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  • Writer's pictureJared Davies, Lawyer

Examining how Ontario is trying to protect against the testamentary effects of predatory marriages

As of January 1, 2022, there have been significant amendments to the Succession Law Reform Act that work to protect against some of the devastating testamentary results of predatory marriages.

Under the old law, section 15 of the SLRA stated that an existing will was revoked by operation of law upon marriage. The 1998 Ontario case of Banton v Banton demonstrates the effect that this had in the case of a predatory marriage.

In short, an 88-year-old man, who was severely ill, married a 31-year-old. The court was of the opinion this was a predatory marriage, or a marriage that the 31-year-old used as a mechanism to obtain the more vulnerable party’s property. Shortly after marriage, the man executed two new wills, leaving property to his new wife. In relation to the validity of the two wills, the court stated:

It follows from the above that the question whether the Respondents have discharged the onus on them depends entirely on one central factual issue: whether, in giving instructions for, and executing, his wills of December 21, 1994 and May 4, 1995, George Banton was acting under the influence of Muna to such an extent that they should be regarded not as expressions of his will but of her's. The submission of the Respondents is that, even if George Banton had testamentary capacity, the evidence establishes that he was sufficiently under her domination to require an affirmative answer to that question. It was submitted that Muna was not a credible witness and that her evidence that George Banton's wishes were freely made and communicated to Mr. Wolfe and that she took no part in their formulation or implementation must be disregarded. The Court is, in effect, asked to draw an inference from all the evidence that it is more probable than not that on December 20 and 21, 1994 and May 4, 1995, he was subjugated to her will as far as his testamentary intentions were concerned.

When considering George Banton's testamentary capacity, I accepted the evidence that, at the times in question, he was terminally ill with cancer of the prostate, he was incontinent, frail and could not walk without assistance, his hearing was seriously impaired, his memory was failing, he was cognitively impaired and he had become significantly detached from reality. I also accept Dr. Chung's evidence that his physical and mental state made him dependent on others, vulnerable and easily imposed upon. Counsel for the Respondents submitted that Muna successfully exploited these weaknesses, and his loneliness, with a view to procuring their marriage and the wills he subsequently executed.

On the basis of all of the evidence and taking into account my findings of credibility, I am satisfied and I find on a strong balance of probabilities that, as a result of the imposition of Muna's influence on his weakened mental state, George Banton was incapable of making an independent decision with respect to the disposition of his property by will on December 20 and 21, 1994 and May 4, 1995, and that the decisions he purported to make on those occasions were an expression of her will and not his. In consequence, I find that undue influence has been proven and that, on this ground also, neither of the wills can be admitted to probate. In deference to the statements of Sopinka J. in his analysis in Vout v. Hay to which I have already referred, I should add that my finding on this question is based on the totality of the evidence and is not dependent on the burden of proof. This was at all times on the Respondents and, in my judgment, it has been discharged.

The case is not analogous to that of the "young man ... caught in the toils of a harlot" referred to by Sir James Hannen in McElroy, Re. It is the case of a lonely, depressed, terminally ill, severely disabled and cognitively impaired old man whose enfeebled condition made him an easy prey for a person like Muna with designs on his property.

However, the frailties of the law were exhibited in the next part of the analysis. The threshold for capacity to marry is lower than the capacity to manage property, because the court has determined that people who are unable to manage property should still be allowed the freedom to marry. In the current case, Mr. Banton was found to have had capacity to marry at the time of his marriage to the 31-year-old. This had significant implications on the property distribution, despite the two wills being deemed invalid:

A marriage can be set aside on the ground of duress or coercion of a degree sufficient to negative consent. Although I am in respectful agreement with Mendes da Costa J. in S. (A.) v. S. (A.) (1988), 15 R.F.L. (3d) 443 (Ont. U.F.C.) at pp. 453-6 that fear need not be proven, the evidence does not warrant a conclusion that there was duress in this case with respect to George Banton's participation in the marriage.

In late September and early October 1994 George Banton had tried to resist Muna's attempts to seduce him into marriage but, in November, he capitulated and consented to it. Although I have also found that marriage was part of Muna's carefully planned and tenaciously implemented scheme to obtain control and, ultimately, the ownership of his property, as far as the marriage was concerned he was, at the end, a willing victim. Shortly thereafter he told Victor that he had wanted "one last fling".

In view of my finding that George Banton consented to the marriage, it is unnecessary to deal with the questions whether duress makes a marriage void or voidable and, if the consequence is that the marriage is voidable, whether it can be set aside by anyone other than the parties. I express no opinion on these issues.

A finding of a lack of testamentary capacity does not necessarily determine whether an individual has the mental capacity to marry; nor is testamentary capacity at the time of marriage required before the marriage will revoke a will: McElroy, Re (1978), 22 O.R. (2d) 381 (Ont. Surr. Ct.); Park Estate, Re, [1953] 2 All E.R. 1411 (Eng. C.A.).

It is well established that an individual will not have capacity to marry unless he or she is capable of understanding the nature of the relationship and the obligations and responsibilities it involves. The burden of proof on this question is on those attacking the validity of the marriage and, in my judgment, it has not been discharged in this case. There is virtually nothing in the evidence to suggest that George Banton's mental deterioration had progressed to the extent that he was no longer able to pass this not particularly rigorous test. The medical evidence indicates his acceptance of the marriage and even in the last months of his life when he was at Village Park, he spoke of his wish to return to his wife — albeit along with his then caregiver and companion, Ms. Yolanda Miranda.

While I believe that it may well be the case that a person who is incapable both with respect to personal care and with respect to property may be incapable of contracting marriage, I do not believe that incapacity of the latter kind should, by itself, have this effect. Marriage does, of course, have an effect on property rights and obligations, but to treat the ability to manage property as essential to the relationship would, I believe, be to attribute inordinate weight to the proprietary aspects of marriage and would be unfortunate. Elderly married couples whose property is administered for them under a continuing power of attorney, or by a statutory guardian, may continue to live comfortably together. They may have capacity to make wills and give powers of attorney. I see no reason why this state of affairs should be confined to those who married before incapacity to manage property supervened.

George Banton was found by Dr. Chung to have capacity as far as personal care was concerned. Moreover, despite his physical problems, his weakened mental condition and his loss of memory, he was able to carry on more or less normal discourse on simple everyday matters. Strangers, like Carol Davis and Mr Allen, who met him briefly did not notice anything abnormal about his mental state. On the basis of a one-hour examination Dr. Silberfeld concluded that he had capacity to manage his property. Obviously he was still capable of presenting a brave face to the world. The more thorough examination by Dr. Chung revealed what those close to him already knew: that his judgment was severely impaired and his contact with reality tenuous. Despite these problems, I have no doubt that, with care and attention and avoidance of stress, he was capable of coping with the more mundane problems of everyday living and I do not see why the right to marry should be withheld from persons in his position.

Accordingly, on the basis of Browning v. Reane and in the absence of binding authority to the contrary, I find that, notwithstanding George Banton's incapacity to manage property on December 17, 1994, he had capacity to marry and that his marriage to Muna was valid. In consequence, his will of January 30, 1991, was revoked and, in view of my other findings, he died intestate.

The last paragraph of this reasoning illustrates the problem. As the marriage was deemed valid, relevant legislation states that marriage revokes pre-existing wills (i.e. formerly, section 15 of the Succession Law Reform Act in Ontario). Thus, Mr. Banton’s 1991 will, created prior to the predatory marriage, which left his assets to his family, was automatically revoked. As such, the laws of intestacy kicked in and his new wife received a preferential share of the estate (i.e. see Part II of the Succession Law Reform Act). The court stated:

It follows from the first, second and fourth of these decisions that George Banton died intestate and his estate is to be distributed on that basis.

Ontario’s 2022 reforms have fixed this inadvertent problem by repealing subsection 15(a) of the Succession Law Reform Act, as demonstrated below. Thus, wills are no longer automatically invalidated by a new marriage. If this were the case for Banton v Banton, the predatory marriage would not have revoked Mr. Banton’s former wills, and so his property would have been distributed in accordance with his prior intentions rather than the law of intestacy.

15 A will or part of a will is revoked only by,

(a) Repealed: 2021, c. 4, Sched. 9, s. 2.

(b) another will made in accordance with the provisions of this Part;

(c) a writing,

(i) declaring an intention to revoke, and

(ii) made in accordance with the provisions of this Part governing making of a will; or

(d) burning, tearing or otherwise destroying it by the testator or by some person in his or her presence and by his or her direction with the intention of revoking it.

A seemingly apparent question arises. If a person gets remarried, and the new marriage does not automatically revoke a pre-existing will, does this not inadvertently benefit a prior spouse if there was a pre-existing will benefiting them? The answer is no. Section 17 of the SLRA notes that where a party gets divorced or separated, any provision benefitting that spouse will be revoked:

(2) Except when a contrary intention appears by the will, where, after the testator makes a will, his or her marriage is terminated by a judgment absolute of divorce or is declared a nullity,

(a) a devise or bequest of a beneficial interest in property to his or her former spouse;

(b) an appointment of his or her former spouse as executor or trustee; and

(c) the conferring of a general or special power of appointment on his or her former spouse,

are revoked and the will shall be construed as if the former spouse had predeceased the testator. R.S.O. 1990, c. S.26, s. 17 (2).

(3) Subsection (2) applies, with necessary modifications, on the death of the testator, if the spouses are separated at the time of the testator’s death, as determined under subsection (4). 2021, c. 4, Sched. 9, s. 4 (2).

(4) A spouse is considered to be separated from the testator at the time of the testator’s death for the purposes of subsection (3), if,

(a) before the testator’s death,

(i) they lived separate and apart as a result of the breakdown of their marriage for a period of three years, if the period immediately preceded the death,

(ii) they entered into an agreement that is a valid separation agreement under Part IV of the Family Law Act,

(iii) a court made an order with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage, or

(iv) a family arbitration award was made under the Arbitration Act, 1991 with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage; and

(b) at the time of the testator’s death, they were living separate and apart as a result of the breakdown of their marriage. 2021, c. 4, Sched. 9, s. 4 (2).

Obvious takeaways? Ontario has made reforms to combat against the unfortunate consequences of predatory marriages. As it stands, marriage does not automatically revoke pre-existing wills, combating against the effects of cases like Banton v Banton. Additionally, proper separation and/or divorce, pursuant to section 17 of the SLRA, has the effect of revoking provisions in a will dedicated to a former spouse, such that while a new marriage will not revoke an entire will, the old spouse will not be able to benefit under a pre-existing will.


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