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Friday, August 27, 2010

How does adoption affect the right to inherit?


Many Wills express the testator's wish that his or her estate be shared among his or her children. In some families, it's obvious who is meant by the word "children", while in other families it is less so. In this post I'm going to look at the legal rights of adopted children when a parent - biological or adoptive - passes away.


As with all general rules about what is meant by certain legal words or phrases, remember that if the person's Will says something contrary to the general rule, the Will must be followed.


When an adoptive parent passes away, an adopted child has exactly the same legal status as a biological child born to that parent. When the Will makes a gift to "my children", adopted children will be treated the same as biological children when it comes to inheriting. Every province and territory in Canada has legislation in place that creates that right.


What if the biological parent of a child who has been adopted should pass away? If the biological parent leaves a Will that divides the estate among his or her children, this will not include the child who has been adopted by someone else. According to the law, the child is no longer that person's child, because of the adoption. If the biological parent wanted to leave something to a child who was adopted, he or she could do so by specifically mentioning that child's name in the Will.


It's important to note that when I say "adopted" children, I'm referring to children who have been legally adopted under provincial or territorial law. On occasion, a child will be raised in a family that treats the child as its own, but never formally adopts the child. The child might not know one or both of the biological parents, and may have a strong family bond with the new family. In a case like that, the child is not considered legally adopted. The child is still the child of its biological parents, not the parents who voluntarily raised him or her.


This sometimes creates interesting situations for blended families, and is one of the reasons I always urge the parents of blended families to spend some time with an estate-planning lawyer to make sure their Wills are going to create the outcome they want.

15 comments:

  1. in the case where a child has changed their name to a stepparents name are the still intitled to an enharritance

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  2. Is there anyone to help a person that is mentally ill and not capable of pursuing an inheritance. I have spent my whole life dealing with depression and it has caused me to be isolated from everyone.

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    Replies
    1. You can sign a Power of Attorney that allows a person to pursue the inheritance for you. This can be anyone you trust, such as a family member, friend, or even a lawyer.

      If you don't have anyone you know and trust to do this, consider contacting the Public Trustee in your province to see if they are willing and able to help you.

      Lynne

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    2. Hi Lynne
      I am posting on this thread because the other threads are full.
      Can you recommend a colleague in Vancouver, who has an expert knowledge of life estates?
      Would like to know if I can start file a partition for sale of a life interest property owner by me and my three siblings.
      Oldest brother has a life interest.
      Property is abandoned 6 months per year Oct the March he is a snowbird.
      and the life tenant.
      Already 10 thousand dollars in damage to unit below because of a water leak in the unit.
      Would this be enough info to show waste.
      Condo has a no rental's allowed, clause in the strata bylaws and we the 3 remaindermen are not allowed any access. We want it sold so we don't become responsible for more damage, we realize the lifeb ten ant will receive most of the profit from the sale, he is 65 years old.
      Sincerely

      Carol B
      Vancouver, BC

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  3. Hi,Lynne,thanks for those informative information.

    My mother-in-law passed away 11 months ago, my husband is named as the first executor in her will, his brother is the second one. Unfortunately, the sibling hold the orginal copy of will without any chance to return, and seems he want to be the executor as he has tried to probate the estate , but failed in a result.

    In this scenario, if he won't return the orginal copy, is the will still valid?

    My mother-in-law had her will made in 2008 after she was diagnosed a cancer,my husband was the only executor. However, the orginal copy of will was missing, thus, about three months before mother-in-law deceased in 2016, the sibling brought her to make a new will which he currently keeps it.the content of inheritance doesn't change, but the sibling is named as the second executor. We recently found out the missing will while cleaning up mother-in-law 's room.

    So will the missing will still valid if the new made one invalid ? Thanks.

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  4. here is my question i was raised by my grandmother she was like my mom she had legal guardianship ,i was mentioned in four of wills , but for seven years i was not allowed near her , and in her new will i was written out , should i fight the will.

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    Replies
    1. Hi Veronica. I really couldn't say whether you "should" fight it, because there is a lot more I'd want to know first. But I have to say, based on what you've said, that things look suspicious. It's pretty unusual for a person to make several similar wills only to suddenly make one that is really different. The fact that someone kept you away from her suggests that someone was controlling her and possibly directing her in the writing of her new will. The fact that she had legal guardianship of you makes it even less likely that she would suddenly terminate a relationship with you.

      You might just have enough to challenge the will on the basis that your grandmother was influenced to make a will she didn't really want to make. You'll need a lawyer for that. It's not easy or fun to do this kind of lawsuit and it could be expensive. I guess the question you need to answer is whether you can live with not looking into whether someone influenced her into changing her mind.

      Lynne

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  5. i was wondering can a person that was never written into a will fight for a share

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    Replies
    1. This is so vague I can't even begin to answer it.

      Lynne

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  6. Hi Lynne,
    Much thanks for the very informative blog.
    Here's my scenario:

    My Aunt passed away and left a will with the estate going to friends, and the residue to her nieces and nephews (only surviving next of kin). It's a sizeable estate in in British Columbia. She had no spouse. My Father had said many years ago that she said she had a son as a teenager, but the father took the son when he was two, remarried, and the son was allegedly adopted by the new mother. Our aunt never spoke about having a child and there hasn't been any contact in over 55 years. When searching her house we could not find any birth records, adoption records, or marriage or divorce certificates. There are simply no facts to go with to try and locate the son (no name, etc.) Vital statistics said we can try and FOI for Government records, but because this all happened in the late 50s it might be very difficult to find anything. Probate has been granted, and our lawyer has advised us to wait the 210 days before dispensing the estate in case the "son" puts in a variation claim. My question is:
    Does waiting 210 days make sense to you if the son was never notified in the first place? What are the best options in your opinion for this scenario?

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    Replies
    1. If the child was adopted by someone else, he is not entitled to a share of his birth mother's estate. However, since you have no proof that he was adopted by anyone, you have to assess the risk of him showing up and making the claim. The fact that you didn't notify him doesn't change his rights, of course, but it does make it less likely that he'll show up. Your lawyer is being cautious, and that's to protect the executors (I'm assuming that's you). If you want to, you can go ahead and distribute the estate, but if that son does show up and claim his share, you'll have to either get the money back from the beneficiaries or pay it yourself.

      Lynne

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  7. My paternal Aunt who I reunited with about twenty two years before her death died in 2015. My birthmother told me after she died waited about 4 days and only let me know because I sent her an email. My Aunt at one time was going to make me her Power of Attorney. She had a piece of property that was worth about half a million. I have not seen the will and I found out that the house was not sold immediately as I was led to believe. Is it possible for me to request a copy of her will? How would I got about that?

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  8. My Aunt died and I believe I was given misinformation. I reunited with my paternal birth family and had been connected closely to her for approximately 20 years. I have not seen the will. How would I go about requesting to see it?

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    Replies
    1. Hi Murphy,

      There is one essential fact missing from this question - were you actually adopted?

      If you were legally adopted, you are now the child of that person who adopted you. You no longer have any legal relationship with your biological parents and therefore your biological aunt. This doesn't mean you couldn't have a personal relationship with her of course, and it seems that you did have that.

      You do not have the right to see the will unless you are named in it to receive something from the estate. You would not be included in a group such as "my nieces and nephews"; you would have to be specifically named because of your adoption.

      If you want to see if you can get a copy, the person to ask is the executor of the will. As I said, you may not have a legal right to see it, so don't be surprised if the executor says no. If that happens, ask for a written confirmation that you are not a beneficiary of the will. Not many executors are stupid enough to lie outright in writing.

      You can also check with the probate court in the province where your aunt lived. If her will has been sent for probate, the will becomes a public document and you can simply ask for a copy. Not all wills are probated.

      Lynne

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  9. Thank you for sharing your info. I truly
    appreciate your efforts and I will be waiting for your next post thank you
    once again.

    ReplyDelete

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