Carry me away
I know your angel eyes
Can see through me
…Marry me today
Recently attended the Annual Estates Summit of the Law Society of Upper Canada. The beauty of law; never constant, always learning and where the more you do, the more there is to do, and the better you get. Attendance via the still electronic marvel to me of the computer screen and headphones in my office, watching everything in real time, live from Osgoode Hall.
Major paper this year on a term that was new to me, though the client circumstances were not: “predatory marriage”. People who take advantage of vulnerable, elderly people with diminished mental capacities, and do the moves to lead to a fast marriage. Often the elderly person will be widowed, with children. The elderly person will then change his or her will to benefit the new spouse. The children, rightly outraged, will seek to have the will set aside, based on incapacity, and also seek to have the marriage annulled.
You would think that someone who is mentally incapable of making a will would also be mentally incapable of marrying. Here is where the problem is; the mental capacities are different. A child may not understand what making a will means, but readily understands what the nature of marriage is. Regrettably, this same distinction as to mental capacity is applied to elderly persons. Such person may not be capable of making a will, but is still capable of marrying. The end result? The will is set aside, but the marriage is not.
Since the will made following the predatory marriage has now been set aside, this means that the intentions of the predator have been successfully defeated, right? Wrong, wrong. A valid marriage revokes a previous will. This means that, while the will favouring the predator is no more, there is no will at all. So the previous will, carefully drafted when the elderly person was competent to do so, and which would normally favour children or other persons and institutions, such as religious institutions, genuinely close to the elderly person, is no more. When the elderly person dies, he or she dies as if no will had ever been made. In such circumstances, the predatory spouse has a preferential right to administer the estate, as well as a statutory right to share in the estate on an intestacy. Furthermore, the predatory spouse has a right to compare what he or she would have received on a divorce to what would be received on an intestacy, and take the larger amount. For example, if there is a predatory spouse and two children, on the death of the elderly person, the predatory spouse has a preferential right to $200,000 from the estate, plus 1/3 of the remainder. The two children receive the remaining 2/3.
Major payoff for the predator. Not good for anyone, but the predator. Marry me today: