Where do adoptive children stand with their birth parents’ wills?

Some laws are hard to swallow and this is one them.

In 2017, the BC Supreme Court was faced with the question of whether a child who is adopted by other parents after birth, but who is named as a beneficiary under the birth mother’s will, have standing to challenge the birth mother’s will under the Wills, Estate and Succession Act, SBC 2009, c 13 [WESA], which came into force March 31, 2014. The case was Boer v Mikaloff, 2017 BCSC 21 for the legal geeks who want to read up on this more.

Here’s some background:

• under the “wills variation” sections of WESA, only child(ren) and spouse(s) of a deceased person can challenge the deceased’s will if they feel it does not adequately provide for the child(ren)’s or the spouse(s)’  maintenance and support
• children are defined as biological or legally adopted
• 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]

The Court decided that the adopted child in this circumstance does not have standing to bring a wills variation claim because the child “became the child of his adoptive parents. The fact that the plaintiff was named beneficiary under the will does not change the analysis.”

So the law remains that the wills variation process does not allow adopted children to make claims against the estate of their birth parents. Legally adopted children do have standing to challenge their adopted parents’ estates under WESA.

Although it is consistent with the law, it really feels like tough love, especially for those children who develop meaningful relationships with their birth parents.

**ELIZABETH MAH
**Lawyer-Founder,
Paperclip Law

Fraser Valley North Vancouver Squamish Vancouver Wills & Probate