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Wills Variation: Definition of Child or Children

Wills Variation: Definition of Child or Children

There is no definition of child or children in the wills variation act (now Section 60 WESA), but the case law is clear that only a natural child or adopted child of the deceased (along with a spouse) have the standing to bring a claim for a share of the testator’s estate if not adequately provided for. Lansing v Richardson 2002 BCSC 262.

In Hope v Raeder ( 1994) 2 BCLR (3d) 58 the Court of Appeal held that the word children referred only to biological or adopted children.

The fact that the legislature had not expanded the meaning of the word children beyond natural and adopted children, as it had done in other acts such as the Family Relations act, was found to be a powerful argument against extending the usual meaning.

The Court of Appeal concluded it was not open to the court to expand the class was intended to benefit under the relevant legislation, suggesting that any expansion of the definition of children must be legislated.

Clayton v Markolefas 2002 BCCA 435 stands for the proposition that a child who is the natural child of the testator, but who was legally “adopted out” by an adoptive parent no longer has the status to bring an action under wills variation legislation, as the adoption is “for all purposes”.

In Peri v McCutcheon 2011 BCCA 401 a five-member panel of the Court of Appeal confirmed the law that where a child was in loco parentis with the deceased, but not formally adopted by the testator, was not entitled to bring a claim for a share of the testator’s estate under wills variation legislation.

In Peri the stepchild sought to challenge the will of her biological mother’s husband, which did not make provision for her. DNA evidence established that the testator was not the plaintiffs father, but the plaintiff’s birth certificate and Canadian immigration card indicated that the testator was in fact her father. After her birth. The plaintiff was placed in private foster care and had limited contact with the testator, but the testator did pay for some of her expenses.

The appeal court held that the plaintiff did not fit within the definition of children, but did clearly state that a question of whether it is appropriate for the word children to be expanded to encompass applicants who are not either natural or adopted children of the testator “ is one which should wait a more compelling factual foundation”.

In saran v saran 2015 BCSC 1865, the court ordered special costs against plaintiffs who proceeded with a claim to vary the will when they had been advised that they did not have the standing to bring the action because they were not biological children or adopted children of the deceased.

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