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Meaning Of “Children” In A Will: Biological? Adopted? Foster?

Matras Estate, 2016 ABQB 728 (CanLII), http://canlii.ca/t/gwl36 

A recent case out of the Court of Queen’s Bench of Alberta[1] looked at the meaning of “children” under a Will and whether that included a foster child of the deceased. Finding that the words of the Will itself were unhelpful, the Court determined the testator’s intention at the time she executed the Will.

Background

The deceased was the mother of three biological adult daughters; one legally adopted adult son; and one adult foster daughter who had lived with the deceased since she was between 4-8 months old. The deceased never formally adopted her foster child.

The personal representative of the estate (the deceased’s adopted son) filed an application for probate naming the foster daughter as one of the deceased’s children listed as a residuary beneficiary. The deceased’s three biological daughter’s disputed this, arguing that the foster daughter was not one of the “children” as contemplated by the Will.

The residuary clause in the deceased’s Will, paragraph 4(b), stated:

To transfer the rest and residue of my estate, including all articles of person, domestic and household use or ornament belonging to my estate at my death for the benefit of my children and to divide the residue of my estate then remaining into as many equal shares as the number of my children. . .” [emphasis added]

The following paragraph in the Will, paragraph 4(c), stated:

For the purposes of this Will, a child or children of a person named in this Will shall mean the biological and legally adopted children of such person. [emphasis added]

An application for advice and direction was brought to answer the question of whether the foster child was one of the deceased’s “children” and therefore a residuary beneficiary under the Will.

Interpretation of the Will

At first glance, to many it might seem that the definition of “children” in the Will was conclusive and the foster child was not a child of the deceased as defined in the Will as she was neither a biological nor legally adopted child of the deceased. However, the Court disagreed for three reasons:

  1. First, the Court found that paragraph 4 (c) referred to a “child or children of a person named in the Will” and that “none of the ‘children’ of the testatrix was ‘named’ in the Will in paragraph 4(b)”.[2] The Court concluded that in paragraph 4(b) “only the description ‘children’ appears.” Paragraph 4(c), then, might be found not to have been engaged given the language of the Will.
  2. Second, the Court noted that “if that approach is too literal and pedantic, the crucial question is whether ‘a named person in this Will’ includes the testatrix”.[3] This could mean anyone whose name occurs in the Will or it might mean any person the testatrix has named in the Will. The Court preferred the latter interpretation, in that the testatrix was not included as “a person named in this Will” as the testatrix was doing the naming. It was her Will. So in other words it referred to children of a person that the testatrix named in the Will, not the testatrix’s “children”.
  3. Third, the Court found that if the purpose of paragraph 4(c) was to define “child” or “children” for all purposes under the Will, the words “of a person named in this Will” would not have been necessary. They were added for a reason. That reason, the Court found, was to distinguish the testatrix’s children from her children’s children.

In finding that this paragraph did not determine if the foster child fell or did not fall within the scope of the term “children” in paragraph 4(b) the Court found that the testatrix’s intention must be determined.

Intention

Section 26(b) of the applicable Alberta Wills and Succession Act[4] requires that a “will must be interpreted in a manner that gives effect to the intent of the testator, and in determining the testator’s intent the Court may admit . . . evidence as to the meaning of the provisions of the Will in the context of the testator’s circumstances at the time of the making of the Will”.

With respect to allowing extrinsic evidence to determine the testator’s intention the Court relied on the Alberta Law Reform Institute report entitled Wills and the Legal Effects of Changed Circumstances: “The recommendation of ALRI is that a court should be able to consider the extrinsic evidence in every case, including evidence of the testator’s intention.”[5] The Court also noted the need for corroborated evidence under s.11 of Alberta’s Evidence Act.

On the same day that she executed her Will, the deceased signed an Enduring Power of Attorney naming the foster child as an attorney. She described the foster child as “my daughter” in the POA document. The other attorney was her biological daughter who was also described as “my daughter”. The Court recognized that the deceased’s evidence was hearsay but necessity was established because she was deceased. Reliability was established because the description of the foster child as her daughter was found in a signed, witnessed and reviewed-with-counsel document. The Court determined that this evidence of the testatrix’s intention respecting the term “children” at the time of making her Will was “corroborated and utterly convincing”.[6]

The Court noted “a daughter is a child. That is common sense. The estate planning documents provide solid evidence of how, at the time the Will was executed, the testatrix regarded [the foster daughter]. She was her daughter and she therefore was one of her children for the purposes of the Will.”[7]

The Court concluded that the foster child:

was one of the testatrix’s children. She falls within the scope of the term “children” in paragraph 4(b) of the Will. That is what the testatrix intended. That is the only reasonable and moral interpretation. . .There is no need to resort to “rectification” of the Will under s.39 of the Wills and Succession Act since what the testatrix testator meant by the term “children” in paragraph 4(b) is clear without the need for any linguistic modification.[8]

Conclusion

Of note, in Ontario, the use of extrinsic evidence with respect to intention was discussed in the Ontario Court of Appeal in Robinson Estate v. Robinson, 2011 ONCA 493 (CanLII), [2011] O.J. No. 3084. Robinson held that as a general rule, when construing a will, the testator’s intention must be determined from the words used in the will and not from direct extrinsic evidence of intent.[9] If however, the testator’s expression of intent is less than perfect, extrinsic evidence is admissible to aid the construction of a will but such evidence will be limited to the testator’s circumstances and those surrounding the making of the will.[10] Direct evidence of a testator’s intentions is inadmissible. As the court in Robinson stated, much uncertainty would be introduced into estate litigation if disappointed beneficiaries could challenge a will based on their subjective belief of the testator’s intentions.[11]

Determining who “children” are has been the subject of many cases. Now with assisted human reproduction and other advances in the science behind human reproduction new questions are being raised with respect to embryos and other human reproductive material. The case law in this area may only increase.

—-

[1] Matras Estate 2016 ABQB 728 (CanLII)

[2] At para. 21

[3] At para. 22

[4] SA 2010, c W-12.2

[5] At para. 28

[6] At para. 31

[7] At para. 32

[8] At paras. 45-47

[9] Robinson at para. 23

[10] Robinson at para. 24

[11] Robinson at para. 27

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