Ontario’s outdated estate and marriage capacity laws make widowed seniors an easy target for “predatory marriage,” legal experts and seniors’ advocates say.
Family inheritances are destroyed when a vulnerable senior is tricked into late-life marriage, said Toronto estate lawyer Kimberly Whaley, who has written extensively on the financial abuse.
A predatory bride or groom uses marital status to take money from joint bank accounts, get ownership of the family home and inherit significant sums from the dead spouse’s estate.
It’s easily accomplished because in Ontario’s Succession Law Reform Act, marriage nullifies an existing will.
Written promises for a lifetime of accumulated wealth are worthless as soon as the marriage is legal. Once the elderly spouse dies, the new wife or husband gets the estate’s first $200,000 before anything is shared with the dead partner’s children.
“We’re seeing predatory marriage because more people are living longer on their own,” said Whaley, of Toronto’s Whaley Estate Litigation.
“They are more frail, more vulnerable. They are relying on another person to help them so they want to be on good terms and the person who is taking advantage is coercing or unduly influencing them.”
(If mentally capable, an Ontario senior could solve the inheritance issue by writing a new will in advance or “in contemplation” of marriage, but most victims are chosen because they are incapable of seeking protection.)
The blueprint for a marriage trap is simple: a caregiver, neighbour or acquaintance isolates a vulnerable person, destroying family bonds to gain control. Lonely, fragile or suffering from dementia, the victim grows reliant on the new caretaker, who usually suggests marriage with the promise of lifelong care.
Ontario lags in protections for seniors and their families. In 2012, Alberta changed its laws so marriage no longer revokes a will. British Columbia followed two years later. Quebec doesn’t revoke wills after marriage, nor do most American states, Whaley said.
Dan Laville, a spokesman for Alberta’s Ministry of Justice and Solicitor General, said changes were made after a study by the Alberta Law Reform Institute found few people knew that wills did not survive a new marriage. The report called revocation a “blunt instrument” that “may now cause more harm than good when applied to second marriages occurring later in life.”
“Now,” Laville said in an email, “when someone gets married, their previous will is not affected until such time that they make a conscious decision to write a new will.”
There’s a growing call for change from seniors’ advocates and estate lawyers who want the Ontario government to protect the elderly from marriage entrapment.
“Alberta has a really elegant solution,” said Wanda Morris, vice-president of advocacy at CARP, formerly the Canadian Association of Retired Persons. “That’s a strong protection and one that seems a great step for Ontario.
“Wouldn’t it be wonderful if (Ontario was) proactive in this regard and solved the problem before it became so large that they were unable to avoid it,” Morris said.
Lawyers who see family devastation up close say the problem starts with loose capacity-to-marry rules in Ontario’s Marriage Act.
There are few instances in which an officiator can refuse to perform a marriage. Drunkenness is one. Section 7 of the act says a marriage licence shouldn’t be issued to anyone who “lacks the mental capacity to marry by reason of being under the influence of intoxicating liquor or drugs or any other reason.”
Those capacity rules are too loose to protect the fragile elderly, Whaley said. She’s dealt with cases that involved marriages performed over a deathbed or seniors suffering from dementia who have no idea they’ve entered into a binding financial contract.
When marriage revokes an earlier will, the new spouse automatically gets the first $200,000 of the estate after their partner dies. The remainder is supposed to be split between the spouse and the dead partner’s surviving children — if there’s any money left. London estate lawyer Dagmara Wozniak said the joint bank accounts are often emptied long before the children make a claim.
Among Ontario estate lawyers and seniors advocates, there’s a growing push for better protections.
Solutions favoured by many include the removal of will revocation and the creation of a more stringent test for capacity-to-marry laws. This would limit marriage of seniors with dementia or other frailties, without impacting the freedom of others, said Whaley’s firm counsel, Albert Oosterhoff, a professor emeritus of Western University’s law faculty.
“The object of it is, in effect, to preclude predatory marriage, to take away the advantages that would come to a predator upon marriage,” Oosterhoff said.
There’s no data to show how many people fall victim to inheritance theft. Ontario’s Office of the Public Guardian and Trustee does not keep data in this specific category, nor does Statistics Canada.
For those inclined, predatory marriage has huge potential. Over the next 20 years, Canadian seniors are expected to transfer $1 trillion in wealth to their children.
The risks to the elderly can’t be underestimated, said CARP’s Morris.
“We know that there are 500,000 people in Canada right now living with dementia — that’s just one disease that can rob people of capacity (to make decisions) so clearly the magnitude of this could be significant.”
By: Moira Welsh Investigative News reporter, Published on Sun Apr 17 2016
www.thestar.com
