Dependants, Spouses & Wills

The Dependants’ Relief Act allows dependant spouses and children to make a claim if they have not been adequately provided for under your Will. A spouse can also make an application under The Family Property Act for the division of family property before your estate is dealt with. These Acts apply whether you have a Will or not.

A dependant spouse or child can apply for a share of your estate for their support. The court can review your Will and, if necessary, redistribute your estate to properly provide for your dependants.

A dependant may include…

• your spouse by marriage
• someone you lived with, as spouses, for at least two years
• someone you lived with for less than two years but have a child with
• a child under the age of 18
• a child over the age of 18 who is mentally or physically unable to earn a living
• a child over the age of 18 who because of need or other circumstances ought to receive a greater share of your estate

In determining whether to order maintenance, the court has a broad discretion and will consider things like…

• income of the dependant
• the conduct of the dependant toward the deceased
• claims of other dependants
• any other matters the court considers appropriate
• the deceased’s reasons for not making provisions, or not making further provisions, for the dependant

Dependants must apply to the Court of King’s Bench, Family Law Division, within six months from the grant of probate of the Will or Letters of Administration.

A spouse can apply to have family property divided before their spouse’s estate is dealt with. A spouse can apply to divide family property after the death of their spouse if they were married or had lived with their spouse for two years or more.

If the Court divides family property, the estate will only include the deceased person's share of the property after the family property division.

Applications must be made within six months from the grant for Probate or Letters of Administration. Spouses cannot apply if they have signed a valid agreement or contract giving up their rights under these laws.