Predatory Marriages: The Growing Trend in Ontario
Elderly persons are living longer and as a result, a new litigation concern for the aging population has emerged: predatory marriages. Impacting wills and estates, and creating an emotionally stressful situation for family members, predatory marriages are a difficult situation for the courts and for society as a whole.
What is a predatory marriage?
In these situations, a “predator” man or “predator” woman will enter into a relationship with an elderly person with the exclusive motivation of gaining access to the elderly individual’s estate. The elderly individuals targeted by these predators tend to be those suffering either from incapacity or those in the early stages of diminished reasoning and tangential thought, i.e. dementia, Alzheimer’s etc.
By becoming the elderly individual’s spouse, the “predator” spouse is able to gain access to the elderly individual’s bank accounts, obtain ownership of property (for example, the matrimonial home), and can jeopardize the elderly person’s estate planning goals.
What if the elderly individual had a will prior to the predatory marriage?
Predatory marriages become especially problematic when the elderly individual previously had a will in place. The elderly individual’s marriage to the predator can cause a detrimental impact on beneficiaries’ entitlements under the elderly individual’s estate. If a new will is not executed after the elderly individual’s marriage to the predator, intestacy rules reign, and in Ontario, it will be as if the elderly individual died without a will. On intestacy, the “predator” spouse will be entitled to a preferential share of the deceased’s estate of $200,000, as well as one half or one third of their estate, depending on how many children the elderly individual had.
How to void a predatory marriage
The only way to challenge predatory marriages in Ontario, if the elderly individual is still living and beneficiaries do not want an impact on the elderly individual’s estate, is to apply for an annulment. The Courts have been wary to grant annulments, as they tend to try their best to preserve the elderly individual’s personal autonomy in deciding to marry. However, an annulment will be granted where there is an absence of consent from the elderly individual, i.e. where they do not understand the nature of marriage and the duties flowing from it.
Capacity to enter into marriage
Adults are presumed to be capable and there is a low threshold for the capacity to marry. Beneficiaries who feel slighted by these predatory marriages must keep in mind that capacity is decision, time and situation specific. You can have capacity in one area, and not in another. A person is deemed to be capable of entering into a marriage contract if they have capacity to understand the nature of the contract and the duties and responsibilities it creates.
In order to understand the nature of the marriage commitment, a capacity assessor will need to look at the elderly individual’s ability to manage themselves and their affairs (inclusive of property). Delusional thinking or reduced cognitive abilities alone may not be enough to destroy the elderly individual’s capacity to form the requisite intention to marry. That said, case law is emerging in favour of beneficiaries and helping safeguard against these predators. If you have concerns about a loved one’s capacity, you should consult their doctor or a designated capacity assessor.
Predatory marriages are a type of elder abuse. If you have any further questions about predatory marriages and how they may impact estates and beneficiaries in Ontario, or if you fear that a loved one may have entered into one, you should contact an experienced disputes and litigation lawyer.
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