Presumption of Paternity

Under the Wills, Estates and Succession Act, in order to be able to vary a will, you must be either the spouse or child of the deceased. However, if there is a question of paternity, can that child seek wills variation?

While there is no presumption of paternity in British Columbia wills variation cases, the Family Law Act recognizes a variety of paternity relationships which may raise questions.

Division 2 — Determining Parentage of the Family Law Act explains that a person is the child of the parents either by birth, via assisted reproduction (though this does not apply to the donor), and by adoption. 

However, some wills variation cases have called into question the presumption of paternity which is typically not accepted by the courts. 

In Barnes Estate v Barnes, 2013 BCSC 1846, the court examined the presumption of paternity issue. In this case, the courts can employ a flexible “subjective” approach to interpreting wills to deal with challenges presented by DNA evidence. This is because a dilemma arises when a testator makes a gift to those of biological descent but is mistaken as to who his biological relations are. While the intentions are to give benefits equally to his children, sometimes, those relationships are not what they seem.

Presumption of Paternity in British Columbia | Klein Lawyers

A Hypothetical Example: Presumption of Paternity 

Take a look at this example where infidelity impacts paternity. Jack was married to Jill. Together, they have two children, Lucy and Luke. Within Jack’s will, he leaves the residue of his estate to his “descendants” in equal shares. Basically, Jack’s intentions are that Lucy and Luke, and any children that they may have, will all inherit equally.

But, after Jack’s death, it becomes known that Jill had an affair and that with DNA testing, Jack is not Lucy’s biological father. What is the executor to do? The will states that the estate must go to the descendants of Jack–meaning the biological children and grandchildren. 

Does this exclude Lucy from the estate of the man who raised her as his own? It would seem that Jack’s intentions were to include Lucy, as he had not known of his wife’s infidelity. Following the subjective approach, we would deduce that yes, because Lucy is not a blood relative, she is not included in the will. But when following the intentions of Jack’s will–that his children and grandchildren receive equal shares of the estate–Lucy should still receive a fair share.

Though the above is a hypothetical scenario, this was the basic understanding of the case in Barnes. While the children were not biologically the deceased’s, the intention of the deceased was to include them in the provision of the will.

While the presumption of paternity is not recognized by wills variation standards, the courts also acknowledge that sometimes the family dynamic is not what it seems. And if this sounds familiar to you, know that you have options.

When Presumption of Paternity Impacts Wills Variation

The family unit can be messy and complicated. And when this impacts the distribution of an estate, you may need legal help. At Klein Lawyers, we know that wills variation cases are complex on their own, but when DNA tests reveal something otherwise unknown, they can become even more complicated.

If the presumption of paternity has impacted your loved one’s will, contact us. Our wills variation lawyers serve clients throughout British Columbia from offices in Vancouver, Abbotsford, Burnaby, Coquitlam, Langley, and Surrey.