We no longer live in a world where the nuclear family is the norm. Today, families come in all different forms. Blended families are becoming more and more common: couples are divorcing from their partner of a first marriage, getting remarried, and one, if not both of the parties then take on the role of a stepparent. These stepparent-stepchildren relationships often develop into close relationships where the stepparent often takes on the role of a biological parent. If you would like your stepchildren to be beneficiaries of your estate, it is important to be aware of the law in Alberta.
When planning for death, often parents want to ensure their children are provided for. However, careful drafting of your Will is important to ensure your stepchildren are included. Pursuant to the relevant legislation in Alberta, the Wills and Succession Act (the “Act”), any reference to “children, descendants or issue” must be considered by the Court as: (a) any child for whom that individual is a parent within the meaning of Part 1 of the Family Law Act, and (b) any child who is in the womb at the time of the testator’s death and is later born alive. “Child” is essentially defined by the Family Law Act as a biological child, a child born through the use of assisted reproduction, or an adopted child. The Act does provide that the Court may look to a testator’s intention to contradict this definition; however, if you would like to ensure that your stepchildren are included in your Will, it is best to clearly state so in your Will rather than leave it up to the Courts to interpret your intentions.
If you do not have a Will and you want to ensure your estate will provide for your stepchildren, it is important to be aware of a recent Alberta Court of Appeal decision, Peters v Peters Estate, 2015 ABCA 301. The Court of Queen’s Bench (Surrogate Matter) held that the stepchildren of Ms. Peters, who had died intestate (meaning she died without a Will), were not considered beneficiaries of their stepmother’s estate. Ms. Peters had one biological son and four stepdaughters. One of the stepdaughters sought an equal division of the estate amongst the son and the four stepdaughters. The Court of Queen’s Bench held that the definition of “descendant” in the Wills and Succession Act did not include a stepchild, and therefore the only beneficiary of Ms. Peters’ estate was her biological son.
On appeal, the Court of Appeal upheld the decision. As Ms. Peters died intestate, her estate was to be distributed pursuant to the intestacy provisions of the Act. The Court found that “descendants” are defined as “all lineal descendants of an individual through all generations”. Although “lineal descendant” is not defined in the Act, the Court used the Black’s Law Dictionary definition, which defines “lineal descendant” as a “blood relative in the direct line of descent…”. Further, the Court noted that although the Act does not define “child”, but other Acts do and such definitions include “stepchildren”, if the government had wanted to include “stepchildren” in any definition of the Act, such that they have the same rights as biological children, the government would have included “stepchildren” in the Act. Accordingly, the Court concluded that “stepchildren” do not have the same rights as biological children.
If you want your stepchildren to be included as beneficiaries of your estate, you must make sure you expressly state such intention in your Will. Dying without a Will, and dying with a Will that does not state such intention will result in your stepchildren being disinherited from any entitlement to your estate.