If you have been left out of a Will or have not been left with adequate support when a loved one passes away, you may have the right to commence a Family Maintenance and Support (FMS) claim pursuant to Section 88(1) of the Wills and Successions Act against your loved one’s estate.
When drafting a Last Will and Testament, it is important that one consider their moral or legal obligations insofar as it relates to providing for family members. Section 72 of the Wills and Successions Act indicates that the following individuals may be dependant family members:
- Spouses;
- Common-law spouses/adult interdependent partners;
- Minor children;
- Adult children (over the age of 18) who are unable to earn a livelihood due to physical or mental disability; and
- Other qualifying family members such as grandchildren who relied financially on the deceased person.
Although an individual drafting their Last Will and Testament technically can leave their estate to anybody, they do not necessarily have the absolute right to leave out any of the above family members.
The Wills and Successions Act recognizes a moral and legal obligation for individuals to provide for the needs of their certain family members upon their death. The factors are set out at Section 93 of the Wills and Successions Act, and are as follows:
- The nature and duration of the relationship between the family member and the deceased,
- The age and health of the family member,
- The family member’s capacity to contribute to his or her own support, including any entitlement to support from another person,
- Any legal obligation of the deceased or the deceased’s estate to support any family member,
- 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,
- Any relevant agreement or waiver made between the deceased and the family member,
- The size, nature and distribution of the deceased’s estate, and any property or benefit that a family member or other person is entitled to receive by reason of the deceased’s death,
- Any property that the deceased, during life, placed in trust in favour of a person or transferred to a person, whether under an agreement or order or as a gift or otherwise, and
- Any property or benefit that an individual is entitled to receive under the Family Property Act, the Dower Act, etc., and
- Any other factor the Court considers relevant.
The law regarding FMS claims is set out comprehensively in the following authorities, Tataryn v Tataryn Estate, [1994] 2 SCR 807; Soule v Johansen Estate, 2011 ABQB 403; Siegel v Siegel Estate, 1995 Canlii 9233; Stang v Stang Estate, 1998 ABQB 113; and Koma v Tomich Estate, 2011 ABCA 186.
Ultimately, Alberta Court’s do their best to balance testamentary intentions of the deceased with their moral and legal obligations to others that qualify under the Act. If you believe that you have been improperly left out of a Will, are a residuary beneficiary or a personal representative of an estate, do not hesitate to contact the lawyers at Stillman LLP to assist you with dealing with a FMS Claim.
Note: This article provides general commentary and is in no way intended to replace the need to consult with a legal professional concerning the specific circumstances of your situation. This article should not be construed or relied upon as legal advice.
