Can an Adopted Child Contest a Will of Birth Parents?

Published on 29 August 2022, 07:22:56 AM

An adopted child of yours now wants back into your life and Will. Can they do that?

Reconnecting with an adopted child can be a joyful time. Now you’re spending more time together, you’re seriously thinking about including them in your last Will and testament. It can’t hurt, you think, and could just heal some old relationship wounds.

Or will it? Family reunions don’t always go well. You could just regret hasty decisions made in the initial excitement of finding an adopted child. Rest easy. 

Whose Child is This Anyway?

Your Will lets you recognize anyone you want as a beneficiary. That can include a child you adopted out.

But remember, adoption is for life. When you sign an adoption consent form, you lose the right to make decisions for your child. Your financial responsibilities to your child also end. From that point on, your child’s parent is whoever has lawful custody, and that makes your child the legal responsibility of their adoptive parents. 

So while you can include your adopted child in your Will, they are not a financial dependant for Will purposes. Even if your child is a minor when you die, they may not be legally entitled to a share of your estate, and an Ontario court may not overturn your Will for that reason.

What to do if an Ontario adult asks to be adopted and you consent.  

Challenging an Executor of Will in Ontario

Just because Ontario’s law presently prevents an adopted child from overturning your Will by challenging an executor doesn’t mean you may not be served with a legal claim by an enterprising lawyer. (Naturally, adoption doesn’t affect any Aboriginal rights your child has.) 

How to challenge an executor of a Will. 

Expect that the challenger will most likely be unsuccessful. Boer v Mikaloff (2017 BCSC 21) shows where Canadian courts stand on an adopted child’s right to ensure a biological parent’s Will makes “adequate provision” for their proper maintenance and support:

“Because the birth parents cease to have any parental rights or obligations, it must follow that the child ceases to have any rights against the birth parents….” 

Can an Adopted Child Find You?

So what if you’d prefer an adopted child not find you and interfere in your new life? You have reason to worry. With some limits, a child you gave up for adoption can uncover your identity. 

Because Ontario adoption records are open, every biological child has a right to information about you. Fortunately, you also have rights — about what is disclosed, and making contact with your child. 

• You can ask Service Ontario, or if they were involved, Ontario’s Children’s Aid Society, not to release your identity to children adopted before Sept.1, 2008. You do that by applying for a disclosure veto. 
• Your identity will be released to children adopted after that date. If desired, you can apply for a no contact notice. 
• Filing a notice of contact preference tells your adopted child you are willing to meet them, and how they can contact you. 

Challenging a Will in Ontario by applying to be executor yourself. 

Why You Need a Lawyer

Writing a Will that leaves your personal possessions and real property to beneficiaries of your choice saves your loved ones, or a court-appointed estate trustee, from having to make estate decisions for you. Instead of dying intestate without a Will, you give clear instructions to executors you appoint in advance on how to distribute a lifetime of assets and investments. 

Tips for drafting personal Wills in Ontario. 

Formal Wills protect minor or dependent children who rely on you for financial support. Axess Law arranges trusts, or appoints guardians of property to take your legal place when you are gone. 

Concerned about how a spouse will manage after you pass on? Who inherits family or matrimonial homes when you die is confirmed when you write a proper legal Will in Ontario.

• Axess Law makes real estate gifts to common law spouses normally excluded from property rights under Ontario’s Succession Law Reform Act. 
• We assist legally married spouses to apply for the right of survivorship automatically, without going through an Ontario probate court. 

Hire a lawyer for Wills. 

Whether you’re new to being an estate trustee, or familiar with what to do next, we prepare an application for a certificate of appointment of estate trustee with a Will to file in court. When your loved one dies without an Ontario Will, we arrange for you to apply to confirm your right to legally distribute their estate. You can drop off a copy of their last Will and testament at any Axess Law office, or email it for a virtual probate consultation.

What now? 10 things new executors must do. 

Flat Fee Lawyers for Wills or Probate 

You can make new Wills any time your personal or financial circumstances change with Axess Law’s low flat fee lawyer services. We charge for only the legal services you absolutely need. (Your first probate consultation is free!)

Draft new Wills for $199.99 and up plus HST, or $149.99 each and up plus HST when you bring a legally married spouse or common law partner to the same appointment. Save more by adding power of attorney for personal care and property (finances) at the same time.  

Add power of attorney to Wills and estates in Ontario. 

When travel is an issue, try our virtual lawyer services throughout Ontario. Axess Law’s virtual Will services are secure, confidential, and convenient. We draft your Will during a remote video conference call, then have you drop by any Axess Law location to sign. 

You get a copy for safekeeping and, for a modest, one-time fee, we can keep your original in our secure Wills storage. A virtual Will with two powers of attorney is only $249.99 and up each plus HST.  

Prefer to write your new Will in person? You can meet in person, COVID permitting, with an 

Axess Law Wills and estate lawyer at any of our open law offices. We have experienced Wills professionals near you throughout Greater Toronto Area and in Ottawa. In-person Wills with power of attorney are just $299.99 each and up plus HST. 

Make Online or Phone Appointments 

Access lawyers anywhere in Ontario using our online booking form. Our Wills and estates lawyers are available 7 days a week, day or evening, whenever you are. You can make your own appointments online in minutes, or get assistance by calling our 647-479-0118 lawyer line (toll free to 1-877-402-4277). Axess Law has lawyers for Wills or probate attorneys near you, and can book remote online video calls to suit your schedule.

Look for our onsite parking, or take transit to any Axess Law office location. Getting here is easy.