Harry, 85, wants to marry 75-year-old Esther, but he does not want to lose his widower’s pension. They agree not to obtain a marriage license or register the marriage, but instead to have only a ritual ceremony in a rabbi’s office. Harry dies and his will leaves his assets to his children. Does only a religious marriage ceremony give Esther any rights to Harry’s estate?
Esther’s lawyers would argue that by virtue of the Succession Law Reform Act, a will is revoked by a legal marriage. When a person dies and he or she has no will then the person is said to die intestate. Under the laws of intestacy in Ontario Esther should get a preferential share of the estate (the first $200,000) and a portion of the balance.
The lawyer for Harry’s children would point to Deborah v Deborah 1999 Carswell Ont 5; 167 D.L.R. (4th) 759, 116 O.A.C. 196, 43 R.F.L. (4th) 179. This case went to the Ontario Court of Appeal, which ruled that a religious Jewish marriage alone would not qualify a spouse for property rights under the Family Law Act. Since the definition of “spouse” in the legislation that deals with revocation of wills by marriage (the Succession Law Reform Act) is virtually identical with the Family Law Act Harry’s children would argue that a ritual marriage alone does not revoke Harry’s will.
In the end, in my view, the issue would likely be decided on the basis of section 31 of of the Marriage Act, R.S.O. 1990, c. M.3, which states: “If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act … and after such solemnization have lived together and cohabited as a married couple, such marriage shall be deemed a valid marriage …” In Deborah v Deborah the court did not accept that the marriage was solemnized in good faith because they purposefully did not intend to be in compliance with the act. If Esther, in good faith, believed that her ritual marriage was being conducted pursuant to Ontario law and she lived with Harry as husband and wife, then it is arguable that the legislation would deem the union to be a valid marriage that would revoke the will.
Esther, as a common-law spouse, may still be entitled to spousal support as a dependant under the Succession Law Reform Act, as long as they had lived together as man and wife continuously for a period of not less than three years. Under the legislation, the court would determine the appropriate amount of support by considering how Esther and Harry organized their relationship and her needs and circumstances.
Esther might also have a quantum meruit claim, if she could demonstrate that the estate has been unjustly enriched, that she suffered a corresponding loss and there was no requirement of law that the estate should receive such a benefit. For example, if Esther gave up her job to take care of Harry for the last five years of his life and she was unpaid for the service then she could try to make the argument that if not for her the estate would have had to institutionalize Harry at a cost of $60,000 per year. She may argue that she did more than could normally be expected from a wife and that she lost
earnings comparable to the unjust enrichment of the estate.