A man who was born out of wedlock has been denied a share of his grandmother's estate after an Ontario court found the law at the time the woman's will was made excluded children born outside a marriage.
Though children born out of wedlock faced less stigma by the time Jadwiga Koziarski made her will in 1977, they were not considered to fall under the label of "children" in wills unless specifically mentioned, the court said.
A change in Ontario's succession law the following year made it clear that the terms "child," "children" or "issue" — which means descendants — should include those born outside a marriage, but stated that the change only applied to wills written from that point on, the court said.
As a result, the court said 28-year-old Jesse Sullivan cannot inherit part of Koziarski's estate, which her will said should be split between her two sons and, if any of them died before her, their descendants.
Sullivan's lawyer had argued that the exclusion of children born outside marriage was established through the courts at a time when social mores were different, and it should be eliminated through the courts now that attitudes had changed.
What's more, the lawyer argued, Sullivan had a relationship with his grandparents, who had set up a registered education savings plan for him.
David Freedman, who teaches estate law at Queen’s University, said the ruling shows a need for greater guidance on how to apply public policy to the interpretation of wills so that the outcome reflects current values.
"Most Canadians I don't think would be pleased at this result because it doesn't accord with contemporary expectations at all," he said. "It was an unpalatable result."
Freedman said he hoped the case would be appealed so that a higher court could weigh in on the role of public policy.
"Outside of unusual cases, I would think that it's most probable that grandparents would treat their biological grandchildren the same, whether they're born to married parents or born to unmarried parents," he said.
"And that does have a lot of impact across the board, how judges are going to approach the interpretation of these wills given society's expectations."
Court documents show Koziarski, who died in February of last year at 94, had two sons with her husband. Their son Henry had two children, as did their son George, though one was born from a relationship that predated his marriage.
Henry did not recognize Sullivan as his nephew, though the court said it was satisfied he was Koziarski's grandson.
None of the grandchildren were born when Koziarski wrote her will, which left everything to her husband, or to their sons if he died before her.
Both Koziarski's husband and her son George predeceased her. As a result, George's share was to be portioned out between his descendants.
The judge said that while there is no reason in principle why a child born out of wedlock should be treated differently, the courts must respect the will of the legislature.
"On one level, the policy choice would appear to be obvious – a child born out of wedlock is just as much the child of his or her parents as a child born to married parents," the court decision reads.
"However, in this case the court is confronted with a policy choice that appears to have been made by the legislature that is contrary to the intuitive result."
