Winnipeg Free Press - PRINT EDITION
Posted: 07/17/2013 1:00 AM | Comments: 0
Mark and Mary have two children, Jon and Nola. Seven years separate the two children. Why? The couple had trouble conceiving the second time around. Mark suffered a medical misadventure that left his sperm count exceedingly low. Adoption was an option. Ultimately, they made arrangements to inseminate Mary with sperm from a donor. Everything worked out beautifully. Nola, the daughter from that process, was a gift. She is a lovely and accomplished young woman and both her parents love her very much.
There was a wrinkle when it came time to make their wills, however. The normal language lawyers use would see everything go to "my spouse" and then, at the second death, equally to "my children" when both of them have passed away. That language works fine for Mary -- she is the biological mother of both Jon and Nola. It does not work for Mark -- he is the biological father of Jon but is not the biological father of Nola. He never adopted her either. That means Nola would be excluded from a share of Mark's estate if he was the second member of the couple to die. Mark loves both the children without distinction and has no intention of disinheriting Nola.
He needed a special phrase in his will to avoid that result. Words have to be inserted to make it clear both Jon and Nola are to be treated as his children for all purposes under the will.
When is a child a child? Legally, a child is a person linked to the parent by blood or by adoption.
Stepchildren do not qualify. Special language is required in the will to change that.
You might think this does not apply to you. Maybe. What about your grandchildren? Wills normally include a clause dealing with what happens if one of your children predeceases you, and gives the share of the deceased child to any grandchildren you have through that deceased child. That result is often buried from plain view in the use of the following legal phrase that you may find in your will: "among the issue of the deceased child in equal shares per stirpes." Lawyers love Latin. If you have step-grandchildren, you should consciously decide whether you want them included or excluded from possible inheritance. Should they stand shoulder to shoulder and share alongside your biological and adoptive grandchildren?
For some grandparents, the answer to that question is "absolutely yes." For others, the answer is "absolutely no." One way or the other, some specific language should be in your will to make your wishes clear on the point. You do not want to leave the family in a position where they have to consult a lawyer after you are gone to clarify the legal definition of "child," "grandchild" or "issue." That will allow a nasty little element of doubt to creep in. Did you really mean to exclude the step grandchild or was it inadvertent?
Mark and Mary are real. Facts and names have been changed extensively to protect their confidentiality.
John E.S. Poyser is a lawyer with Tradition Law LLP. Contact him at 204-947-6802 or email@example.com, or visit www.traditionlaw.ca.
Republished from the Winnipeg Free Press print edition July 17, 2013 B5
Have you found an error, or know of something we’ve missed in one of our stories? Please use the form below and let us know.
Having problems with the form?Contact Us Directly
Even the Homeless Hero needed to be rescued
The doctor's diagnosis is in: I'm a rust bucket
Watchful lawyer exposes imposter scam
Time to confront straying wife over affairs
Province could end city hall's ethics problems
Blue will win, cuz they got each others' backs
It's about time to drop that torch, buddy
Law poses dilemma for NDP
Itsy-bitsy spider had murder in its eyes
Boom in West Broadway
Before the Great War, people travelled freely without passports or identification
First Nations rarely see charity meant for them
Lake foreplay OK, but best to stick to land loving
Where there's smoke there may, or may not, be fire
Who'll pay for a poll?
Blues can't lose
Fears should be faced, not embraced
Doc delves into dire straits of flood evacuees
Catalogue of culture
Brandon needs real fix for floods
The risks of being conservative
Thanks for letting me into your lives
Trending that caught Doug's eye: Comic curse
The long, long view
In conversation with... TV stars
Reading between the lines
Sunday bloody Sunday
My complete guide to being a modern hipster
Replacing TFSA money too early will cost you
Don't get knickers in a knot over outdoor shower
Statue of city's greatest golfer seems natural
Village tradition: Quality carries on into second generation
Bombers lacking basics of football
Emerging artists' show somehow succeeds in spite of itself
Kiss-and-tell hubby needs to call off his leering brothers
Frustration over flooding prompting many to sell their farms
Clean-scrubbed comedy came naturally to Regan