Canada: Posthumous Conception: Recent Changes To The Succession Law Reform Act And Their Impact On Estate Law

Last Updated: October 24 2017
Article by Krystyne Rusek

As of January 1st, 2017, new rules regarding parentage were put into effect by the Ontario government, pursuant to the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016 (the "AFAEA")

One change, which will impact estate planning and administration, is the creation of succession rights for children of a deceased person, conceived and born after the death of that person.1 Should certain conditions be satisfed, these children will be entitled to inherit and or receive support from the estate of the deceased parent and potentially from the estates of the relatives of that deceased parent.

Amendments to the Succession Law Reform Act

Prior to January 1st, 2017, the parent of a child, for the purposes of succession, was the father or mother of a child. The terms "father and "mother" have been deleted in the Succession Law Reform Act (the "SLRA") by the AFAEA and parentage is now determined in accordance with a set of rules in Part II of the Children's Law Reform Act (the "CLRA").2

The AFAEA also expanded the defnitions of "child" and "issue" in the SLRA to include children and descendants conceived and born after the death of a parent, provided a number of conditions are met:

  1. Notice: The spouse of the deceased must give written notice to the Estate Registrar for Ontario that the spouse may use reproductive material (sperm, eggs) or an embryo to attempt to conceive a child in relation to which the deceased person intended to be a parent. The notice must be in a prescribed form and given no later than six months after the deceased person's death. Where an estate representative fles an application for probate, it appears that the Estate Registrar will notify the estate representative that a notice of intention to conceive has been fled.
  2. Birth of child: The posthumously-conceived child must be born no later than the third anniversary of the deceased person's death, or such later time as may be specifed by the court, in appropriate circumstances.
  3. Declaration of Parentage: Acourt has made a declaration establishing the deceased person's parentage of the posthumously conceived child. In order to obtain a declaration of parentage with respect to the deceased person, the spouse must establish that the deceased provided written consent to parentage of a posthumously conceived child, and that said consent was not withdrawn.

Impact on Estates

Testate Estates and Will Interpretation

As discussed, the defnition of "child" and "issue" in the SLRA has been expanded to include children and descendants conceived after the death of the deceased, provided the above-noted conditions are met. These new defnitions will apply to a person's Will, unless a contrary intention is refected in the Will. It appears that this change is not retroactive, and therefore only Wills drafted after January 1st, 2017, will be subject to the new defnitions.

Clients will need to advise their lawyer if they, their children or other benefciaries under their Will, have stored or intend to store any reproductive material (eggs, sperm, embryos). If so, clients will need to decide whether they want posthumously conceived children and issue to inherit under the Will.

On the drafting side, lawyers will need to draft Wills that contain clear defnitions of "child", and "issue" so as to refect the intentions of their clients. Lawyers may consider a separate testamentary trust for posthumous conceived children, with strict time limits and notice requirements. Lawyers may also wish to review the clients' documents relating to the use of stored reproductive materials,3 and discuss the written consent to parentage required under the CLRA.

Intestate Estates

Where an individual does not have a valid Will, the defnitions of "child" and "issue" under the CLRA will apply to the distribution of the estate, and a posthumously conceived child of the deceased parent will be entitled to share in the distribution of the parent's estate, provided the conditions set out above are satisfed.  Posthumously conceived children may also be entitled to inherit from the estates of their relatives and antecedents, e.g. grandparents, uncles, etc.

Dependant Support

Under the new defnitions, posthumously conceived children may be entitled to dependant support from the estates of deceased parents. The conditions discussed above will need to be satisfed, and a claim will need to be commenced, on behalf of the posthumously conceived child, within six months of the deceased's parent's death. This claim will be stayed until the birth of the child.

Estate Administration Generally

The expansion of the defnitions of the terms "child" and "issue", and the related procedural steps to establish parentage of a posthumously conceived child, will complicate the administration of certain estates. In these estates, delay in the administration of the estate may be inevitable, especially where a dependant support claim is commenced. As well, the estate representatives may be subject to additional responsibilities and duties, which could result in new areas of risk and liability.


In response to advances in reproductive technology, the legislature has taken steps to ensure that posthumously conceived children are afforded some rights with respect to the estates of their deceased parents. As the frequency of posthumous conception increases in the future, many questions will arise with respect to the interpretation of these statutory amendments. Unfortunately, until judicial interpretation has occurred on the amended legislation, a great deal of uncertainty will exist with respect to the rights of posthumously conceived children and the obligations of estate trustees. Both clients and lawyers must be aware of the potential effects of the new legislation and ensure that the client's intentions are refected in his or her estate plan.4


1 Advances in technology have enabled sperm, eggs and embryos to be stored for future implantation The date of conception is considered to be the date on which the reproductive material or embryo is implanted in the birth parent

2 The rules of parentage are complex in nature and will not be discussed in this article

3 Use of genetic material is regulated by the Assisted Human Reproduction Act, S C 2004, c 2, which requires that written consent be provided by the donor of the material, whether before or after the donor's death (s 8)

4 This topic was presented by the author on Day 2 of the 20th Annual Estates and Trusts Summit on October 17th, 2017

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Gardiner Roberts LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Gardiner Roberts LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions