Back to the blog

Challenging a Will for Maintenance and Support

This does not constitute legal advice. Please contact us today if you would like information relevant to you and your situation

The concept of maintenance and support under the Wills and Succession Act, SA 2010, c W-12.2 provides protections for family members of a deceased person in situations where they have not inherited enough to meet their needs. In such instances, the family member whose needs remain unfulfilled posses the option to seek a Court Order for the provision of maintenance and support.

The Wills and Succession Act allows for a family member to apply for maintenance and support in two situations:

First, when the deceased has passed away testate, and their valid Will does not contain adequate provisions to maintain or support a family member; and
Second, when the deceased has died wholly or partially intestate, meaning without a valid Will, or with a Will that fails to address the entirety of the estate, and a family member’s share of the estate is deemed insufficient.

It is important to note that an order for maintenance and support can cover more than one family member, which means that multiple individuals can claim maintenance and support. The order can apply to the entire estate or just a portion of it, regardless of whether there’s a Will in place. Moreover, the Court can limit or end the right of a surviving spouse or adult interdependent partner to temporary possession. The Court can do this if it believes such limitation or termination is deemed necessary to ensure adequate maintenance and support is provided to another family member.

Considerations by the Court

After an application for an Order for Maintenance and Support is received, the Court must consider a variety of factors outlined by section 93 of the Wills and Succession Act. These factors include:

The nature and duration of the relationship between the family member and the deceased,
The age and health of the family member,
The family member’s capacity to contribute to his or her own support, including any entitlement to support from another person,
Any legal obligation of the deceased or the deceased’s estate to support any family member,
The deceased’s reasons for making or not making dispositions or property to the family member, including any written statement signed by the deceased in regard to the matter,
Any relevant agreement or waiver made between the deceased and the family member,
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 the deceased’s death,
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
Any property or benefit that an individual is entitled to receive under the Family Property Act, the Dower Act or Division 1 of Part 5 of the Wills and Succession Act by reason of the deceased’s death,

The Court may also consider any other matter that it considers to be relevant in granting an order for maintenance and support.

Case Law for Maintenance and Support

In the recent decision of Campbell v Ensimger, 2022 ABQB, D.K. Miller J demonstrated how the Court considers the above factors in making a maintenance and support order.

In this case, the Plaintiff Ms. Campbell found herself seeking an Order for Maintenance and Support after her father’s passing. Ms. Campbell was adopted by her father at the age of six, and in 2016 her father executed a Will leaving a significant portion of his estate, which was in excess of $1 million, to Ms. Campbell and her son.

The following year, Ms. Campbell’s father was suffering from cancer and called his lawyer from his hospital room to have a completely new Will prepared. The father clearly explained to his lawyer his health problems and that he wanted to change the previous Will to leave nothing for his family.

The 2017 Will was executed, and Ms. Campbell brought an application for maintenance and support after her father passed. The Court ultimately found that the father had the requisite capacity to give instructions for his last Will and Testament, making it valid.

Moving on to the matter of maintenance and support, the Court considered section 93 factors and their application to Ms. Campbell.

In consideration of maintenance and support, the Court looked to the nature and duration of the relationship between Ms. Campbell and her deceased father, which was found to be quite limited. Additionally, the father was unaware of Ms. Campbell’s inability to support herself.

The Court also found that Ms. Campbell had significant physical and mental challenges that prevented her from obtaining employment. In addition to being a single mother raising a son with significant health challenges, the Court determined that Ms. Campbell was a “dependent” and that there was likely a legal obligation on the deceased to support her.

In considering the drastic differences in the two Wills, the Court also took into account the testimony of witnesses of the Defendant’s as to why the father excluded Ms. Campbell from the second Will.

Ultimately, the Court exercised its discretion and granted Ms. Campbell maintenance and support. The Court deleted paragraphs of the second Will that donated money to two charities and ordered that those amounts be paid to Ms. Campbell.