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10.01.2017 02:49 Age: 2 days

No standing for adopted child to vary birth mother's will, says British Columbia Court


The plaintiff, Gary Boer, the biological son of the late Deloreen Mary Mikaloff, was born in 1967 and adopted when he was approximately one year old by a couple unrelated to Ms Mikaloff.

Mikaloff and Boer were reunited in about 1996 and they "enjoyed a loving and caring relationship," according to the court. In a will dated April 1, 2015 Mikaloff left a portion of her estate to the plaintiff.

Will variation application

Following her death on April 22, 2015, Boer sought to vary his birth mother's will under s60 of the Wills, Estate and Succession Act, S.B.C. 2009 (WESA) which states [STEP emphasis]:

"[.] if a will-maker dies leaving a will that does not, in the court's opinion, make adequate provision for the proper maintenance and support of the will-maker's spouse or children , the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker's estate for the spouse or children."

Boer claimed that he fell within the definition of "children" for the purposes of s60 WESA and other relevant legislative provisions (including the Adoption Act 1996).

On adoption the child becomes the child of the adoptive parent

In its January 5 judgment, the Supreme Court of British Columbia held, however, that the effect of s37(5) of the Adoption Act is "that the plaintiff, upon adoption, became the child of his adoptive parents and his adoptive parents became his parents. The plaintiff was no longer a child of his birth mother, the late Ms Mikaloff."

In other words, for the purposes of the will variation, Boer was the child of his adoptive parents and not Ms Mikaloff for the purposes of s60 WESA and "the fact that the plaintiff was named beneficiary under the will does not change the analysis. The result is that an adopted child does not have standing to bring a wills variation claim against his or her pre-adoption parent's estate."

The court concluded that the answer to the question of law: "Does a child who is adopted by other parents after birth, but who is named as a beneficiary under his birth mother's will, have standing to seek relief under section 60 of the Wills, Estate and Succession Act, S.B.C. 2009, c. 13?" was "no" and Boer's claim was therefore dismissed.

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No standing for adopted child to vary birth mother's will, says British Columbia Court