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Adopted-out child not entitled share of biological mom’s estate

Hauer & Co. > Adoption  > Adopted-out child not entitled share of biological mom’s estate

Adopted-out child not entitled share of biological mom’s estate

In the recent case of Boyd v. Shears, 2018 BCSC 194, the Court addressed whether a will should be varied to include more money to the biological adopted child of the testator so as to benefit equally with her siblings at the expense of the plaintiff, the testator’s spouse. All parties agreed that the will of Ms. Beverly Boyd failed to make adequate provision for the plaintiff, Albert Boyd, her husband of 34 years. However, one of the residual beneficiaries, Ms. Kelly Shears, had not agreed to the specific proposal that has been made to vary the will.

Ms. Boyd died on July 23, 2015, leaving a will that had been written ten years earlier. The only significant asset of her estate is a residential property in East Vancouver, BC now valued at approximately $1.6 million. That was the matrimonial home throughout the plaintiff’s marriage to the testator, Ms. Boyd, and the plaintiff still lives there. The plaintiff agreed that the property is to be sold, provided that he can remain there for six more months or until sale, whichever is later.

The will made a number of cash gifts, including one of $20,000 to the plaintiff, but divided the residue of the estate among Ms. Boyd’s three children from a previous relationship. The will stated that Ms. Boyd was not making any greater provision for her husband because “he will be receiving one-half of my pensions and is able to provide for himself.”

In fact, Ms. Boyd had selected an employment pension option under which the plaintiff was not eligible to receive any benefits following her death. He is now 83 years old and receives only his own pension income of about $2,000 a month. Part of the property is rented to tenants, but the rental income the plaintiff receives is not sufficient to cover all of the expenses related to the property and Ms. Boyd’s son, Grant Eby, the executor of her estate, has been contributing to those expenses out of his own pocket.

All parties, except Ms. Shears, reached and signed an agreement dated May 15, 2017 (the “agreement”). According to the agreement, the parties, except Ms. Shears, have agreed to a variation of the will under which the plaintiff would give up his $20,000 cash gift and receive 40 per cent of the residue of the estate, with the balance of the residue of Ms. Boyd’s estate divided equally among the three other named residuary beneficiaries. If sale of the property in fact produces net proceeds of $1.6 million, the plaintiff would receive $640,000 and the other residuary beneficiaries $320,000 each.

One of Ms. Shears’ objections to this arrangement relates to Helen Drummond, a biological child of Ms. Boyd who was given up for adoption at or shortly after birth. At some point, Ms. Drummond re-established contact with Ms. Boyd and Ms. Shears considers her to be part of the family. Ms. Drummond receives a $20,000 cash gift under the will, but Ms. Shears believes Ms. Drummond should benefit equally with the testator’s other children. In her view, this could be accomplished if the plaintiff received only about 25 per cent of the residue, which would be an adequate provision for him.

The Court addressed the relevant law. Section 60 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [“WESA”] provides for variation of a will in favour of the testator’s spouse or children. By operation of s. 3 of WESA, a child who was adopted is not a child of the pre-adoption parent for these purposes. Counsel for the plaintiff is correct that, as admirable as Ms. Shears’ concern for Ms. Drummond may be, there is no legal basis on which Ms. Shears can advance a claim on Ms. Drummond’s behalf.

Ms. Shears says that she would not object to the plaintiff receiving a life estate in the property. Counsel for the plaintiff says this is not practical because the plaintiff is no longer capable of maintaining the property and the estate does not have any cash to pay ongoing expenses. An alternative suggestion Ms. Shears has made is that the plaintiff receive the proposed 40 per cent of any sale proceeds up to $1.6 million, but not share in any amount beyond that.

In considering whether a will has made adequate provision for a spouse, the court considers what the spouse would have been entitled to in a notional separation immediately prior to the testator’s death. That notional separation defines the minimum acceptable level of what is adequate, just and equitable.

The property that forms this estate was acquired by Ms. Boyd about six years before her marriage to the plaintiff, but they lived together there for more than 30 years until her death. In a notional separation, the Family Law Act, S.B.C. 2011, c. 25 would give the plaintiff a claim to half of the amount by which the property’s value increased during their relationship. That would likely be more than what he has agreed to accept in the proposed settlement.

In denying the claim of Ms. Shears to have Ms. Drummond share equally with the other children, the Court held:

[17]         I find that the agreement that has been reached among all parties other than Ms. Shears appropriately addresses the will’s admitted failure to make adequate provision for the plaintiff and that the matters raised by Ms. Shears do not provide any legal or factual basis for a different conclusion.

[18]         I, therefore, order that the will be varied in the manner set out in paragraphs three and four of the notice of application—that is, removing the $20,000 cash gift to the plaintiff and giving him a 40 per cent share in the residue of Ms. Boyd’s estate, with the remainder divided equally among Kim Barron, Kelly Shears and Grant Eby.

[19]         At the hearing of this application, I ordered that the plaintiff be permitted to live in the property for six months free of charge, or until the property is sold, whichever is later.

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