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Predatory marriages

Estate planning can be quickly undone when a vulnerable person is married
Wills, Trusts & Estates Legal Report
|Written By Michael McKiernan
Predatory marriages
Faye Rogers

Justin Hunt still remembers the horror of the October day in 2011 when he realized his father was missing.

Just three days had passed since Kevin Hunt’s release from hospital, following a four-month stint as an inpatient recovering from a horrific ATV crash that left the 50-year-old comatose for 18 days and suffering permanent and catastrophic brain injuries.

Worse, only Justin and his brother had been trained to deal with the specific and extensive care needs of their father, who had also disappeared without his medication.

“We were really concerned about his safety,” Hunt says. As well as taking responsibility for their father’s care while he waited for an expected $1-million personal injury settlement, the brothers had also taken a more active role in the successful landscaping business he founded.

But nothing could prepare them for the news they got when their dad was finally tracked down to a Collingwood, Ont. hotel later that day, with the help of credit card records and the local police.

In the few hours he was gone, the elder Hunt had been married to Kathleen Worrod, the former on-off girlfriend he had split from before the crash.

“When we found out where he was and what had happened, it was a huge shock; just devastating,” Justin Hunt says.

The case is a classic one of predatory marriage, according to Kimberley Whaley, whose firm WEL Partners acted for the Hunts in the subsequent litigation that ultimately resulted in Ontario Superior Court Justice Edward Koke declaring the marriage void ab initio in his recent decision in Hunt v. Worrod.

Although the phenomenon is more often associated with financial exploitation of an elderly person, often by a caregiver, family friend or neighbour, Whaley says, vulnerable people of all ages are at risk.

In many cases, she says, the extent of financial abuse by a spouse or even the fact of the marriage only becomes clear after a person’s death when expected inheritances fail to materialize for family members and beneficiaries left behind. 

Statistics on predatory marriage are hard to come by, but Dagmara Wozniak, an estate litigator with London, Ont. firm Siskinds LLP, says she’s unsure if they have been more prevalent in the last few years. What has changed, she says, is the level of awareness among the public.

“I think there’s more attention being drawn to it and certainly more instances where it is being litigated,” Wozniak says. “It’s heartbreaking seeing what families have to go through.”

And with the baby boomer generation fast approaching retirement and later life, lawyers say the volume of cases is only likely to rise as the largest generational transfer of wealth in history takes place over the next couple of decades.

“Our aging population, combined with the ability to keep people at home longer, even if they’re suffering from cognitive or physical impairments, means there are more situational risks compared with 20 years ago,” Wozniak says.

For Hunt, the whole experience delivered a harsh lesson on how easy it is for vulnerable people to enter a marriage.

“I never even thought about that possibility,” he says. “My dad was probably still wearing his hospital bracelet when he was married. You would think there would be some pretty specific questions involved, but I guess they kept it pretty simple.”

In Ontario, the statutory bar is almost non-existent, with s. 7 of the province’s Marriage Act preventing officiants from proceeding only if they suspect one of the parties is under the influence of “intoxicating liquor or drugs.”

Under the common law, a person must have capacity to marry. But Emily Clough, a partner in the estates and trusts practice group at Vancouver firm Clark Wilson LLP, says the prevailing “test,” which has its roots in the 1885 U.K. decision in Durham v. Durham, is hopelessly out of date. In that case, the judge described the contract of marriage as “a very simple one, which does not require a high degree of intelligence to comprehend.”

“I’m not sure that description is actually reflective any more when you think about all the significant and immediate repercussions marriage has on estate planning, income tax and family law rights,” Clough says.

“The law is facilitating predatory marriage at this point,” adds Wozniak, who notes that many of her clients have previously shied away from challenging a suspicious union based on capacity because of the slim chances of success under the existing law.

Still, she says, she sees “light at the end of the tunnel” in the form of several recent decisions that indicate courts are slowly adapting their view.

Wozniak says Koke’s decision in Hunt is one of the first in Canada to endorse an elevated test for capacity for marriage that requires both parties to understand the duties and responsibilities created by a marriage contract and considers individuals’ ability to manage themselves and their affairs.

Relying on extensive medical evidence, the judge found that Kevin Hunt “did not have the requisite capacity to marry Ms. Worrod” on the date of their nuptials.

“At the time, and up to the present, he remains incapable of managing his own affairs. In the circumstances, I am declaring that the marriage is void ab initio,” Koke added.

“I’m hoping it’s a turning point,” Wozniak says.

And in B.C., Clough recently convinced B.C. Supreme Court Justice Susan Griffin to declare the 2010 marriage of Alzheimer’s sufferer Donna Walker to Floyd Poulain invalid, several years after Walker’s death in 2013.

According to the decision in Devore-Thompson v. Poulain, Poulain, a crane operator who was younger than Walker, entered the woman’s life a year after her diagnosis.

Clough acted for Walker’s niece, who challenged both the marriage and two wills made by Walker in her later years. Although the marriage occurred several months before Walker was declared incapable by a judge of managing her financial and legal affairs, Griffin concluded that there was enough evidence about her disordered thinking to find that she did not have the capacity to enter the marriage and declared it void ab initio. In the process, she rejected Poulain’s claims that they had lived together before and after the wedding, dismissing him as a “dishonest witness.”

Despite her client’s success, Clough says, the case highlights the need for further law reform to protect vulnerable individuals further upstream.

“Whether the person is still alive or has passed away, it’s a long, complex, difficult and expensive process to apply after the fact to undo the marriage,” she says.

In any case, Clough says, predatory spouses are frequently able to deplete or divert the bulk of a person’s assets long before family members suspect something is wrong.

In addition, Whaley says, the significance of the decisions is easily overstated, describing both Hunt and Devore-Walker as outliers for the overwhelming amount of medical evidence available to the judge deciding on capacity.

“In many cases, you won’t have the luxury of that evidence. When a person is intent on exploiting someone financially, they tend to try to sequester them and keep them from going to the doctor, which means there generally won’t be any medical records,” she says.

Suzana Popovic-Montag, managing partner of Toronto estates and trusts law boutique Hull and Hull LLP, says the situation in Ontario could be improved by scrapping provisions in the province’s Succession Law Reform Act, which states that a person’s marriage revokes all their existing wills.

Alberta got rid of automatic revocation in 2012, followed by British Columbia in 2014, while marriages in Quebec never revoked wills under its civil code.

“Most people don’t even know that they could be undoing a lifetime of estate planning by getting married,” says Popovic-Montag, explaining that if a person dies without making a fresh will, their spouse stands to inherit the first $200,000 of their estate under the SLRA plus a share of the remainder split with the deceased’s children.

But Whaley says the effect of repealing automatic revocation would be limited, and she is urging provincial lawmakers to adopt a Predatory Marriage Prevention Act drafted by her colleague Albert Oosterhoff, a lawyer and professor emeritus at Western University’s law faculty.

The act would explicitly define the capacity to marry in terms of a person’s ability to understand the nature of the contract, its rights and obligations, as well as their ability to take care of themselves and their property.

Under the draft law, officiants would be required to satisfy themselves that both parties have capacity to enter the marriage. It would also create a mechanism for concerned family members to object in advance to the marriage of an incapable person by registering a caveat with the issuer of marriage licences.

In the meantime, Whaley urges estates litigators to advance arguments for the invalidation of predatory marriages on equitable grounds where medical evidence is lacking on capacity. She says there is a case to be made that marriages entered into fraudulently or under undue influence should be set aside.

“They haven’t been applied yet in Canada, but we should give courts every tool available to set aside these marriages,” Whaley says.