Maintenance and Support Claims

Preparing your Last Will and Testament ensures that your wishes are respected after you die. You get to choose who will benefit from all your hard work over your lifetime. But while you may have the right to decide who to include in your Will, you do not necessarily have the absolute right to decide who to leave out. Alberta law recognizes a moral and legal obligation for individuals to provide for the needs of their dependants upon death.

Dependants include:

spouses;
common-law spouses/adult interdependent partners;
minor children;
adult children unable to earn a livelihood due to physical or mental disability; and
other qualifying family members who relied financially on the deceased person, such as a grandchild.

If your dependents are not adequately provided for in your Will, they have the right to commence a Family Maintenance and Support (FMS) claim to ensure sufficient funds are received in order to preserve the level of care to which they are entitled.

What is My Obligation to a Dependent When I Die?

In Alberta, the Courts have recognized that a deceased person’s priority is to adequately provide for their spouse, above all others. Accordingly, issues can arise where a surviving spouse does not receive the entirety of the estate.
As well, if you had been providing support to a dependant or if you were under legal obligation to do so, you are expected to provide for them in your Will.

What Happens If a Dependent is Left Out of a Will?

If you have dependents who have an issue with your Will when you die, they can seek remedy through Alberta's Wills and Succession Act (WSA). The Act gives the Court the authority to countermand your Will. This can be achieved through a FMS claim.

Simply being left out of the Will is not enough to succeed. It must be established that the family member has a legitimate need for support and maintenance. That might necessitate getting an economic report from an expert to give the Court an assessment of the claimant’s financial situation and future needs.

When considering a FMS claim, the Court will look to balance your wishes for the disbursement of your estate and the need to provide for surviving family members.

Many factors can come into play when ruling on a claim, such as the nature and duration of the relationship, the needs, age and health of the family member, and the size of the estate.

It is suggested that a Family Maintenance and Support claim be filed within six months after the grant of probate or administration is issued, although the Court has the discretion to allow an application at any time for any part of the estate that has not been distributed.

If the claim is successful, it will be paid out of the deceased’s estate.

Do You Have Questions About Family Maintenance and Support Claims?

If you believe you have not been properly provided for by a deceased family member, and would like further information on your rights, our experienced team of lawyers is here to help.

If you are the Personal Representative, beneficiary or interested person of an estate seeking to defend the estate from a family maintenance and support claim, and would like further information on your options, please contact us.