Posthumously conceived children and succession rights

By Krystyne Rusek February 15, 201815 February 2018

Posthumously conceived children and succession rights

 

As a response to advances in reproductive technology, recent changes to Ontario’s parentage laws go a long way to ensuring equal treatment of all parents and children in the province.  Also welcome, are changes to succession laws that now afford rights to posthumously conceived children with respect to the estates of their deceased parents.  That said, it will take some time before we can get the full measure of how the changes will impact on estate planning and administration in Ontario.

The new rules came into effect on January 1st, 2017, with the enactment of the All Families Are Equal Act (AFAEA), which amended the Children’s Law Reform Act (CLRA) and the Succession Law Reform Act (SLRA). 

Prior to that, the parent of a child, for the purposes of succession, was defined as the father or mother of a child.  The terms “father and “mother” have been deleted in the SLRA by the AFAEA, and parentage is now determined in accordance with a set of rules in Part II of the CLRA.

The AFAEA has expanded the definitions of “child” and “issue” in the SLRA to include children and descendants conceived and born after the death of a parent, provided a number of conditions are met. These include the spouse of the deceased giving proper and timely notice to the Estate Registrar for Ontario that the spouse may use reproductive material (sperm, eggs) or an embryo to try conceiving a child in relation to which the deceased person intended to be a parent. The posthumously conceived child must be born no later than the third anniversary of the parent’s death, or such later time as may be specified by the court. And there must be a declaration made by a court establishing the deceased person’s parentage of the posthumously conceived child.  To obtain the declaration, the spouse will have to establish that the deceased gave written consent to parentage of a posthumously conceived child.

Testate estates and will interpretation

These new definitions will apply to a person’s will, unless a contrary intention is clearly expressed.  Only wills drafted after January 1st, 2017 will be subject to the new definitions.    

Clients will need to advise their lawyer if they, their children or other beneficiaries under their will, have stored or intend to store any reproductive material (eggs, sperm, embryos).  If so, clients will need to decide whether they want posthumously conceived children and issue to inherit under the will. 

Lawyers will need to draft wills that contain clear definitions of “child” and “issue” so as to reflect the intentions of their clients. They may consider a separate testamentary trust for posthumously conceived children, with strict time limits and notice requirements. Lawyers may also wish to review the client’s documents relating to the use of stored reproductive materials, and discuss the written consent to parentage required under the CLRA.

Intestate estates

Where an individual does not have a valid will, a posthumously conceived child of the deceased parent will be entitled to share in the distribution of the parent’s estate, provided the conditions set out above are satisfied.  Under the expanded definition of “issue”, posthumously conceived children may also be entitled to inherit from the estates of their antecedents, e.g. grandparents.

Dependant support

Posthumously conceived children may also be entitled to dependant support from the estates of deceased parents. A claim will need to be commenced, on behalf of the posthumously conceived child, within six months of the deceased’s parent’s death.  This claim will be stayed until the birth of the child.  

Estate administration

There is little doubt that the new rules and related procedural steps to establish parentage of a posthumously conceived child will complicate the administration of certain estates.  Delays may be inevitable, especially where a dependant support claim is made.  What’s more, estate representatives may be subject to additional responsibilities and duties, which could result in new areas of risk and liability.    

As the frequency of posthumous conception increases in the future, many questions will arise with respect to the interpretation of these statutory amendments. Until the courts weigh in, there is likely to be a great deal of uncertainty with respect to the rights of posthumously conceived children and the obligations of estate trustees. In the meantime, the best course of action is for both clients and lawyers to become familiar with the new legislation and ensure that the client’s intentions are well reflected in his or her estate plan.

Krystyne Rusek is a member of the Estate Litigation Group of Pallett Valo LLP in Mississauga, Ontario. The author’s views are her own.

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