All About Estates

Personal Gains or Going Dutch

This Blog was written by: Natalie Rouse

 

In our industry, we are no strangers to the reality of how susceptible some seniors can be to the influence of others. Many of us have seen it with our own eyes, and so much of what we do is with a goal of protecting those who may not be able to protect themselves.

One common example of how seniors can be taken advantage of is with predatory marriages. The term “predatory marriage” refers to a marriage entered into for the purpose of exploitation, personal gain or profit. In many cases, someone will “befriend” or step into a caregiving role to a vulnerable senior, who is often suffering from some sort of cognitive impairment. They become a big part of the senior’s life, and a source of influence over them. Eventually, they persuade the senior to marry them. The marriage is used as a tool of taking advantage of the elderly victim and ultimately assuming control of their financial affairs.

A recent story out of Toronto reminds of us just how easily this can happen. Albert Kanters was a 92 year old gentleman who lived in Toronto before his death earlier this year. After his wife died in 2005, he made his niece the main beneficiary under his Will. From what we know, Albert and his niece seemed close. She and her family would come to visit him from Winnipeg frequently. Albert also transferred his home into joint ownership with his niece and provided her with a lump-sum gift on a significant birthday of hers. In 2013, friends and neighbours started noticing that Albert was becoming forgetful. That year, he was diagnosed with Alzheimer’s. Around the same time, Albert started becoming increasingly close to a woman he had met, named Jolanda Baird. She was several decades younger than he was. Albert suddenly decided that he wanted to change his Will to disinherit his niece entirely, and leave a sum to Yolanda and her daughter instead.

He was judged mentally capable in two capacity assessments, although apparently Jolanda was translating for him in one (they were both Dutch-Canadian), and the social worker who was involved in the second assessment was not aware that he had been diagnosed with Alzheimer’s. After two lawyers refused to make the requested changes to the Will (likely out of concern of his capacity), a third agreed and a new Will was drafted and executed. Albert died with this as his Last Will.

Litigation ensued, with a prominent and reputable Toronto law firm involved in the file for a period of time. The eventual outcome was that the Last Will was upheld. Not only was the niece disinherited, she was ordered to transfer the home out of joint ownership, and required to pay back the funds that she had been gifted, which will involve her paying funds out of her disability pension for many years to come.

It must be recognized that there are two sides to every story, and we may never know the truth about Jolanda’s intentions with Albert. Jolanda’s counsel have argued that disputes between Albert and his niece caused him to change his estate plan. They have even gone so far as to assert that the niece was the one taking advantage of her uncle. However, the financial gain that Yolanda experienced from their relationship, coupled with his questionable and likely compromised mental state, raises some red flags.

Although Albert and Jolanda never married, the outcome was similar in the way that it changed his estate plan. Generally, a few facts contribute to the ease with which a predatory marriage can occur. In Ontario, marriage automatically revokes a Will. Added to that fact, the test for capacity to marry is quite low (much lower than the level of capacity needed to make changes to a Will). As such, marriage can be an effective “work-around” to change an estate plan. The consequences can be serious and heartbreaking, with individuals disinherited in the blink of an eye.

Predatory marriages continue to be a real concern in Canada, especially considering our aging population, and the impending transfer of significant wealth. They can have serious consequences for the senior, their family, and their estate plan. One consideration that helps to avoid this situation from arising is by appointing a corporate Power of Attorney. In any case, these stories serve as a reminder of how important it is for us all to continue to make the protection of seniors a priority.

About Paul Fensom
Scotiatrust offers a full range of estate, trust and philanthropic advisory services designed to meet a client’s personal objectives and designed to evolve across a variety of life stages and financial events. Email: paul.fensom@scotiawealth.com