The priority of claims against an estate raises important issues of public policy. The competing interests of creditors, dependent family members and beneficiaries must be balanced and priorities established in the context of competing legislation.

O’Reilly v O’Reilly addresses these issues directly and serves as a guide to the limits of family law claims that may be brought against an estate and the interaction between family and estate legislation.

In this case, the Court was called on to determine the priority between claimants to the Testator’s estate. The claimants included:

  • The Testator’s incapacitated spouse (the “Spouse”), who claimed division of family property, unjust enrichment, spousal support and family maintenance and support orders against the estate;
  • A judgment creditor against the Testator arising from a claim for sexual battery and unlawful confinement; and
  • The Testator’s former legal counsel, who sought a charging order against the estate.

Considering the Spouse’s claims, the Court determined that the only available relief for her was a family maintenance and support order.

The Spouse had become incapacitated prior to the filing on her behalf of an action for divorce and division of family property by her guardian. The Court clarified that, where one spouse has died, division of family property can only be sought where the claiming spouse was entitled to such an order immediately prior to the other spouse’s death. The Court found that, in this case, the Testator and the Spouse had not been divorced and could not be (due to the Testator’s death) and that they had not lived separate and apart due to the Spouse’s incapacity to form an intention to live separate and apart from the Testator. As a result, no family property order could be granted.

The Spouse’s claim for spousal support was dismissed, as the Testator’s death precluded the granting of such an order.

Prior to his death, the Testator had signed a will that left nothing to the Spouse. The Spouse’s claim for family maintenance and support was granted, with the Court varying the will to leave the entire residue of the estate to the Spouse. However, the estate’s creditors claimed amounts that exceeded the value of the estate. As a result, in order for the family maintenance and support order to have any effect, the Spouse argued that her claim should have priority against the estate creditors. The Court rejected this argument, finding that the Alberta legislation gave power to the Court to reorder distribution of the net estate, that is the estate assets left after payment of estate creditors.

The Spouse also argued that Alberta’s Maintenance Enforcement Act gave priority to a maintenance and support order over estate creditors. The Court rejected this argument too, on the basis that a maintenance and support order could only be made against the net estate.

The result is that the estate is to be divided among the creditors, leaving no effective relief to the Spouse as against the estate. However, the question of whether the Spouse can successfully claim unjust enrichment against the estate, and if she can obtain a priority against the other estate creditors on that basis, remains unresolved. The decision in this case has been appealed, and this article will be updated upon any future decision that may issue. 

If you are navigating the complexities of claims against an estate, it is essential to have professional advice. Our Estate and Trusts Litigation Group can provide guidance on such claims, ensuring that you or your clients’ interests are protected.