How Predatory Marriages Affect Property and Estate
Estate Lawyers Warn About Exploitation through Marriage
Predatory marriage is a developing trend which involves people praying on others for a financial gain, in most cases the elderly, who have diminished reasoning ability.
To understand how it works, consider a situation where someone targets an elderly person, most commonly wealthy, who is not quite all there. A person who cannot fully function can still legally marry, but cannot enter into a new will. With a marriage though, it revokes the previous will. This leaves the predator with claims to the estate under laws designed to protect innocent spouses. As long as the marriage sticks, it is extremely difficult to undo the situation alone.
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Canadian Lawyers Protecting Families from Predatory Marriages
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Below is Kimberly Whaley’s article which deals with the relationship between marriage, estates and property, and the resulting risk of predatory marriages.
August 13, 2010
The statistics confirm that our population is aging rapidly. With longevity comes an increase in the occurrence of medical issues affecting cognition, as well as related diseases and disorders, such as dementia in varying types and degrees, delirium, delusional disorders, Alzheimer's, cognitive disorders and other conditions involving reduced functioning and capability. A wide variety of disorders affect capacity and increase an individual's susceptibility to being vulnerable and dependent.
Civil marriages are solemnized with increasing frequency under circumstances where one party to the marriage is incapable of understanding, appreciating, and formulating a choice to marry. Indeed, unscrupulous opportunists too often get away with taking advantage of those with diminished reasoning ability purely for financial profit. An appropriate moniker for this type of relationship is that of the "predatory marriage."
This is not a term that is in common use. However, given that marriage brings with it a wide range of entitlements, it does capture the situation where one person marries another of limited capacity solely in the pursuit of these advantages.
What are the entitlements that people, once married, are entitled to? In Ontario, s. 5 of the Family Law Act
(FLA), provides that, on marriage breakdown, the spouse whose "net family property" is the lesser of the two net family properties is entitled to an equalization payment of one-half the difference between them.
The definition of property in the FLA is fairly vast: "any interest, present or future, vested or contingent, in real or personal property."
A spouse's "net family property" is the value of all of their property (except for certain excluded properties) that a spouse owns on the valuation date (which could be the date of divorce, or date of death of a spouse), after deducting (i) the spouse's debts and other liabilities and (ii) the value of the spouse's property that the spouse owned on the date of marriage (not including the matrimonial home even if owned at the date of marriage), after deducting the spouse's debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage.
Such entitlements do not terminate on death. Rather, where one spouse dies leaving a will, marital status bestows upon the surviving spouse the right to elect to either take under the will, or to receive an equalization payment, if applicable. Even if a spouse dies intestate, the surviving married spouse is entitled to elect to either take pursuant to the intestacy laws set out in the Ontario Succession Law Reform Act
(SLRA), or to receive an equalization pursuant to the FLA. While a claim for variation of one-half of the difference can be pled, it is rarely achieved in the absence of fraud or other unconscionable circumstances.
Section 44 of Part II of the SLRA
provides that where a person dies intestate in respect of property and is survived by a spouse and not survived by issue, the spouse is entitled to the property absolutely. Where a spouse dies intestate in respect of property having a net value of more than the "preferential share" and is survived by a spouse and issue, the spouse is entitled to the preferential share, absolutely. The preferential share is currently prescribed by regulation as $200,000.
In Ontario law, marriage automatically revokes a will.
As is apparent, in some provinces, like Ontario, the marital legislation is extremely powerful in that it dramatically alters the legal and financial obligations of spouses and has very significant consequences on testate or intestate succession, to the extent that spouses are given primacy over the heirs of a deceased person's estate. Yet, the difficulty with such marriages is that despite the injustice they cause to the incapable spouse (and his legitimate heirs, if any), such unions are not easily challenged. The reason for this is that the current test for capacity to marry has, historically, been a fairly low threshold to cross and continues to be so. The case law has not kept pace with the development of legislation that has been designed to promote and protect property rights.
In Banton v. Banton,  O.J. No. 3528, Justice Cullity held that the test for the capacity to marry is not particularly stringent and requires only that a person understand the nature of the marital relationship and its responsibilities. The holding in Banton drew on historical English decisions such as Durham v. Durham, (1885), 10 P.D. 80, in which it was stated that a high degree of intelligence is not required to comprehend the significance of entering into a marriage.
According to the court in Durham, "the contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend." As it stands, the current test for capacity to marry is less stringent than the test for capacity to make a will or to manage one's property. Consequently, the test does not require of the marrying spouse that he or she appreciate the financial consequences that flow as a result of marriage. In many cases, the attendant consequences may be future consequences to such people. For instance, they may be exploited to such a degree that they are not able to care for themselves adequately as they continue to age. Or, alternatively, the impact may be on the incapable person's children or grandchildren, who would otherwise have been provided for by this individual.
While litigation arising from marriages involving the elderly is still relatively uncommon, we are seeing an increase in such cases as the number of elderly individuals reaches record highs.
The recent treatment by our courts of costs awards in capacity-related litigation is also topical, and sends a strong message: potential litigants should proceed with caution, and the estate of the incapable person is not to be treated as a virtual ATM machine to fund family feuds.
is the senior partner of Whaley Estate Litigation
in Toronto. Her practice is restricted to the litigation and mediation of estate, trust and capacity proceedings. She thanks Amy Cull, an associate at the same firm, for her assistance with this article.
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