Unborn or Unascertained Beneficiaries: Who Represents Them?

Some wills leave property to people who cannot yet speak for themselves. A parent might leave a share to "my grandchildren", including any born after the will-maker's death, or to a class of people who cannot be fully identified today. Those people may be unborn, or simply impossible to name.

That raises a practical problem for the estate trustee. A court process often depends on the people affected being told about it and having a voice. This article explains in plain language who stands in for people not yet identified, and how that fits with passing the estate's accounts.

What "unborn" and "unascertained" mean

An unborn beneficiary is a person who may one day be entitled to a share but has not yet been born, such as a grandchild who arrives years after the will-maker's death. An unascertained beneficiary is someone whose identity cannot yet be pinned down, usually because they belong to a group whose membership is not settled.

These situations often arise when a will sets up a trust that lasts a long time, or when a gift is described by relationship rather than by name. Because the people involved cannot be asked for their views or approval, the court system has a way to make sure someone looks out for them.

Who speaks for people who are not yet identified

The Office of the Children's Lawyer is the body that fills this role. It should also be served when there is an unborn or unascertained interest in an estate or trust. It acts for unborn persons in court cases where they have an interest in an estate or trust.

Whether a particular gift in a will creates an interest of this kind depends on its exact wording, so it is worth confirming with a lawyer.

When the Children's Lawyer must be served

For children who are already born, Ontario sets out specific situations where the Children's Lawyer must be served on the child's behalf. These include applications to appoint an estate trustee, applications to pass estate accounts, and applications that may affect a child's interest, such as will interpretation, will challenges and trustee removal.

How passing accounts fits in

An application to pass estate accounts is one of the situations where the Children's Lawyer must be served on behalf of a child.

The Children's Lawyer can also press for information. If it asks for estate accounts and the trustee does not respond, it may ask the court for an order requiring accounts. If that order is granted, the estate trustee must bring an application to pass accounts.

Good record-keeping from the first day makes this much easier. A trustee who has kept clear records of receipts, payments and professional costs is in a far better position than one who has to rebuild them later.

Other beneficiaries who cannot act for themselves

Unborn people are not the only ones who need a stand-in. Under the notice rules for estate trustee applications, notice goes to the guardian or attorney of a mentally incapable beneficiary, or to the Public Guardian and Trustee if that person has no guardian or attorney with authority in the proceeding. For a minor, notice goes to a parent or guardian and to the Children's Lawyer.

Before filing a probate application, the applicant must also send or give the application to the estate beneficiaries, and where minor or incapable adult beneficiaries are involved it may need to go to the Office of the Children's Lawyer and the Office of the Public Guardian and Trustee.

What to do next

• Read the will or trust carefully and list every gift that depends on a future event or a group that is not yet fixed.
• Keep complete records of everything received and paid from the estate.
• Identify any minor or mentally incapable beneficiaries as well as possible future ones.
• Ask a lawyer how any family agreement would apply to people who are not yet born or identified.
• Speak with an estate lawyer before bringing an application, so notice goes to the right people.

Whether a given interest counts as unborn or unascertained, and who must be served, depends on the exact words used. A lawyer can confirm this before any court step is taken.

Frequently asked questions