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INTESTACY INVOLVING STEP-CHILDREN

As lawyers we live by Murphy’s Law, which says that “anything that can go wrong, will go wrong”. That mentality leads us to try to find and minimize potential risks for our clients. A recent decision from the Alberta Court of Appeal, Peters v. Peters Estate, articulated another possible risk of not having a will.

In 2013, Mrs. Peters passed away without a will. She had one child with her husband, who had died four years earlier, and four stepchildren from his previous marriage. The Court of Appeal had to determine whether or not the four stepchildren had a right to inherit from their stepmother’s estate.

The Alberta legislation dealing with this particular issue is nearly identical in Manitoba. Therefore, while the Courts in Manitoba have not dealt with this issue directly, it is safe to assume that the rationale would be similar.

The legislation states that all “lineal descendants” are entitled to inherit. However, “lineal descendants” is not defined in the legislation. The Court then looked at Black’s Law dictionary where “lineal descendants” is defined as “a blood relative in the direct line of descent”. It also looked at a study from the Alberta Law Reform Institute which stated that “relationships between stepchildren and their stepparents are too variable to support a presumption intention that stepchildren inherit from their stepparents”. The study and the definition led to the conclusion that the default position had to be that stepchildren do not inherit when there is no will. The decision ultimately meant that the four stepchildren were not eligible to inherit and the entire estate went to the one child that Mrs. Peters had with Mr. Peters.

Benjamin Franklin once said that “in this world nothing can be said to be certain, except death and taxes”. In order to avoid the Court deciding what happens with your estate, we strongly recommend that you articulate your wishes in the form of a will.

Notice: The articles on our website are provided for general information purposes only and should not be relied upon as legal advice or opinion. They reflect the current state of the law as at the date of posting on the website, and are subject to change without notice. If you require legal advice or opinion, we would be pleased to provide you with our assistance on any of the issues raised in these articles.

 
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