An interesting recent case has brought British Columbia’s Wills Variation Act into the news
Deborah Peri sought to challenge the will of her biological mother’s husband, “Herb” Doman, which did not include any provision for Ms. Peri. Ms. Peri was born in 1955 in Washington State. Mr. Doman’s name appeared on Ms. Peri’s birth certificate, and he was indicated as her father on the papers to bring her into Canada. However, at the time of the hearing, it was established that Mr. Doman was not in fact Ms. Peri’s biological father, and Ms. Peri’s mother filed an affidavit that Mr. Doman had known this before Ms. Peri’s birth. After her birth, Ms. Peri was placed in private foster care, and had limited contact with Mr. Doman, although he paid for various expenses. In 1982, Ms. Peri signed a document in which she agreed to relinquish any claims on Mr. Doman’s estate and that of her mother, as well as limiting further contact with the Doman family.
In British Columbia, only spouses and children have the right to challenge the will of a person (called a Testator). Section two of the Wills Variation Act, RSBC 1996, c. 490, provides that if the Court feels that a person’s will does not provide adequately for the “proper maintenance and support” of the testator’s spouse or children, the Court may order the provision that the Court thinks to be “adequate just and equitable in the circumstances” be made out of the estate for the spouse or children.
“Spouse” is defined in the Act as two people who are married, or who live in a marriage-like relationship, same sex or otherwise, for two years. There is no definition in the statute, however, for “children.” Earlier cases have limited “children” to natural and legally adopted children; however, Ms. Peri contended that the definition of “children” should be expanded in certain cases, such as where the testator stood in the place of a parent (“in loco parentis”), where the testator claimed to be the parent but was not, or where the claimant is the product of artificial insemination.
Justice Burnyeat concluded Ms. Peri had not brought herself within the class of “children” under the Wills Variation Act, and dismissed her application. In his view, it is for the legislature to expand the definition, and until the Act is amended, only natural and legally adopted children can challenge a will under British Columbia’s Wills Variation Act.
The full decision can be found here
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