The rapid and continued advancements in assisted reproductive technology now make it possible for children to be both conceived and born after the death of a genetic parent. While succession legislation across Canada recognizes situations in which a child is conceived before, but born after, the death of a genetic parent, the majority of provincial legislative schemes are silent with respect to the succession rights of posthumously conceived children, specifically, the right to inherit on intestacy. Many of the provincial legislative schemes governing intestate succession were enacted before the development of assisted reproductive technology, and the legislatures perhaps did not contemplate these developments and the implications these advancements can have on succession law. As technology continues to advance, these implications, including the rights of posthumously conceived children to inherit on intestacy, warrant consideration. The purpose of this paper is to examine the implications of posthumously conceived children on estate litigation and succession law in Canada, as well identify and explore possible ways of addressing this emerging issue. Any consideration, however, requires a balanced approach. By examining the ways in which other jurisdictions have addressed this issue, this paper seeks to outline possibilities and considerations for reform.
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Christine E Doucet, "From en ventre sa mere to Thawing an Heir: Posthumously Conceived Children and Implications for Succession Law in Canada" (2013) 22 Dal J Leg Stud 1.