If you believe that you have been unfairly treated in a loved one’s Will or Estate, please give us a call now in our Vancouver office at 604.602.9000 or from anywhere in North America toll-free at 1.877.602.9900 or send us an email via our secure website. Our experienced BC Wills Variation and Estate Litigation lawyers are happy to answer your questions. We are here to help.
A recent BC Court of Appeals decision may finally open the door for non‑biological children who have not been adopted by their “parent” to make a Wills Variation claim. Our Vancouver, Surrey, Kelowna, Fort St John Wills and Estate Variation lawyers are frequently asked who is eligible to make a claim under the BC Wills Variation Act? For example, can an adopted or other non-biological child apply for a change to their non-biological parent’s Will? Or, can a common-law (unmarried) spouse or same-sex partner apply for a change to their spouse or partner’s Will? What are the rights of non-biological children in BC Wills Variation Claims?
The answers to these questions can be found partly in the legislation itself and also as a result of decisions of the Court that interpret the legislation. The most important part of the British Columbia Wills Variation Act is Section 2 which defines who can make a claim and under what circumstances the Court is allowed to modify a Will. Section 2 of the Act says:
… if a testator dies leaving a will that does not, in the Court’s opinion, make adequate provision for the proper maintenance and support of the testator’s spouse or children, the Court may, in its discretion, in an action by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the testator’s estate for the spouse or children.
In plain language, this means that if a parent or spouse dies and their Will doesn’t adequately take care of the surviving spouse or children then the Court can change the Will. The Act defines a spouse as…“a person who (a) is married to another person, or (b) is living and cohabiting with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, and has lived and cohabited in that relationship for a period of at least 2 years.” This means that people who are actually married as well as people who have been living together for 2 years, and also including people in same-sex relationships, are all considered a spouse of the person who has died. However, the Act does not define the word “child” or “children.” As a result, the Courts must rely on the historical decisions made in British Columbia in order to determine who is a “child,” and who is eligible to make a request to change the terms of a Will.
It may surprise our readers to learn that, thus far, the Courts have failed to recognize any non-biological child who has not been adopted by the person who died. However, a recent BC Court of Appeals decision may have actually made it possible for someone in those circumstances to make a claim depending upon the duration, nature, and extent of the “parental” relationship.
If you think that your non-biological and non-adoptive parent has unfairly left you out of a Will, our lawyers would love to hear from you. In particular, Mr. Lorne MacLean, Q.C. has a history of taking on groundbreaking cases, including several appearances before the Supreme Court of Canada, and his recent Canadian precedent-setting frozen embryo custody case.
As mentioned, the BC Court of Appeals recently upheld the long-standing tradition of preventing a non‑biological child who has not been legally adopted from challenging the validity of a Will in its 2011 decision of Peri v. Doman Estate, 2011 BCCA 401.
Please note that if you have been legally adopted, this would not apply. A non-biological child who has been adopted is entitled to claim under the Act because under s. 37 of the Adoption Act, R.S.B.C. 1996, c. 5, when an adoption order is made:
(a) the child becomes the child of the adoptive parent,
(b) the adoptive parent becomes the parent of the child, and
(c) the birth parents cease to have any parental rights or obligations with respect to the child …
Nevertheless, in the Peri case, because the Court focused on the lack of a “parent-child” relationship between the parties, this decision may have actually opened the door for someone in similar circumstances who does have a significant “parent-child” relationship with a non-biological and non-adoptive parent. In the Peri case, the appellant was born in Seattle. The testator [a testator is the person who wrote the Will and is now deceased] was not the appellant’s biological father, but he was married to her mother when she was born. Nevertheless, the appellant’s birth certificate listed the testator as her father. When the appellant was a child, the testator made arrangements for the appellant to be placed in private foster care. He paid support to the foster parents for the expenses incurred in raising the appellant, including paying (indirectly) for her wedding. When the appellant tracked down her mother and the testator, the testator made it clear that he was not her biological father and did not consider her to be part of the family. When she was 26 years of age, the appellant signed a contract with the testator where she accepted $25,000 in return for her agreement not to make any claims against the testator or her mother’s estate or to contact them. The testator died in July 2007. His Will made no provision for the appellant. The appellant brought a Wills Variation action. The chambers judge dismissed the appellant’s application for a declaration that she was a child of the testator within the meaning of s. 2 of the Wills Variation Act, R.S.B.C. 1996, c. 490. Here the Court held that the word “children” in s. 2 was limited to natural or adopted children of the testator, and the appellant could not bring herself within the definition of “child” under comparable legislation in any jurisdiction. Her relationship with the testator did not justify the court expanding the meaning of “child” or “children” to fit her circumstances. It was clear that the testator never had any intention of acting as a father to the appellant, and he made that intention clear to her. Therefore, there was no basis for the Court of Appeals to interfere with the chambers judge’s decision that the appellant was not a child of the testator within the meaning of s. 2 of the Act. Again, this does not mean that the door has been slammed shut for non-biological children who have not been adopted. In fact, the Court’s comments that “…the testator never had any intention of acting as a father…” and “…her relationship with the testator did not justify the court expanding the meaning of ‘child’ or ‘children’” may actually open the door for non-biological children where a strong relationship exists and the testator does act as though they are the actual father or mother.
Regardless of your particular circumstances, if you believe that you have been unfairly treated in a loved one’s Will or Estate, please give us a call now in our Vancouver office at 604.602.9000 or from anywhere in North America toll-free at 1.877.602.9900 or send us an email via our secure website. Our experienced BC Wills Variation and Estate Litigation lawyers are happy to answer your questions. We are here to help.
