Estate Litigation – Intentionally Excluded and Adopted Out – Intestate Entitlements for Children of the Deceased – Part 2

It is a common refrain for Estate Litigation lawyers to reminder their clients to keep updated and valid Wills. When there is a gift to a person who pre-deceases the Testator and the Will does not have an adequate residuary clause an intestacy or partial intestacy can occur. In Part 1 of this blog series, we began to review the recent decision in Atrill Estate, 2018 BCSC 350 where the Court considered the entitlement of the descendants of a pre-deceased child who had been intentionally left out of the will and determined that he had an entitlement as an intestate successor.

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While the Court found that the actions of testator could not trump the rights of intestate successors under the Wills Estates and Succession Act, the Court also had to make a decision with respect to the potential rights of a child that had been adopted out of the family.

The Court made the following comments:

[2] Amanda Morden is the biological child of Ian James Atrill but was adopted out during his lifetime. The Adoption Act, R.S.B.C.1996, c. 5, s. 37 provides that on the making of an adoption order the pre-adoption parent ceases to have any parental rights or obligations to the child who is the subject of the order. Section 3 of WESA provides that a child who was adopted out is not entitled to the estate of the pre-adoption parent on an intestacy.

[13] In Boer v. Mikaloff, 2017 BCSC 21 (CanLII), Funt J. held that a child who has been adopted out has no claim on his or her pre-adoption family in the event of an intestacy. Paragraphs 21 through 26 read as follows:

[21] Subsection 37(1) of the Adoption Act provides that when an adoption order Is made, “the child becomes the child of the adoptive parent” and “the adoptive parent becomes the parent of the child”. Section 1 of the Adoption Act defines a “child” as “an unmarried person under 19 years of age”.

[22] Our Court of Appeal in Clayton v. Markolefas, 2002 BCCA 435 (CanLII), addressed whether an adopted child was “issue” of her birth father enabling her to be entitled to a portion of her birth father’s intestate estate. The Court considered in detail, s. 37 of the Adoption Act as it then read. For the purpose of the case at bar, the changes to s. 37 of the Adoption Act at the time of Clayton and now are not significant.

[24] Justice Donald and Justice Saunders concurred in the disposition of the appeal and agreed with Esson J.A.’s interpretation of the Adoption Act. Justice Donald shared Saunder J.A.’s reservation in her concurring reasons as to the concern Esson J.A. expressed regarding “the consequences that would flow from granting to adoption children a right of succession against their birth parents”.

[25] In the case at bar, unless an exception applies, the effect of s. 37(5) of the Adoption Act is that the plaintiff, upon adoption, became the child of his adoptive parents and his adoptive parents became his parents. The plaintiff was no longer a child of his birth mother, the late Ms. Mikaloff. Such would be the “family relationships” as determined by s. 37 of the Adoption Act.

[14] Ms. Morden claims a share in the residue of the Atrill estate through her relationship to her biological parent not through her adopted family. She is, however, as the law of this province provides, a “descendant” of her adopted family and is not a descendant of Ian James nor a descendant of William Hugh Atrill. She therefore cannot share in the residue of the Atrill estate.

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