Can a Non-Biological Child Make a Wills Variation Claim in BC?

BC Court Allows Novel Wills Variation Claim by Non-Biological Child to Proceed

Myron Plett of Vest Estate Lawyers stands at the forefront of a significant development in British Columbia estate law: the possible expansion of the definition of “child” under the Wills, Estates and Succession Act (“WESA”).

Recently, Plett and his client, Mary Diane Stainer, cleared an initial procedural hurdle when the court dismissed an application by the estate’s executors to strike Stainer’s claim. The lawsuit raises a fundamental question: can—and should—the definition of “child” in wills variation claims be expanded to include individuals in non-biological and non-adoptive parent-child relationships?

The Background

Stainer’s claim arises from her long-standing relationship with Wilfred Joseph Landry (the “Deceased”). The Deceased and Stainer’s mother were married and he was listed as her father on her birth certificate. According to Stainer, their relationship could only be described as a father-daughter relationship.

The Deceased’s Will left the residue of his estate to his brother and nothing to Ms. Stainer. Along with the Will was a sworn statement stating that the Deceased had no children and that he never considered Stainer to be his child”.

Stainer then made a claim under Division 6, section 60 of British Columbia’s WESA for a variation of the Deceased’s will. Under this provision, applications to vary a will can be made and adjudicated where the deceased does not “make adequate provision for the proper maintenance and support of the will-maker’s spouse or children.”

The statute enables the court to step in and “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,” 

Stainer presented the following arguments to demonstrate her relationship with the Deceased:

1. the Deceased introduced himself to the general public as her father;
2. he actively took part in her parenting and maintained a relationship with her through her childhood after the dissolution of his marriage with her mother and her own passing;
3. he actively prevented her from developing a paternal relationship with anyone else;
4. he made significant financial contributions to support her during her childhood; and
5. he assisted her in paying for her university education.

Stainer admits that she and the Deceased suffered through rough patches and that their relationship was strained at times. However, she maintains that, for all intents and purposes, he still represented himself as her father throughout her life and that those rough patches are the sine qua non of a true father-daughter relationship.

Legal Issues and Arguments

The definition of “child” under wills variation legislation was first limited to biological or adopted children over 30 years ago in Re Raeder Estate, later affirmed in Peri v McCutcheon. Various efforts to challenge that definition have failed, although more recent caselaw suggests that the courts are ready to reconsider what Stainer asserts are “shifting social norms [that] have vastly reshaped family law concepts such as marriage, gender, and parenting.” In short, the definition of ‘child’ ought to be revisited with today’s standards in mind.

Plett and Stainer believe that now is the time to revisit these aging precedents, as current case law reflects a “Eurocentric and heteronormative model”, and the definition of “child” within s. 60 of WESA ought to reflect modern social norms.

Justice Walkem’s Decision

Justice Walkem was satisfied that this was a matter that ought to proceed to trial and be considered on its merits. In her view, the doctrine of stare decisis does not bar all wills variation claims brought by non-biological or non-adoptive children. In particular, she accepted that the Court of Appeal in Peri left open the possibility that the definition of “child” might be expanded in appropriate cases where the factual circumstances are sufficiently compelling.

Looking Forward

Although the decision does not redefine “child” under WESA, it allows the litigation to proceed and opens the door to a potentially significant reconsideration of its meaning.

If the courts ultimately adopt a broader interpretation, the decision could have far-reaching implications for wills variation claims in British Columbia, particularly for individuals raised in non-traditional family structures.

Think You Have a Claim?

Contact us at Vest Estate Law. Our team of professionals are available and ready to assist you.