How could frozen embryos, ancestry apps, and the modern family impact your Will?

Intro Speaker:  

Hello, and welcome to Matters Beyond Wealth with your host, Leanne Kaufman, president and CEO of RBC Royal Trust. For most of us, talking about subjects like aging, late life, and estate planning isn’t easy. That’s why we’re going to help get the conversation started on this podcast while benefiting from the insights and expertise of some of the country’s top experts. We want to bring you information today that will help to protect you and your family in the future. Now, here’s your host, Leanne.

Leanne Kaufman:

Frozen embryos, once a topic generally reserved for fertility clinics have now found their way into the realm of estate planning. As more individuals turn to assisted reproductive technologies, questions arise about the intersection of frozen embryos and related material and inheritance laws. The legal considerations are complex, and they vary by province. In addition, thanks to things like ancestry apps and the revelation of long-lost family members, the concept of heirship is taking on new dimensions.

In this evolving landscape of new scientific advancements and an evolving concept of family, estate planners, and executors are finding themselves having to navigate unchartered waters.

Hello, I’m Leanne Kaufman, and welcome to RBC Wealth Management Canada’s Matters Beyond Wealth. With me today is Susannah Roth, an estate and trust lawyer and a colleague of mine here at RBC Royal Trust. Susannah is well-versed in estate planning, estate and trust administration, and estate disputes, with a specialization in multi-jurisdictional and cross-border estate administration.

Susannah was in private practice for over 20 years, and while she was there, she was recognized in both the 2019 and the 2020 editions of The Canadian Legal Lexpert Directory as a leading practitioner in estate and trust planning and estate litigation. She’s also been recognized as The Best Lawyers in Canada in 2020 within Trusts and Estates.

Susannah, thanks for joining me being here today to discuss reproductive technology, inheritance, and how they intersect with estate planning and why all of this matters beyond wealth.

Susannah Roth:

I’m happy to be here. Thanks for having me.

Leanne Kaufman:

So, prior to these advancements in reproductive technology that I’ve alluded to in our intro and then some of the legislative changes that came along to keep up with those advancements, who would have been considered an heir or an inheritor for the purposes of estate laws?

Susannah Roth:

That’s a good question. Prior to sort of the 70s and 80s, typically, the law provided that only legitimate heirs, so children born within marriage, could inherit if there was an intestacy—so, someone died without a Will or if they had named a class of beneficiaries in their Will, like children or grandchildren. And then, as society values evolved, most, if not all, of the provinces in Canada and territories in Canada at least changed their laws so that illegitimate children were included in the class of beneficiaries who could inherit.

But that only includes children who are either born before the person passes away, or in a lot of cases, what happens if there’s a beneficiary who is conceived but not born before the person passes away then that person is also typically included in the class of beneficiaries. So those people would all be considered to be heirs under the law. That’s still the law in most provinces, but not all.

Leanne Kaufman:

So, let’s talk about that. It’s interesting because you can see this being as society evolves, so do the laws, but maybe not as quickly as society. What changes have happened legally in recent years, and maybe in which provinces, if you can do that briefly, that have altered it from the way you just described it?

Susannah Roth:

Yeah, so right now, Ontario is the leading province in making these types of legislative changes. So, in Ontario, it brought in some quite new legislation that allows for children who are both conceived and born after someone passes away to be included as the person’s heir if certain conditions are met, of course. This basically deals with reproductive technology, obviously, otherwise, you’re not going to have a beneficiary born after the person passes away, as well as being conceived then too. As I said, if certain conditions are met, then that person might be considered to be an heir under the deceased person’s estate. This is pretty groundbreaking legislation, and Ontario is the only province to have brought it in so far. But I think that we can probably expect that other provinces are going to be looking at these types of issues and dealing with post-death children being born. As you say, society evolves, and more people are using reproductive technology.

Leanne Kaufman:

Just to be clear here, that the big change here is this idea of being conceived after the death of one of the two parents, right?

Susannah Roth:

Yes.

Leanne Kaufman:

Because there’s been reproductive material preserved and a choice is made after one of the two parents has died that they still want to use that material to have a child. I think that was kind of the really groundbreaking part that I recall.

Susannah Roth:

Yes, that’s one of the big groundbreaking parts of the legislation. In addition, also, Ontario now allows up to four parents per child. So you have an expanded definition of parenthood, and that means that, potentially, you have not just two biological parents but also extended parental relationships with a potential child. So there’s more people who may or may be in a parental relationship with the child.

In addition, we also have in a lot of provinces across Canada a lot of case law that has come out of different, more modern concepts of relationships. So that, in some cases, a court has found that a child is to be considered an heir under someone’s estate for the purposes of inheriting when they don’t actually have a genetic link to the person involved. So the person treats them as a child, and for the purposes of inheriting, the court has decided that that’s good enough.

Leanne Kaufman:

And this matters, like you said at the beginning, but just to reiterate the point when the Will leaves a portion of the estate to a category like my children or my grandchildren, right, and doesn’t name those individuals by name.

Susannah Roth:

Yeah, exactly, or if they don’t have a Will at all. So if they don’t have a Will at all, then their provincial legislation will govern what happens to their estate when they pass away, and typically, it’ll go to [their] spouse if they have one. And then that depends on the definition of spouse as to whether or not they have one and children, and again, the provincial legislation definition of children will govern. But as you say, often people will name, “I leave the residue of my estate to my children,” or they have a gift to grandchildren in their Wills. If it’s a category, then you have to look at the general law to determine who inherits.

Leanne Kaufman:

So, I’m going to come back to this concept in a second, but before we get there, if a couple have decided to freeze embryos or maybe unfertilized eggs or sperm, and then one of them passes away, whose… I’m going to use a crass word here, but whose property is that when the donor passes away?

Susannah Roth:

That’s a good question because the whole area of frozen genetic material and embryos, eggs, and sperm and other related genetic material is an evolving area of the law. So it’s actually unclear who has a, quote, unquote, ownership rights over these items we’ll call them, as you say, so using property for lack of a better term at the moment. The issue of who…and it’s a federally regulated issue as well, which is interesting because a lot of it, estate, in fact, most estate and trust succession issues are provincially regulated, but the issue of embryos and the use of embryos and who’s allowed to use them is a federally regulated area. So, you have to look at the federal legislation, and ownership is a difficult concept. But the legislation does provide that in order to be able to use genetic material for the purposes of creating a new life, then you must have the consent of both of the parties involved. If one of them has passed away, and that person did not provide written consent during their lifetime, then there have been court cases that have found that the surviving parent, or owner, is not able to use the genetic material to have another child after their death.

Leanne Kaufman:

Interesting, so then back to the concept of linking heirship or children in air quotes or grandchildren. Is it possible then, and maybe it depends on whether the deceased gave the consent or not, would it be possible for someone to have heirs that they or the rest of the family don’t know about based on the changes to the law?

Susannah Roth:

Yeah, absolutely. In the case of, quote, unquote, illegitimate heirs, then if you’ve got a category of beneficiaries and someone has had a child in another relationship that the rest of the family wasn’t aware of, then you can certainly have heirs pop up.

But in addition, in Ontario, you now have the ability to have heirs that are actually conceived and born after the person passes away. So, in fact, would not have been in existence during the person’s lifetime, and therefore, obviously, no one that they knew about. So, as I say, there are conditions involved, and it has to be within a three-year period of the person who passed away and so forth, but it certainly is possible.

Leanne Kaufman:

So, what a quagmire for people that are trying to help people plan their estates when this kind of reproductive technology is involved. Estate-planning lawyers or lawyers who might help clients draft their Will, how is the industry trying to address this in a tidy way when they’re drafting?

Susannah Roth:

That’s a good question, I’m not sure there’s always a tidy solution. It depends, of course, on the individual circumstances. The best approach is always you get as much information as possible.  Typically, with an estate planning lawyer, you’d start with having a fulsome conversation about the people’s circumstances. Do you have this type of genetic material? Have you created frozen embryos? What planning has been involved? What kind of consent has been given? What are your intentions with respect to this genetic material? Do you want your partner to be able to use it after your death potentially?

All of those circumstances, as well as delving into their individual circumstances, which  sometimes can be a bit of a fraught conversation sort of, “So these kids that you’ve put in your questionnaire here, these are all of your kids? Do you have any children from other relationships?” It’ll be a bit awkward, but it’s important to have those conversations. Also to have conversations about the relationships that the people’s relatives may have. Are your children all married? A lot of Wills have some standard causes in them, which would eliminate illegitimate heirs from inheriting, which in a lot of circumstances is what people want.

But now, as I say, with the evolving relationships, a lot of people just don’t get married anymore. They live in common-law relationships. They have children in common-law relationships, and their children are considered, quote, unquote, illegitimate for legal purposes. So if you have created a Will, which has excluded, then you might have grandchildren who you didn’t mean to exclude but are now excluded under your Will. So it’s important to have those conversations and make sure that every Will is drafted for the individual’s specific circumstances.

Leanne Kaufman:

Yeah. That concept of illegitimacy is sort of becoming antiquated, or has become antiquated when you think about modern families?

Susannah Roth:

Yeah, I would say so.

Leanne Kaufman:

What about if someone’s acting as executor? We do know that a lot more of us are going to end up having to do that as our baby boomers and the big population transitions in the next few years. How far would an executor need to go to satisfy themselves that there’s no other heirs who may be considered beneficiaries of the estate when you take these new laws into consideration?

Susannah Roth:

It’s going to depend on the circumstances. So, if the Will, as you say, or if the person died without a Will or they’ve got a category that includes other potential unknown beneficiaries, then the executor is going to have to do some due diligence to determine if there’s a possibility of other heirs being out there. How much will depend on the circumstances. It’s not cut and dry as to how much effort is necessary. It’s going to depend.

If you have a person who grew up and lived in the same town, got married, never moved anywhere, and everybody always knew everything about their business, then you’re going to be pretty sure that you know who all the heirs are. But if you have someone who went off and lived in Australia for 10 years and then came home and no one ever visited them there, they could have six kids there for all you know. So it’s just going to depend on a number of factors in each case.

Leanne Kaufman:

But you can see, at minimum, the executor maybe having to, again, have a couple of awkward conversations with the family left behind if they aren’t part of the family in particular.

Susannah Roth:

Absolutely. Yeah.

Leanne Kaufman:

Or did they ever do any of this assisted reproductive technology or have anything put away?

Susannah Roth:

Oh, yeah, absolutely. Yes, a certain degree of due diligence is going to be required. Having some conversations about, does this person have genetic material? Then what do we do with it? What has been consented to, which has not been consented to? What are the options? I mean, something will have to be done with that type of, quote, unquote, property, as well as, yes, as you say, some potentially awkward conversations about other potential heirs.

Leanne Kaufman:

Mm-hmm. Well, my goodness, it’s certainly a brave new world and lots of complications, so I think you and I probably would agree that this is another area where people need to get some really solid professional advice.

Susannah Roth:

Oh, yeah, 100 percent. Best first step is definitely to get solid professional advice, always.

Leanne Kaufman:

So, Susannah, if you just wanted listeners to remember one key message or one thing out of the conversation you and I have had today, what would that one thing be?

Susannah Roth:

I would say that, as with all circumstances, this type of issue always tells me that people need to get professional advice when they do their estate planning. Make sure that you get the advice that you need in order to properly plan your estate, and don’t leave an awkward, difficult mess behind for your beneficiaries and loved ones and executors to sort out for you.

Leanne Kaufman:

Well, that’s always sound advice. Thank you so much, Susannah, for joining me today to talk about the impact of these advancements in reproductive technology on inheritance and on estate planning and why this matters beyond wealth.

Susannah Roth:

Yep. Thanks very much for having me. It was a pleasure.

Leanne Kaufman:

You can find out more about Susannah Roth at RBC Wealth Management Royal Trust website or on her LinkedIn profile. If you enjoyed this episode and you’d like to help support the podcast, please share it with others, post about it on social media, or leave a rating and review. Until next time, I’m Leanne Kaufman. Thank you for joining us.

Outro speaker:

Whether you are planning for your own estate, the needs of your family or business, or you are an executor for a loved one’s estate, we can help guide you, simplify the complex, and support your life’s vision. Partner with RBC Royal Trust and ensure your legacy will thrive for generations to come. Leave a legacy, not a burden™. Visit rbc.com/royaltrust.

Thank you for joining us on this episode of Matters Beyond Wealth. If you would like more information about RBC Royal Trust, please visit our website at rbc.com/royaltrust.