Children are Children, Right?

by Bennett Jones LLP
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Bennett Jones LLP

An interesting Will interpretation question arose in Matras Estate, 2016 ABQB 728 regarding the meaning of the word “children”. It mattered because the testator's Will left her personal effects and the residue of her estate to "my children", and she had biological children, legally adopted children and a foster child who had been with the family since infancy but was not legally adopted.

The Will included the following provision about children: “For the purposes of this Will, a child or children of a person named in this Will shall mean the biological and legally adopted children of such person.”

Was this definition intended to define who counted as children of the testator (i.e., the foster child was not included)? Or, was it intended to define who was a child of persons otherwise named in the Will, not the testator? 

The court found that the latter interpretation was the right one. The phrase "child or children of a person named in this Will” was written in the third person and was inconsistent with the use of first person language used in other places throughout the Will when the testator referred to herself. Thus, the definition did not govern whether a foster child was one of the testator’s children.

The court went on to consider extrinsic evidence in order to determine the testator’s intent on the meaning of who her children were. This included contemporaneous estate planning documents. On the same date that the Will was signed, the testator granted an Enduring Power of Attorney, naming the foster child as an attorney, and she made a Personal Directive, naming the foster child as an agent. In both documents, the foster child was described as the testator’s daughter.

The court also referred to a prior Will that specifically enumerated the beneficiaries who were to share the residue of the estate, and the foster child was included.

Finally, the court considered evidence from the family members about the relationship between the foster child and the testator over the years, including birthday cards, wedding invitations, and social services records which spanned several decades. While the evidence was not entirely consistent, on balance the court found that much of it at least did not undermine the inference that the testator considered the foster child as one of "my children" and most of it was of little probative value due to it long preceding the Will in any event.

So, the court found that the only "reasonable and moral" interpretation of the Will was that the foster child should receive a share of the estate. Those drafting wills are well advised to specifically consider whether the testator intends to include him or herself as "a person named in this Will".

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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