BC Court Weighs in on Wills Variation Standing for Adopted Children

By Joni Metherell

In the recent decision, Boer v Mikaloff, 2017 BCSC 21, the BC Supreme Court was faced with an interesting interpretation question under the relatively new Wills, Estate and Succession Act, SBC 2009, c 13 [WESA], which came into force March 31, 2014.

The “wills variation” provision, at section 60 of WESA, gives the children and spouse of a deceased person the ability to challenge deceased’s will on the basis that it does not make adequate provision for the spouse’s or children’s proper maintenance and support. Legally adopted children also have standing to make a claim under this section.

The question in this case was “[d]oes a child who is adopted by other parents after birth, but who is named as a beneficiary under his birth mother’s will, have standing to seek relief under [s. 60 of WESA]”.

Funt J. decided the adopted child in this circumstance does not have standing to bring a wills variation claim under s. 60 of WESA. In coming to this decision, Funt J. considered, among other things, the legal effect of adoption and the definition of a “child”. Funt J. held:

[32] … 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 preadoption 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.

Accordingly, the law remains that our wills variation regime does not allow adopted children to make claims against the estate of their birth parents. Of course legally adopted children have standing to challenge their adopted parents’ estates under WESA.

Although this outcome is consistent with the current law of adoption, it is a tough pill to swallow for those adopted children who later develop relationships with their birth parents.