By Zachary Murphy-Rogers and Vivian Thieu

Our society’s understanding of what constitutes “family” is everchanging, especially in light of our appreciation and recognition of the many different forms a relationship can take. This has further changed with possibilities that have arisen through the emergence of reproductive technology.

But, this emergence has led to other questions, specifically in the realm of estate planning: what rights do children conceived through reproductive technology have, and how does their existence affect their parent’s estate when that parent dies?

The Law

In the case of Bull v. Sloan, 1938 CanLII 231 (BC CA), the British Columbia Court of Appeal decided that the posthumously-born child was not entitled to a share in their deceased father’s estate. The deceased father had left all of his property to his wife and three existing children. When he learned that his wife was pregnant again, he discussed with a friend about constructing a new will to include the expected child. The deceased father died unexpectedly in an accident before a new will could be completed. The court ultimately found that “any construction which would entitle the posthumous child to share would do violence to the unambiguous language of the will”. This means the court preferred the interpretation of the will that benefited only the children who were alive at the time of the father’s death.

The law has since developed in what we view as a positive direction.

Section 8 of the Wills, Estates and Succession Act (“WESA”) establishes that descendants or relatives of an intestate (that is, a person who died without a will) who were conceived before the intestate’s death, but born after and living for at least five days, can inherit as if they were born while the intestate was alive.

Further, British Columbia and Ontario are the first two provinces in Canada to consider posthumous conception. Section 8.1(1) of WESA establishes that a descendant of a deceased person, conceived and born after the person’s death, inherits as if they had been born during the lifetime of the deceased if:

• a person who was married to, or in a marriage-like relationship with, the deceased person when they died gives written notice, within 180 days… to the deceased person’s personal representative, beneficiaries and intestate successors that the person may use the human reproductive material of the deceased person to conceive a child through assisted reproduction;
• the descendant is born within two years after the deceased person’s death and lives for at least five days; and
• the deceased person is the descendant’s parent under Part 3 of the Family Law Act.

Practical Implications

There are many circumstances that could arise in the application of section 8.1(1).

If the deceased dies intestate (meaning, without a will), their biological material will be held for up to 180 days, or until their partner provides written notice that they plan to begin the process of posthumous conception. This means that the surviving partner must decide quite quickly through the grief of losing a loved one whether or not they would like to conceive a child. If they do decide to do so, then the administration of the deceased’s estate will remain on hold, possibly until the two-year period is up, pending whether a child is born or not. This raises another issue, as the use of reproductive technology is very expensive, and without access to the deceased’s estate to support this endeavor, the prospects of conceiving within the two-year timeframe may prove financially challenging for the surviving spouse.

Another circumstance to consider is when the deceased dies with a valid will. If the deceased’s will is addressed broadly to “their Children”, then the posthumously-conceived child will be included and would be able to benefit. However, the posthumously-conceived child would not be included if the deceased names specific children as their beneficiaries (as the will would understandably fail to name the child that was not yet born at the deceased’s death). As a result, the posthumously-conceived child will have to bring a wills variation claim through a litigation guardian, pursuant to section 60 of WESA.

There are ultimately many different factors that an individual has to consider when making the decision to posthumously conceive which may be restricted by section 8.1(1), such as grief, finances, and time.

Furthermore, the interplay between posthumous conception and a deceased’s estate is not an entirely new concept to the courts. The ownership interests of the reproductive material that is used for posthumous conception is also a relevant consideration.

Assisted Human Reproduction and Ownership  

In the case of W. (K.L.) v. Genesis Fertility Centre, 2016 BCSC 1621 [W (K.L.)], the Court granted an application for a declaration that a wife’s deceased husband’s reproductive material was her sole legal property that should be released for her use to create embryos. The deceased had a severe medical condition and had stored his reproductive material with this intention. The deceased died without providing written consent for his wife to use his reproductive material, as required by the Assisted Human Reproduction Act (“AHRA”). However, the Court found that “the circumstances in this case were extraordinary, as the deceased freely and repeatedly expressed his consent to his wife’s use of his reproductive material following his death… [and] to deny his wife this use would be unfair and affront to her dignity”.

This case was distinguished in L.T. v. D.T. Estate (Re), 2019 BCSC 2130 [L.T.], which was upheld by the British Columbia Court of Appeal. The court denied the wife from posthumously conceiving using her deceased husband’s reproductive material because he had not provided his prior informed and written consent for her to do so (for a deeper analysis into this case and its implications, please see the article written by CW’s Jeannette Aucoin and Shiona Nickel here).

What these two cases differ on is whether the reproductive material was considered to be property that formed part of the deceased’s estate at the time of their death, which would then pass down to their surviving spouse for their use. In W. (K.L.), the reproductive material existed before the deceased’s death and was stored with the intention that the deceased would hold the rights of use and ownership. These rights would then pass to the surviving spouse. Whereas, in L.T., the removal of the reproductive material was not initiated until after death, which prevented it from being considered property.

Takeaway

The law has demonstrated that there is a relationship that exists between reproductive technology and a person’s estate, especially as alternative methods of family-forming become more common. What we can glean from the law is that posthumous children are legally recognized as children, but little has been said in practice about what this means in terms of their inheritance. While the courts have yet to interpret section 8.1(1) of WESA, it has certainly worked to expand the rights of posthumously-conceived children and affirmed their succession rights, including their right to share in the estate of their deceased parent.

Our team of experienced Estates & Trusts and Family lawyers can ensure that you and your partner have signed the appropriate consent forms and that your children’s ability to inherit from you is accounted for. Please do not hesitate to contact us if you have any further questions or inquiries.