The actress Anna Nicole Smith, at the age of 26, married 89-year-old millionaire J. Howard Marshall. She called it love. Others called it a “predatory marriage.” She sued his estate after he died merely 13 months after their marriage.
Allegations that younger women sometimes marry older men for their money are nothing new. But with people living longer and the transfer of one trillion dollars2from one generation to the next, it appears as if the concern about financial predators is more commonplace. In part, it’s because the Baby Boomer generation has considerable wealth, and while medical science has increased the average lifespan it has not made comparable progress in reducing the cognitive impairment associated with the aging process. More wealthy elderly people with heightened vulnerability are easier prey for the financial predator.
As people live longer, they become more susceptible to experiencing chronic degenerative conditions, including cognitive decline.3 By 2036, it is projected that 1 in 4 Canadians will be 65+ years old.4 While age is not determinative of cognitive ability, age-related cognitive decline is a reality. Consequently, there will likely be a significantly greater number of wealthy, cognitively limited, vulnerable individuals available to be preyed upon.
In an article entitled “Elder exploitation through predatory marriage”5 the author Dorota Miler noted that,
“Four rulings have been made during the last decade in Canada’s common law provinces that deal specifically with the problem of predatory marriages involving the elderly: Banton v Banton6, Barrett Estate v Dexter,7 Danchuk v Calderwood8 and Feng v Sung Estate.9 In each case, an employed female caregiver exploited a physically and/or mentally impaired male elder … the mental and/or physical deterioration of the elder made it necessary for him to be assisted in his daily affairs. The hired caregiver became aware of the elder’s severe health issues and his significant financial assets. With time, the woman […] started influencing the elder’s decisions, and began appropriating money and property […] to control the elder’s assets, the caregiver manipulated the elder into marriage.”
The fact that there are only four reported cases does not necessarily mean that the predatory marriage phenomenon is infrequent. Anecdotally, it seems that more clients are expressing concerns about how to protect their parents and their potential inheritance.
Prior to Bill 24510 coming into force, the Succession Law Reform Act (“SLRA”) provided that a will is revoked by the marriage of the testator except in specified circumstances.11 The potential impact of a will-revoking marriage on an individual’s estate is obvious, especially considering the different capacity requirements for marriage versus drafting a will. As Justice Cullity said:
A finding of a lack of testamentary capacity does not necessarily determine whether an individual has the mental capacity to marry; nor is testamentary capacity at the time of marriage required before the marriage will revoke a will.
Accordingly, prior to Bill 245 coming into force, a person who had the capacity to marry – and got married – revoked their will without necessarily having the capacity to make a new one. Such a marriage therefore might result in a financial predator spouse benefiting under an intestacy. Put another way, before Bill 245 coming into force, when a testator without testamentary capacity, remarried and then died, upon his or her death, the surviving spouse will be entitled to the preferential share (the first $350,000) and as much as half of the distributive share of the estate.12
The repealing of the relevant sections dealing with marriage revoking a will come into force on January 1, 2022. Notwithstanding Bill 245, the previous case law dealing with predatory marriages and the consequential statutory revocation of the governing testamentary document will still be relevant for marriages that occurred prior to January 1, 2022.
Even post Bill 245 coming into force, the victims of predatory marriages are still at risk. Vulnerable elderly people’s resistance to inappropriate overtures may result in unwanted depletion of their estates.
How can a domestic contract protect your parent?
So what are children who want to protect their parents against financial predators to do? There are a number of options, including estate planning, domestic contracts and challenging the validity of the marriage. When an elderly person of means plans to get married, their lawyer often advises them to ensure that their fiancé or fiancée signs a prenuptial agreement. The goal is to protect the wealthy person’s family in case the marriage breaks up and/or the wealthy spouse dies. Ontario’s Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) allows people to negotiate their own deal. In other words, by virtue of the prenuptial agreement, the financial predator will often be prevented from making a claim for support or the division of property normally made under the FLA. So does that protect the elderly person? Maybe.
Under the FLA, the court has discretion to set aside a domestic contract under a number of circumstances. One example where a court may set aside a domestic contract is when a party did not understand the nature or consequences of the domestic contract or otherwise in accordance with the law of contract. So now the disinherited widow/widower who signed a deal giving up their rights can ask the judge to set aside the agreement because they did not understand what they were doing as evidenced by a lack of independent legal advice (ILA). Another ground for attacking the agreement is the failure of one party to make full and frank disclosure about their financial assets13. Other arguments which may lead to the setting aside of the domestic contract include one party’s failure to make full and frank disclosure of their assets, or a breach of the formalities of execution. It is also important to realize the Succession Law Reform Act specifically provides that a court has discretion to order an estate to make support payments to a surviving spouse despite an agreement or waiver to the contrary. So, even if a prenuptial agreement has been signed, the predatory spouse still has the opportunity to seek support.14
Estate Planning prior to marriage
Estate planning is a useful tool to protect the children of a prior marriage from an alleged financial predator. As long as the testator/elder has capacity, he can always make a new will leaving his children in the lurch. He can also “gift” certain assets to the financial predator, leaving himself vulnerable to exploitation and being unduly influenced. Parents entering into a second marriage would be well advised to explore the uses of trusts, estate freezes and other similar vehicles that might protect them and better secure their children’s interests.
Seeking to set aside the marriage
Even when Bill 245 comes into force, and a marriage no longer revokes a will, an elderly person can still be victimized when they marry a financial predator. The vulnerable elderly person can make a new will that benefits the predator and disinherits the family. And even if that new will is set aside following the death of the elderly spouse, the financial predator still has the right to:
- elect for an equalization payment under the Family Law Act;
- receive an inheritance by virtue of an intestacy under Part II of the Succession Law Reform Act (if there is no previous will to dictate the distribution of the estate); and
- seek support as a dependent under Part V of the Succession Law Reform Act.
So what options are available to the family to stop the predator spouse?
Subsequent to the death of the elderly spouse the family has the option to seek a declaration that the marriage was void ab initio. But having the marriage declared to be void from the beginning is not an absolute solution. The financial predator may still qualify as a dependant/spouse under Part V of the Succession Law Reform Act and be entitled to some quantum of support. A fuller analysis of Part V rights is beyond the scope of this blog. For those readers interested in this topic I refer you to a blog entitled “Dependant’s Support Cheat Sheet – A Primer” found at https://www.wagnersidlofsky.com/dependants-support-cheat-sheet-a-primer-2/ .
With all that said, obtaining a declaration that the marriage was void ab initio is not so simple. While the courts may be more open to setting aside a will procured by undue influence or testamentary incapacity, they are less likely to set aside a marriage on that basis. Why? As alluded to above, there is a world of a difference between the high capacity required to make a will and the low capacity required to get married.
Another important factor to consider is the difficulty in obtaining a declaration that the marriage was void ab initio. While the courts may be more open to setting aside a will procured by undue influence or testamentary incapacity, they are less likely to set aside a marriage on that basis. Why? Because there is a world of a difference between the high capacity required to make a will and the low capacity required to get married.
According to Banton v. Banton, the capacity to marry is the ability to understand the nature of the relationship and the obligations and responsibilities it involves.15 The capacity to create a will or testamentary disposition is much higher in that it requires: (i) the ability to understand the nature of the act and its effect, (ii) the ability to understand the extent of the property being disposed of, (iii) the ability to comprehend and appreciate the claims of persons who expect to receive something under the will, and (iv) a mind free from disorder or insane delusions that influence the dispositions under the will.16 But that may no longer be the law. Let’s review two relevant cases on this topic.
In the Sung Estate case,17 the wife of Kam Yuen Sung (“Sung”) died. Sung was lonely and depressed. He married his caregiver Qi Zi Feng (“Feng”) and died about six weeks after the marriage. The court set aside the marriage. For our purposes it would be useful to review certain excerpts from Justice Greer’s decision:
45 It is the position of Sung’s family that the marriage of their father to Feng is a nullity, given that there was no consummation of the marriage, their view that their father did not appreciate the consequences of the marriage or of the coercion placed on him by Feng and her fraudulent misrepresentations to Sung, her duress on him and her undue influence in getting him to marry her …
47 The sequence of events, in my view, is very important in determining whether any of the factors, as alleged by Sung’s children, took place. The uncontradicted evidence is that Sung thought he and Feng were to marry in September […] All of the medical evidence shows that Sung was rapidly succumbing to the consequences of cancer in its last stage. It is clear that by August 21, 2001, Sung’s cancer was rapidly advancing and he was in extremely ill health. He was therefore extremely ill on August 23, 2001, being the date of the marriage.
48 Feng was the strong person both physically and mentally in the relationship. The evidence shows that she intended to marry Sung without regard to his health or his family …
49 When Sung told Tim on September 4, 2001, about his marriage on August 23, 2001, only 12 days earlier, he did not seem to understand the consequences of what had taken place when the contract was not signed […] It is not until September 4, 2001, that Sung realizes the significance of what has taken place regarding his marriage to Feng. He then instructs his eldest son, Kevin, to effect the transfer of the house by power of attorney and the transfer of the mutual funds.
50 I am satisfied on the evidence before me that Feng pressured Sung into marrying her by telling him that she would abandon him and not take care of him. Given Sung’s frail health and the fact that he was dying, Sung did not have either the physical or mental strength to resist this and tell his children what Feng was doing. Further, Feng’s rapacious behaviour and utter greed, caused her to literally drain Sung’s bank account without both before his death and shortly thereafter. Feng’s evidence about discussing this with Sung beforehand, is totally incredible, given that she had the $30,000, which is all he intended to give her, at his point, upon signing the prenuptial agreement.
53 I am satisfied on the evidence before me that the marriage of Sung and Feng was void ab initio. Each case turns on its facts, when it comes to marriages of the infirm, the elderly and the vulnerable. Sung, although only 70 years of age, was both infirm and vulnerable and Feng knew this. The fact that Feng needed money to help support her son (witness the payments from Sung’s account to pay for the son’s car insurance) and he agreed to pay it, shows his vulnerability. Further, Feng was quite aware of Sung’s frail mental and physical health, given her nursing background. It was less than a year after Sung’s wife’s death that Feng began pressuring Sung …
54 The evidence shows how Feng used both duress and undue influence to force Sung into marriage with her. Normally, parents tell their children and families about forthcoming marriages. Feng clearly prevented this and brought in witnesses whose names she could not even recall […] I am satisfied on the evidence that Feng was nothing more than a nurse/housekeeper, who wanted Sung’s money, knowing that he was dying, and both impotent and incontinent. The evidence shows that Sung was extremely close to his family members and Feng knew that marriage would disinherit them and give her certain legal rights, because she refused to sign the prenuptial contract.
Does the Feng decision mean the prospects of setting aside a marriage in these sorts of decisions always enjoy success? The answer is no. Justice Greer’s caveat that “each case turns on its facts” can serve as a warning to anyone relying on the Feng Estate case to rationalize proceeding to court to challenge a marriage’s validity. Case in point – the oft-alluded to Banton v. Banton, which considered the case of an elderly, physically and mentally frail gentleman who married a much younger woman. The day following their wedding, Mr. Banton drafted a new will that excluded his five children entirely and left his entire estate to his new wife; a classic case of “predatory marriage.”18 Justice Cullity found that the elderly Mr. Banton had sufficient memory and understanding to continue to appreciate the nature and responsibilities of marriage. He made this finding notwithstanding his conclusion that the elderly Mr. Banton did not have the capacity to manage property. This did not mean that Mr. Banton was incapable of marriage. We include some relevant excerpts from Justice Cullity’s decision regarding the capacity to marry:
103 Marriage is, of course, a legal contract and, to some extent, it is governed by the laws applicable to contracts in general. I am satisfied, however, that it is not subject to the operation or application of the presumptions and principles which determine whether contracts may be avoided on the ground of undue influence. Fraud, of course, is another matter but the evidence in this case does not support such a finding …
104 A marriage can be set aside on the ground of duress or coercion of a degree sufficient to negative consent […] [T]he evidence does not warrant a conclusion that there was duress in this case with respect to George Banton’s participation in the marriage.
105 In late September and early October 1994 George Banton had tried to resist Muna’s attempts to seduce him into marriage but, in November, he capitulated and consented to it. Although I have also found that marriage was part of Muna’s carefully planned and tenaciously implemented scheme to obtain control and, ultimately, the ownership of his property, as far as the marriage was concerned he was, at the end, a willing victim. Shortly thereafter he told Victor that he had wanted “one last fling”.
106 In view of my finding that George Banton consented to the marriage, it is unnecessary to deal with the questions whether duress makes a marriage void or voidable and, if the consequence is that the marriage is voidable, whether it can be set aside by anyone other than the parties. I express no opinion on these issues.
The test for capacity to marry may have changed in Hunt v. Worrod19. Justice Koke’s test for capacity to marry was an understanding of the duties and responsibilities which a marriage creates and having the ability to manage themselves and their affairs. This is very different than the test Justice Cullity applied in Banton. It behooves those litigating this issue to monitor the judicial consideration of these two cases.
It is smart for children to be wary when their senior citizen parents are contemplating marriage. The diminution of both physical and mental abilities makes the elderly highly vulnerable to financial predators. Not only is the elderly parent now at risk, so too is the children’s inheritance. The best way to protect the elderly who enter into a new relationship is to consult with a competent lawyer and to seek advice about a domestic contract and an estate plan that protects the elderly parent and the children of the first marriage. But that is not the adult child’s decision. It is the parent’s decision. Prior to the marriage taking place the elderly parent would be well advised to consult a lawyer and to design an estate plan that protects his/her assets to provide some insulation against a financial predator. Finally, if things turn out badly, seek out a litigator to see if the facts of the case will permit a challenge to the marriage.
You May Also Like:
- Domestic Contracts are not Fool Proof
- Prenuptial Agreement and Formalities of Execution
- Are Prenuptial Agreements Invalid Without ILA?
- Hunt v. Worrod: Capacity to Marry – Has the test changed?
- May 16, 2011 Seminar – Bnai Brith Seminar – “Financial Predators and the Elderly – Banton v Banton.”
- Seduction, Marriage and Elder Abuse
- The authors wish to thank Adin Wagner for his review and update of this paper. The first author of this blog is Charles B. Wagner. Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP. The co-author is Rebecca Ernst who is an associate litigation lawyer at Walker Head. She practices in the Firm’s civil and estate litigation groups. ↵
- See Madhavi Acharya and Tom Yew’s article of February 20, 2012 in The Toronto Star entitled, “Baby boomers set to inherit $1 trillion” found on line at https://www.thestar.com/business/personal_finance/retirement/2012/02/20/baby_boomers_set_to_inherit_1_trillion ↵
- Statistics Canada, Demographic Change (Ottawa: Statistics Canada, 2016), online: <http://www.statcan.gc.ca/pub/82-229-x/2009001/demo/int1-eng.htm>. ↵
- Ibid. ↵
- Dorota Miler, “Elder Exploitation Through Predatory Marriage”, 28 Can. J. Fam. L. 11 ↵
- (1998), 164 DLR (4th) (Banton) ↵
- Barrett Estate v Dexter (2000), 268 AR 101, 34 ETR (2d) 1 (Barrett) ↵
- (1996), 15 ETR (2d) 193, 67 ACWS (3d) 418 (Danchuk). ↵
- Feng v Sung Estate (2003), 1 ETR (3d) 296, 37 REL (5th) 441 aff’d 11 ETR (3d) 169, 9 RFL (6th) 229 (Feng). ↵
- See https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-245 ↵
- See sections 15(a) and 16(a) of Succession Law Reform Act, R.S.O. 1990, c. S.26. There are exceptions to this general rule if the will was created in contemplation of marriage. These sections are repealed as of January 1, 2022, following which marriage no longer revokes a will in Ontario. See: 2021, c. 4, Sched. 9, s. 2 ↵
- We refer the reader to a blog entitled Law of Intestacy in Ontario which can be found at https://www.wagnersidlofsky.com/intestacy-in-ontario/ ↵
- See “Rights of disinherited second wife – full and frank disclosure” found at https://www.wagnersidlofsky.com/rights-of-disinherited-second-wife/ Section 56(4) of the FLA provides that a court may set aside a domestic contract if a spouse failed to disclose significant assets existing when the domestic contract was made or if the other spouse did not understand the nature or consequences of the contract. ↵
- See “Dependant’s Support Cheat Sheet – A Primer” found at https://www.wagnersidlofsky.com/dependants-support-cheat-sheet-a-primer-2 . See section 63(4) of the SLRA. ↵
- Banton v Banton, 164 DLR (4th) 176, 1998 CanLII 14926 at para 142 (ON SC). ↵
- Banks v Goodfellow, (1870) LR 5 QB 549 at 565. ↵
- 2003 CarswellOnt 1461 ↵
- Banton v Banton, supra note 6 at para 157. ↵
- See Hunt v. Worrod, 2018 ONSC 2133 (CanLII) and Wagner Sidlofsky’s blog Hunt v. Worrod: Capacity to Marry – Has the test changed? ↵