s.60 of the British Columbia Wills, Estates and Succession Act (WESA) allows the court to adjust the Will of a Will-maker if, in the courts opinion, the Will does not adequately provide for the Will-makers spouse or children.
Does 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 the WESA?
This question was answered in a recent British Columbia Supreme Court decision Boer v Mikaloff, 2017 BCSC 21. The facts of this case were as follows. The Plaintiff who was an adopted child sought a variation of his birth mother’s Will. The Plaintiff was born in 1967 and was legally adopted about a year later. Approximately 30 years later the Plaintiff and his birth mother reunited and enjoyed a caring relationship. This led to the Plaintiff’s birth mother designating the Plaintiff as a beneficiary under her Will. After his birth mother’s death, the Plaintiff tried to vary the Will of his birth mother by virtue of s. 60 of the WESA.
The Court decided that the Plaintiff was unable to vary the Will under s. 60 of the WESA. The court based its decision on s. 37(1)(c) of the British Columbia Adoption Act and s. 3(2)(a) of the WESA.
Section 37(1)(c) of the Adoption Act states that birth parents cease to have any parental rights or obligations with respect to the child. When applying 37(1)(c) to the facts of Boer, the Plaintiff is not considered a child of his birth mother and is therefore unable to utilize s.60 of the WESA.
Section 3(2)(a) of the WESA states “the child is not entitled to the estate of his or her pre-adoption parent except through the will of the pre-adoption parent”. The Court states at paragraph 26: “Section 3(2)(a) of the WESA serves to confirm that an adopted child is not within the family relationships of his or her birth parents for the purposes of WESA. In other words, an adopted child relative to a pre-adoption parent will-maker is in the same position as a non-family member.”
Since the adopted child is in the same position as a non-family member they will be unable to take advantage of s. 60 of the WESA.