A recent Ontario decision awarded a widow interim support from her deceased husband’s estate to pay for assisted-living expenses even though his will did not cover such an eventuality.
A husband and wife had been married for 18 years when the husband died in 2004. They had no mutual children, and each had children from an earlier marriage.
The widow moved into an assisted-living facility in 2019 at the age of 89. Prior to her move, she had been living in a residence in Toronto, which had been owned by her late husband.
The husband had a will dated April 28, 1995, in which he had named his wife as his estate trustee. The will provided that as long as the wife was the estate trustee, she was entitled to continue to reside in his residence until her death. The will also gave her the option, as estate trustee, to sell the residence and use the proceeds to purchase another residence to reside in until her death or for a shorter period as she desired.
The will further provided that the husband’s son, who was the residual beneficiary of the estate, had to pay the taxes, insurance, repairs, mortgage and other charges or amounts necessary for the general upkeep of the residence, or any substituted residence, while the wife lived in said residence.
Prior to his death, the husband added his son as joint owner of a $300,000 GIC which passed to the son upon the husband’s death.
Following the husband’s death, the wife continued to live in the residence and the son paid most of the expenses related to it. The son’s understanding was that the money from the GIC was intended to help out the wife. The son estimated that between 2004 and 2019, he spent more than $300,000 on expenses relating to the maintenance of the residence.
While the wife lived in the residence, she paid her own living expenses, including telephone and cable services.
Eventually, however, the wife’s health no longer permitted her to live independently. As estate trustee, she decided to sell the residence and moved into an assisted-living facility. The husband’s estate held $857,000 of net proceeds from the sale of the residence.
However, following the move, the wife’s own resources were insufficient to cover her costs in the assisted-living facility. Her principal source of income was government pension. Her total monthly income was $1,966 and she had a savings account with $30,000. However, her monthly expenses at the assisted-living facility were $5,025.
As a result, the wife brought a motion for interim support pending the outcome of her application under the Succession Law Reform Act for dependant’s support from the husband’s estate.
The husband’s will did not contemplate the situation the wife found herself in.
The wife submitted that the husband’s estate should cover the assisted-living facility expenses.
The son opposed the wife’s application. He argued that she was not entitled to support from the husband’s estate because she signed a marriage contract in 1986 in which she waived any entitlement to her husband’s estate or support upon his death, including dependant’s support. He also disagreed with the amount she was claiming. Further, the son submitted that because the wife had $30,000 in savings, she had no need for interim support because she could use that amount to cover her expenses pending the outcome of her application.
First, the court noted that s. 63(4) of the Succession Law Reform Act permits a court to make an order for support of a dependant despite any agreement or waiver to the contrary. The court was therefore permitted to award interim support despite the marriage contract.
Regarding her entitlement to interim support, the court explained that the wife would need to establish that she met the definition of “dependant” and that the deceased did not make adequate provision for her support, in the sense that she needed support.
The court found that it was clear that the wife was a “dependant” of the husband at the time of his death and that he was providing support to her immediately before his death.
At issue was whether the husband made adequate provision for the wife’s proper support.
The court found that while the husband’s will provided the wife with the benefit of a residence and expenses to be paid by the son, his will did not address the situation where the wife’s health would require her to seek accommodation at an assisted-living facility. However, the court stated:
“It is apparent from the terms of [the husband]’s will that he intended to ensure that [the wife] had a roof over her head for the rest of her life and that his resources would be used to pay for the expenses of her residence, whatever form it may take.”
Accordingly, the court found that it was appropriate that the interim support from the husband’s estate be adapted to the wife’s living arrangement.
As a result, the court ordered that the wife be entitled to interim support from the husband’s estate in the amount of $4,635 per month, pending the final disposition of her application.
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