A common example of this occurs where a Will makes a gift to the testator’s “children” or “issue” that are living at the time of the testator’s death. Unless the Will states otherwise, a reference to the testator’s “children” or “issue” with no further qualifications will include children who are born both inside and outside of marriage. As such, the executor would have an obligation in such case to search the public records to ensure that he or she is dealing with all persons that fall within the class of beneficiaries.
To avoid the executor from having to complete such a search, it has been common practice in Ontario to include a provision in the Will that limits the scope of “children” and “issue” to only those children who were born within a marriage, who were born within a common-law relationship but whose parents subsequently marry, or who were legally adopted. However, with the increasing number of children that are being born within common-law relationships and whose parents never subsequently marry, the wording of the standard provision has generally been expanded to include such children, provided that the relevant parent of the child has shown a settled intention to treat the child as his or her own.
This is a sensitive issue for many people and a testator may be hesitant to discuss the matter openly and directly. It is important, however, that a testator recognizes the need for ensuring that any classes of beneficiaries that are referenced in the Will are sufficiently defined. Failure to be clear in this regard can make an executor’s job far more difficult (best case scenario) and can be a lightning rod for conflict and challenges (worst case scenario).
Thanks for reading “The Estates Nutshell” – questions and comments are very welcome at estates@cklegal.ca.