One of the questions I’ve been asked most often since entering the field of estates law is “do I really need a will?”. To which I’ll let you know that my answer is always going to be yes. There are countless reasons it will benefit your estate and your loved ones for you to have a will, but the specific reason I’m going to look at today is protecting the rights of non-biological children.
In Peters v Peters Estate, we can clearly see the importance of having a will. Ileen Peters passed away in 2013, having been predeceased by her husband, Lester Peters, in 2009. Lester had four children from a previous marriage and then he and Ileen had one biological child together. While Lester’s children from his previous marriage were technically Ileen’s step-children, she treated them as if they were her own and the family operated as one family.
When Ileen passed away, she died intestate, which left the distribution of her estate to be governed by the Wills and Succession Act (the “Act”) which states that if the deceased leaves no surviving spouse, the estate shall be distributed to the descendants of the deceased. One of Ileen’s stepdaughter’s filed an application for directions seeking an equal division of the net proceeds of Ileen’s estate among all five children – the four step-children and Ileen’s biological son. The Court of Queen’s Bench of Alberta looked to the Act which defines “descendants” as lineal descendants of the individual. The Act itself does not define lineal descendants, however the Court stated that as per Black’s Law Dictionary, 10th ed., “’lineal descendants’ meant a blood relative in the direct line of descent – children, grandchildren and great grandchildren are lineal descendants’”. Therefore, as Ileen’s step-children were not her blood relatives, they did not fall under the definition of ‘descendants’ and were not entitled to inherit under her Estate.
Ileen’s step-daughter appealed this decision but the appellate court upheld the lower court’s decision. They cited studies by the Alberta Law Reform Institute which stated that relationships between step-children and step-parents vary too much to support including a presumption in the legislation that step-parents intend their step-children to inherit a portion of their estate.
In Ontario, the distribution of intestate estates is governed by the Succession Law Reform Act, which defines “issue” in section 1(1) as a descendant of the deceased. For the purposes of distributions on intestacy, this is restricted to blood relatives, with the exception of adopted children.
This case serves as a warning to the issues that can arise if you die without having a will. It was likely Ileen’s intention that all five of her children would equally benefit under her estate, however, because she passed away without a will, four of her children were left with nothing. By drafting a will, you can make it clear who you want to inherit your estate to try and avoid these types of interpretation issues.
Thanks for reading,
Darien Murray