The Family Law Connection
A Wills & Estates Perspective
By Jaclyn Giffen, B.Soc.Sci., J.D., M.A.
In many Canadian provinces, including Ontario under the Succession Law Reform Act (SLRA), by entering into a marriage any existing legal Last Will and Testament is automatically revoked. This means that the will that you would have made prior to such marriage is null and void, rendering you intestate (without a valid will) upon your death. The exception would be if your will contained a clause that stated that you made the will in consideration of marriage. A lawyer would be in the best position to ensure any will you execute is not revoked by operation of law.
Predatory marriages have become a pertinent issue in Ontario and are typically associated with the financial exploitation of vulnerable people, especially the elderly. This rule of law can make vulnerable people, who do not have the full capacity to make decisions on their own, easy targets for predatory marriages as a predatory partner can use their status as a “spouse” to gain access to the victim’s assets. Not only do predatory marriages affect the victimized spouse, but they also have an impact on the loved ones or charities who were the intended recipients of the victim’s assets within the individual’s previously executed testamentary documents.
The issue with this growing phenomenon has largely to do with the fact that the capacity required to enter into a marriage is considerably low in Ontario. The province’s Marriage Act prevents the issuance of a marriage license or the solemnization of a marriage only if there is suspicion that one of the parties is under the influence of “intoxication liquor or drugs”. As outlined, the SLRA provides that a person’s marriage revokes all their existing wills and thereby provides no protection for potential victims of predatory marriages.
While the provincial laws seem to lack protection for victims of predatory marriages, a recent court ruling from the province’s Superior Court could provide some legal precedents for future cases. In Hunt v Worrod, the court considered whether a man incapable of managing his property and personal care after suffering a catastrophic brain injury, had the capacity to enter into a marriage. The marriage in question took place between Mr. Hunt and his estranged ex-girlfriend right after his accident. The Application was brought on behalf of Mr. Hunt by his two sons who were also guardians of their father’s property. Relying on extensive medical evidence, the court declared the marriage void ab initio, deeming Mr. Hunt as failing to have the requisite capacity to marry. The decision in Hunt is one of the first in Canada to endorse an elevated test for capacity for marriage that requires both parties to understand the duties and responsibility created by a marriage contract and considers individuals’ ability to manage themselves and their affairs.
Despite the victory in Hunt, the significance of the decision is easily overstated due to the overwhelming amount of medical evidence available to the judge deciding on capacity. In many cases, there may not be sufficient hard medical evidence to make such ruling. In response to this troubling phenomenon, Alberta and British Columbia have both changed their laws so that marriage no longer has the effect of revoking a will, and Quebec never revoked wills as a result of marriage. Ontario should consider following suit in an effort to avoid cases of predatory marriages.
Retaining a lawyer that is experienced in both Family and Estates Law can help to ensure that any will you execute is not revoked by operation of law and recommend other supporting legal documentation to buttress this goal; such as a cohabitation agreement or a domestic contract. A well thought out Estate Plan will ensure that you and your family are protected with the peace of mind we all hope to pass on to our loved ones.
Jaclyn Giffen, B.Soc.Sci., J.D., M.A. is an Omemee lawyer working with Inclusive Law since 2018. She practices in the area of Wills & Estates, Real Estate, Small Business and Family Law.
Phone: 905 985 8411