Inheritance denied to man born out of wedlock

While ‘technically correct,’ lawyer says, ruling offends modern definition of children

When Jesse Sullivan’s grandmother Jadwiga Koziarski died, she left behind a will that — if it were written today — would entitle her children and their children to her estate.

But a court ruled on Monday that Sullivan, whose father died before his grandmother did, is not entitled to the estate because he was born out of wedlock.

“With a good deal of regret, I hold that in this case the respondent, who was a child born out of wedlock, is not entitled to share in the estate of his grandmother,” wrote the justice for the Ontario Superior Court, Douglas K. Gray.

“There should be no reason in principle why such a child should be treated differently.

“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.”

Jessica Feldman, an adjunct professor of wills and estate planning at the University of Toronto and an estate lawyer at Bales Beall LLP, said the decision, though unfortunate, is “technically correct even though it offends our modern definition of children and issue.”

This case is a good reminder to review wills made a long time ago, said Feldman, who recommends taking out wills every three to five years to make sure they still meet their objectives and suit the family situation.

The person at the centre of the case, 28-year-old Sullivan from Toronto, was the only child from a “loving” six- or seven-year relationship between his father and his mother, he said.

Both his parents had been married before they met, so they were in no rush to get married again.

After their relationship ended, his father moved to Florida and remarried and his relationship with Sullivan languished, along with Sullivan’s relationship with his grandmother.

The legal process and the ruling have been difficult for him, he said.

“For me, this process hasn’t been about a dollar value at all. It’s more about the principle,” he said. “I want the right thing to be done. I wanted justice going in.” The result left him shocked, he said. “I felt sort of let down by the justice system. This is my grandmother and if she was here today she would have absolutely wanted me to get my fair share of the estate.”

The legislation that has divided the family is in the Succession Law Reform Act, which states that wills made on or after March 31, 1978, in Ontario that use terms like “issue” or “child” will include people born out of wedlock.

Sullivan’s grandmother, whose first language was Polish, had her will made in December 1977, when common law dictated that terms like “issue” and “child” referred only to children born in wedlock.

Sullivan’s lawyer, Rochelle Cantor, said she doubts a lawyer told her any illegitimate children would be excluded from the will, in fact, she said, she doubted his grandmother fully understood the will as it was written.