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The 2017 decision of Boer v. Mikaloff, 2017 BCSC 21 addresses the rights of a child who has been adopted, but is named as beneficiary in their biological parent’s will.
Section 3 of the Wills, Estates, and Succession Act clearly states that a child who has been adopted is not entitled to a share of their biological parent’s estate. Under this provision, unless a biological or “pre-adoption” parent specifically names a child that has been adopted as a beneficiary in their will, the child that has been adopted is not entitled to a share of their pre-adoption parent’s estate.
In this case, the Plaintiff, Gary Boer was adopted approximately one year after his birth. Twenty-nine years later, he reunited with his biological mother, Deloreen Mikaloff, and developed a loving and caring relationship with her, and she ended up naming him as a beneficiary under her will.
Following Ms. Mikaloff’s death, Mr. Boer applied under section 60 of the Wills Estates an Succession Act to vary her will. Under this section, the Court may vary a will in favour of a child in such amount as the Court thinks is adequate, just, and equitable in the circumstances.
Mr. Boer acknowledged that, had he not been named as a beneficiary, he would not have had standing to vary Ms. Mikaloff’s will. However, he claimed that section 3 of the Wills , Estates, and Succession Act only applies to intestacy, when a biological parent dies without a will, or to situations where the biological parent does not name the adopted child as a beneficiary in their will.
He claimed that the wording of the section, in stating “that the adopted child is not entitled to the estate of his or her pre-adoption parent except through the will of the pre-adoption parent” specifically contemplated situations like his where the adopted child and biological parent have reunited.
Mr. Boer acknowledged that section 37(1) of the Adoption Act states that, when an adoption order is made, the child becomes the child of the adoptive parent; the adoptive parent become the parent of the child; and the biological parent ceases to have any parental rights or obligations with respect to the child. However, he submitted that his specific situation is an exception that should be governed by section 37(5) of the Adoption Act, which states that the family relationships of one person to another are to be determined in accordance with that section unless this or another enactment specifically otherwise provides or distinguishes between persons related by birth and persons related by adoption. Mr. Boer said that the Wills, Estates, and Succession Act was such another enactment and that he should be viewed as a child for the purposes of section 60, which would give him standing to apply to vary Ms. Mikaloff’s will.
Unfortunately for Mr. Boer, the Court rejected his claim and found that the wording of section 3 of the Wills, Estates, and Succession Act was not ambiguous. The Court held that the act clearly adopts the effect of the Adoption Act meaning that, following an adoption, the adopted child ceases to have any rights with respect to their biological parent.
This decision confirms that the act of a biological parent including an adopted child as a beneficiary in their will does not give the adopted child standing to bring a wills variation claim.
