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  Schmakeit

  Hannah
  Schmakeit

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Securing Your Future When a Will Falls Short

In this article: Who can make an FMS claim, how the courts decide adequacy of support, common grey areas, and key cases that illustrate how Alberta Courts apply the law.

Losing a loved one is one of life’s most profound challenges, and discovering that their will doesn’t adequately provide for you can add an unbearable layer of financial and emotional strain. In Alberta, under Part 5 of the Wills and Succession Act (the “WSA”) family members make a family maintenance and support (“FMS”) claim which is court-ordered support from a deceased person’s estate, even if the will overlooks them.

At its core, FMS claims are designed to protect spouses, children, or other dependents of a deceased from being left destitute by virtue of the deceased’s will. These claims are not about contesting the will out of spite; rather, these claims are a statutory mechanism designed to balance the deceased’s freedom to dispose of their estate as they choose and the deceased’s moral and legal obligations to to their dependents. Under the WSA, the Court has broad powers to vary the distribution of the estate to address the specific situation before the Court.

To successfully make an FMS claim, a claimant must show two things:

1. They are an eligible claimant under Section 72(b) of the WSA, and
2. The amount they receive under the will or under Part 6 of the WSA is inadequate for the proper maintenance and support for themselves.

Are They an Eligible Claimant?

The WSA lists six categories of people in Section 72(b) who may qualify to make an FMS claim. In relation to the deceased, these categories include:

• their spouse,
• their adult interdependent partner,
• their minor children,
• their children, who are over 18 and are unable to earn a livelihood by reason of mental or physical disability,
• their children between the age of 18 and 22 and are full-time students; and
• a minor grandchild or great grandchild for whom the deceased stood in place of a parent at the time of the deceased’s death.

Although the categories appear straightforward, they are often fact-specific and frequently disputed. The three categories that most commonly raise disputes are adult interdependent partners, adult children with disabilities, and minor grandchildren or great-grandchildren for whom the deceased stood in the place of a parent.

Adult Interdependent Partners

For example, if two people are engaged, they’re not yet considered spouses. Their only possible route to FMS claim is through being considered an adult interdependent partner under the Adult Interdependent Relationships Act (the “AIP Act”).

A relationship of interdependence requires three things:

• sharing each other’s lives,
• emotionally committed to one another, and
• functioning as an economic and domestic unit.

In addition, they must fall into one of the two following categories:

• living together for a continuous period of not less than 3 years; or
• their relationship has been of some permanence if there is a child of the relationship by birth or adoption.

Then, a list of factors for a court to consider in whether or not two people “function as an economic unit” is also provided in the AIP Act. As you can see, this can get complicated quite quickly.

Courts do not always require a strict, uninterrupted three-year period of cohabitation. They may consider whether the parties intended to cohabit but were separated by external circumstances such as work, finances, school, or health. For example, if a couple lived together and then one partner relocated temporarily for employment, they may still be considered adult interdependent partners.

Adult Children Unable to Earn a Livelihood

In certain cases, it is very clear if an adult child is unable to earn a livelihood by reason of mental or physical disability; however, there are a range of things that may or may not be considered a mental or physical disability. For each claimant, it’s a fact-specific inquiry into whether the claimant has a disability and the claimant cannot earn a livelihood because of that disability.

Examples from Alberta case law include:

• Soule v Johansen Estate (2011 ABQB 403): The Court found that the claimant’s hepatitis C and related symptoms were a disability which resulted in an inability to earn a livelihood. The Court did grapple with the evidences limitations, including a Functional Capacity Evaluation that did not state how many hours the claimant could work, a doctor’s report without evidence about the doctor’s qualifications or credentials, a doctor’s opinion that does not address the claimant’s ability to work, and doctors’ reports solely relying on the claimant’s self-reported information without external testing.
• Campbell v Ensminger, 2022 ABQB 330: The claimant had a variety of physical and mental challenges that the Court found were significant and undoubtedly prevented her from obtaining employment. These challenges included scoliosis, ulcers, uterine fibroids, non-alcoholic hepatic steatosis, gastroesophageal reflux disease, severe irritable bowel syndrome, bipolar disorder, depression and anxiety issues, cardiac stenosis, stress urinary incontinence, stomach polyps, and recurring bladder infections.

Minor Grandchildren or Great-Grandchildren

Finally, the last category of possible claimants are minor grandchildren or minor great grandchildren for whom the deceased stood in the place of a parent. In general, these situations arise in which a grandparent or a great grandparent is the primary caregiver of a minor grandchild or minor great grandchild, and these provisions are an attempt to ensure that, since the grandparent or great grandparent was already acting like a parent, they continue to fulfill those obligations after death (if their estate can afford it).

Is the Amount Provided Inadequate for Proper Maintenance and Support?

Once eligibility is established, the Court determines whether the claimant has been adequately provided for. Section 93 of the WAS lists the relevant factors, which include:

• the nature and the duration of the relationship between the deceased and the claimant,
• the ability of the claimant to support themselves,
• the size of the estate,
• the deceased’s reasons (if any) for not providing for the claimant, and
• the deceased’s other obligations (if any) to other people.

The Courts do not consider “proper maintenance and support” to just be the bare necessities of life, but it is instead the standard of living to which the claimant was accustomed during the deceased’s lifetime.

For example, a household, comprised of one parent and two children, regularly takes international vacations, attends expensive schooling and extracurriculars, and lives a luxurious life. The Courts would probably not allow the parent to disinherit the children completely in their will unless the parent had provided otherwise for those children. The parent could provide for their children in a variety of ways. In some circumstances, households will create family trusts to provide for their children after their death. In other circumstances, they will purchase large life insurance policies with their children as a beneficiary. Either way, the Courts are primarily concerned with ensuring that the standard of living to which the claimant was accustomed during the deceased’s lifetime is maintained.

When the Estate Cannot Cover Multiple Claims

If multiple valid FMS claims exceeds the estates resources, the Courts will generally then pay each claim proportionately. However, the Court has very broad discretion to determine what constitutes adequate provision for each claimant.

When the Deceased Intentionally Disinherited the Claimant

The Courts will heavily consider why the deceased disinherited the claimant and determine if it is a sufficient reason to relieve the deceased from their legal and moral obligations to the claimant.

Examples from Alberta case law include:

• Adams v Broughton, 1982 CanLII 1158 (AB KB): The Court has found that, in a case where a couple had a habit of fighting, separating briefly and then reconciling, the deceased completely disinheriting their spouse a few days prior to their death. The deceased did not explicitly provide any reasons for such disinheritance, and the Court found that the widow would be destitute on her income without any provision from the deceased’s estate, so the Court granted her the sum of $25,000 from the deceased’s estate for the widow’s proper maintenance and support, especially when considering the total value of the estate.
• McKenna Estate (Re), 2015 ABQB 37: The deceased and the widow had a pre-nuptial agreement, and the widow was given a portion of the deceased’s estate but not the entirety of the estate. While the deceased in this case did not explicitly specify why he wanted a different distribution than typically seen amongst his spouse and their children, the Court inferred that the distribution of his estate was an attempt to bring fairness to both the children of his first marriage and the children of his second marriage. The Court considered the lifestyle the widow enjoyed during their marriage and concluded that the assets she had received from the estate were inadequate to maintain a similar standard of living. Despite the pre-nuptial agreement, the Court reaffirmed that, because of Section 103 of the WSA, a testator cannot contract out of their legal or moral obligations. The decision to award additional funds from the estate was made to ensure the widow’s proper maintenance and support for her lifetime to the standard of living she had while the deceased was alive while still respecting the deceased’s attempt to balance the interests of his widow and children.

Conclusion

FMS claims in Alberta are complicated at best, but the underlying principle is to ensure that certain dependents are properly provided for when a will does not do so adequately. These claims involve detailed, fact-specific considerations, especially around who qualifies and what constitutes adequate support. Courts carefully balance a person’s freedom to distribute their estate according to their wishes, with their moral and legal obligations to dependents, often using broad discretion to reach a fair outcome.

If you believe you might have an FMS claim, or want to understand how the law applies to your situation, reach out to our team for guidance.

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