Our society’s understanding of what constitutes “family” is constantly changing, especially in light of our appreciation and awareness of the many different forms a relationship can take. This has also changed with the possibilities created by the advent of reproductive technology.
But this emergence led to other questions, particularly in the realm of estate planning: What rights do children conceived through reproductive technology have, and how does their existence affect their parents’ estate when that parent dies?
In case Paul v. Sloan1938 Canli 231 (BC California), the British Columbia Court of Appeal determined that a child born after his death was not entitled to a share in his deceased father’s estate. The deceased father had left all his property to his wife and three children. When he learned that his wife was pregnant again, he discussed with a friend how to construct a new will that would include the expected child. The deceased father died unexpectedly in an accident before a new will could be completed. The court ultimately found that “any construction which would posthumously give a child the right to participate would offend the unequivocal language of the will”. This means that the court preferred to interpret the will so that only children who were alive at the time of the father’s death benefited from it.
The law has since evolved in what we consider to be a positive trend.
Article 8 of Wills, estates and succession law(“”Wesaprovides that the descendants or relatives of an intestate (that is, a person who died intestate) who became pregnant before the intestate died, but were born afterward and live for at least five days, can inherit as if they were born during the person’s death He who has no will, was intestate alive.
Moreover, British Columbia and Ontario are the first two provinces in Canada to consider postmortem Imagine. Section 8.1(1) of Wesa proves that a descendant of a deceased person, I conceived and was born after the death of the personThey inherit as if they were born during the life of the deceased if:
- A person who was married to, or was in a conjugal relationship with, the deceased person at the time of their death, give written notice, within 180 days… to the deceased person’s personal representative, beneficiaries, and non-testate successors that the person may use the deceased person’s human reproductive material to produce a child through assistance on procreation;
- Offspring are born within two years after the death of the deceased person and live for at least five days; And
- The deceased person is the father of the descendant under Part 3 of the Family law law.
There are many circumstances that can arise in applying Section 8.1(1).
If the deceased died intestate (i.e. without a will), their biological material will be kept for up to 180 days, or until their partner provides written notice that they plan to begin the pregnancy process after their death. This means that the surviving partner must decide very quickly through the grief of losing a loved one whether or not they wish to have a child. If they decide to do so, the administration of the deceased’s estate will remain suspended, perhaps until the expiration of the two-year period, whether or not a child is born. This raises another issue, as the use of reproductive technology is very expensive, and without access to the deceased’s estate to support the endeavour, the odds of conceiving within the two-year time frame may present a financial challenge to the surviving spouse.
Another circumstance to consider is when the decedent died with a valid will. If the deceased’s will is directed broadly at “their children”, the posthumously conceived child will be included and will be able to benefit. However, a posthumously conceived child would not be included if the decedent named specific children as his or her beneficiaries (as a will would understandably fail to name the unborn child upon the decedent’s death). As a result, a child conceived after his death will have to file a change of will claim through the litigation trustee, pursuant to Section 60 of the Wesa.
There are ultimately many different factors that an individual must consider in making the decision to become pregnant after death that may be restricted under Section 8.1(1), such as grief, finances, and time.
Furthermore, the interaction between postmortem pregnancy and the deceased’s estate is not an entirely new concept for the courts. Ownership interests in the reproductive material used for postmortem conception are also relevant considerations.
Help human reproduction and property
In case W (Kuala Lumpur) v. Genesis Fertility Centre2016 BCSC 1621 (W (Kuala Lumpur)), the court granted an application for a declaration that the deceased spouse’s reproductive material was her sole legal property and should be released for use in creating embryos. The deceased had a serious health condition and stored his reproductive material for this purpose. The deceased died without providing his wife’s written consent to the use of his reproductive material, as required by law Assisted Human Reproduction Act(“”ahraHowever, the court found that “the circumstances in this case were unusual, in that the deceased freely and repeatedly expressed his consent to his wife’s use of his reproductive materials after his death… (and) to deny his wife such use would be unfair and demeaning to her dignity.” .
This case was characterized by… LT v DT Estate (Re)2019 BCSC 2130 (that), which was upheld by the British Columbia Court of Appeal. The court denied a wife a pregnancy after his death using her deceased husband’s reproductive material because he did not give her his prior, written consent to do so (for a deeper analysis of this case and its implications, please see article written by CW’s Janet Aucoin and Shiona Nickell here).
What these two cases differ on is whether reproductive material counts as property forming part of the deceased’s estate at the time of his death, which will then pass to the surviving spouse for their use. in W (Kuala Lumpur)The reproductive material existed prior to the death of the decedent and was stored with the intent that the decedent retained the rights of use and ownership. These rights would then pass to the surviving spouse. While in thatThe removal of the propagating material did not take place until after death, which prevented it from being considered property.
The law has established a relationship between reproductive technology and a person’s property, especially as alternative methods of forming a family are becoming more common. What we can take away from the law is that after their death children are legally recognized as children, but little has been said in practice about what this means in terms of their inheritance. While the courts have not yet interpreted Section 8.1(1) of WesaCertainly, it expanded the rights of posthumous children and affirmed their inheritance rights, including their right to share in the estate of their deceased parents.
Our team is experienced Real estate and trust funds And family Attorneys can ensure that you and your partner sign the appropriate consent forms and that your children’s ability to inherit from you is taken into account. Please do not hesitate to contact us if you have any other questions or concerns.
The content of this article is intended to provide a general guide to the subject. It is advised to take the advice of specialists in such circumstances.