Man Born out of Wedlock can be Excluded from his Grandmother’s Inheritance

Written on behalf of Arbesman Hamilton LLP

In what is a striking reminder to review wills that were made a long time ago, the Ontario Superior Court of Justice has ruled that a man born out of wedlock can be excluded from his grandmother’s inheritance.

A Brief Family History

Jesse Sullivan, the Respondent, was born in 1988. His father, George, was one of two sons born to Jadwiga Koziarski. George died in 2013, while his mother, Jadwiga, died in 2016.

George married his wife in 1991, three years after his relationship with the Respondent’s mother ended – he and the Respondent’s mother were never married. George went on to have one other child with his wife. Jadwiga’s other child, Henry – the Petitioner – had two children with his wife.

Following Jadwiga’s death, the Petitioner argued that the Respondent was not entitled to a share of Jadwiga’s estate.

Jadwiga’s will provided as follows about the distribution of her estate: “To divide the remainder of my estate equally among such of my children as shall be living at the time of my death; provided that if any of my children shall predecease me, leaving issue him or her surviving, such issue shall take in equal shares per stirpes the share that such deceased child would have taken if living.”

Jadwiga was predeceased by her son, George. While George himself had spent little time with the Respondent once George married, there was evidence that Jadwiga and her husband had cared about the Respondent; they had set up an RESP for him.

Despite this apparent relationship, the Petitioner argued that there were strict legal definitions associated with terms such as “child” and “issue” at the time Jadwiga’s will was drafted which precluded the Respondent.

Children Born Out of Wedlock: Introduction of the SLRA

Today, children born out of wedlock are afforded the same rights as children that are a product of a marriage. However, due to common law practice, children born out of wedlock were excluded from the definition of “child” and “issue” prior to March 31, 1978. It was at that time that the Succession Law Reform Act (SLRA) was passed, and explicitly stated that commonly used terms in estate law, such as “child” and “issue”, would include any children born out of wedlock.

Jadwiga’s will was signed in 1977, one year before the SLRA was passed. Had Jadwiga’s will been written a mere four months later, there would have been no question around whether the Respondent was entitled to an inheritance.

Lawyers for the Respondent submitted that Jadwiga would likely not have known that the will, as it was drafted, would exclude the Respondent. However, the Court stated, “As is invariably the case, the issue in construing any will is to determine the intention of the testator.”

The Court’s Ruling

The Court wrote, “The old presumptive rule was that in construing neutral terminology, such as the word ‘child’, in the absence of evidence of surrounding circumstances showing a contrary intention, it was presumed that that sort of terminology included only “legitimate” children or grandchildren, that is, children or grandchildren born of parents who were married.”

The Court added “where policy choices are made by the legislature they must be respected by the courts.” Unfortunately for the Respondent, the court added, “it remains the case that wills made before the effective date of the Act are treated differently than those made after that date.”

Arbesman Hamilton LLP can provide you with legal guidance around all of your estate planning needs. Please reach out to us online or at 416-481-5604 to discuss powers of attorney, wills, or other estate planning needs. Our team of experienced estate lawyers will work with you to reach your long-term goals and objectives and help you protect yourself and those you love.