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Monday, December 14, 2020

Can a disabled adult child who lived with parents their whole lives claim the house?

It's not unusual for a disabled adult to continue living at home with his or her parents after the other children have left home. When the person's physical or mental challenges are such that he or she can't earn a living, staying in the family home is often an ideal solution. I certainly come across this scenario with my own clients on a regular basis. I am often asked whether the disabled child can claim the home simply because he or she has lived there under those circumstances.

When I saw the Lamont Estate, a recent Alberta case, it caught my eye because it specifically talks about the parent's obligation toward that dependent child who still lives in the family home when the parent passes away.

Here is the situation. Dorothy Lamont passed away at 98 years old, leaving 3 children. One of them, Janice, was physically disabled and still lived in her mother's house, which had been modified to address Janice's disabilities. Mrs. Lamont had moved into long-term care in 2010 and Janice continued to live in the home. Mrs. Lamont's income did not stretch to accommodate both long-term care and the upkeep of the house, so she took out a line of credit in 2010 to cover her expenses.

Mrs. Lamont's estate really had very little in it except for her house. The line of credit was still in place and was significant. She left a will that divided her estate into 6 shares, then left 4 of the shares to Janice and one share to each of her other two children. 

This division is important because it shows that Mrs. Lamont understood that Janice would not be able to earn her own living going forward. She addressed this as best she could given the asset she owned and keeping in mind that she had other children she wanted to benefit.

The case came to court because Janice wished to keep the house. She said that because she lived there all that time (rent-free) and the house had been modified to suit her, she should be able to stay there. Her application was based on the idea that a person who cannot earn his or her own living must be adequately provided for in the will of a parent. That kind of application is often referred to as a "dependent's relief" type of application.

Janice's two siblings opposed her application to keep the house. Eventually the court had to decide what to do about it. To simplify a complex question, the court had to decide whether Janice was adequately supported by receiving 2/3 of her mother's estate, or whether she needed the whole house.

The evidence provided by the siblings showed that if the house were to be sold and Janice's 2/3 put away in trust as directed by the will, she would have a good monthly income. Combined with her OAS and CPP (Janice was over 65 by then), her monthly income would be $3,470. In other words, she wouldn't be a millionaire but she'd be able to live comfortably. Monthly income was not at all the only factor considered, but it was important to give real-life numbers to an idea of what is "adequate".

This boiled down to a decision by the court that Mrs. Lamont's will had in fact made proper provision for her daughter. The will was upheld. 

To read the case in more detail, click here

When I read cases like this, as a legal practitioner, I learn more each time about the principles of law and how they work (maybe that's why they say we "practice" law?) but I'm also on the look-out for practical pointers. In this particular case, Janice did herself no favours by failing to produce detailed financial information. The judge mentioned a couple of times that it really wouldn't have been that hard for Janice to give a proper list of her actual monthly expenses. 

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