Tag Archives: elder law

Intestacy and Predatory Marriages

Predatory Marriages – what are they, how can we protect elderly loved ones from them and how can they can impact estate inheritances?

As our population ages in the coming years, it is anticipated that personal wealth in the astonishing range of several trillion dollars, will be transferred from one generation to the next. Much of this wealth will transfer simply from husbands to wives or from parents to children.  Other wealth, however, will transfer from a widowed parent to a new life partner against the testator’s previously stated wishes, either due to legal requirements or due to the influence of the new spouse.

The case of Banton v Banton in Ontario is a perfect example of how a predatory marriage can impact an otherwise standard family distribution.  The testator in this case married a member of the food services staff in his long-term care facility, then revised his will to provide for his new wife; notably, his estate was large enough to have provided for both his wife and his children, but his new will distributed his assets to his second wife.

Following Mr. Banton’s death, his children challenged the validity of the will and the following facts were considered:

  • The marriage occurred very close to the end of Mr. Banton’s life, following a period of reliance upon the new wife as a paid caregiver;
  • Mr. Banton was deemed to have been mentally incompetent at the time he wrote his new will (and likely also at the time he entered into the marriage);

In Ontario, much like in British Columbia under current statutory law, marriage nullifies previously existing wills.  The will Mr. Banton executed before his second marriage was no longer valid under the terms of the statutory law.

Mr. Banton was deemed to be mentally unsound at the time of drafting his new will after the questionable marriage.  This will is therefore not viable for probate purposes, rendering Mr. Banton intestate (having no valid will), and his estate became subject to distribution in accordance with the government’s statutory provisions for individuals without wills.

Currently, in British Columbia, if this situation were to arise, Mr. Banton’s second wife would receive the first $65,000 of his estate assets, as well as 1/3 of the remainder of his assets. His children would split the other 2/3 of the remainder of his assets equally between him. These distributions would, of course, occur after his debts and those of his estate had been repaid in full.

As our population ages, we need to turn our minds to the ongoing right of our elders to direct their lives, engage in rewarding interpersonal relationships and explore new experiences.  We will also begin to see increased cases providing guidance on how to ensure mental competence at the time of a late-stage marriage.

At McQuarrie Hunter LLP, we work with clients to ensure protection of family assets, responsible support of loved ones who are engaged in legitimate relationships and the eventual distribution of our clients’ assets in accordance with their stated wishes.