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Wills Variation: No Presumption of Paternity

Wills Variation: No Presumption of Paternity

There is no presumption of paternity in British Columbia in wills variation cases so paternity must therefor be proven. Under section 26 of the Family Law act however, there are several types of recognized paternity relationships that give rise to a presumption of paternity.

Wills Variation Cases

In Barnes Estate v Barnes 2013 BC SC 1846 the court stated:

Section 26 of the family law act outlines a number of situations in which a male person is presumed to be a child’s biological father. There is no presumption of paternity with respect to wills actions.

In Lansing v Richardson 2002 BC SC 262, the plaintiff claimed that she was entitled to a share of the testator’s estate pursuant to the wills variation act because she was a biological daughter of the testator.However, the evidence of paternity was inconclusive.

The court held at paragraph 18:

“Under the wills variation act paternity must be established before a legal claim can be recognized: the burden under the wills variation act is on the plaintiff– to establish paternity on a balance of probabilities, and under that act there is no legislative presumptions, so the common-law burden of proof applies.”

Family Cases:

S. 26 of the Family Law act creates a number of situations in which there is a presumption of paternity:

  • a man may be presumed to be the child’s biological father if he was married to the child’s mother when the child was conceived and born;
  • a man will be  the presumed father of the child if he was married to the child’s mother and the marriage ended within 300 days prior to the child’s birth. I have through death, divorce or through a declaration of an invalid marriage;
  • if a man seeks to marry the child’s mother, following the child’s birth and acknowledges the child as his own, his paternity will also be presumed.
  • There is also a presumption of paternity if the man lived with the child’s mother in a non-marital relationship within 300 days prior to the child’s birth
  • a father who has a nonbiological relationship with the child through adoption will have legal paternity of child.

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