Seniors and other vulnerable people need to be protected from predators seeking access to their estate through marriage, say family and estates lawyers.
Seniors and other vulnerable people need to be protected from predators seeking access to their estate through marriage, say family and estates lawyers.
Dagmara Wozniak, an associate at Siskinds LLP, says there is a need to change Ontario’s legislation to be more in line with other provinces where marriage no longer revokes a will.
The London, Ont. civil litigator recently handled a predatory marriage case that ended in a settlement because, although her client — an elderly gentleman — could not manage his finances or sign a new will, he did have the capacity to marry based on the low threshold.
Wozniak suggests that s. 16 of the Succession Law Reform Act be repealed so that marriage would no longer revoke a will — a position that’s already been adopted by Alberta, British Columbia and Quebec.
“This is occurring and it is alarming and we need to take steps to prevent or minimize the risk or minimize threat if a predatory marriage does occur; minimize the impact of it,” she says. “I think there’s going to be more people — I’ll call them predators — trying to take advantage of these certain types of individuals.”
The problem is that the capacity to marry has a very low threshold and, in Ontario, marriage voids the previous existing will, she says. At the same time, she adds, marriage gives the new spouse access to the vulnerable person’s estate, even in the absence of a will. Ontario’s testacy laws award the surviving spouse the first $200,000 of the estate and a portion of the remainder.
And while the vulnerable individual may have the capacity to marry, they may not have the capacity to sign a new will or to manage their own finances, she says. Because marriage triggers financial and testamentary consequences, those who marry ought to have the capacity to negate the impact it will have or at least be able to control them, she says.
Wozniak says she sees some hope in last year’s decision in Hunt v. Worrod, centred on Kevin Hunt, who had sustained a catastrophic brain injury, requiring extensive rehabilitation in hospital. Soon after being released, Katherine Worrod, with whom he had been involved in an on-again, off-again relationship, had him picked up from home and the pair were married in the presence of her family members. Hunt’s family wasn’t informed of the wedding, including his two sons, who were trained to care for him.
When they learned of the marriage, the sons turned to the court to have it invalidated on the basis that their father did not have the mental capacity to consent to a marriage and presented detailed medical evidence.
Superior Court Justice Edward Koke determined that Hunt had made up his mind not to marry Worrod prior to the accident and that he did not have the requisite mental capacity to marry her following his accident. He declared their marriage void ab initio. Wozniak says the case significantly elevates the test for capacity to marry.
“It’s the first sign that the judiciary is taking note of this and at least from a common law perspective, we may see . . . positive changes regarding the sculpting of the law,” Wozniak says.
While the Hunt decision was welcomed, Kimberly Whaley, principal of Whaley Estate Litigation in Toronto, where she practices estate, trust and capacity litigation, says she is not convinced it will have a long-term impact on common law.
She says its success lies in the overwhelming medical evidence presented, which isn’t available in many cases.
“Normally, these sorts of predatory situations are accompanied by alienation, isolation [and] sequestering of the older adult, so nobody knows about the marriage. In fact, it’s often not found out about until after death. But alongside that, there is not medical evidence, because they never went to the doctor because it wasn’t in the predator’s interest,” she says.
She points to Banton v. Banton, dating back to 1998, as an example where the long-held common law test of marriage prevailed.
In that case, a man in his 80s with prostate cancer was living in a retirement home. The residence’s waitress, who was 32, married him, then returned him to his home. The next day she took him to a lawyer where he got a new will and she became his power of attorney.
After he died, several years later, his children tried to have the will set aside on the grounds of undue influence and lack of testamentary capacity and because he lacked the requisite decisional capacity to enter into a marriage. Then-justice Maurice Cullity found there was no doubt undue influence was at play and that the deceased didn’t have the requisite decisional capacity to execute the will.
But the judge couldn’t set aside the marriage because the law says marriage is a simple test not requiring a high degree of intelligence. So, under intestacy rules, the widow got the first $200,000 of his estate along with one third of the residue.
The problem, says Steven Benmor of Benmor Family Law Group, is that there is a great misconception that marriage doesn’t change an individual’s financial situation. The very act of marriage, even when there is a limited capacity by the person marrying, automatically creates an economic partnership in the estate of the person marrying, he says.
“The threshold for the mental capacity to marry is very low, so to say to someone, ‘Well, that person had early stages of dementia so, therefore, that marriage is not valid’ may not carry the day in court,” says Benmor.
Presenting that argument, he adds, would cost the offspring thousands.
Benmor says the evidence in Hunt is top-notch and not necessarily easy to come by in other circumstances. And, despite the success of the Hunt family, he says, the low threshold for marriage means the solution is not going to come from the courts but rather legislation.
He says there is a need for a multi-pronged approach that would bind financial institutions to report any suspicions pertaining to an account to protect the interest of seniors, a campaign of education for adult caregivers and the introduction of legislation designed to protect vulnerable seniors in criminal law.
Whaley says Ontario ought to follow the other provinces and repeal the legislation so that marriage doesn’t revoke a will to prevent these types of situations form occurring or right what is perceived as a gross wrong.
But she says that doesn’t entirely eradicate the problem and she has been advocating for more. Whaley has been pushing for a predatory marriages act to give the court the tools to set aside a marriage where the person does not have the requisite testamentary capacity to enter into a marriage.
“Why it’s a big problem is that, historically, the courts have viewed marriage as a simple test not requiring a high degree of intelligence,” she says, which was developed through common law dating back to the 1700s when there was no family law protecting spouses and property rights and women had no rights. She says it no longer makes sense to continue with that approach.
Wozniak says if marriage no longer revokes a will, the spouse still has options. That includes bringing a dependent’s relief claim under the Succession Law Reform Act and seeking separation equalizations of family property.
“They have options, but at least the will remains intact and the person’s testamentary intentions survive the marriage, particularly when they’re not capable of executing a new will,” says Wozniak. “We can’t have the consequence of marriage be revocation of a pre-existing will when this individual cannot even execute a new will to reflect their new testamentary intentions.”
