Generally, a predatory partner will use their status as a spouse to withdraw money from joint bank accounts, obtain ownership (often exclusive ownership to the detriment of the aging spouse) of the matrimonial home, and make arrangements to inherit significant amounts of money from the estate of the victimized spouse. Not only do predatory marriages affect the elderly spouse who is being taken advantage of, they also have an impact upon the entitlements of the beneficiaries named within the individual’s previously executed testamentary documents.
While the standard in respect of mental capacity required to create a valid will is high, the capacity required in order to validly enter into a marriage is considerably lower. As such, in a predatory marriage, while an elderly individual may not be capable of executing a new testamentary document, he or she may nevertheless be considered capable of marrying, which will in most circumstances revoke any prior testamentary documents prepared by the individual.
Alberta and British Columbia have both changed their laws so that marriage no longer has the effect of revoking a will. Similarly, in Quebec, marriage does not revoke an otherwise valid will.
Furthermore, with respect to the capacity of an individual to marry, the Marriage Act, states that “No person shall issue a licence to or solemnize the marriage of any person who, based on what he or she knows or has reasonable grounds to believe, lacks mental capacity to marry by reason of being under the influence of intoxicating liquor or drugs or for any other reason.” Like the SLRA, the Marriage Act does not offer substantial protection for the aging population who may be exposed to the risk of being targeted for a predatory marriage.
If a new will is not executed following a marriage, the intestacy provisions of the SLRA will come into effect. Pursuant to the intestacy provisions, a married spouse will automatically receive the first $200,000.00 of the deceased’s estate, and the remainder will be divided between the spouse and any surviving children of the deceased. Although it may not require the same degree of mental capacity as executing a new will, marriage can nevertheless result in a complete transformation of an estate plan.
Predatory marriages are a type of elder abuse. With an increasing elderly population in Canada, elder abuse is becoming an increasingly common problem. An elderly person in Ontario could be unaware that their existing will can be revoked by marriage, with no knowledge of the need to execute a new one, and/or a lack of the requisite capacity to execute a new one.
Predatory Marriages: A Case Study
The leading case on the concept of predatory marriages in Ontario is Banton v Banton. This case demonstrates the differences in the degrees of mental capacity required to create a valid testamentary document, compared to that required to enter into a valid marriage.
Mr. Banton was born in 1906. He had been married twice and predeceased by both wives. In 1991, Mr. Banton executed a will, in which he named his children as equal beneficiaries. In 1993, Mr. Banton moved into a retirement home and Mr. Banton formed a close relationship with a younger woman who worked at the retirement home.
Shortly thereafter, Mr. Banton was declared incompetent of managing his own financial affairs. Mr. Banton’s children became concerned upon realizing that he had withdrawn $10,000.00 from his bank account. Unbeknownst to his children, Mr. Banton married the worker at his retirement home and subsequently executed a new will, leaving his entire estate to his new wife.
The court held that Mr. Banton’s last will was invalid as his wife exercised duress upon him and Mr. Banton lacked testamentary capacity.
The court then turned to the issue of whether Mr. Banton’s marriage was valid. The court held that Mr. Banton understood the nature of his responsibilities under the marriage and that there was no evidence of undue influence with respect to getting married. As such, the court held that the marriage was valid, and the estate of Mr. Banton had to be divided according to the intestacy provisions in the SLRA, discussed above.
This case highlights the potential for an estate plan to be disrupted by the marriage of a testator late in life and at a time when testamentary capacity may be absent.
Ian Hull and Suzana Popovic-Montag are partners at Hull & Hull LLP, an innovative law firm that practices exclusively in estate, trust and capacity litigation. To watch more Hull & Hull TV episodes, please visit our Hull & Hull TV page.
Follow HuffPost Canada Blogs on Facebook
Also on HuffPost: