The Dead Do Not Get Support

Alberta’s Wills and Succession Act (WSA) gives immediate family members of a deceased person recourse when that person dies without leaving them sufficient support. The principle behind this is that a person’s legal and moral responsibilities to their family continue even after that person dies. However, what about when the family members die? Do their estates get support too?

This was considered by the Court of Queen’s Bench of Alberta (ABQB) in Burness Estate (Re), 2021 ABQB 980. In that case, William H. Burness left his spouse, Aileen Burness, a life estate on his house after he died. If Mrs. Burness was transferred to a care home, which she was shortly after Mr. W.H. Burness’ death, the house would be sold, and Mrs. Burness would receive income from the money. At her death, the money would be split among Mr. W.H. Burness’ four children.

Mrs. Burness brought several claims against Mr. W.H. Burness’ estate, some of which were for family maintenance and support under the WSA. Before the case got to a hearing, however, Mrs. Burness also died. Mrs. Burness’ attorney under a power of attorney continued the application in her stead. One of Mr. W.H. Burness’ children and residuary beneficiaries, William G. Burness, brought an application to have Mrs. Burness’ application dismissed.

This issue apparently rarely came up in common law jurisdictions. The leading (and most recent) case in Alberta the ABQB could find was McMaster Estate (Re), [1957] AJ No 64, 1957 CanLII 238 (SC), where the Supreme Court of Alberta (Alta SC) considered an older statute, The Testators Family Maintenance Act, SA 1947, c 12 (TFMA). In that case, the Alta SC found a family maintenance claim could not be continued by a deceased family member because the TFMA gave the right to a “dependent”. Dead people are not dependents.

The Alta SC also noted significant case law available at the time. The Privy Council of the United Kingdom ruled the same way in 1941 regarding a similar law in New Zealand. The Court of Appeal of Saskatchewan also agreed in 1956 regarding a similar law there. The only contrary opinion noted was in a case from the Court of Appeal from British Columbia in 1941, which was a lower court than the Privy Council at that time and therefore likely not good law to the extent it conflicted with the Privy Council.

The ABQB found the reasoning compelling. The wording of the WSA, though different from the TFMA, was similar enough to make McMaster still applicable. The ABQB dismissed the application. As a side note, even if the ABQB had ruled the other way, the deceased Mrs. Burness had another problem. The action was continued by her attorney, but the attorney’s authority ended with the power of attorney on Mrs. Burness’ death.

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