Estate Planning

Beyond Cummings: Reid v. Reid

By Hull & Hull LLP

In yesterday’s blog I noted that in today’s blog I would mention another dependant support case decided in the post Cummings v. Cummings era.

In Reid v. Reid, [2005] O.J. No. 2359 (Ont. S.C.J.), [2008] O.J. No. 826 (Ont. Div. Ct.), the deceased was survived by her son, her daughter and her daughter’s two children (the deceased’s grandchildren).

According to the trial judge, the deceased’s daughter was a 42 year old mentally challenged individual with one of the grandchildren also being mentally challenged.

The deceased’s estate was worth approximately $200,000, consisting primarily of a house.  The deceased’s daughter and her two children resided with the deceased. The deceased’s Will left her estate equally to her daughter and son.

The daughter and grandchildren brought an application for support.

Having acknowledged the considerations set out in the Cummings decision, the trial judge found that there was a relationship of dependency such that the deceased was contributing to the support of her daughter and her two grandchildren.

The trial judge held that the son should receive $25,000 from the estate with the balance of the estate (the house) to be held for the deceased’s daughter, and on her death, the net proceeds from the sale of the house divided equally between her two children. 

On appeal, counsel for the son conceded the issue of the dependency of the deceased’s daughter and grandchildren as found by the trial judge within the meaning of the Succession Law Reform Act (s.57). Interestingly though, the Divisional Court stated:

“We also agree with the appellant…[the deceased’s son] that the trial judge fell into error by ordering that the residue of the estate pass to… [the grandchildren] without having any evidence before her as to what their needs might be at some unidentified time in the future.  Nor was there any evidence before the trial judge that either of these two applicants would still be dependant within the meaning of the Succession Law Reform Act at this unidentified future date, the date of…[the deceased’s daughter’s] death.”

The Divisional Court ordered, amongst other things, that the son be paid $25,000 from the estate (from a mortgage to be obtained on the house), the house be transferred to the daughter, the daughter and her two children may live in the house until 2018, at which time the property will be sold and the proceeds distributed equally between the son and the daughter, provided that the son’s share be reduced by the above-noted $25,000. 

Thanks for reading. 

Craig

Full post as published by Toronto Estate Law Blog on June 12, 2008 (boomark / email).