Law Times

Law Times • OcTOber 26, 2009 Coerced marriages not just a Hollywood plot BY I. JOHN HARVEY For Law Times into marriage by a much younger neigh- bour who now stands to scoop the lion's share of their substantial estate, leaving the children to battle for the scraps. But the threat of predatory marriage I isn't a thin Tinseltown plot, says estate litigator Kimberly Whaley of Whaley Es- tate Litigation. It's real and it's becoming all too common, driven by a convergence of an aging population and case law that hasn't evolved with changing times. She's just written a book with former associate Helena Likwornik, now counsel for the Court of Appeal; recently appoint- ed Superior Court Justice Heather Mc- Gee; and Dr. Michel Silberfeld, an expert psychiatrist in the field of mental capacity. The book, proposed titles for which in- clude Predatory Marriages: Consent, Capac- ity, and the Estate Plan, is to be published by Canada Law Book. In it, they say the growing phenomenon is something that demands legislative action. "If someone marries, their previously written will is void," notes Whaley. "With the deceased intestate, the new spouse gets the first $200,000 of the estate and a third of the rest." The family usually finds itself shocked and baffled since the marriage most likely took place in secret. The key issue then becomes whether the elderly person — although sometimes it could be a mentally challenged young person with a trust fund — had the capac- ity to understand the contract of marriage they were entering into and the effect it would have on their property and estate. That's where things get sticky, says Sil- berfeld. "The courts seem to have a lot of trouble coming to grips with determining what is the capacity to marry," he says, noting there's a reluctance to tread on ro- mantic ideals around matters of the heart. The threshold so far seems to be set too low and cries out to be raised, perhaps to the capacity to manage property or to manage financial obligations, he says. Case law simply hasn't kept up with changes to the Family Law Act or the times, says Whaley. "So the result is we have to rely on a piecemeal approach, the Substitute Deci- sions Act and the Succession Law Reform Act, for example," she says. Neither law, however, addresses wheth- er the decision to marry was clearly ex- pressed, whether the person making the decision understood the ramifications or if there was any manipulation involved. "The latter is hard to prove," she says, noting arrangements often take place be- hind closed doors without witnesses. There is some case law, she allows, but many decisions are being made before trial and, as a result, are not reported. The guiding cases thus far are Banton v. Banton and Feng v. Sung (Estate). Both involved issues of coercion and capacity. The first case revolved around George Banton, who was severely ill and had moved into a care facility in 1993 while his sons ran his estate. While there, Banton would often show staff his investment portfolio, which was worth about $450,000, and formed a friendship with a waitress, 31-year-old Muna Yassin. His children became con- cerned he was losing his capacities and, after being seen by a psychiatrist, was t sounds like a Hollywood movie of the week. A feeble but rich elder is coerced declared mentally incompetent under the Mental Health Act in November 1994. Unbeknownst to his children, Banton and Yassin married in December. The next day, Yassin took Banton to a lawyer to re- write his will and leave his entire estate to her. A firm was also retained to counter the Mental Health Act declaration. These battles went on while Banton's health deteriorated. He died two years later at age 90 in February 1996. Another two years later at trial, court was presented with these questions: whether Banton had testamentary capacity when he signed the wills dated May 4, 1995, and Dec. 21, 1994, respectively; whether the making of the said wills was procured by undue influence; and whether Banton had the contractual capacity to enter into a mar- riage with Yassin. In his detailed decision, Justice Maurice Cullity ruled that while Banton seemed to have a good handle on his own financial worth, he had slipped into a delusional state regarding his behaviour and thus lacked capacity to make a will. He also found Yassin had unduly influ- enced and coerced Banton into making a new will and squeezing out his children. However, in a twist that triggered two more court wrangles into 2001, Cul- lity found Banton competent enough to get married and that the marriage would stand. The effect was to render all the wills void and give Yassin a substantial share of the $450,000 estate. That in turn raises more questions about where the threshold for compe- tency stands, says Silberfeld. Is it higher when financial affairs and beneficiaries are involved and lower when entering into a marriage contract? Should there be one test across the board for all circumstances? It's for that reason, say the authors, that there's a need for a thorough discussion. In Sung, the issues involved Kam Yuen Sung, whose wife predeceased him in June 2000. Lonely and depressed, he hired a housekeeper, Qi Li Feng, who came in a couple of days a week to cook and clean for him. This arrangement seemed to work well. Then, Sung was diagnosed with ter- minal cancer and Parkinson's disease that left him unable to care for himself. Feng, 48, moved in full time and provided care. By August 2001, he was almost com- pletely incapacitated and in the last stages of his disease but married Feng in Septem- ber. After he died in October 2001, within weeks Feng applied to the court for up to $2,000 a month in support for life, posses- sion of his condominium, and a substan- tial share of the estate. She claimed, in fact, that she was Sung's girlfriend all along and not simply a housekeeper. The children balked and went to court. Citing Banton, it found Feng had used coercion and that Sung was at times inca- pable of realizing what he was doing. As a result, the marriage was annulled. Turning more generally to the ques- tion of coercion, the book authors, citing an unreported case in which a 96-year-old woman was preyed on by a 56-year-old man, say gender is not the issue. "It's why we wrote the book," says Sil- berfeld. "As Kim and I and the others have been saying, it's time for a reconceptual- ization because these circumstances are becoming more frequent, and we have to look in terms of how marriage is viewed and how the capacity to marry is viewed and [how] all the nexus of estate planning is connected and viewed. We flag lots of is- sues that [suggest] the test has to be higher than that for testamentary capacity." LT www.lawtimesnews.com Untitled-1 1 10/20/09 9:05:53 AM FOCUS PAGE 11

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