by Dylan Segal
Section 60 of British Columbia’s Wills, Estates and Succession Act, [SBC 2009] Chapter 13 gives entitlement to a will-maker’s ‘spouse’ or ‘child’ to apply to vary that will-maker’s will.
A potential claimant may wish to pursue such claim if he or she has been left out of a will entirely, or left an amount perceived to be unjust. The Court will vary a will if, in their opinion, the will does not make adequate provision for the proper maintenance and support of the prospective claimant.
Despite ‘spouse’ and ‘child’ appearing to be simple terms to define on their face, having the Court determine you are a child for the purposes of the Act is not so easy.
Generally speaking, an individual who is the biological child of a will-maker will fit this definition; however, even this is without some exception.
The recent case of Boer v Mikaloff, 2017 BCSC 21 dealt with the question of whether ‘a child who is adopted by other parents after birth, but who is named as a beneficiary under his birth mother’s will, have standing to seek relief under s. 60?’.
The answer, according to the Court, is NO.
In coming to its decision the Court drew on principles set out in s. 37(1) of British Columbia’s Adoption Act, SBC 1960 which provides that, when an adoption order is made the “child becomes the child of the adoptive parent and the adoptive parent becomes the parent of the child”.
In other words, if you are legally adopted at any time before the death of birth parents then you lose your standing to bring a s. 60 variation claim under his or her will, unless the child is adopted by the spouse of the pre-adoption parent.
One consequence of this narrowed definition of ‘child’ is that step-children, despite perhaps being raised by a step-parent for the majority of his or her life, do not currently have any standing at law to seek wills variation. This argument was advanced, and dismissed, in the case of McCrea v Bain Estate, [2004] BCJ No. 290.
The inverse situation, of whether an adopted child has standing to bring a wills variation claim against his or her adopted parents, has been long settled. They may do so.
Whether the law expands the definition of ‘child’ in the future will be left to arguments advanced by counsel and cases brought before the Courts.
It is this writer’s opinion that a line has to be drawn somewhere but circumstances where a non-adopted individual has been raised by a will-maker for the majority of their life, calls the will-maker mom or dad, has been given expectations of inheritance, but is never legally adopted, pushes the boundaries of equity and fairness in relation to the existing limitations on the current legal definition.
If you wish to discuss your position under WESA, or feel you have reason to vary the will of a recently deceased testator, contact one of our professionals at Hobbs Giroday, 604-669-6609.