Estate Litigation Blog

Improper Conduct and Dependant Support

by Rob Levesque, Published: October 10, 2019

Tags: attorney,  depandant,  dishonesty,  husband,  incapable,  misappropriation,  misconduct,  poa,  power of attorney,  slra,  spouses,  support,  wife

In Webb v. Belway, 2019 ONSC 4602, the Court was asked to consider whether a common law spouse’s improper conduct while she was Power of Attorney for her spouse should be taken into consideration in determining her entitlement to support.

Ms. Webb was the common law spouse of Mr. Belway who died on October 21, 2017. Six months prior to his death, Mr. Belway suffered a stroke leaving him incapable of managing his property. Ms. Webb began acting as Mr. Belway’s Power of Attorney for Property and Personal Care which was previously granted to her.

During her time as Power of Attorney, Ms. Webb transferred $570,455.76 from Mr. Belway’s accounts and investments, either directly or indirectly, for her own benefit.

Mr. Belway died intestate, therefore leaving his only daughter as the sole heir of his estate which was valued at approximately $2,851,125.77. Ms. Webb brought a claim for dependent support against Mr. Belway’s estate. Ms. Webb’s position was that she was entitled to one half of the estate.

The daughter opposed the application, arguing that due to Ms. Webb’s egregious behaviour, she should not receive anything beyond the amounts she has already transferred to herself when Mr. Belway was incapable. The alleged egregious behaviour included transferring the funds to herself, not calling the daughter to advise of her father’s stroke and hospitalization, and isolating Mr. Belway during his final months of life.

The Court looked at section 62 of the Succession Law Reform Act, as well as, the moral obligations of a deceased with regard to dependants as set out in Cummings v. Cummings [2004] O.J. No. 90 (ONCA). In particular, the Court looked at s. 62(r) of the Succession Law Reform Act to consider whether the course of conduct by the spouse is so unconscionable as to constitute an obvious and gross repudiation of the relationship.

Ultimately, the Court found that while Ms. Webb’s actions were “improper”, it was not persuaded that her actions were so egregious or unconscionable as to constitute an obvious and gross repudiation of the relationship. In other words, her problematic behaviour did not negate her moral and economic claims against the estate.

Ms. Webb admitted that the transfers she made were not pursuant to Mr. Belway’s instructions, which was contrary to what she had stated in an earlier affidavit. She also admitted to additional assets taken. Interestingly, the Court acknowledged that Ms. Webb took responsibility for her questionable actions and stated that “she could have transferred the entire estate to herself. She did not do this.”

The Court determined that Ms. Webb had met her onus on a balance of probabilities, that the deceased had not adequately provided for her, and that the assets she had already received were insufficient to meet the estate’s obligations towards her.

The Court’s decision suggests that improper conduct will not necessarily be sufficient to establish a repudiation of the spousal relationship so as to disentitle a spouse from support. One may need to demonstrate very strong evidence of misconduct or egregious behaviour to argue that a spouse should be disentitled. It seems that in long-term spousal relationships, as was the case here, this may be even more challenging as the moral and economic claims against the estate will be greater.