A recent decision of the Ontario Superior Court of Justice highlights the awkward consequences that can arise when law and public policy collide. In Koziarski v. Sullivan Justice Gray had the unenviable task of deciding whether a man born out of wedlock in 1988 fell within the definition of the term ‘issue’ such that he would inherit under his grandmother’s will. The difficulty arose because the will in question was made on December 14, 1977, when a common law presumption applied that words such as ‘child’ and ‘issue’ do not include persons born out of wedlock. The relevant section of the grandmother’s will reads:

3(c) To divide the remainder of my estate equally among such of my children as may 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 stripes the share that such deceased child would have taken if living.

A mere three months after the grandmother made her will, the Ontario legislature passed what is now sections 1(3) and (4) of the Succession Law Reform Act which have the effect of treating all children equally regardless of whether they are born in wedlock or out of wedlock. The provisions read:

1.(3) In this Act, and in any will unless a contrary intention is shown in the will, a reference to a person in terms of a relationship to another person determined by blood or marriage shall be deemed to include a person who comes within the description despite the fact that he or she or any other person through whom the relationship is traced was born outside marriage.

1.(4) Subsection (3) applies in respect of will made on or after the 31st day of March, 1978.

In his decision, Justice Gray concludes that s. 1(4), above, prevents the court from applying the presumption spelled out in s. 1(3) to wills made before March 31, 1978. As a result, the man born out of wedlock does not fall within the definition of the term ‘issue’ and does not inherit under his grandmother’s will.

In arriving at this conclusion, Justice Gray reviews the legislative debates that led up to the enactment of the Succession Law Reform Act and notes that they appear to reflect a deliberate decision to restrict the interpretive change to wills made after March 31, 1978. For example, during the second reading of the bill the Attorney General stated the following:

Perhaps the most important change that I propose to make at this time is the adoption of the Bar Committee’s recommendation concerning s.1.  That section would equalize the position of children within or outside marriage for the purposes of estates and would deem all references to a child in a will to include a child born outside the marriage. 

Now, the Bar Committee pointed out that there may be many persons who have drawn their wills in reliance on the existing law under which a reference to a child is deemed to include only a child born within marriage.  It has been stated that it would put these persons through a great deal of time, trouble and expense to rewrite their wills under the new law. And some of these persons may even, for example, have lost the mental  capacity to revise their wills.  I should say that I am not convinced, but on balance it perhaps would be fair to restrict the application of s.1 to wills made after the Act comes into force. 

Justice Gray also relies on the presumption against tautology to support his conclusion, noting that s. 1(4) would serve no purpose if a court found that the interpretation stipulated by s. 1(3) applied to wills made before March 31, 1978.

Link to decision