Striking a Balance with Maintenance and Support

Leslie Taylor


Tel:       403.692.5201

A family member of a deceased person may apply for maintenance and support from the deceased person’s estate pursuant to Part 5 of the Wills and Succession Act, SA 2010, c W-12.2.

For the purpose of making an application for maintenance and support, a “family member” includes the following people:

  1. a spouse of the deceased,
  2. the adult interdependent partner of the deceased,
  3. a child of the deceased who is under the age of 18 years at the time of the deceased’s death, including a child who is in the womb at that time and is later born alive,
  4. a child of the deceased who is at least 18 years of age at the time of the deceased’s death and unable to earn a livelihood by reason of mental or physical disability,
  5. a child of the deceased who, at the time of the deceased’s death,
    1. is at least 18 but under 22 years of age, and
    2. is unable to withdraw from his or her parents’ charge because he or she is a full‑time student as determined in accordance with the Family Law Act and its regulations, and
  6. a grandchild or great‑grandchild of the deceased
    1. who is under 18 years of age, and
    2. in respect of whom the deceased stood in the place of a parent at the time of the deceased’s death.

Section 88 of the Wills and Succession Act sets out the scenarios within which a Court may order “proper maintenance and support” of a family member, as follows:

88(1)   If a person

  1. dies testate without making adequate provision in the person’s will for the proper maintenance and support of a family member, or
  2. dies either wholly or partly intestate and the share to which a family member is entitled under a will or Part 3 or both is inadequate for the proper maintenance and support of the family member,

the Court may, on application, order that any provision the Court considers adequate be made out of the deceased’s estate for the proper maintenance and support of the family member.

In the case of Sattler Estate (Re), 2019 ABQB 249, a wife had applied for maintenance and support from her late husband’s estate, claiming that she was entitled to live the same lifestyle that she and her late husband enjoyed without having to spend her own savings. The Court described that when faced with such an application, it is required to determine how to strike a balance between the obvious intention of the testator and the well-being of a “family member”.

The obvious intention of the testator was set out in his will:  He left a duplex to his daughter (from a prior relationship) and his interest in the matrimonial home to his wife. While the deceased’s estate was primarily made up of real estate, the Deceased had other assets which did not form part of the estate and which were for the most part left to his wife.

With respect to the well-being of the wife: Notwithstanding that upon the death of her husband, the wife became entitled to the matrimonial home, savings and RRIF accounts in a total amount exceeding $1,000,000, in addition to other investments and cash accounts over $375,000, her yearly income was only $40,000, made up on pension and investment income. The wife’s monthly budget exceeded her income in an amount of $1,900 per month.

The Court referred to section 93 of the Wills and Succession Act in describing the Court’s discretion in a maintenance and support application as “very broad”. Section 93 sets out the factors to be considered by the Court as follows:

  1. the nature and duration of the relationship between the family member and the deceased,
  2. the age and health of the family member,
  3. the family member’s capacity to contribute to his or her own support, including any entitlement to support from another person,
  4. any legal obligation of the deceased or the deceased’s estate to support any family member,
  5. 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,
  6. any relevant agreement or waiver made between the deceased and the family member,
  7. the size, nature and distribution of
    1. the deceased’s estate, and
    2. any property or benefit that a family member or other person is entitled to receive by reason of the deceased’s death,
  8. 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
  9. any property or benefit that an individual is entitled to receive under the Matrimonial Property Act, the Dower Act or Division 1 of this Part by reason of the deceased’s death,

and may consider any other matter the Court considers relevant.

The facts of this case were such that the husband and wife had been married 42 years. As the husband’s health deteriorated, the wife spent more time caring for her husband’s medical needs which eventually became a full time job. The wife was described as having been the husband’s “nurse” for the final years of his life.

The Court considered that the wife had contributed much to the marriage particularly in the later years when she acted as the husband’s nurse. The Court referred to the argument that it would be unfair to leave the wife in the lurch in her golden years after the sacrifices she has made. While the Court had little doubt that the husband thought he was adequately providing for his wife, it concluded that it was unlikely that the husband recognized the wife’s right to be maintained in a lifestyle that accords with contemporary societal norms. The Court ultimately balanced the obvious intention of the testator and the well-being of a “family member” in favour of the wife, as follows:

I accept that the Court should show deference to the testator but only if it is able to give effect to the provisions of the [Wills and Succession Act]. The Courts have said that a caring spouse who provides care for the testator over years of debilitating decline has a very strong moral claim to the estate, certainly stronger than that of an independent adult child.

The Court ordered that the one half of the duplex, not occupied by the daughter, be sold and the proceeds of sale be used to pay various expenses of the estate and those incurred by the wife, with the remainder to be paid out to the wife as maintenance as support.

2019-08-30T09:41:34-06:00September 3rd, 2019|

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