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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.

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