According to section 60 of the Wills, Estates and Succession Act (WESA), if a Will-maker dies leaving a Will that does not make adequate provision for the Will-maker’s children, the Will-maker’s children may start a proceeding to vary the Will and have the Court order a more adequate, just, and equitable provision to be made out to them from the Will-maker’s estate.

What if you are an adopted child and you feel that your birth parent’s Will does not make adequate provision for you? Would you be able to vary the Will under section 60 of the WESA?

This question was considered in British Columbia Supreme Court case Boer v Mikaloff, 2017 BCSC 21. The Court ultimately decided that it would not be possible to vary the Will under section 60 of the WESA, considering section 37(1)(c) of the British Columbia Adoption Act, which states that birth parents cease to have any parental rights or obligations with respect to the adopted child. In this particular situation, the Plaintiff was not considered a child of his birth mother.

The Court also considered section 3(2)(a) of the WESA, which states that a child is not entitled to the estate of their pre-adoption parent except through the Will of that pre-adoption parent. This led the Court to the conclusion that a child is essentially in the same position as a non-family member when it comes to their entitlement in their birth parents’ Wills.

Taking both of these sections into account, the Court decided that an adopted child would not be able to take advantage of section 60 of the WESA since the child is technically no longer the child of their birth parent, and retains no rights to their birth parent’s estate other than what is specifically made out to them in their Will.

If you or a loved one are in need of advice regarding Wills and Estates or wish to have assistance in making a Will or challenge a Will, consult Vancouver and Burnaby Wills & Estates lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at [email protected] or 778-372-7107.