In the season finale of Mad Men (spoiler alert!), Don Draper proposes to his secretary, who is several years his junior. In so doing, he follows the lead of one of his colleagues, who also married a much younger woman (also his secretary). While much has changed in our society since the era that’s depicted in the series (vodka martinis in the office, anyone?) May-December relationships continue to flourish. French President Nicolas Sarkozy and Italian Premier Silvio Berlusconi are notable examples of “Decembers”. Mr. Berlusconi, now 73, and in the midst of divorcing his second wife who is 20 years his junior, recently claimed that women favour older men, as they think “He’s old. He dies and I inherit.”
Mr. Berlusconi’s portrayal of young women as gold diggers is, without a doubt, an offensive stereotype. And yet…our population is aging, and there are signs that the elderly — both men and women — may be taken advantage of in romantic relationships with increasing frequency. One Toronto estates litigator, Kimberly Whaley, predicts that we will see more “predatory marriages” where the elderly, vulnerable person may not fully understand the financial implications of marriage. Among these implications are the fact that marriage revokes a will, and provides a host of benefits which a person is entitled to after the spouse’s death. These benefits include equalization of net family property under Ontario’s Family Law Act and entitlements under intestacy legislation.
However, the test for capacity to marry does not require a person to understand the implications marriage may have on one’s estate. The test simply requires that one understand the basic nature of the marriage contract, and the duties and responsibilities which that contract creates (i.e. a legally monogamous relationship, with the parties supporting each other and living together, which will only end through divorce or death). What follows from this is that a person might not have testamentary capacity, but still have capacity to marry. Similarly, a person might not be capable of managing property, but still have capacity to marry. In theory, it is possible to marry, thereby revoking one’s will, and at the same time not have the capacity required to write a new will.
Clearly, opportunities abound for a canny individual to use marriage to take advantage of the elderly. However, even if the “predator” is motivated solely by money, unless there is clear evidence that the elderly person truly did not understand the basic nature of the marriage contract, the courts are unlikely to interfere with a person’s decision to marry.
Thanks for reading,