Miller Thomson
By Stephen Mulrain, June 9th, 2025
The competing interests of creditors, dependent family members and beneficiaries must be balanced and priorities established in the context of competing legislation.
The case of 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.
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.
Stephen Mulrain, Partner, Miller Thomson, Calgary
