Man born out of wedlock can’t inherit from grandmother, Ontario court rules

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 interpret- ation 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.

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.