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Wednesday, June 7, 2017

Ontario court rules man born out of wedlock can't inherit from grandmother

If there was ever a case that illustrates the need to keep your will up to date, this is it. Recently the Ontario courts dealt with the will of Jadwiga Koziarski, which was made in 1977. Mrs. Koziarski's will left her estate to her two sons. If one of the sons had predeceased her, that son's share was to be divided among his descendants.

One of those descendants is Jesse Sullivan. He is a grandson of Mrs. Koziarski. He had a good relationship with his grandmother. She had even set up an RESP for him during her lifetime. But his parents were not married when he was born. Because of this, the court ruled that Jesse could not have a share of the estate.

This doesn't sound like the expected result, does it? That's because at the time the will was made, the words "children" and "descendants" did not legally include anyone born out of wedlock. Since then, the Ontario legislature changed the rules so that "children" and "descendants" DO include children born out of wedlock, and that's what we are used to across the country. However, the court said that it had to respect what the law said at the time the will was made.

To read an article by BC lawyer Allison Oxtoby with more details about the case, click here.

It's possible that Mrs. Koziarski wanted Jesse to share in her estate. Unfortunately her will was 40 years old and the laws had changed. Jesse was only 28 when his grandmother died so he was not even born when the will was made. It is really unfortunate for him that his grandmother did not update her will.

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