Recently, I wrote about DNA testing orders in estate litigation and noted that, to date, British Columbia courts have limited the legal definition of “child” for wills variation claims to biological or adopted children. I also highlighted that the Court of Appeal had left open the possibility that a future case could revisit this definition.

That possibility was directly considered in the chambers decision of Stainer v. Thurgood, 2026 BCSC 326.

In Stainer, the administrators of an estate applied under Rule 9‑6 of the Supreme Court Civil Rules to summarily dismiss a wills variation claim on the basis that there was no genuine issue for trial. The plaintiff admitted that she was neither the biological nor adopted child of the deceased. The dispute centered on whether she nonetheless had standing to bring her claim.

The plaintiff and the deceased discovered via DNA testing in 2016 that they were not biologically related. In 2018, the deceased executed a will leaving his estate to his brother and made a statutory declaration that he had never fathered or adopted any children. The plaintiff, however, had been listed on the deceased’s birth certificate, raised as his child, actively parented by him, and maintained a lifelong relationship with him, albeit with some rough patches.

The defendants argued that the Court was bound to dismiss the claim by the Court of Appeal’s decisions in Peri v. McCutcheon, 2011 BCCA 401 and Hope v. Raeder Estate, 1994 CanLII 2185 (B.C.C.A.), which held that for purposes of wills variation claims, “child” is limited to biological or adopted children. They also noted that with the introduction of the Wills, Estates and Succession Act in 2014, after Peri was decided, the legislature did not expand this definition.

The plaintiff countered that she was a child of the deceased in all practical and moral respects and that it would be contrary to modern ethical standards to find that he owed her no moral or legal duty at death. She relied on shifting social norms in family law, including recognition of diverse family structures, and argued that the courts should reconsider the definition of “child.”

Courts considering applications to strike claims under Rule 9-6 cannot weigh evidence against the plaintiff, and should tend toward allowing novel claims. A claim can only be dismissed if, assuming all uncontested facts are true, it is “beyond a reasonable doubt” that no genuine issue for trial exists.

The chambers judge considered the comments of the court in Peri, that the question of expanding the definition of “child” “should await a more compelling factual foundation.” The plaintiff argued that her relationship with the deceased was that “‘more compelling” foundation and that societal norms had evolved beyond the heteronormative assumptions underlying existing precedent. She relied on the legal principle that the law is a “living tree” that can evolve to address contemporary realities.

The Court in Stainer ultimately concluded that the precedents in Hope and Peri did not bar all wills variation claims from non-biological and non-adopted children in B.C., and rather expressly left open the possibility of an expanded definition.  A triable issue was present, the defendants’ application was dismissed, and the plaintiff’s claim could proceed to trial.

Takeaway

If the trial of this matter goes ahead, and is decided in the plaintiff’s favour, the case could be a significant development in estate litigation in B.C.; potentially allowing stepchildren and others, like the plaintiff, who were previously excluded to bring wills variation claims.