Predatory Marriages and their Effect on Wills

April 25, 2016 Ian Hull Capacity, Elder Law, Estate & Trust Tags: , , , , , , , , , 0 Comments

A recent article in the Toronto Star discusses how the current state of the law in Ontario makes elderly individuals vulnerable to predatory marriages. In Ontario, under section 16 of the Succession Law Reform Act, RSO 1990, c S.26 (the “SLRA”), a will is automatically revoked by the marriage of the testator.

blog photo - predatory marriageThere is a discrepancy regarding the capacity required to
make a will and the capacity required to marry. In Banton v Banton, [1998] OJ No 3528, the court considered a situation in which an 88 year old man, George, married a 31 year old waitress at his nursing home, Muna. After their marriage, amidst concerns regarding his capacity, George prepared a will leaving everything to Muna. The court found that George did not have testamentary capacity and that his will was invalid, but found that the capacity to marry was a lower standard, requiring that an individual be capable of understanding the nature of the relationship and the obligations and responsibilities it involves. Accordingly, George and Muna’s marriage was valid and George was found to have died intestate.

The issue is that, even if wills executed following a potentially predatory marriage are found invalid as a result of incapacity or undue influence, the marriage may still be valid, and thus the intestacy provisions of the SLRA will be relevant. Under Part II of the SLRA, if a deceased passes with a spouse and children, the spouse is entitled to a preferential share in the amount of $200,000, in addition to a share of the residue of the property after payment of the preferential share.

The Star article suggests that the law nullifying wills on marriage makes it easy for a predatory bride or groom to take advantage of elderly individuals. It points out that Ontario law regarding revocation of wills upon marriage is lagging behind other provinces, namely Alberta, British Columbia and Quebec, none of which statutorily revoke wills after marriage. In Alberta in particular, it was noted that the remedial legislation was made after a study revealed that few people were aware that wills did not survive a new marriage.

It is therefore possible in Ontario that an elderly person who intends to leave their entire estate to their children could be caught unaware that their existing will was revoked by marriage, with no knowledge of the need to execute a new one. It is also possible that a testator may not even have the capacity to make a new will after entering a predatory marriage and will be left without recourse. With an aging population, elder abuse, which often takes the form of financial abuse, is a very serious concern. Consequently, it may be time for Ontario to consider measures to protect elderly or vulnerable individuals against predatory marriages.

Thanks for reading.

Ian Hull

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