Today’s Post written by  Ashley Thornton, Articling Student, Gowling WLG (Canada) LLP

Blended families, specifically those with stepchildren, in Ontario face unique estate planning challenges which are occasionally overlooked. If not planned for expressly, this may lead to unintended disinheritance or costly litigation. Drafting with intention is therefore essential. Clear definitions, explicit beneficiary designations, and coordination of all parts of the estate plan (including beneficiary designations on registered accounts and insurance) are critical to aligning outcomes with actual family relationships and expectations. Clarity is not just courteous, it is protective. It ensures the people you intend to benefit are unmistakably provided for and that those you do not intend to include are not inadvertently added by implication or default statutory rules.

“My Children” in a Will: Default Meanings and the Montgomery Estate v. Miller exception

The language of a will is critical, and in blended families the phrase “my children” can be the most consequential of all. As a starting point, Ontario law interprets “children” to mean biological or legally adopted children.[1] Stepchildren are prima facie excluded unless the will shows a contrary intention.[2] That default rule preserves predictability but can be misleading in blended families, where the social reality often diverges from legal formalities. However, this presumption can be rebutted where the evidence shows the testator used “children” in a broader, practical sense.

In Montgomery Estate v. Miller, the Estate Trustee sought advice from the court regarding whether the testator intended for his two stepchildren to be included in his will where he made gifts to “my children”.[3] The court examined the testator’s relationship with his stepchildren and concluded that despite the absence of formal adoption, the deceased intended to include them as beneficiaries because he treated them as his own in every practical respect, and thus her stepchildren were entitled to inherit equally to his biological children under the will.[4] The case illustrates that courts will look beyond labels to the genuine character of the relationship, but only where the surrounding evidence clearly supports a finding that the testator intended for their stepchildren to be included. Absent such evidence, the default interpretation will prevail and stepchildren will be excluded.[5]

The practical takeaway is clear: if you intend to include stepchildren when using collective terms like “my children” or “issue,” say so explicitly in the will and, ideally, name them. If you intend to exclude stepchildren, clarify that as well. Precision with regards to your intentions prevents your loved ones from participating in lengthy and costly litigation. Blended families require deliberate, thoughtful drafting. Define your beneficiaries with precision, avoid ambiguous group terms unless you also provide a definition or specifically name the beneficiaries encapsulated by this term. Most importantly, align your will with the realities of your family life and document your intentions. Doing so reduces the risk of disinheritance for those you consider your children and spares your loved ones the expense and strain of litigating what you could have clarified in a few careful sentences.

Intestacy and Blended Families:

If a person in Ontario dies without a will, otherwise known as intestate, their estate is distributed according to the Succession Law Reform Act (“SLRA”). For blended families, this default scheme can be particularly harsh. The statute distributes the deceased’s estate to a surviving spouse and the deceased’s issue.[6] Courts have declined to interpret this definition beyond biological children, meaning that stepchildren, unless legally adopted by the deceased, are not considered a “child” of the deceased for the purposes of the SLRA (with respect to intestacy).[7]

This approach has also been followed in other provinces with respect to their iterations of the SLRA.[8] For example, in Peters v Peters (ABQB), the deceased died without a will and her stepchildren were deemed not to be within the meaning of “descendants” for the purposes of the Wills and Successions Act, despite the deceased treating her stepchildren as if they were biologically her own.[9] Accordingly, the stepchildren were not entitled to a share of the deceased’s estate.[10] Evidently, the current definition of “child” with respect to intestacy means a long-standing, loving parental relationship with a stepchild will not be recognized in the absence of a will, even if the stepchild was treated as part of the family for decades.

This exclusion can produce outcomes that starkly diverge from the deceased’s actual intentions. For example, where a blended family includes both biological children and stepchildren, an intestacy will allocate shares among the biological and legally adopted children only, while the stepchildren receive nothing. In such cases, the failure to make a will, or to make one precise enough to address the blended family realities, can fracture family relationships and invite disputes, particularly if the stepchildren reasonably believed they would be included.

Can a Stepchild Claim under the Succession Law Reform Act?

Although stepchildren are excluded on intestacy absent adoption, they may, in appropriate circumstances, bring a dependant’s relief claim under the SLRA. The statute permits “dependants” of the deceased to seek support from the estate where the deceased was providing – or is under a legal obligation to provide – support immediately before death.[11] Under Part V [Support of Defendants] of the SLRA, the definition of “child” is much broader than the portions of the Act dedicated to intestacy claims:

“child” means a child as defined in subsection 1 (1) and includes a grandchild and a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody.[12]

For stepchildren, the pivotal question is whether the deceased stood in loco parentis (meaning “in the place of a parent”), to them. Courts assess the substance of the relationship rather than its formal status. The analysis is fact-driven and relies upon the intention of the testator. Courts look at the nature of the bond between the deceased and the child: whether the child participates in the extended family in the same way as a biological child, whether the person provides financially for the child, whether the person disciplines the child as a parent, whether the person represents to the child, family, and the world that they are responsible as a parent, and the length and permanency of the relationship.[13] Where the evidence demonstrates a genuine parental role, a stepchild may qualify as a dependant and obtain relief from the estate notwithstanding the absence of adoption or biological connection.

Conversely, where the relationship was limited, intermittent, or not parental in character, a claim is less likely to succeed. The lesson for testators is twofold: first, do not rely on the dependant’s relief regime to “fix” an imprecise plan; and second, if you intend to include or exclude stepchildren, state that intention plainly in the will to reduce the risk of challenge.

[1] Ian M. Hull, “Halsbury’s Laws of Canada – Wills and Estates” at HWE-79 Common Law and Statute.

[2] Albert Kaprielian”, “CED Wills” § 124. Children Born Outside Marriage (updated May 2025).

[3] Montgomery Estate v Miller, 2006 CanLII 18522 (ONSC) at para 1.

[4] Montgomery Estate v Miller, 2006 CanLII 18522 (ONSC) at para 18.

[5] Albert Kaprielian”, “CED Wills” § 124. Children Born Outside Marriage (updated May 2025).

[6] Succession Law Reform Act, RSO 1990, c S.26, Part II.

[7] James F. Kennedy, Janet Sim & Lucinda Main, « Widdifield on Executors and Trustees” (6^th ed) § 5:45. Stepchildren; “Martin Rochwerg, Rahul Sharma, Wendi Crowe, “Miller Thomson on Estate Planning” § 1:40. Intestate Succession—Stepchildren; Succession Law Reform Act, RSO 1990, c S.26, s. 1(1).

[8] Peters Estate (Re), 2015 ABQB 168; Vickers v. Tobin, 2010 NLTD 32; Lang Estate (Re), 2011 BCSC 972.

[9] Peters Estate (Re), 2015 ABQB 168 at paras 8-12.

[10] Peters Estate (Re), 2015 ABQB 168 at para 18.

[11] Succession Law Reform Act, RSO 1990, c S.26, s. 58(1).

[12] Succession Law Reform Act, RSO 1990, c S.26, s. 57(1).

[13] Cartier v Cartier, 1999 CanLII 707 (SCC) at para 39; Ball v Mackenzie, 2021 ONSC 1150 at para 19.