Can adopted children dispute their former parent’s estate?

BC’s laws are favorable to those who dispute wills & estates

Right or wrong, BC remains the most favorable province in all of Canada for those who wish to challenge the fairness of the last will and testament of another via an estate dispute. In previous blogs, we described how BC law allows spouses and children of a deceased to challenge the will if the will does not make “adequate, just and equitable” provision for the support and maintenance of them, even if that spouse or child is financially independent.

Many people disagree with this law, saying a will-maker should have sole and overriding discretion over what to do with their estate, but Canada’s highest court has found BC’s law to be fair. Indeed, if you had been treated unfairly because of your sexual orientation, your gender identity, mental illness, your choice of spouse, or some of the other reasons we see testators cut people out of their will, you might agree the law is fair as well.

There are, however, limits to the law’s ability to change someone’s will, and last week, the BC Supreme Court clarified one of these limits. This clarification relates to whether a child that has been adopted out by a biological parent, can challenge their biological parent’s will.

Adoption changes the right to dispute an estate in BC

In this recent case, the executor of the will, that is the person identified in the will to administer the wishes of the will writer, who is called the testator, applied to the court for an order that a child of the testator, who had been adopted by other parents, did not have standing to challenge the will of their birth parent. The court noted that the BC Adoption Act provides that when an adoption order is made, “the child becomes the child of the adoptive parent”, “the adoptive parent becomes the parent of the child”, and the pre-adoptive parent is no longer a legal parent.

This means the adopted child is no longer a child that can challenge their biological parent’s will.

This make sense because in many adoption situations, once the adoption occurs, or even before the adoption occurs, the adopted child maintains no contact at all with their biological parent. However, there are many cases where a child who is adopted out, particularly when adopted as an infant, re-establishes contact with their biological parent and goes on to have a full, and sometimes financially dependent relationship, with that biological parent.

In those cases, this recent court case would say the adopted child has no claim against the estate of their biological parent, no matter the degree of their relationship or financial dependence.

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