B.C. case could lead to expansion of who qualifies as a child for will challenges

Open this photo in gallery:A recent B.C. Supreme Court ruling could change who can qualify to challenge a will in the province.ETHAN CAIRNS/The Canadian PressShareSave for laterPlease log in to bookmark this story.Log InCreate Free AccountA British Columbia court case could expand the definition of “children” who qualify to challenge a will and complicate the estate planning process for those with blended families, lawyers say. In a Feb. 27 judgment, British Columbia Supreme Court Justice Ardith Walkem declined to summarily dismiss a wills variation claim brought by a woman named Mary Stainer against the estate of the man who she says raised her, even though Ms. Stainer doesn’t meet the long-recognized test for standing, which is limited to biological or legally adopted children of the deceased. The ruling clears the way for a full hearing of Ms. Stainer’s case for an expanded definition of “children” for the purposes of a will challenge. She intends to argue that the existing state of the law is out of step with contemporary societal norms about family, marriage, gender and parenting.The decision has attracted a great deal of attention among members of B.C.’s wills and estates bar, according to Vancouver lawyer Polly Storey, a partner at Vancouver law firm Clark Wilson LLP. “The question of standing had been certain for many years,” says Ms. Storey, who is not involved directly in the Stainer case. “This indicates change could be coming. Changing the definition has the potential to create some uncertainty, from an estate planning perspective, around who could challenge a will.”A wills variation claim is possible in B.C. because of Section 60 of the province’s Wills, Estates and Succession Act, which gives courts the authority to alter wills that don’t account adequately for the maintenance and support of the testator’s spouse or children.Judges are then empowered to divide the estate however they think is “adequate, just and equitable in the circumstances,” based on a review of the testator’s legal and moral obligations to the plaintiff.Although the legislation doesn’t contain its own definition of a child, over several decades, judges at the B.C. Supreme Court and Court of Appeal have repeatedly confirmed the interpretation that standing is limited to “natural or adopted” children of the testator. However, in a 2011 decision, the province’s top court did indicate it would be open to revisiting the issue of an expansion in a case with “a more compelling factual foundation.”Some believe they have found it in the Stainer case, which revolves around the estate of Wilfred Landry, the man who married Ms. Stainer’s mother four months before Ms. Stainer was born in 1964. While Mr. Landry was listed on Ms. Stainer’s birth certificate, a DNA test later confirmed he wasn’t her biological father. According to the decision, Ms. Stainer claims she was raised as Mr. Landry’s child and maintained a lifelong relationship with him, albeit one that “suffered rough patches and was strained at times.”That may help explain why Mr. Landry attached a statutory declaration to his will, confirming he had no children and specifically denying he had ever considered Ms. Stainer his child. His will provided for the residue of his estate to be held in trust for his surviving brother. After Mr. Landry died in 2024, the executors of his estate resisted Ms. Stainer’s wills variation claim, seeking to have the case dismissed summarily on the basis that Ms. Stainer had…

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