Estate Litigation Blog

What’s the “issue” with not updating your will?


by Matthew Rendely, Published: May 16, 2017

Tags: children born outside of marriage,  estate litigation,  issue,  wills

On Monday, May 1, 2017, the Honourable Douglas K. Gray of the Superior Court of Justice in Ontario held in the case of Henry Koziarski, as Estate Trustee of the Estate of Jadwiga Koziarski v Jesse Sullivan, 2017 ONSC 2704, that Jesse Sullivan (“Jesse”) did not fall under the class of  “issue” as defined in his grandmother’s will.

Jadwiga Koziarski (“Mrs. Koziarski”), Jesse’s grandmother, made a last will and testament dated December 14, 1977. At the time Mrs. Koziarski made her last will she had two children and no grandchildren. Prior to the enactment of legislation in 1978, the common law held that the definition of “issue” or “child” (i.e., descendant) within a will only include children born within a lawful marriage (i.e., “legitimate” children), unless the wording of a will or circumstantial evidence demonstrated that the testator had a contrary intention.

Mrs. Koziarski’s will was basic: the residue of Mrs. Koziarski’s estate was to be left entirely to her husband. If Mrs. Koziarski’s husband should predecease her, Mr. Koziarski’s estate was to be divided into equal shares and distributed between her two children. However, in the event that any of Mrs. Koziarski’s children should predecease her, the predeceasing child’s share was to be distributed to his or her “issue” in equal shares per stirpes (i.e., divided in equal shares among the predeceasing child’s total living children at the time of the testator’s death).

Jesse was born to Mrs. Koziarski’s son eleven years after Mrs. Koziarski made her last will. Jesse’s father and mother had a short relationship but never married. Jesse’s father later married a different woman and had a “legitimate” daughter named Nicole. Jesse’s father predeceased Mrs. Koziarski. Pursuant to the terms of Mrs. Koziarski’s will, Jesse sought to inherit half of his father’s share of his grandmother’s estate, and the other half was to be distributed to Nicole.

Jesse’s uncle, Henry Koziarski in his capacity as Estate Trustee of the Estate of Jadwiga Koziarski, brought an application for the opinion, advice or direction of the Court to determine whether Jesse was entitled to receive half of his father’s share in Mrs. Koziarski’s estate.   

In 1978, the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”), as it is now known, remedied the gap in the common law, which affected children born outside of a marriage. The SLRA provides that, there is alegal presumption that any will made on or after March 31, 1978 in Ontario containing the terms “issue” or “child” includes persons born outside of marriage unless the testator’s contrary intention is shown.

Mrs. Koziarski’s will did not express any intention for children born outside of a marriage to be included within the class of “issue”. Further, Mrs. Koziarski’s lawyer did not submit sufficient circumstantial evidence for the Court to determine that Mrs. Koziarski intended to include children born outside of a marriage, such as Jesse, in her will. Consequently, Justice Gray held that the SLRA did not bring Jesse within the class of “issue” under the terms of his grandmother’s will, since Mrs. Koziarski’s will pre-dated March 31, 1978. However, Justice Gray recognized that had Mrs. Koziarski simply updated her will any time between March 31, 1978 and her date of death on February 15, 2016, Jesse would have been legally presumed to fall within the class of “issue” under his grandmother’s will.

Justice Gray preferred to strictly interpret the SLRA rather than invalidate Mrs. Koziarski’s will to protect Jesse’s interests on grounds of public policy that Mrs. Koziarski’s will ought not to discriminate between “legitimate” and “illegitimate” children. Although Justice Gray recognized that a distinction between children born inside or outside of a marriage offends societal norms, his Honour favoured legislative deference over judicial activism. While Justice Gray’s decision is legally correct, it may have sweeping consequences whereby other groups of historically disadvantaged persons are unintentionally prevented from benefitting under the wills of their family members and loved ones.

Similar to the SLRA, the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) provides that any will made in Ontario on or after November 1, 1985 that uses the term “issue” or “child” includes adopted persons. Effectively, the CLRA precludes adopted persons from benefitting under a will made in Ontario before November 1, 1985 if a testator’s contrary intention cannot be demonstrated on the face of a will or by circumstantial evidence. Based on Justice Gray’s decision, this legislative gap in the CLRA may lead to an influx of future claims by unintentionally overlooked hopeful beneficiaries.

In summary, there are many issues with Justice Gray’s strict interpretation of the class of “issue” under Mrs. Koziarski’s will, none of which include her own grandson.


This case is a strong reminder to annually review your will to ensure that its terms align with your testamentary intentions and familial circumstances.

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