Dependant Relief in Canada — When Family Can Challenge a Will
Dependant relief statutes are the limit on a Canadian testator's freedom. While Wills generally control distribution, family members with statutory rights can challenge and obtain variation.
Provincial frameworks
British Columbia — WESA Part 4 (most flexible)
The BC Wills, Estates and Succession Act, Part 4 (replacing the former Wills Variation Act) is the most flexible Canadian dependant relief framework.
Standing:
- Spouse (legal and common-law)
- Children (minor, adult, dependent or independent)
Test: Court considers whether the Will makes "adequate provision for the proper maintenance and support" of the claimant. Per Tataryn v. Tataryn (SCC 1994),[1] this includes both:
- Legal obligation: What support the deceased had legal duty to provide
- Moral obligation: What a "reasonable spouse and parent" would provide
Time limit: 180 days from issuance of the grant of probate (WESA s. 61).[2]
Specific to: Adult independent children CAN claim. Unique to BC.
Ontario — SLRA Part V (narrower)
Ontario's Succession Law Reform Act Part V provides dependant relief.[3]
Standing: "Dependants" — defined to include:
- Spouse (legal, or a qualifying common-law partner under the Act's definition)
- Parent
- Child
- Brother or sister
To whom the deceased was providing support, or was under legal obligation to provide support, immediately before death.
Test: Adequate provision for proper support of the dependants.
Time limit: 6 months from grant of probate.
Specific to: Actual dependency required. Independent adult children typically cannot claim.
Alberta — Wills and Succession Act
Alberta has provisions for family maintenance and support.
Standing: Spouse, adult interdependent partner, children (minor and dependent adult).
Time limit: 6 months from grant.
Saskatchewan, Manitoba
Each has specific provincial framework with standing for spouse and certain children.
Atlantic provinces
Provincial-specific frameworks. Generally narrower than BC.
The Tataryn principle
Tataryn v. Tataryn, [1994] 2 SCR 807 — leading SCC case on BC's then-Wills Variation Act.
Key principles:
- "Adequate, just and equitable" is the standard
- Considers both legal and moral obligations
- A "reasonable spouse and parent" is the measure
- Both spouses and children are protected
Result of case: The deceased's surviving spouse — his wife of over 40 years — received a substantial variation of a Will that had left her only a limited life interest, with the estate otherwise directed to one of the couple's sons.
Continued relevance: Even after WESA replaced the Wills Variation Act in BC, Tataryn principles continue to govern interpretation.
Standing details by province
| Province | Spouse | Common-law | Minor children | Adult dependent children | Adult independent children |
|---|---|---|---|---|---|
| BC | Yes | Yes (defined) | Yes | Yes | Yes |
| Ontario | Yes | Yes (specific definition) | Yes | Yes (if dependent) | No |
| Alberta | Yes | Yes (Adult Interdependent Partner) | Yes | Yes | No |
| Other provinces | Yes | Varies | Yes | Yes (if dependent) | Varies |
Time limits
Critical to act quickly:
- BC: 180 days from grant of probate
- Ontario: 6 months from grant of probate
- Alberta: 6 months from grant
- Other provinces: typically 6 months to 2 years
Specific provincial procedures govern.
What courts consider
Tataryn-influenced analysis:
- Financial need of claimant
- Length and nature of relationship
- Contributions to estate (financial, services, care)
- Claimant's own resources and earning capacity
- Other beneficiaries' situations and needs
- Prior history of support
- Specific circumstances (age, health, dependents)
- Specific reasons for testator's disposition (if known)
Cannot be defeated by Will provisions
In terrorem clauses don't work. Disinheritance provisions don't override. The statutes operate notwithstanding the Will. This is the deliberate legislative limit on testator freedom.
Specific Canadian cases worth knowing
- Tataryn v. Tataryn (SCC 1994) — foundational case on BC dependant relief framework
- Spence v. BMO Trust (Ontario 2016) — controversial case on testator freedom limits, with significant aftermath
- See specific case-law articles for details
Practical implications
For testators:
- Disinheriting close family is risky in BC; harder in Ontario
- Document reasons for unusual provisions
- Consider letter of wishes explaining reasoning
- Pre-death conversations reduce surprise and challenge appetite
For potential claimants:
- Strict time limits
- Specific to circumstances and province
- Specific lawyer consultation appropriate
What we focus on at It's Simple Will
The Will Creator accommodates various distribution schemes. For unusual provisions (significant disinheritance, non-traditional distributions), consultation with a Canadian lawyer familiar with your province's dependant relief framework is appropriate.
Related guides
Citations & sources
- [1]Tataryn v. Tataryn (SCC 1994) — Supreme Court of Canada / CanLII
- [2]BC Wills, Estates and Succession Act (WESA) Part 4 — Government of British Columbia
- [3]Ontario Succession Law Reform Act Part V — Government of Ontario
Frequently asked questions
Who can claim dependant relief?
Varies by province. Generally — surviving spouse (legal and often common-law); minor children; adult children with actual dependency (varies). BC is broadest — independent adult children can challenge under WESA Part 4 (the Tataryn principle). Ontario narrower — must demonstrate actual dependency.
What's the time limit?
Typically 6 months to 2 years from grant of probate, depending on province. BC — 180 days from grant of probate (WESA s. 61). Ontario — 6 months from grant of probate. Provincial-specific deadlines apply.
Can the Will override these rights?
No. Dependant relief / wills variation statutes operate notwithstanding contrary Will provisions. An in terrorem clause cannot block these claims. The testator's freedom is limited by these statutory rights.
How much does a successful claim get?
Court determines what's 'adequate' or 'just'. Specific to circumstances — financial need, length of relationship, prior history, contributions to estate, other beneficiaries' situations. Specific to case law in each province.
Is BC's framework really different?
Yes — BC under WESA Part 4 (formerly Wills Variation Act) is the most flexible in Canada. The Tataryn v. Tataryn principle (SCC 1994) recognizes both legal obligation (support owed) and moral obligation (what a 'reasonable spouse and parent' would do). Adult independent children can claim — unique to BC.
Should I worry about being challenged?
Depends on circumstances. Common challenge profile — disinherited spouse, disinherited child with dependency, significant departure from traditional inheritance pattern, BC residents with adult children left out. Specific to circumstances. Pre-death conversations and documentation help reduce challenge appetite.