Our society’s understanding of marriage, relationships, and children has changed over the years. This is reflected by the law in many ways, such as through child and spousal support laws, or gay marriage for example. However, just because the times have changed does not mean that past actions have necessarily changed with them. Take for example a decision from the Ontario Superior Court of Justice which examined whether a child born out of wedlock could be excluded from his paternal grandmother’s inheritance.

Born out of Wedlock

The respondent (“JS”) was born in 1988. G and JS’s mother separated shortly after his birth. JS lived with his mother, and G was not especially active in his life. G remarried, and would go on to have one more child, (“H”).

G died in 2013, while his mother “JK” (JS’s grandmother) died in 2018.

Following the death of JK, H argued that JS should not be entitled to a share of the estate. JK had a will, which provided instructions pertaining to the distribution of the estate, with plans “to divide the remainder of my estate equally among such of my children as shall be living at the time of my death; provided that if any of my children shall predecease me, leaving issue him or her surviving, such issue shall take in equal shares per stirpes the share that such deceased child would have taken if living.”

As mentioned, G did not have a close relationship with JS. But there are indications that JK had provided for him financially, as she had set up an RESP in his name.

However, H argued that despite this, when JK’s Will was executed, there were strict definitions associated with what constituted a “child” and “issue” under Canadian estate law.

A Look Back in Time

Children born out of wedlock today are entitled to the same rights as those born to married parents. But things weren’t always that way. Prior to March 31, 1978, the common law had determined that parents had to be married in order for their children to fit the definition. Things did not change until the Succession Law Reform Act (SLRA) came into place.

JK’s will was signed in 1977, only four months prior to the passing of the SLRA. Had the will been signed after March 31, 1978, there would have been no issue for the courts to resolve. However, as that was not the case, the issue ultimately ended up before the courts.

The Court’s Decision

The court had to look at what the law was in the year the will was written, stating, “The old presumptive rule was that in construing neutral terminology, such as the word ‘child’, in the absence of the evidence of surrounding circumstances showing a contrary intention, it was presumed that the sort of terminology included only ‘legitimate’ children or grandchildren, that is, children or grandchildren born of parents who were married.”

Unfortunately for JS, the court is required to treat wills made before the passing of the SLRA differently than those made after it, stating “where policy choices are made by the legislature they must be respected by the courts.”

Of course, this all could have avoided if care had been taken during the estate planning process to explicitly include JS as issue, despite his “illegitimate” status.

At Eisen Law, we recognize that estate and trust matters can be complex and time-consuming. Our lawyers work with clients to make them aware of what their rights are in relation to an estate and assist them to resolve disputes with the best possible outcome. Please call us at 416-591-9997 or reach us online for a free initial consultation.



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