On November 25, 2020, the beautiful game lost one of its greatest legends, Diego Maradona. The famous Argentine footballer passed away at the young age of 60 years old, leaving behind millions of admirers around the world to mourn his death.
Maradona also left behind many children. In addition to his eight recognized children, there are supposedly at least two others claiming to be his offspring. The net worth of Maradona’s estate remains to be determined, as does the question of whether he made a Will. Nevertheless, should any opportunistic long-lost children succeed in proving paternity, they may have a claim to a share of Maradona’s estate.
In Ontario, a long-lost child could likewise benefit from their parent’s estate. A child has a statutory entitlement to a share of their parent’s estate where the parent dies without a Will. Pursuant to Part II of the Succession law Reform Act, those who have a right to inherit on an intestacy include the surviving spouse and the “issue”, or descendants, of the deceased.  The courts have confirmed that for the purposes of intestate succession, descendants are restricted to blood relatives (with the exception of adopted children, who have the same rights as a biological child). Thus, any purported child seeking an interest in an intestate estate must prove that they are the biological child of the deceased. If an illegitimate child can establish parentage, then they are entitled to share equally in an intestate estate with those born inside of marriage.
In the case of a testate estate, an alleged child of a deceased person may have a right to any bequest made in the deceased’s Will that is based on parentage. For example, a Will may provide for a gift to the testator’s “issue” or “children”. Unless a contrary intention is included in the Will, any person born outside of marriage who successfully proves parentage could be considered a part of the class of “children” or “issue” entitled to the gift.
Those purporting to be a child of the deceased can prove their familial relationship by presenting documentation like an Ontario Birth Certificate from a Vital Statistics Agency. If this documentation is not available or further evidence of kinship is requested by the estate trustee, DNA testing can also be used. Courts have recognized DNA testing as a reliable, efficient, and effective method of establishing parenthood in probate matters. Section 17.2 of the Children’s Law Reform Act and section 105(2) of the Courts of Justice Act grant Ontario courts the jurisdiction to order DNA testing to assist in determining a person’s parentage.
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 Joshua Nevett. Maradona: Why the football icon’s inheritance could be messy (December 6, 2020), online: BBC News <https://www.bbc.com/news/world-latin-america-55173630>
 Peters Estate (Re), 2015 ABQB 168 (CanLII), <http://canlii.ca/t/ggmgg>; Child, Youth and Family Services Act 2017, S.O. 2017, c. 14, Sched. 1, s. 217 <https://www.ontario.ca/laws/statute/17c14#BK297>
 Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 17.2 <https://www.ontario.ca/laws/statute/90c12#BK23>; Courts of Justice Act, R.S.O. 1990, c. C.43, s.105(2) <https://www.ontario.ca/laws/statute/90c43#BK146>
Last week, Stuart Clark blogged on what happens when unexpected DNA results lead to a person finding out that they aren’t, in fact, biologically related to a parent who dies intestate or leave a class gift to “my children” in their Will. Today, I’ll be looking at recent case in BC reported on by CBC with a similar problem. In a case now moving through the BC courts, the Deceased, who had immigrated to Canada from Sweden in the 1950s, named his only child as the sole beneficiary of his estate and of an alter ego trust. Suspicious of the son’s paternity claims, relatives of the Deceased sought and obtained a paternity test that proved that the purported son was actually not biologically related to the Deceased.
Because the “son” was named in the Deceased’s Will (and in prior Wills), there is no need for either the son or the Deceased’s relatives to seek declarations regarding the son’s parentage. Instead, the relatives of the Deceased are now fighting the son’s entitlement to any interest in the Estate on the basis that the son and his mother committed fraud and deceit against the Deceased for over 50 years in order to induce the Deceased into naming the son as the sole beneficiary of his estate.
Although he moved to Canada in the 1950s, the Deceased continued to return home to Sweden during his lifetime and had a romantic relationship with the son’s mother in Sweden. According to the Swedish relatives, the Deceased wrote to the mother in 1964 and informed her of his success in Vancouver, following which she wrote to him and informed him that her son, born in 1961, was also his son. The Deceased began including the mother and son in his testamentary documents in 1966.
While the Swedish relatives claim that the son and mother perpetrated a longstanding fraud on the Deceased so as to benefit the son, the son claims that he was only informed (by the Deceased) that the Deceased was his father in 2002, that he requested paternity tests on two occasions and that the Deceased declined to do so, knowing that there was a chance that the son was not biologically related to him.
It is early days yet in the litigation of this matter with the parties having just received judgment on an (unsuccessful) motion seeking to have the Swedish relatives post security for costs. If this matter doesn’t settle, it will be interesting to see whether a Court will find that a 50 year fraud was committed on the Deceased such that the bequests provided to the son are invalid.
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