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Estates & Wills & Trusts

Predatory marriages 'increasingly common problem' in Ontario

With the elderly population living longer and more independently than in the past, predatory marriages are becoming a growing phenomenon in Ontario, Toronto estates and trusts lawyers Ian Hull and Suzana Popovic-Montag write in The Huffington Post.

Hull, co-founding partner of Hull & Hull LLP, and Popovic-Montag, managing partner of the firm, explain that a predatory marriage occurs when a man or a woman enters into a relationship with an elderly individual exclusively for the purpose of gaining access to their estate.

“Generally, a predatory partner will use their status as a spouse to withdraw money from joint bank accounts, obtain ownership (often exclusive ownership to the detriment of the aging spouse) of the matrimonial home, and make arrangements to inherit significant amounts of money from the estate of the victimized spouse,” they write.

These situations not only affect the elderly spouse who is being taken advantage of but can also impact the entitlements of the beneficiaries named within the individual’s previously executed testamentary documents, say Hull and Popovic-Montag.

Although the standard in respect of mental capacity required to create a valid will is high, the capacity required in order to validly enter into a marriage is considerably lower, they add.

“As such, in a predatory marriage, while an elderly individual may not be capable of executing a new testamentary document, he or she may nevertheless be considered capable of marrying, which will in most circumstances revoke any prior testamentary documents prepared by the individual,” they write.

The Succession Law Reform Act (SLRA) provides that the marriage of a testator revokes his or her will unless the will was made in contemplation of that marriage. As Hull and Popovic-Montag note, neither the SLRA nor the Marriage Act offers substantial protection for individuals exposed to the risk of being targeted for a predatory marriage. In Alberta, British Columbia and Quebec, however, marriage does not revoke an otherwise valid will. 

If a new will is not executed following a marriage, the intestacy provisions of the SLRA will come into effect. 

“Pursuant to the intestacy provisions, a married spouse will automatically receive the first $200,000 of the deceased’s estate, and the remainder will be divided between the spouse and any surviving children of the deceased. Although it may not require the same degree of mental capacity as executing a new will, marriage can nevertheless result in a complete transformation of an estate plan,” they write.

Ultimately, say Hull and Popovic-Montag, predatory marriages are a type of elder abuse and are becoming an increasingly common problem. 

“An elderly person in Ontario could be unaware that their existing will can be revoked by marriage, with no knowledge of the need to execute a new one, and/or a lack of the requisite capacity to execute a new one,” they write.

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