Estate Planning

Who Says Blood is Thicker Than Water?

By Hull & Hull LLP

An Italian Prince and Princess are squabbling over their late mother's inheritance, which includes an extensive art collection with works by Caravaggio and Raphael, and a palace in Rome.  The sister (Princess Gesine) has asked an Italian Court to exclude her brother's (Prince Jonathan) children as heirs because his children were conceived with surrogate mothers and she does not "approve" of his homosexual lifestyle.  The Irish Independent has reported on the story and has indicated that under Italian law, the surrogate children "are not recognized and have no legal rights on the family fortune".  Read more about the story here. Notably, the Prince and Princess themselves don't have royal blood but were rather "plucked from obscurity" and adopted from a British orphanage by their Italian Princess mother.

In Canada, adoption is a matter of provincial jurisdiction and according to s. 158(2) of the (Ontario) Child and Family Services Act once an adoption order is made, the child becomes the child of the adoptive parent, and ceases to be a child of the person who was his or her parent before the adoption order was made.

Wills in Ontario frequently provide clauses excluding children born outside of marriage, as both persons born inside and outside of marriage are entitled to share equally in an estate (s. 1 of the Succession Law Reform Act and s. 1(1) of the Children's Law Reform Act ).  Therefore, it is not uncommon to include a clause excluding illegitimates, if the person making a will has a contrary intention to what is mandated by the existing legislative framework.  Practically, an exclusion of illegitimates clause in your will can also make the life of a trustee a little easier by narrowing the scope of inquiry for members of class gifts that may be illegitimate (which can be costly and time consuming).  However, this kind of clause may have the undesired effect of excluding children born of common law relationships.  Including a further clause, to the effect that an exclusion clause shall not apply where the parents have demonstrated a "settled intention" to treat such person as a "child" of the union, can help to avoid such unintended consequences.

Sarah Hyndman Fitzpatrick

Sarah Hyndman Fitzpatrick - Click here for more information on Sarah Fitzpatrick.

Full post as published by Toronto Estate Law Blog on October 26, 2009 (boomark / email).