will evaluate the legal and moral obligations of the deceased to the claimant, if any, and make a determination as to whether the claimant is entitled to anything (or to anything more).

Just because a will provides a certain amount or percentage to a dependant beneficiary does not mean that the court will accept the sufficiency of the gift.

This is a complex area of the law and our estate litigation lawyers have experience successfully dealing with all types of claims by dependants.

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