Can Step-children Seek to Vary a Will?

Earlier this year, I wrote a short blog on the right of step-children to claim an inheritance from a step-parent or step-grandparents. The upshot was that, absent a specific bequest in the will, step-children do not have a right of inheritance from a step-parent.  This conclusion was recently made even more forcefully by the B.C. Court of Appeal in the decision Peri v. McCutcheon, 2011 BCCA 401.  This case revisited earlier appellate authority holding that the word “children” in the Wills Variation Act was restricted to natural or adopted children, not step-children.  The decision has been the subject of considerable media attention, largely because the deceased step-parent was Herb Doman, the well-known B.C. business tycoon.

Ms. Peri sought to claim a share of the estate of Mr. Doman who had been her mother’s husband.  Ms. Peri’s mother and step-father were married when she was born, Mr. Doman was listed on her birth certificate and had signed immigration papers for her as her father.  Though Ms. Peri was sent to foster homes as a child, the deceased had provided consider financial support to her over her life time and maintained contact with her.  Ms. Peri argued that, in recent years, Canadian courts have taken a more liberal approach to remedial social legislation given the changes in contemporary standards.  She pointed to other circumstances in which courts expand traditional statutory definitions to protect spouses and children where the law had not done so previously.  She argued that if sufficient “indicia of a father-child” relationship existed, an enforceable legal relationship was created.  As support, reference was made to jurisprudence that took a contextual approach to imposing financial obligations on step-parents to provide for their step-children after a divorce.

In the end, however, the Court of Appeal disagreed.  Pointing to the conflicting evidence over the nature of the relationship between Ms. Peri and her step-father, the Court of Appeal highlighted the difficulty of creating an “indicia of parenthood” test in estate matters.  They reasoned that, unlike a divorce where there had been a positive assumption of obligation by the parent prior to a couple’s separation, to try to impose this legal obligation on a step-parent after death was too difficult. 

As a result, the Court of Appeal upheld the lower court, though with a significant and interesting caveat.  The lower court held that if the definition of “children” was to be expanded, it was a task exclusively for the Legislature.  The Court of Appeal was not so unequivocal.  They left the door open on a judicial expansion of this definition in future.  If a later court finds that “social, scientific and other circumstances” changed significantly from the present, it may be appropriate to revisit this issue.

For step-children, this decision gives little present comfort.  While a step-parent may become legally obligated to provide financial support while alive, the same is not true once they die.  So, even where they may grow up with a loving and caring step-parent, step-children are powerless themselves to cement the nature of that relationship in a manner that entitles them, absent a specific bequest, to share in their step-parent’s estate.  There is no unilateral power to compel adoption. 


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