December 12, 2013 Sections
Winnipeg Free Press - PRINT EDITION
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