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Friday, August 16, 2019

My husband has an illegitimate child. Does he have a claim against my husband's estate?

I am often asked by clients and readers of this blog about how children born out of wedlock affect the estate planning of the biological parent. I was recently asked an interesting question along those lines by a reader and I've decided to share it here because I think it brings up a scenario that is familiar to many people. Here is the question and my response:

My husband and I, both in our 80s, have recently made our wills leaving everything to each other and then equally to our children. My husband has a son from an affair while we were married. The son lives in another country and we are in Canada. The son appears to be well educated with a good profession. He has tried to make contact with my husband. Must he be mentioned in our will? Could he contest his father's will and would that interfere with my inheritance if my husband dies first?

As with most questions about how laws apply to real people, the answer isn't just a simple yes or no. At least, not without several more details.

You have not said whether the son was adopted by anyone else. I am thinking of a step-father who might have adopted him upon marrying the boy's mother. If the son was adopted by anyone else, he would legally no longer be the child of your husband and there would simply be no question of the son  having any right at all to inherit anything from your husband. Since the fact of adoption was not included in your question, I am going to proceed as if there was no adoption.

The law does not distinguish between legitimate and illegitimate children when it comes to a right to inherit. So, we start off with the premise that the illegitimate son is of equal legal status with the children of your marriage. The fact that there doesn't seem to be a relationship between father and son, at least not that you've described, doesn't automatically mean anything though it could be relevant when combined with other facts.

Then we look at whether the son would be able to leverage his biological relationship into a claim against the estate. He is not a minor. He is not a post-secondary student. He is not disabled. He is not financially dependent upon your husband. These facts mean that he is not a person who would automatically have the right to contest the will based on the idea of dependency. This is a big question out of the way, since the courts tend to be sympathetic to dependents who are left out of wills and who are struggling because of it.

Having excluded that possibility, we then look at whether there would be any other right to contest the will. I note that although I have not identified your province in order to protect your privacy, you are not in British Columbia where the laws that allow children to contest their parents' wills are somewhat different than the test of the country. In Canada, parents are not required to leave their estates to their adult, financially independent children, either equally or at all. We do have a strong tradition of doing so, and this is usually what our children expect us to do. But parents have the right to leave their estates where they choose, within some restrictions.

It is not necessary for your husband to mention the son in his will. A misconception that I hear often is that if you leave a person a dollar in your will, he can't sue you. Well, that's nonsense of course, but the grain of truth behind it is that if you leave someone a small gift in your will, it shows that they weren't left out accidentally (say, by a typo or the lawyer not recording a name, etc).Your husband may choose to leave something to the son. He might also choose to state in his will that he is aware of the son but isn't leaving him anything because he doesn't have a relationship with him. It achieves the same thing.

From what you've told me, I do not believe that the son would have any claim against your husband's estate that would succeed in court. Obviously I can't guarantee that he wouldn't try, since I am approached regularly by people who want to contest wills for no reason other than they are ticked off.

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