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Wednesday, January 11, 2017

No standing for adopted child to vary birth mother's will

There has been an interesting case recently in the BC courts regarding the rights of adopted children with respect to the estate of the birth mother.

Gary Boer was the biological son of Deloreen Mikaloff. He was adopted by another family when he was a year old. Thirty years later, Gary found his birth mother and they developed a close relationship. When Deloreen died, she left Gary part of her estate in her will.

Gary applied to the court to vary Deloreen's will. This is where the matter got interesting. Gary applied under the law that says a court can change the distribution of a will if the will does not make adequate provision for the spouse or children of the deceased. Every province and territory in Canada has a similar law (usually referred to as "dependent relief" law), so this question could have been raised anywhere in the country.

Gary asked the court to give him a larger share of the estate because, as Deloreen's child, he was not adequately provided for in her will. The court refused because Gary had been adopted by another family. He was no longer considered to be Deloreen's child.

This decision is consistent with the law of adoption and I would have been astonished if the case had gone any other way. Once Gary was adopted by other parents, he was legally not Deloreen's child any more. Legally he was nothing more to her than any other friend. He could not make a claim as her child because legally he was no longer her child and therefore there was no obligation on the birth mother to leave him anything.

The case is interesting because in most cases the child who was adopted by someone else is not mentioned at all in the birth mother's will. This case seemed to add a bit more substance to the question since Deloreen chose to include Gary in her will.

Anyone who would like to read the full judgment on Boer v. Mikaloff Estate can click here.


4 comments:

  1. Wouldn't the fact that he was an adult preclude him from any "dependent relief", unless he was infirm ?

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    Replies
    1. Yes, it should. In BC the law is a bit different because it allows a child to claim on "fairness" grounds. However, the wording of the case does seem to be talking about dependent relief since it references "adequate support".

      Lynne

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  2. Hi Lynne. I love your blog, it has been a wealth of useful information for me the past couple of months. I'm writing from ontario.
    My issue I believe is unique as I can't find any information on it anywhere on the internet.
    My father passed away, unexpectedly a couple of months ago, leaving his common-law wife as executrix of his will. My sister and I are his only children, and we were left as beneficiaries of 3 insurance policies and an RRSP that I believe he had forgotten to change the beneficiaries on when he shacked up with his CL wife.
    My "stepmother"/executrix, refused to give the insurance company contact information for my sister and I and finally one of the companies was able to locate my sister via facebook and notify her of policies left to us, which got us to wondering what else he had left us so we started making phone calls. We ended up finding the policies, with the help of my mothers memory of what he had taken out years ago when they were together. All of the insurance companies had received notice that dad had died, but were told that the executrix didn't know how to find us. (she does know how to find us..phone numbers, addresses..all of it)
    Before mailing in our insurance claim forms, I, of course, asked stepmother for death certificates..she refuse to give them to us so i called the funeral home and they told me they were instructed not to give them out. Finally, one of the insurance companies phoned the stepmother and requested them on our behalf and she said she would send them herself but that "no family member would be given any death certificates" The insurance agent was absolutely baffled and said she had never heard of such a thing in all her years.
    About a week later, I get a text message from stepmother saying "You didn't waste any time getting your money" to which I responded "that's what it's there for, my sister and I were off work for some time and we needed it" I also told her "Dad wouldn't want any nastiness" (Her and I have always had a VERY strained relationship) She volunteered THIS information in response "You girls aren't in the will..your dad took care of you with the policies. If you were in the will, you would have received a copy of it by now" I hadn't asked about it, hadn't even thought about asking as at this point it was just a month since he had died...but this got me thinking something was up so I made some phone calls and found the estate lawyer. I got a copy of the will and my sister and I ARE indeed in it as residual beneficiaries and my son stands to receive as sizable cash gift as well (he is a minor)
    Upon sending me a copy of the will via email, the state lawyer said "the executor advises that the debts exceed the assets of the estate"
    So I asked for a list of assets to which he responded "the executor advises that this will cost $1000".
    My sister and I have at this point retained a lawyer who has requested a list of assets, disbursements etc.
    My dad was good with money...really good with money and he didn't use credit cards.
    My question...as executor, it is her job to inform beneficiaries of will and provide a copy etc...so what happens if she LIES and says we are not in it when indeed we are...? Can we have her removed? She hasn't actually applied for her certificate of executionership yet but....can she get away with lying to us like that?

    ReplyDelete
    Replies
    1. Statements of death MUST by law be submitted to provincial authorities where you can get a copy. You can get a copy online on Ontario - https://www.ontario.ca/page/how-get-copy-ontario-death-certificate-online

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