By Gary Kirk of Kirk Montoute Dawson LLP posted in Will on Thursday, November 30, 2017.
In Alberta, freedom of “Testator Intention” with respect to inclusion or exclusion of potential beneficiaries from one’s will, has been overlaid with the right of a family member for whom provision has not been made to apply for Family Maintenance and Support. If successful, the claim will be paid out of the Deceased’s estate. This leads to a couple of questions. First, who qualifies as a “family member”? Second, what exactly is Family Maintenance and Support?
Part 5 of the Wills and Succession Act answers both questions. A “family member” is someone who at the time of death was the Deceased’s:
1. Spouse;
2. Adult Interdependent Partner;
3. Child under the age of 18;
4. Child over the age of 18 who is unable to earn a livelihood by reason of mental or physical disability;
5. Child over the age of 18 but under the age of 22 and is unable to withdraw from his or her parents’ charge because he or she is a full time student as determined by the Family Law Act, or
6. Grandchild or Great-grandchild who is under the age of 18 but in respect of whom the Deceased stood in the place of a parent.
In broad strokes, Family Maintenance Support is the amount of funds or assets that the family member requires for their “proper maintenance and support”. Implicit is the expectation that the family member prove that they have a need for maintenance and support – simply being omitted from the will is not sufficient. Typically, it is necessary to obtain an expert economic report that calculates the amount the family member needs. The economic report will take into consideration any current income and assets (including assets or cash received from the Deceased outside of the will), the estimated future cost of living and increase in income – actualized over the family member’s anticipated life expectancy. The Court retains discretion to accept the economic report in whole or only in part. The Court also has discretion to determine whether or not the family member has proved their claim and the amount to be paid that will meet the Deceased’s obligation to provide for that family member’s “proper maintenance and support”. If the Court is satisfied there is a need, it will adjust for the shortfall by Ordering that assets or cash be transferred from the deceased’s estate to the family member, in priority to the named beneficiaries in the will.
Whether advancing or opposing a claim for Family Maintenance and Support, it is advisable to consult with counsel for advice before initiating or consenting to an award.