Further to my last blog post “Marriage Like Relationships”, another significant consideration for those coming together later in life is children from a previous relationship. The Wills, Estate and Succession Act (“WESA”) sets the ground rules for how best to handle children in the context of Wills and their administration, validity and variance. With respect to the handling of children under WESA, section 3 deals with the adoption of a child. It is important to note that step-children are NOT considered a child of the step-parent from a Will’s challenge perspective.
Effect of adoption
- 3 (0.1)In this section, “pre-adoption parent” means a person who, before the adoption of a child, was the child’s parent.
- (1)Subject to this section, if the relationship of parent and child arising from the adoption of a child must be established at any generation in order to determine succession under this Act, the relationship is to be determined in accordance with the Adoption Act respecting the effect of adoption.
- (2)Subject to subsection (3), if a child is adopted,
- (a) the child is not entitled to the estate of his or her pre-adoption parent except through the Will of the pre-adoption parent, and
- (b) a pre-adoption parent of the child is not entitled to the estate of the child except through the Will of the child.
- (3)Adoption of a child by the spouse of a pre-adoption parent does not terminate the relationship of parent and child between the child and the pre-adoption parent for purposes of succession under this Act.
From a litigation perspective, this is crucial because only children and spouses can seek to vary a Will for its contents (that is not the same as challenging a Will for its validity. Challenging for validity is that the Will was drafted incorrectly due to mental health, or coercion for example. Challenging the contents means someone disagrees with the contents of the Will). Under section 60 of WESA, it reads
Maintenance from estate
- 60 Despite any law or enactment to the contrary, if a Will-maker dies leaving a Will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding 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 Will-maker’s estate for the spouse or children.
The implications of this section are that the stepchild must be adopted by the step-parent for that stepchild to become eligible to challenge a Will. Even if the step-parent has been involved in this child’s life for many many years, that does not mean that they are a child via legal standing. As such, any provisions to be made to children where you are not a biological parent are to be addressed either via adoption, or through specific Will clauses. If Bill and Betty had previous children, then those stepchildren would not be able to claim against the other’s estate. If Betty had a previous child, Lisa (who Bill raised since Lisa was 2) and then Bill and Betty get married and have 2 more children, those 2 more children will have a claim against Bill’s estate, but Lisa who has known Bill for just as long, will not. The complicating factors in this are that a step-child can bring a claim under s.151 of WESA, on behalf of their biological parent (who had died) for unjust enrichment, resulting trusts and constructive trusts (see my blog for a discussion about these trusts). Doing so will benefit the step-child because now their biological parent’s estate has more in the pot from the spouse/partner’s estate. That being said, claims seeking to vary a Will directly by a child against the deceased estate can only be made if that child is either (1) biological, or (2) legally adopted. As such, a stepchild who was raised by a step-parent may find themselves excluded from the Will, and face challenges from the biological parent’s deceased children.
Careful considerations are needed when drafting a Will, including how best to handle children. Failure to include proper provisions for children can lead to litigation. If you are drafting a Will or believe you have been wrongly excluded from a Will, please contact any member or our Estate Planning and Litigation group who would be pleased to help guide you through this complex process.
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing