Estate Plan Fractured: The Adult Child

I encounter the adult child situation with a fair degree of frequency in the wills and estates component of my law practice. Several children in a family, but one is having problems addressing adult responsibilities, particularly financial. The parents are constantly bailing him or her out. He or she moves back to live with the parents–at 40, after a divorce or two, with children scattered. The parents continue to support this adult child, but tell the other siblings that everything will be evened out in the estate settlement. The adult child will get less, his independent siblings will get more. Seems reasonable: we supported you disproportionately in life, and now that we are gone, we give most to the others, and you are on your own.

The law doesn’t see things that way. What happens is that the parents have created a dependency relationship with this adult child, and that is a relationship that transcends their own passing. They may have written him or her out of the will, or given the adult child much less than the other siblings, but the law says that this won’t work. Having created or enabled a dependency relationship in life, the parents cannot suddenly cut the adult child off, or reduce his or her lifestyle, at death. After all, they created it.

The end result is that the adult child is able to make a claim as a dependent of the estate. In Ontario, these provisions were initially in place to address circumstances where a person tried to avoid his or her family obligations at death–such as trying to limit the benefits of a spouse or dependent young children. These provisions are increasingly used by the adult child to argue that the dependency relationship must continue after death. The law agrees.

What this means is that the provisions of the will, as well as any insurance or other benefit designations, are suspended, pending a determination of how much should be accorded to the dependent child to initially maintain his or her dependency relationship. Maybe he or she should become independent, but that will take time, and the order will reflect such. The parents created this situation. They can’t get out of it, through dying.

I will recount two cases, with facts altered to avoid client identification. I had one such situation involving an elderly, widowed person with a new girlfriend in his age cohort. One son had suffered occupational and financial setbacks and had been living with his father for several years. The son, now in his early forties, was quite settled in the situation. The father’s girlfriend insisted that the son leave the father’s house, if the relationship were to continue. The father finally found the strength to demand that the son leave. He died two years afterwards. The son made a successful dependency claim, since the father continued to pay for certain of the son’s expenses after his forced departure. In terms of the other siblings, they were at least saved the costs of litigation over whether the adult child son had a ongoing right of occupation in his father’s house, which his father’s estate would have had to pay for.

In another situation, the son continued to live in his mother’s house, while his mother spent most of her time at her boyfriend’s house. Again, the couple was elderly. The son continually pressured his mother and her boyfriend for money, in addition to pressuring them to pay the operating costs of the suburban house in which he alone now lived. Regrettably, both the mother and her boyfriend went into debt to continually enable the adult child son. And on the mother’s death….?

Postscript, March 22, 2011: Some of the factors the court considers are reviewed in this 2010 case, from British Columbia. British Columbia is a bit different from some other jurisdictions, in that there is a statutory recognition of an additional “moral claim”, independent of financial need. This “moral claim”, independent of financial need, causes its own set of difficulties, when parents specifically want to favour the financially-dependent or lifestyle-dependent child, and fairly clear provisions in a will to that effect are nonetheless able to be challenged.

About brucelarochelle
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