Reproductive Technologies and the Wills Variation Act


In order to qualify to bring an action under the Wills Variation Act, a child must be either the biological or adopted child of the deceased/testator. In the modern age with various methods of conception and blended families, this can sometimes have unsatisfactory consequences.

Step-children are not entitled to bring WVA claims. Also, a birth child of a testator who has been adopted by another party is prevented from applying under the WVA. However, court challenges are testing the limits of whether a person qualifies as a child for the purposes of the WVA. In Doman Peri v. Doman Estate, the deceased was the husband of the plaintiff child’s mother but not the child’s natural or adoptive father. Despite supporting her during periods in her life and being listed as her father on her birth certificate, the plaintiff did not qualify as a child and was barred from bringing a WVA claim. The court held that the facts did not justify a reconsideration of a previous Court of Appeal decision which limited the definition of children in the WVA to natural or adopted children. While the court did not alter its previous decision, they left open the possibility of doing so in a “more compelling factual foundation.”

As more children are conceived through artificial technologies, it will be interesting to see whether or not they too, as biological children, can make a claim under the WVA. A recent lawsuit was brought by Olivia Pratten who was conceived by artificial insemination. She wanted to learn the identity of her anonymous biological father. The issue was whether the BC government should enact laws to assist those conceived by artificial insemination to obtain information about their biological parents. This is already possible for adopted children under the Adoption Act. Ms. Pratten was successful at the BC Supreme Court but the Court of Appeal decided that there was no legal right for such offspring to know their past and providing such information intruded into the donor’s life. Ms. Pratten plans to appeal to the Supreme Court of Canada.

Before any further appeal is likely to be heard, BC’s new Family Law Act will come into force. The FLA governs family law in BC. On March 18, 2013, s. 27 of the FLA will clarify how parentage is determined when a child is formed through reproductive technologies. Pursuant to that provision, a sperm donor has no parental status, rights or obligations unless there is a written agreement to the contrary. Unfortunately, neither the WVA or the forthcoming WESA incorporates the brave new world of reproductive technologies for the purposes of the definition of parentage or children. For now, it will be up to the court to expand its discussion of who qualifies as a child in order to bring a claim under the WVA.