SOURCE: Kushner Law

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April 04, 2017 13:00 ET

Lars Kushner: Vancouver Lawyers Discuss Adoption and Wills Variation

Vancouver lawyers offer insight to how different types of families can impact will legislation in new blog

VANCOUVER, BC--(Marketwired - April 04, 2017) - As a group of Vancouver-based lawyers, the team at Kushner Law understand that today's families go beyond what was once envisioned in the post-war era. As the structure of the nuclear family changes, BC legislation is also evolving to recognize the rights and limitations of adopted children in regards to their parents' will. To learn more, go to: http://kushnerlaw.ca/on-an-adopted-childs-standing-to-vary-a-will-in-bc/

Section 60 of the Wills, Estates and Succession Act, recognizes two distinct classes of persons who can challenge a will: spouses and children. Although children are not defined in the section, step or bonus children are excluded from this class unless legally adopted.

In the recent decision of Boer v. Mikaloff, 2017 BCSC 21, Mr. Justice Funt of the British Columbia Supreme Court determined that an adopted child, who is named as a beneficiary of the will of his birth-mother, does not have standing to vary the will pursuant to section 60 of WESA.

In making the determination, the Court made the following comments:

[32] Section 60 of WESA, the wills variation provision, does not "[distinguish] between persons related by birth and persons related by adoption".

Accordingly, the plaintiff's family relationship to the late Ms. Mikaloff for the purpose of wills variation is determined under s. 37(1) and (5) of the Adoption Act. The plaintiff under these rules became the child of his adoptive parents. The fact that the plaintiff was named beneficiary under the will does not change the analysis.

[33] The result is that an adopted child does not have standing to bring a wills variation claim against his or her pre-adoption parent's estate (except an adopted child falling within s. 3(3) of the Adoption Act). The result is harmonious with WESA's provisions regarding the entitlement of adopted children on the intestacy of a pre-adoption parent. Under WESA, an adopted child of a pre-adoption parent has no entitlement to the estate of his or her pre-adoption parent who dies intestate, unless adopted by the spouse of a pre-adoption parent: ss. 3(2)(a) and 3(3) of WESA.

[34] Plaintiff's counsel also argues that s. 3(2)(a) of WESA contemplates an adopted child taking "through the will of a pre-adoption parent" and that this language is ambiguous. He says that the phrase is not specifically limited by words he suggests the Legislature could have added such as "and only to the extent provided under the will" if its intent was as argued by the applicant.

[35] With respect, s. 3(2)(a) is clear. The language "except through the will of the pre-adoption parent" represents the exception to the more general language that an adopted child "is not entitled to the estate of his or her pre-adoption parent". Without the exception, an adopted child would be barred from claiming against his or her pre-adoption parent's estate even where the pre-adoption parent had made provision in his or her will for his or her natural child.

According to these results, the adopted child would have recourse under section 60 of WESA to vary the will of their adopted parents but not their birth-parents, even if they are named as a beneficiary by the birth parents.

If you believe that you have been treated unfairly under a will by a spouse or parent, contact the Kushner Law Group at 604-629-0432 to schedule a consultation.

About the Company

The Kushner Law Group was founded on the principle that a small law firm should be able to offer the same level of legal advice as a big firm at an affordable cost. A unique combination of legal experience and creativity allows the professionals at Kushner to come up with creative and practical solutions for a variety of legal problems.

For additional information, please visit http://kushnerlaw.ca/ or call 604-629-0432.

Contact Information

  • Kushner Law Group
    Lars Kushner
    Phone 604-629-0432 Fax 604-689-4451
    Company website: http://kushnerlaw.ca/
    1008 Beach Ave #105