Maurice Banton was an 88 year old father too unwell to live alone. His children moved him into a senior’s residence. Maurice met Muna, a waitress working at the senior’s residence, and romance bloomed. Did I forget to mention Muna was 50 years younger than Maurice?
This was the case of Banton v Banton1 and its fact situation underscores the risk to the elderly being victimized by financial predators. Was Muna really after Maurice’s money? To quote the judge, “I have no doubt at all that this influence was deliberately exerted to enable her to obtain control and, ultimately, the ownership of his assets.”
Despite the protests of his children, the young waitress wooed the elder Mr. Banton and got him to marry her. Unbeknownst to his children, the young lady also contacted her lawyer and arranged for her new husband to make new wills which cut out his children. Why would a father who loved his children do such a thing? The court found that “It is the case of a lonely, depressed, terminally ill, severely disabled and cognitively impaired old man whose enfeebled condition made him an easy prey for a person like Muna with designs on his property.” Maurice suffered from the delusions that his children did not love him and only wanted his money. This insane delusion directly impacted on the decision to disinherit his children.
It was clear to the judge that the decision to give his money to his wife was not Mr. Banton’s. On the contrary, that decision was really the wife imposing her will on him. The new Mrs. Banton played on her husband’s upset that his children sold his house and, contrary to his hope and expectation, they had put him into Lifestyles instead of allowing him to live with one of them. George Banton believed his unfounded allegation that his children were not interested in him and were only interested in his money. So does this mean Mrs. Banton gets nothing? Not so fast.
The court noted that while the man did not have the capacity to make a will, he did have the capacity to get married. The test applied for the capacity to marry was simply the ability to understand the nature of the relationship and the obligations and responsibilities it involves. Since the threshold for the capacity to marry was so low, the children’s attempt to annul it did not succeed. According to this court decision, even a man who is lonely, depressed, terminally ill, severely disabled and cognitively impaired had sufficient memory and understanding to continue to appreciate the nature and responsibilities of marriage and that was sufficient to validate the marriage. Furthermore, at the time Banton was decided, Ontario’s Succession Law Reform Act (“SLRA”) provided that a Will is revoked by the marriage of the testator.2 So, despite the fact that Muna deliberately planned this charade, it looked like Maurice’s previous Will was going to be cancelled and the woman who schemed to obtain his property would succeed. If a will is revoked by marriage and not subsequently replaced, as per the SLRA, a spouse would inherit a preferential share of Maurice’s estate3 under an intestacy plus her distributive share. Fortunately for Maurice’s children, Justice Cullity found a way to do the right thing.
In this case, the children were fortunate that Justice Cullity found that the father’s residence was really held in trust for the children so it did not form part of the estate. Muna did not get much money. This time the children were lucky. Unfortunately, that is not always the case.
Since the Banton decision many academics and lawyers have bemoaned the fact that the capacity threshold for marriage was too low. They felt that it made the elderly more vulnerable to financial predators. For example Kimberly Whaley and Professor Albert Oosterhoff4 wrote a great deal about this issue. The legislature and courts seems to have paid attention.
Firstly, it is arguable that the court changed the test for capacity to marry in Hunt v. Worrod5. The test applied by Justice Koke in Hunt was whether the individual had an understanding of the duties and responsibilities which a marriage creates and the ability to manage themselves and their affairs. This is very different than the test Justice Cullity applied in Banton and appears to be an increased threshold for capacity.
Some of the above concerns have also been legislatively addressed through changes to the SLRA. As mentioned in footnote 2, starting on January 1, 2022, marriage will no longer revoke a will in Ontario. Any marriages that happen before that date, however, are still subject to the prior regime wherein marriage revokes any previous will absent a declaration in the will that it is made in contemplation of marriage.6 For many of the reasons discussed in this blog, this legislative shift is seen as a welcome change by many estates scholars. But while the change does provide an extra layer of protection against financial predators like Muna in Banton, it is by no means a complete shield. Marriage still carries with it substantial implications with respect to one’s property and finances.7
Anecdotally, as someone whose practice focuses on estate litigation and elder abuse I see Banton-like situations happening more often. There is a very interesting paper8 published by Statistics Canada based on Statistics Canada sources. They report that “…overall, 7% of older adults experienced some form of emotional or financial abuse by an adult child, caregiver, spouse or common law spouse with whom they had contact in the five years prior to the survey. The vast majority of emotional and financial abuse was committed by spouses. Senior men (9%) were more likely than senior women (6%) to report being victims of emotional or financial abuse.” To measure financial abuse Statistics Canada and the Toronto Police Service9 asked seniors certain questions which I have summarized below. If one suspects the answer is yes to more than half it’s time to seek out professional counsel for advice.
Has the alleged rogue
- tried to limit the elderly person’s contact with his family or friends?
- put the elderly person down or calls them names to make them feel bad?
- acted jealous and like they don’t want the elderly person to talk to other men/women?
- threatened to withdraw care or threatened the elderly persons or someone close to the elderly person?
- demanded to know who the elderly person is with or speaks to at all times?
- damaged or destroyed the elderly person’s possession or property?
- prevented the elderly person from knowing or having access to the elderly person’s income or financial information?
- tried to compel the elderly person to relinquish control over finances?
- tried to force the elderly person to give up something of value?
- tried to force the elderly person to sign documents which were not understood or to change Last Will and Testament or tried to obtain Power of Attorney over their finances?
- introduced a new lawyer into the situation which the elderly person never met before and has no knowledge of the elderly person’s history?
It will be interesting to see how the courts deal with the differences in the Hunt and Banton cases when dealing with the threshold to marry. It behooves anyone litigating this issue to review the judicial consideration of both these cases.
- Banton v. Banton, 1998 CarswellOnt 3423, 164 D.L.R. (4th) 176, 66 O.T.C. 161. ↵
- This revocation issue is limited to marriages which occur before January 1, 2022, since that is the date when certain changes to the SLRA come into effect, one of which is the repeal of the provision which provides that a previous will is revoked upon marriage (s. 15(a) of the SLRA). ↵
- A spouse’s preferential share of the estate in an intestacy is $350,000 pursuant to section 45 of the SLRA. As per the newly implemented O. Reg. 54/95, $350,000 is the prescribed amount for the preferential share of the estate of anyone who dies on or after March 1, 2021. For the estates of those who die before March 1, 2021, like Maurice in Banton, the prescribed amount for the preferential share will still be $200,000. ↵
- “Predatory Marriages” by Kimberly A. Whaley and Albert H. Oosterhoff, Volume 48, Issue 3, June 2018
- “Predatory Marriages – Equitable Remedies”, by Kimberley A. Whaley and Albert Oosterhoff, E.T. & P.J. 269-287 (2013)
- Capacity to Marry and the Estate Plan, Canada Law Book, 2010
- Curbing the Scourge of Predatory Marriages by Legislation written by Albert Oosterhoff ↵
- See Hunt v. Worrod, 2018 ONSC 2133 (CanLII) and Wagner Sidlofsky’s blog Hunt v. Worrod: Capacity to Marry – Has the test changed? ↵
- For more information, see Professor Oosterhoff’s blog, “Welcome Amendments to Ontario’s Succession Law Reform Act” ↵
- For more information, see my and Rebcca Ernst’s blog: The Predatory Marriage Phenomenon ↵
- http://www.statcan.gc.ca/pub/85f0033m/85f0033m2001008-eng.pdf ↵
- http://www.torontopolice.on.ca/crimeprevention/elderabuse.php ↵