There are some fairly typical claims that we see in estate litigation:  wills variation, lack of testamentary capacity, undue influence, resulting trust over jointly owned assets, and improper conduct by executors.  L.T. v. D.T. Estate 2019 BCSC 2130 [“L.T.”], a decision of the B.C. Supreme Court handed down on December 9, 2019, was not a typical estate litigation case.

In L.T., the petitioner wife applied for an order that her deceased husband’s sperm be removed from his body to be used for reproductive purposes by his wife.

The Assisted Human Reproduction Act and the Assisted Human Reproduction (Section 8 Consent) Regulations allow you to provide written consent to remove human reproductive material from your body after your death for the purpose of creating an embryo.

However, the deceased person had not provided his written consent in the L.T. case.  The deceased and his wife had never discussed the issue.  He had died suddenly and unexpectedly.  He had been in a long term relationship with his wife.  They had very recently become parents, and it was accepted that the deceased expressed while alive that he wished to have more children.

The wife argued that the requirement for written consent should only apply when a deceased person contemplated or anticipated their death, and should not apply when the death was unexpected.  The court rejected this argument.  The court also rejected the argument that the sperm removed and stored (pending a court ruling) was property which vested in the wife.

The application was dismissed.  The wife was not entitled to receive her deceased husband’s sperm for reproductive purposes because he had not provided his written consent during his lifetime.

As the court noted, most young couples do not put their minds to this set of circumstances.  But with ever-improving technologies and changing views of ethics and the family, this is likely a discussion that will continue in the home, in the legislature, and in the courts.