Property rights of children permeate estate matters. Children can have rights under wills, on intestacy, as dependants, or under policies of insurance. They may have claims for damages against third parties under the Family Law Act.
A question often arises as to how far these rights extend. While living children may have such rights, what about the as of yet unborn?
Under the common law, children conceived but not yet born have the same rights as born children. “A fiction has developed in the law that in respect of property rights an unborn child who is subsequently born alive is in the same position as a child living at the time of death of the benefactor.”[1]
Thus, in Fitzsimonds, an unborn child who was born 8 months after the deceased’s death was entitled to an insurance payout even though the legislation required that she be alive 60 days from the insured’s death. The “legal fiction” of the “en ventre sa mere” doctrine is so strong that it would apply to legislation unless the legislation specifically provided otherwise.
The Succession Law Reform Act codifies the “en ventre sa mere” doctrine. Section 1.(1) defines a child as including “a child conceived before and born alive after the parent’s death”. To guild the lily, s. 46(9), dealing with intestate succession, provides that for the purposes of determining kinship, descendants and relatives “conceived before and born after the death of the deceased shall inherit as if they had been born in the lifetime of the deceased and had survived him or her.”
(The Succession Law Reform Act now extends the “en ventre sa mere” rule to children conceived after the deceased’s death, through artificial insemination. Certain conditions apply. However, that discussion is for another day.)
When addressing issues that arise upon a death, such as the distribution of an estate, policies of insurance or dependant support claims, keep in mind the rights of those “in the belly of their mother”.
Thanks for reading.
[1] Fitzsimonds v. Royal Insurance Company of Canada, 1984 ABCA 7 (CanLII)