The decision in Koziarski Estate v. Sullivan serves as a reminder that there are still cases where children born outside of marriage may fall outside the definition of a class of beneficiaries – like “issue” or “grandchildren” – in a will.[1] In Koziarski, the estate trustee brought an application for advice and directions relating to the interpretation of the word “issue” in the deceased’s 1977 will, which was made before the deceased had any grandchildren.

The deceased’s will contains the following residue clause:

3 (c) To divide the remainder of my estate equally among such of my children as shall be living at the time of my death; provided that if any of my children shall predecease me, leaving issue him or her surviving, such issue shall take in equal shares per stirpes the share that such deceased child would have taken if living.[2]

The application for advice and directions was brought because one of the deceased’s children, who had an illegitimate child, died before the testator. The Court was therefore tasked with determining whether or not the word “issue” in the deceased’s will included the deceased’s illegitimate grandchild.

The applicable legislative provision, s. 1(3) of the Succession Law Reform Act,[3] which provides that children born outside of marriage are treated the same as children of a marriage, unless a contrary intention is shown in the will. However, s. 1(4) provides that “Subsection (3) applies in respect of wills made on or after the 31st day of March, 1978.”

Counsel for the illegitimate grandson of the deceased argued that, while the s. 1(4) presumption applies only to wills made after March 31, 1978, the Court was not barred from interpreting the word “issue” based on modern, inclusive social mores. Counsel relied on an interesting series of cases from British Columbia[4] to argue that the Court could apply the modern definition of “issue” to wills made prior to the enactment of s. 1(3).

In the earliest of those cases, Re Hogbin Estate, the Court was asked to interpret a clause in a 1927 will that left the residue of the estate to the surviving children of the deceased’s daughter. The deceased’s daughter died leaving one child, born outside of marriage. Manson J. held that the illegitimate granddaughter of the deceased was entitled to inherit the residue, relying on the surrounding circumstances at the date of execution as well as a 1925 amendment to the Administration Act,[5] which allowed illegitimate children to inherit on an intestacy. His Honour also relied on a series of English cases that favoured modern interpretations of terms where previous interpretations would create an injustice.[6]

Despite the submissions from the illegitimate grandson, the Court held that he was not entitled to inherit a portion of the residue, as s. 1(3) could not be applied to wills executed in 1977. Additionally, it could not be determined whether the deceased intended any illegitimate heirs to inherit based on the surrounding circumstances at the date of execution or the words of the will, which was executed prior to the birth of any of the deceased’s grandchildren. The Court was therefore unable to apply current notions of public policy to allow the illegitimate grandson to inherit under the deceased’s will.