The Effect of an Intestacy on Adopted Children

June 22, 2007 Hull & Hull LLP Uncategorized Tags: 0 Comments

Is a person entitled to inherit  from either his or her intestate birth parents who die after the person’s adoption, when the birth parents have not joined in the adoption?* This was the question recently considered by the Newfoundland Supreme Court in Intestate Succession Act (Nfld.)(Re) [2007] N.J. No. 118. 

The Court examined the relevant legislation in the area, including section. 27(1)(c) of the Adoption Act, S.N.L., 1999, c.A-2.1, which states that once a child is adopted all rights and obligations of the birth parents cease in respect of the child and are assumed by the adoptive parents.  Although the legislation does not say the converse, that is, that an adopted child ceases to have rights and obligations in respect of the birth parents, the Court made an inference to this effect in reference to section 27(3) of the Act, which provides that an adoption order does not affect an interest in property or a right of an adopted child that vested in the child before the date of the adoption order.  As benefits under an intestacy only arise upon death of the testator, and not before, the Court reasoned that section 27(3) is inconsistent with a legislative intention to allow other rights of the child against the birth parent to survive the adoption order.  Accordingly, the adopted person’s claim was dismissed.  

This decision is in line with the law in Ontario, which under the Child and Family Services Act, R.S.O. 1990, c. C.11, treats an adopted child as ceasing to be the child of the person who was his or her parent before the adoption order was made, except where that person is also the spouse of the adoptive parent. 

Thanks for reading.

Natalia R. Angelini

*A person is entitled to inherit from a birth parent after that person’s adoption when a birth parent joined in the adoption.

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