Low Income Senior Denied Maintenance and Support

In Riley (Re), 2022 ABQB 69, an adult son applied for maintenance and support. The father had died and left his estate to his two children. The son received just under $400,000.00, and the daughter received roughly $288,000.00.

The son was 64 years old, suffered from chronic pain, fibromyalgia, depression, and anxiety and had not worked since 1999. He received benefits from AISH and had been living with his father for twenty plus years. 

These factors led the son to apply before the Court and request the terms of the father’s will be varied on the basis that the father had not provided adequate maintenance and support.

The Court reviewed the applicable legislation as follows:

[6] Section 88 of the Wills and Succession Act, SA 2010, c W-12.2 (WSA) reads, in part, as

88(1) If a person
(a) dies testate without making adequate provision in the
person’s will for the proper maintenance and support of a
family member, or
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.
to provide for the proper maintenance and support of another family member.
[emphasis added]

[7] Section 88(1)(a) is the operative section that allows a family member to challenge a will
if they feel they have not received proper maintenance and support.

The Honourable Mr. Justice T.G. Rothwell found what was provided to the son in the will was adequate. Justice Rothwell arrived at this holding for several reasons. First, the son could have sold the father’s house and received the net proceeds from the sale. Combining this with the proceeds from the TFSA he received, he was provided with roughly $17,000.00 over the course of 20 years. Combined with the roughly $20,000.00 he received from AISH and federal benefits, he would have a yearly income of $37,000.00.

Further, data showed the average one-person household in Alberta has living expenses of $44,000.00 a year. Justice Rothwell commented that although the son’s income was below average, it was not significantly below average.
The Court also commented that the son could sell his jeep, given that it was common for low-income seniors to rely on public transportation.

This case provides an example what factors a Court may consider when assessing whether a will provides adequate maintenance and support. If you have questions regarding a will, contact one of the estate litigation lawyers at Kantor LLP. We are happy to answer questions.

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