Involuntary Support – How Generosity to an Ex-Spouse can Savage a Deceased Estate

Involuntary Support

By Andrew Rogerson LLB (Hons) TEP & Gregory Prekupec (articling student)

STEP Journal – October 2010

A recent decision of the Ontario Superior Court has significant implications for executors, where a deceased has given financial help, just prior to death, to an ex-spouse, with whom he has had no contact in several decades and has no legal obligation to support.

In the case of Middel v Vanden Top Estate1, Talianao J held the estate liable to support an ex-wife, who had divorced the deceased some 35 years earlier, yet had never obtained a court order for spousal support (maintenance).2

The facts of this case parallel many immigrant success stories in Canada and the marital disintegration that followed the acquisition of substantial wealth. The deceased and ex-wife both emigrated from Holland. The deceased developed a highly successful cheese importing business, which enabled him to acquire substantial wealth. The parties married in 1958, separated in 1973 and divorced in 1975. Their 15 years of cohabitation produced two children. The ex-wife did not obtain any order for spousal support in 1975, or at any time thereafter. Her reasons for not successfully prosecuting such a claim were explained in serious allegations she made against the deceased and his then lawyer. These were either rejected by His Honour, or held not to be germane to his decision.

Some 30 years after their bitter parting, during which they apparently never saw each other, the ex-wife learned, via their children, that the deceased had been diagnosed with terminal cancer and sent him a get well card. For the next five years until his death, the deceased purchased a life lease in a retirement home for the ex-wife; established an annuity to provide her with a modest monthly income and also provided modest cash sums to her. He made, however, no provision for her in his will. The ex-wife gave evidence of experiencing difficulty in making ends meet, partly as a result of the (increasing) monthly management fee for the retirement home.

Tagliano J found that, by his voluntary actions in providing this assistance, pursuant to a moral obligation, the deceased had brought the ex-wife within the definition of ‘dependant’ under s57 Succession Law Reform Act3 (the Act). This threshold having been passed, the Court was therefore able to inquire whether, pursuant to s58 of the Act, the deceased had not made ‘adequate provision’ for the proper support of the ex-wife.

In ruling thus, His Honour referred to the facts in an earlier Ontario case: Ivanic v Ivanic. In this, a dependency claim was made out after the parties had been separated for 35 years, but 18 months prior to death, the deceased had secured health insurance for the applicant.4

The estate argued that the ex-wife’s claim must fail as the financial assistance provided by the deceased was made pursuant to a moral, not legal obligation. His Honour ruled that a moral obligation was sufficient, approving the trial judge’s dicta in Ivanic’s Case, that the Act should be construed in a ‘purposeful manner’, to ensure that an otherwise qualifying applicant, should not walk away empty handed ‘where there is legally justified basis for providing otherwise’.

Ramifications

Although His Honour found on the facts of this case that the deceased had made sufficient provision for the ex-wife, the decision has considerable significance in Ontario, and in jurisdictions that have similar legislation to the Act, which enable those persons who were ‘dependent’ on the estate, to make a claim against it.

The spectre of an ex-wife or mistress battling the second (or third) family of a deceased is always colourful. More significant is the tendency for terminally ill or just older persons to reflect on their previous behaviour towards former spouses, whether married or now. Whether caused by the healing of time passing, or the intensification of guilt as the proximity to death looms, some wealthy individuals will inevitably commence making payments to their ‘ex’s’ in a purely voluntary manner. Those of us who advise such individuals should consider, in appropriate cases, alerting them to the possibility that their estate may be charged with continuing such ‘voluntary’ support, well after they have died.

  1.    2010 ONSC 2951
  2.    The first named author, Andrew Rogerson, appeared as counsel for Ms Middel. The second named author, Gregory Prekupec, is articled to Mr Rogerson and assisted in research and drafting.
  3.    RSO1990, c S 26
  4.    Ivanic v Ivanic, 2005 Carswell Ont 2333 (SCJ)
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