Define who your children are in your will

Define who your children are in your will

Clarity matters when preparing your will and estate plan in Alberta.  Even a seemingly simple direction to divide your estate equally between your children may run into unexpected problems if you have a complex family structure and are not clear enough about your wishes in your Will.  In recent Alberta Court of Queen’s Bench decision, the question arose whether a foster child was included in the definition of “children” in the deceased’s Will.  While it was not at issue in this case, the same kind of issue could arise in the context of step-children.

Briefly, the deceased died in early 2016 with a Will.  She was survived by three biological daughters, a legally adopted son and a foster child.  All of the individuals were adults at the date of the deceased’s death. Her Will stated that the residue of the estate was to be divided equally between her children.  Other than the personal representatives, the Will did not refer to anyone else by name.  The biological daughters brought a Court application seeking a judicial interpretation of the residuary gift clause.  Specifically, the issue was whether the foster child was included in the definition of “children” and entitled to a share of the residue.

The Justice first considered the applicable legislation and the wording of the Will itself.   He determined that they were of little assistance in this case.  The significant conclusion about the applicable legislative provision was that generally, a reference to children in a Will must be interpreted to include biological children of the testator, unless a contrary intention could be found in the Will.  In contrast, the legislation does not automatically exclude non-biological children from that definition.

The Justice then turned to external evidence of the deceased’s intentions at the time she signed her Will.  In Alberta, such evidence is admissible to interpret a will in a manner that gives effect to the intent of the testator.

The key evidence before the Court was that the deceased signed a Power of Attorney and a Personal Directive on the same day as the Will.  She appointed the foster child as one of her attorneys and agents, respectively.  In both documents, the deceased specifically referred to the foster child as “my daughter”.  The deceased named one of her biological daughters as the other attorney and agent and also referred to her as “my daughter”.  That evidence was sufficient for the Court to conclude that the deceased intended to include the foster child as one of her children in the Will.

The Court considered other evidence, both in support of, and adverse to, the foster child provision, including a prior Will that specifically named the children in the residue clause and included the foster child.  For the Court, none of the additional evidence undermined the conclusion that the deceased intended to include the foster child in the definition of her children at the time she made her last Will.  The foster child was thus entitled to an equal share of the residue.

Your Will is your chance to specify how you want your estate to devolve after your death.  The takeaway point from the above case is that the drafting of the Will should be as clear and unambiguous as possible, particularly if you have a complex family structure, to avoid the risk of future disputes between the beneficiaries.

Thank you for reading.

Predrag Tomic

Predrag (Peter) Tomic is a Calgary-based wills and estates lawyer with a primary focus on estate litigation. Peter’s practice includes estate planning, probate matters and resolving complex estate and trust disputes for clients throughout Alberta and Canada. Peter also regularly acts in matters involving Power of Attorney disputes, mental capacity litigation and adult guardianship and trusteeship issues. Peter has presented on estate topics for the Legal Education Society of Alberta and CPLED and frequently teaches adult education courses about estate planning and executor duties.

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