The Will vs. The Altar

Written on January 27, 2012 – 6:46 am | by Elaine Blades

Earlier this week, fellow blogger Laura West posed and answered the question Can a minor make a Will in Ontario?.  Short answer: “yes”, in certain, limited circumstances.

This got me thinking about the related issue of capacity. Marrying is one of a number of events for which a level of capacity, in addition to an age threshold,  is required. Other such events include: making a Will; granting or revoking a power of attorney for property; granting or revoking a power of attorney for personal care; managing property; managing personal care; contracting.

In law, one is presumed capable, unless and until this presumption is legally rebutted. There is however no one standard of capacity. Different standards apply to the various activities listed above.  The test for capacity to make a Will – testamentary capacity –  has been well defined and quite consistently applied in case law over the years.  The standard is quite rigorous.

The test for capacity to marry is much less clearly defined. Moreover, the threshold range, as set out in case law over the years, tends to be quite low. About all one requires is a basic understanding of the nature of the contract of marriage. One is not required to understand all of the consequences of marriage.  (No kidding!).

This means of course that one may have the capacity to marry, yet lack the capacity to make a Will. This is troubling in and of itself. The fact that marriage revokes a Will only thickens the plot.  So while the lonely, elderly, senile gentleman may not be able to prepare a new Will leaving his worldly goods to the  attentive sweet young ingenue, he may well be able to marry her thereby making her his sole heir via intestacy.  Estate planning at its finest.


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