Part 2 - Who can vary a will?

The last blog post mentioned that only those individuals considered “children” of the will-maker can apply to vary a will. Many viewers had questions about authorities defining "child" or "children". While the word “child” or “children” is not defined in the Wills, Estates and Succession Act, we can look to case law to assist with this definition.

In Peri v. McCutcheon, 2011 BCCA 401 Ms. Peri applied to the court for a declaration that she was the child of the will-maker, Mr. Doman. Ms. Peri was born when her mother was married to Mr. Doman. However, DNA testing confirmed that Ms. Peri was not the biological child of Mr. Doman. Days after her birth, Mr. Doman arranged for Ms. Peri to enter into a “private foster care” arrangement with a family in Vancouver. Mr. Doman continued to pay for all expenses related to Ms. Peri’s care, but Mr. Doman did not consider Ms. Peri to be a member of his family. Mr. Doman died in 2007 and his will did not make any provisions for Ms. Peri. Ms. Peri’s application was initially dismissed by the chamber’s judge, who relied on the decision in Hope v. Raeder Estate, 1994 CanLII 2185 in making his decision. Hope held that the word “children” in the Act was restricted to natural or adopted children of the testator. Hope went on to note that it was the responsibility of the Legislature to expand on the definition of “child” or “children” if it was appropriate to do so. Ms. Peri appealed the chamber’s judge’s decision, but the BC Court of Appeal dismissed her appeal, effectively upholding the definition of “child” as a natural or adopted child of the will-maker. Interestingly, the BC Court of Appeal did not comment on whether it was solely up to the Legislature to expand the definition of “children” in the Wills, Estates and Succession Act and hinted that a court may be able to re-interpret the words “child” or “children” if “social, scientific and other circumstances have changed so significantly that it is appropriate” for the court to do so. This arguably leaves the door open for the definition of “child” or “children” to be expanded by the court in the future.

With respect to adopted children, the court has held that children who have been given up for adoption are not considered “children” of their former parents under the Wills, Estates and Succession Act. This was confirmed in Boer v. Mikaloff, 2017 BCSC 21. Mr. Boer was born to Ms. Mikaloff in 1967 and was legally adopted by another family approximately one year later. Many years later, Mr. Boer and Ms. Mikaloff reunited and maintained a relationship. After Ms. Mikaloff’s death, Mr. Boer applied to vary Ms. Mikaloff’s will under the Act. The court reviewed section 37(5) of the Adoption Act for clarity on the familial relationships that are formed when a child is legally adopted. Section 37(1) of the Adoption Act states that, when a child is legally adopted, the child becomes the child of the adoptive parent, the adoptive parent becomes the parent of the child and the parents cease to have any parental rights or obligations with respect to the child. Section 37(5) goes on to state that “the family relationships of one person to another are to be determined in accordance with this section…” As such, the court concluded that the Plaintiff was no longer considered a “child” of Ms. Mikaloff and dismissed his claim against her will. The court noted that this interpretated was consistent with section 3(2) of the Wills, Estates and Succession Act, which notes that an adopted child is not entitled to the estate of his or her pre-adoption parent” unless the pre-adoption parent provides for the adopted child in their will.

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Natasha Roth is an experienced litigator on Vancouver Island. Located in Nanaimo, British Columbia, Natasha has an interest in estate litigation including wills variation claims. Natasha has appeared before the Supreme Court and Provincial Court of British Columbia.

Natasha Roth can be contacted by phone at 1-250-824-2560 or via email at natasha@bradburysippel.com.