Today’s blog was written by Courtney Lanthier, Law Clerk at Fasken LLP.

One of the first thoughts people may have when starting to think about their estate plan is “who will inherit my estate?” It’s also an important question to ask clients when meeting to discuss their plans for their Wills. These days, it may not be as simple as saying “my children will inherit everything” because, who is considered a child?

While the definition of a “child” or “issue” used to simply include “a child/descendent conceived before and born alive after the parent/persons death”, it has been amended to include “a child/descendent conceived and born alive after the parent/person’s death” as long as they meet certain conditions.[1] These amended definitions, which include posthumously conceived children, can mean another consideration when it comes to determining beneficiaries for an estate.

Even though this may be a relatively niche subject to many clients, it is still an important one to consider, since with this expanded definition comes additional questions we may need to be asking our clients, one of which being whether or not our clients have stored, or plan to store any human reproductive material.

Human Reproductive Material is defined in the Assisted Human Reproduction Act, S.C. 2004, c. 2 (the “Act”) as “a sperm, ovum or other human cell or a human gene, and includes a part of any of them.”[2] This material can later be used to create an embryo, which later can become a fetus, which can then go on to become a potential beneficiary of an estate. Therefore, it is important that we make ourselves aware of a few key considerations to remember when working with clients whom this may affect:

• Include a provision in the body of the Will dealing with Human Reproductive Material

Section 8 of the Act says that “no person shall make use of human reproductive material for the purpose of creating an embryo unless the donor of the material has given written consent, in accordance with the regulations, to its use for that purpose.”[3] While the Act is relatively silent on what constitutes consent, this ambiguity poses an additional question that may come up for estate practitioners – is a Will consent? It is a signed and witnessed document, but it is still unclear if it could be considered consent for this purpose.

When we are in the drafting stage and it has been determined that the client does or may have stored human reproductive material, it may be prudent to add an additional provision to their Wills. By doing so, a bit more certainty can be provided as to the clients’ intentions when it comes to this subject. It may be better to have something in writing that could potentially be considered consent then nothing at all.

• Ensure we’re asking the right questions

A simple addition to the pre-planning process for new or existing clients is adding an extra question either during an initial meeting on an intake questionnaire. Simply put, “do you or do you plan to store any genetic material for the purposes of having children later on?”

• Using the proper definitions in the Will

With the amended definition of “child” and “issue” as noted above, it is important to ensure the correct definition is being used to capture the intended group of beneficiaries for each and every client. Getting confirmation from the client of the intended beneficiaries can help to avoid issues in determining beneficiaries later on during the estate’s administration.

As legislation continues to evolve, we will likely see more changes with respect to this subject and how it is dealt with in the case of estate planning. Until then, implementing these few simple strategies can give us a head start in ensuring that human reproductive material, as it applies to an estate plan, is dealt with as effectively and efficiently as possible.

[1] All Families Are Equal Act, 2016, S.O. 2016, c. 23 – Bill 28

[2] Assisted Human Reproduction Act, S.C. 2004, c. 2

[3] Assisted Human Reproduction Act, S.C. 2004, c. 2