Most clauses in a Will are (or should be) clear on their face.  That being said, certain standard clauses  – even when drafted in plain English – may be opaque to the layperson.   The “persons born outside marriage” clause is a good example of a provision which begs an explanation.

In Ontario, the concept of illegitimacy was abolished in 1978.  The Succession Law Reform Act explicitly eliminates the distinction between persons born within and outside marriage for the purposes of succession under either intestacy or a Will.  Moreover, pursuant to the Estates Administration Act, a personal representative is required to “make reasonable inquiries for persons who may be entitled by virtue of a relationship traced through a birth outside marriage”.  In the case of a class gift (i.e. a gift to a group such as “my grandchildren” or my “nieces and nephews”) a personal representative is required to make said reasonable inquiries in order to determine just who belongs to the group.  Efforts may include searching records of the Registrar General relating to parentage.  In other words, the estate trustee may not simply go ahead and distribute to the children born within the marriage of the testator’s son and daughter-in-law, as the son may have fathered other children outside of the marriage.  Any such “other children” may very well be entitled to share in this class gift  and the personal repesentative who fails to make reasonable inquiries to identify them, may well find themselves personally liable for their loss.

As such, where a Will contains a class gift, the solicitor may advise including a “persons born outside marriage” clause*.   This recommendation is not based on some moral bias.  Instead, the clause should be recommended in order to protect the estate trustee and relieve them from having to make these “reasonable inquiries”.   The clause should not however be considered “boilerplate” and included as a matter of course; particularly with approximately one-quarter of children in Canada being born to unmarried couples, many of whom do not subsequently marry.  A testator may very well want to benefit grandchildren who were born outside marriage.    Where such grandchildren are not specifically named in the Will, but are instead denoted by way of a class, inclusion of the “persons born outside marriage” clause would result in their disinheritance.  With A prudent solicitor will ensure all clauses – including the so-called “boilerplate” – make sense in the situation and are reviewed with and approved by the testator.

*sample cause

Unless otherwise specifically provided any reference in this my Will to a person in terms of a relationship to another person determined by blood or marriage shall not include a person born outside marriage, nor a person who comes within the description traced through another person who is born outside marriage, provided that any person who is born outside marriage but whose parents subsequently married one another shall not be regarded as a person being born outside marriage but shall be regarded as having been born in lawful wedlock to his or her parents, provided that any person who is or has been legally adopted shall be regarded as having been born in lawful wedlock to the adopting parent.