How to Protect the Elderly from Will Revocation Upon Predatory Marriage.

By Merovitz Potechin on Tuesday September 8, 2020.

With the population in Ontario aging rapidly and predatory marriages on the rise, the Ontario government is concerned for elderly persons that are being approached by financial predators, whose exclusive motivation for entering into a relationship with the elderly person is to gain access to the elderly individual’s assets and/or estate. As such, the Ontario Government is currently consulting with the Estates bar about making changes to section 16 of the Succession Law Reform Act (“SLRA”).

Section 16 of the SLRA provides that a Will is revoked by the marriage of the testator, except under very narrow circumstances (i.e. if there is a declaration in the Will that it is made in contemplation of the marriage). This means that if an elderly person marries a financial predator, and they fail to make a new Will or are incapable of making a new Will after marriage, on their death, the elderly individual will have died without a Will and the rules of intestacy will apply. On intestacy, the predator spouse will be entitled to a preferential share of the deceased’s estate (currently $200,000) as well as a share of the remainder of estate, depending on how many children the elderly individual had.

If section 16 is repealed, the marriage would not revoke the Will and the elderly individual’s Will, in existence at the time of the marriage, would remain effective and binding. This means that the predator spouse’s access to the elderly individual’s estate and assets would be significantly limited.

The impact of repealing section 16 is better understood when considering the threshold required for a person to have capacity to marry, compared to the capacity required to make a Will. Capacity is decision, time and situation/context specific, and there are different levels of capacity for different actions. The threshold for capacity to marry is much lower than the capacity to make a Will. It requires only that the elderly person understand the nature of the contract of marriage and its obligations, compared to a requirement that they be able to understand and appreciate the nature of their testamentary instructions. This gap in the required capacity leads to situations whereby an elderly individual, who would not otherwise be capable of revoking his/her Will, revokes, sometimes unknowingly, his/her Will by virtue of getting married.

Ultimately, repealing section 16 can help protect the elderly, and their families, against predatory marriages. We will continue watching the progression and reforms to the SLRA and will provide an update on how the government plans to deal with our vulnerable populations. If you have questions about intestacy or whether or not a marriage revoked your, or a loved one’s will, please contact our Estate Litigation team at Merovitz Potechin LLP.