Law Times

Law Times • November 19, 2018 Page 9 www.lawtimesnews.com Marriage triggers financial consequences Calls to change legislation to stop predatory marriages BY MARG. BRUINEMAN For Law Times S eniors and other vulner- able people need to be protected from predators seeking access to their es- tate through marriage, say fam- ily and estates lawyers. Dagmara Wozniak, an asso- ciate at Siskinds LLP, says there is a need to change Ontario's leg- islation to be more in line with other provinces where marriage no longer revokes a will. The London, Ont. civil litiga- tor recently handled a predatory marriage case that ended in a settlement because, although her client — an elderly gentle- man — could not manage his fi- nances 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 Wozniak suggests that s. 16 of the Succession Law Reform Act be repealed so that marriage would no longer revoke a will — a position that's already been adopted by Alberta, British Co- lumbia and Quebec.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 ad- vantage of these certain types of individuals." The problem is that the ca- pacity to marry has a very low threshold and, in Ontario, mar- riage 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 ab- sence 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 capac- ity to marry, they may not have the capacity to sign a new will or to manage their own finances, she says. Because marriage trig- gers financial and testamentary consequences, those who marry ought to have the capacity to ne- gate 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, re- quiring extensive rehabilitation in hospital. Soon after being re- leased, Katherine Worrod, with whom he had been involved in an on-again, off-again relation- ship, had him picked up from home and the pair were mar- ried in the presence of her family members. Hunt's family wasn't informed of the wedding, in- cluding 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 con- sent to a marriage and presented detailed medical evidence. Superior Court Justice Ed- ward Koke determined that Hunt had made up his mind not to marry Worrod prior to the ac- cident and that he did not have the requisite mental capacity to marry her following his acci- dent. 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 ju- diciary is taking note of this and at least from a common law per- spective, 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 Liti- gation in Toronto, where she practices estate, trust and capac- ity litigation, says she is not con- vinced 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 accom- panied 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 be- cause it wasn't in the predator's interest," she says. She points to Banton v. Ban- ton, 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 liv- ing 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 inf luence and lack of testamentary capacity and be- cause he lacked the requisite decisional capacity to enter into a marriage. Then-justice Mau- rice Cullity found there was no doubt undue inf luence was at play and that the deceased didn't have the requisite decisional ca- pacity 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 men- tal capacity to marry is very low, so to say to someone, 'Well, that person had early stages of de- mentia so, therefore, that mar- riage 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 nec- essarily easy to come by in other circumstances. And, despite the success of the Hunt family, he says, the low threshold for mar- riage 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 institu- tions 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 en- tirely eradicate the problem and she has been advocating for more. Whaley has been push- ing for a predatory marriages act to give the court the tools to set aside a marriage where the per- son 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 com- mon law dating back to the 1700s when there was no fam- ily 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 sepa- ration equalizations of family property. "They have options, but at least the will remains intact and the person's testamentary in- tentions 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 ref lect their new testamentary inten- tions." LT FOCUS Dagmara Wozniak 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. 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. Kimberly Whaley The complete suite of tools for family law professionals is now securely in the cloud Learn more at divorcemate.com or call 1.800.653.0925 Untitled-1 1 2018-11-07 12:06 PM

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