Predatory marriages are a developing phenomenon in Ontario. Predatory spouses take advantage of elderly victims and assume control of their financial affairs. This can have severe consequences for the victim and their family. Recently Canadian courts have taken a stricter stance on what sort of capacity is required for marriage. In this article, Dagmara Wozniak looks at the issue and some of the relevant laws. Predatory marriages are a developing phenomenon.
The term “predatory marriage” has been coined to refer to a marriage entered into for a singular purpose of exploitation, personal gain or profit. Frequently, it involves an interested party (i.e. friend, neighbour etc.) assuming the role of a caregiver and persuading a vulnerable person to marry. Often, the victim is elderly, dependent and suffering from some degree of cognitive impairment. After marriage, the “predator spouse” takes advantage of the vulnerable victim spouse, and assumes control and management of the victim spouse’s financial affairs.
In addition to the financial exploitation, another alarming consequence of a predatory marriage relates to the victim spouse’s last will and testament. Under the Succession Law Reform Act (s.16), a marriage revokes a will.
On its face, this consequence does not seem grave. The apparent solution is to merely execute a new Will, right? Unfortunately, it’s not always that simple. As often is the case with predatory marriages, although the victim spouse has the legal capacity to marry (which entails a low threshold), he or she lacks the requisite testamentary capacity (which requires a high threshold of understanding). The result is that the victim spouse cannot execute a new will and ultimately, his or her estate will have to be distributed in accordance with Ontario’s intestacy laws. Under Ontario’s Succession Law Reform Act, if a spouse dies without a will, the surviving spouse automatically receives the “preferential share” of an estate as well as a portion of the remainder. This translates to the predator spouse inheriting the majority of an average estate.
The significance of this is best demonstrated by way of an example:
John Public, age 82, suffers from cognitive impairments. He is a widower, and has 3 children and 6 grandchildren. Although he is still living independently at home, his children are assisting him with his finances. Years ago, John had executed a Will which left his modest estate (valued at approximately $300,000.00) to his children and grandchildren. Under his Will, his estate is to be divided as follow: $75,000.00 to each of his children and $12,500.00 to each of his grandchildren.
Jane Doe, age 63, lives on the same street as John. She contrives a scheme to obtain control and ultimately ownership of John’s property. She “befriends” John and quickly gains his trust. She begins to alienate him from his family. Through her companionship and assistance, Jane assures John that so long as he is with her, he will be taken care of and will not need to go to a nursing home. Within 5 months of their “friendship”, and to the shock of John’s children, John and Jane announce their intention to marry.
As a result of the marriage, John’s will is revoked.
Assuming John lacks testamentary capacity to execute a new will, he will die intestate. Upon his death, his estate will have to be distributed under the intestacy laws found in the Succession Law Reform Act. Pursuant to the Act, Jane will automatically receive the first $200,000.00 (i.e. the preferential share). The remainder, $100,000.00, will be split between John’s children, and Jane. Jane will ultimately receive a total of $225,000.00 and John’s children will receive $25,000.00 each. The grandchildren will not receive any part of the estate.
The result is distressing, to say the least.
So, what recourse do the family members of a victim spouse have? The only option is to try to nullify the marriage due to a lack of capacity. However, what the loved ones of a victim spouse quickly learn is that challenging the capacity to marry is very difficult. Due to traditionally over simplistic views of marriage, the courts equate(d) marriage to a simple contract with capacity requirements that are relatively easy to satisfy.1 To be capable of marrying, a person need only be able to understand the information relevant to the marriage and appreciate its consequences.
Consequently, capacity is often found even in the most obvious cases of exploitation and alienation for financial profit; predatory marriages are too often able to withstand the challenge.
The problems with the traditional “test” for capacity to marry are apparent. Given the financial and testamentary repercussions of marriage, shouldn’t the standards of the “test” for capacity to marry be more rigorous? Since the act of marriage has the ability to revoke a will, why then would the standards for capacity to marry be less rigorous than testamentary capacity?
For instance, the authorities provide that the criteria for testamentary capacity, to grant or revoke a Will, requires the testator to understand the following:
- The nature of the act of making a Will (or testamentary document) and its effects;
- The extent of the property of which he or she is disposing of; and
- The claims of persons who would normally expect to benefit under the Will (or testamentary document).2
Further elements to the testamentary capacity inquiry require the testator to have:
A “disposing mind and memory” to comprehend the essential elements of making a Will;
- A sufficiently clear understanding and memory of the nature and extent of his or her property;
- A sufficiently clear understanding and memory to know the person(s) who are the natural objects of his or her Estate;
- A sufficiently clear understanding and memory to know the testamentary provisions he or she is making; and
- A sufficiently clear understanding and memory to appreciate all of these factors in relation to each other, and in forming an orderly desire to dispose of his or her property.3
This is the test for revoking a will. Since a consequence of a marriage is the revocations of previous wills, in my opinion, the capacity to marry ought to involve the same capacity threshold as that for testamentary capacity.
Similarly, since marriage has the effect of restructuring/ creating property claims, shouldn’t the capacity to marry require that a spouse be able to manage their financial affairs (at least to some extent)?
In light of the alarming repercussions of the traditional treatment of capacity to marry, especially in the context of predatory marriage, suggestions have been made that the ‘test’ (i.e. the requisite standards to determine capacity to marry), incorporate an appreciation of the effect that a marriage has on one’s property and children. Furthermore, calls have been made to make the standard for capacity to marry more stringent so as to protect those who are vulnerable.
Three recent cases are worth mentioning, as they appear to head towards a more fulsome test for capacity to marry, one that reflects and accords with the real-life financial and testamentary implications of marriage.
Barrett Estate v. Dexter
Barrett Estate v. Dexter4 is a decision from the Court of Queen’s Bench in Alberta. The Court was asked to determine whether the marriage between the deceased Dwight Barrett and Arleen Dexter was a nullity due to lack of capacity on the part of Mr. Barrett.
At the time of the marriage, Mr. Barrett was 93 years of age and Ms. Dexter was 54 years old. Ms. Dexter had started off by providing caregiving services to Mr. Barrett. She subsequently moved in with Mr. Barrett for reduced rent. Over that time period, Mr. Barrett gave Ms. Dexter money, signed a document authorizing her to reside in his home after he died at the expense of his estate, and went to a lawyer’s office at Ms. Dexter’s behest. Mr. Barrett and Ms. Dexter were married in a ceremony witnessed and attended only by their limousine driver and another taxi driver. Following the marriage, Mr. Barrett made a new will leaving the bulk of his $1 million dollar Estate to Ms. Dexter, with only nominal bequests to his children and grandchildren.
Prior to his death, Mr. Barrett underwent two separate capacity assessments, both of which concluded that Mr. Barrett’s cognitive function and judgment were significantly impaired. Indeed, the second assessment found that Mr. Barrett was “severely impaired.” Both assessing physicians concluded that Mr. Barrett could not make financial or personal decisions due to his cognitive impairment.
On the issue of the test for capacity to marry, the Court relied on the evidence of a Dr. Malloy, an expert in geriatric medicine. Dr. Malloy opined that in order to marry, a person must understand the nature of the marriage contract, the state of previous marriages, one’s children and how they may be affected (emphasis added).
Applying that test to the facts of the case, Dr. Malloy concluded that in the applicable time period, Mr. Barrett had been incapable of making a new will or granting/ revoking Power of Attorneys. With respect to Mr. Barrett’s capacity to marry, Dr. Malloy stated that at the time of marriage, Mr. Barrett would not have understood the nature of the contract; his relationship with his intended spouse; his previous marriage history; or the impact of his marriage on legal matters.
The Court concluded that in light of the evidence and medical opinions, and in particular the expert opinion of Dr. Malloy, Mr. Barrett lacked the capacity to marry. Consequently, the marriage was declared null and void.
Feng v. Sung Estate
Feng v. Sung Estate5 is an Ontario case which was upheld at the Court of Appeal. It has not yet been followed by subsequent jurisprudence.
The deceased Mr. Sung had married Ms. Feng, his caregiver, a mere six weeks before he died. At the time of the marriage, Mr. Sung was very ill, suffering from lung cancer and Parkinson’s disease. He was also dealing with the devastating loss of his first wife. Although the marriage took place on August 23, 2001, none of Mr. Sung’s six children, to whom he was very close, knew of the marriage until September 4, 2001. Subsequently, the evidence showed that Ms. Feng received $30,000.00 from Mr. Sung directly and that she had withdrawn $26,000.00 from his bank accounts, sometimes making as many as six withdrawals in one day.
Mr. Sung’s children sought to nullify the marriage.
In its analysis, the Court highlighted that consent to marry does not equal capacity to marry. It was also noted that there existed a more fulsome test for capacity to marry, one that requires the spouse to be able to take care of his/her person and property. This test, although not adopted formally, was a historical alternative to the traditional capacity to marry test.
On the facts of the case, the Court found that although Mr. Sung had been able to write his own cheques he had not been able to take care of his person. The Court applied the ‘test’ for capacity to marry set out in Barrett Estate (and outlined by Dr. Malloy), which requires that in order to be capable of marrying, a person must understand the nature of the marriage contract, the state of previous marriages, one’s children and how they may be affected.
Applying the medical evidence and the evidence of Mr. Sung’s children to the ‘test’, the Court found that Mr. Sung had lacked capacity to marry and declared the marriage void ab initio.
The Court of Appeal upheld the Superior Court’s decision that Mr. Sung lacked capacity, albeit noted that it was “a close one…”6
Juzumas v. Baron
The case of Juzumas v Baron7 is yet another example of a “predatory marriage”, although this time, the victim is a vulnerable, yet capable, individual. Rather than turning on the question of capacity, the Court used the doctrines of undue influence and unconscionability to remedy the wrong caused by this predatory marriage.
In 2006, Kazys Juzumas, then aged 88, befriended Galina Baron, age 64. Kazys was a widower of Lithuanian descent, with limited English skills. Galina was also of Lithuanian descent but identified herself as Russian. Her command of the English language was limited but she was fluent in Lithuanian, Russian and Polish. Unlike Kazys, she had been previously married 6 to 8 times and had a history of “caring” for older men with the expectation of receiving an inheritance through their estates.
At first Galina visited Kazys at his home for the purpose of providing housekeeping assistance. Eventually, these visits increased to 2 or 3 times a week. Galina was aware that Kazys feared being forced to move from his home into a facility and offered him services that would ensure he could remain at home. In exchange, Kazys provided Galina with a monthly salary. Within a year Galina convinced Kazys to marry her under the pretense that she would be eligible for a widow’s pension following his death, and for no other reason. She promised to live with Kazys and care for him. Kazys believed that his ability to remain at home depended on Galina’s ongoing care. He agreed to marry her. Kazys was 89 years old.
The day before their wedding, Kazys executed a Will in which he named Galina the executor and sole beneficiary.
After the wedding ceremony, despite her pre-nuptial promise to live with Kazys, Galina continued to live in a separate apartment with her 23-year old son, Yevgeni, and only visited Kazys for several hours a week. The relationship degenerated progressively. Galina grew abusive, controlling and domineering towards Kazys.
By February 2009, Kazys felt ill treated by Galina and frustrated with her failure to live at the house and care for him. He executed a new Will in which he left Galina only a modest bequest of $10,000.00. He did so without Galina’s knowledge, fearing her reaction. When Galina found out about the new Will in April 2009, she embarked on a campaign to ensure she received Kazys’ home.
A plan was devised with the assistance of a lawyer and an agreement was drafted that transferred Kazys’ home to Galina’s son. Kazys was left with a life interest in his home. The rationale for transferring the property to Yevgeni was that it would not impact Galina’s disability pension or entitlement to subsidized housing, and had the additional benefit of diverting suspicion away from her.
By the time the proposal to transfer the house was presented, the 91-year old Kazys was vulnerable, in failing health and completely dependant on and dominated by the abusive Galina. He lived in constant fear of being abandoned to a nursing home.
In May 2009, Kazys, Galina and Yevgeni attended the lawyer’s office in order to sign the agreement. Sometime after this meeting, Kazys’ neighbour explained to him the contents of the lawyer’s reporting letter. With his neighbour’s assistance, Kazys attempted to reverse the transfer by visiting the lawyer on three separate occasions. Interestingly, each time he would visit, Galina would appear a few minutes after his arrival. The lawyer explained to the Kazys that the transfer could not be reversed because it was “in the computer”.
Kazys commenced an action seeking to set aside the transfer of the property. Notably, although he initially sought a declaration that his marriage to Galina was a nullity and void ab initio, he did not pursue this claim, instead seeking a divorce/dissolution of the marriage.8
As mentioned above, the Court’s decision rested in the doctrines of undue influence and unconscionability. Both doctrines provide remedies that may be used “where a stronger party takes advantage of a weaker party in the course of inducing the weaker party’s consent to an agreement.” If either of undue influence or unconscionability applied to the circumstances of the case, Kazys had the option of rescinding the Agreement.
The Court recognized two distinct categories of undue influence: actual and presumptive.
Actual undue influence is one involving threats and bribes, such as when a caregiver threatens an elderly dependent with abandonment. The onus is on the plaintiff to prove actual undue influence.
Presumption of undue influence arises from the nature of a recognized relationship or from the particular circumstance of a case, where one party has the ability or potential to dominate the Will of another, whether through manipulation, coercion, or outright but subtle abuse of power. Presumption of undue influence is rebuttable by evidence that the transaction was an exercise of independent free will.
On the facts, the Court found that both actual and presumptive undue influence was established. With respect to the latter, the presumption applied because the relationship in question involved a caregiver and elderly person who was both psychologically and physically vulnerable. To rebut the presumption, Galina and Yevgeni had to demonstrate that the transaction was an exercise of independent free will, (which could have been achieved with evidence of independent legal advice or some other opportunity given to Kazys allowing him to provide “a fully- informed and considered consent to the proposed transaction.”10) Galina and Yevgeni did not rebut the presumption.
The other tool utilized by the Court was that the doctrine of unconscionability which “gives a court the jurisdiction to set aside an agreement resulting from an inequality of bargaining power.”11 The onus is on the defendant to establish the fairness of the transaction.
On the evidence before him, the Court made the following finding of fact:
- The transaction was improvident;
- There was an absence of consideration for the transfer;
- The Agreement was not explained to Kazys;
- Most of the discussions during the meeting with the lawyer were in Polish, which only Galina understood;
- The lawyer was aware of Kazys’ limited English skills;
- The lawyer did not meet with Kazys alone;
- The lawyer only met with the parties for a brief time;
- The Agreement signed by Kazys was fundamentally different from the Agreement Kazys had been shown by Galina and Yevgeni at home;
- The lawyer did not appreciate the power imbalance between the parties (it seemed the lawyer was under the impression that Galina, and not Kazys, was the vulnerable party);
- Kazys was not a willing and active participant in the transaction;
- Kazys was under the influence of emotional exhaustion or over-medicated at the time the meeting took place, and suspected that Galina had been drugging his food;
- Kazys did not know nor understand what he was signing; and
- Kazys signed the transfer under the domination, control and intimidation of Galina and her son.
Based on these and other incriminating findings of fact, both the doctrine of undue influence and the doctrine of unconscionability were applied to set aside the transfer and grant the divorce.
With a rapidly aging population, it is feared that cases of predatory marriages will be on the rise and consequently, capacity to marry will become increasingly relevant.
The test for capacity to marry is in a state of flux and I suspect it will continue to evolve as more instances of predatory marriages are brought before the Courts.
When faced with a case of a predatory marriage, ideally, a capacity assessment should be obtained as close to the date of marriage as possible. The capacity assessor will likely need some guidance with respect to the legal test for capacity to marry. Given the current state of law, I would suggest that both the traditional test (with the low threshold) and the “alternate test” applied in both Barrett Estate and Feng v. Sung Estate be provided to the assessor so that an assessment can be be conducted under both tests. At the very least, the findings under the alternate test could be the basis for persuasive arguments.
Since the Courts have also taken into consideration other types of capacity, such as capacity to manage property and to make personal care decisions, when looking at capacity to marry, it is also relevant to ask the assessor to assess those tasks as well.
If a successful challenge to capacity is unlikely (as in Juzumas v. Baron) the doctrines of undue influence and unconscionability may prove to be useful tools to remedy a wrong suffered in the context of a predatory marriage and financial abuse.
The doctrine of undue influence, specifically, may form the basis for a declaration that a marriage is void ab initio. In fact, this appears to be an alternate argument considered by counsel in two of the cases mentioned above. In Juzumas v. Baron, Mr. Juzumas initially sought an annulment of his marriage to Mrs. Baron (he later abandoned this claim for reasons unknown). Had he pursued this claim, it would have been based in undue influence and the doctrine of unconscionability. Likewise, in Feng v. Sung Estate, an alternate claim put forth was for a declaration that the marriage is void ab initio because of duress, coercion and undue influence of a degree sufficient to negative any consent that there may have been. However, as the Court decided the case on the capacity issue, it declined to assess the alternate claims.
Dagmara Wozniak is an Associate with the General Litigation department and handles a variety of litigation matters including estate litigation. She has successfully represented clients in disputes concerning the validity and interpretation of wills, claims concerning the administration of estates, claims against trustees and fiduciaries, claims for support of dependants, estate accounting and Guardianship Applications. If you have any questions or would like more information, Dagmara can be reached by phone at 519-672-2121 or by email at [email protected].
1 Notably, the courts have difficulty in defining exactly the test for capacity to marry, but nevertheless the standard is unanimously treated as being quite low. See Durham v. Durham (1885), 10 P.D. 80; Estate of Park, Park v. Park  p. 112, C.A.; affg. Park v. Park,  All E.R. Reports [Vol. 2] p.1411; and Banton v. Banton 1998, 164 D.L.R. (4th) 176 at 244
2 Banks v. Goodfellow (1870) L.R. 5 QB. 549 (Eng. Q.B.)
3 The test for testamentary capacity is addressed in the following cases: Murphy v. Lamphier (1914) 31 OLR 287 at 318; Schwartz v. Schwartz, 10 DLR (3d) 15. 1970 CarswellOnt 243  2 O.R. 61 (Ont.) C.A.; Hall v. Bennett Estate (2003) 64 O.R. (3d) 191 (C.A.) 277 D.L.R. (4th) 263; Bourne v. Bourne Estate (2003) 32 E.T.R. (2d) 164 Ont. S.C.J.); Key v. Key  EWHC 408 (ch.) (BailII)
4 2000 ABQB 530 (Canlii)
5 2003 CanLII 2420
6 Feng v. Yuen Estate 2004 Canlii 35080 (ON CA) at para. 8
7 2012 ONSC 7220
8 One possible reason for his withdrawal of a claim for annulment of the marriage could be that at the time of marriage, Kazys was not suffering from any cognitive impairment whatsoever. Note: Galina and Yevgeni counterclaimed for quantum meruit. Galina also sought a divorce and repayment of an alleged $120,000.00 loan. She abandoned claims for spousal support or equalization at trial. For a review of how the Court treated these claims, please see my paper “Estate Law Medley: Updates and Overviews of Recent Caselaw”.
9 Juzumas v. Baron 2012 ONSC 7220 at para. 8
10 Ibid at para. 11.
11 Ibid. at para. 13.