All About Estates

What happens when you put a ring on it?

Saturday’s Toronto Star featured an article on a marriage “predator”.  The article tells the sad story of an 89 year old man – Charlie – who married a 65 year old woman  – Galina – because she promised to look after him and ensure he’d never have to move to a nursing home.  They essentially struck a deal:  caretaking in exchange for a mention in the Will.  Charlie was not Galina’s first target.  This was Galina’s modus operandi and she had executed it many (at least six) times before.  An aging population + Ontario’s estate laws can make for a lethal combination. As such, I feel this is a story worth sharing.

This particular story is relatively complex.  It involves Charlie creating a new Will benefitting Galina shortly after they  married.  The article goes on to outline the conditions surrounding the creation of the Will.  Let’s just say, the process followed by the lawyer may not reflect best practices.  Notwithstanding, Galina was impatient and evidently not prepared to simply wait for her inheritance so she gained joint access to Charlie’s bank account, received a handsome fee for housekeeping and kept the bulk of the tenant’s rent money for herself.

Within a couple of years, Charlie realized he’d made some serious mistakes:  in getting married and in changing his Will.  At this time, he went to a different lawyer to prepare a new Will in which Galina was left a modest sum only.  Galina countered this move by managing to have Charlie’s house (his main asset) transferred to her son.

This particular story has a happy ending.  Charlie took Galina to court and was sucessful in obtaining a divorce and the return of his house.  Many preyed-upon seniors are not so lucky and the ruse need not be so complicated to succeed.  Here’s why.

In Ontario (and most other provinces), marriage revokes a Will.  As such, the newlywed elder spouse will either be required to prepare a new Will or will die intestate.  In order to prepare a new Will, a certain legal threshold must be met.  A testator must, among other things, be aware of the extent of their assets, appreciate who may expect to benefit from their estate and be aware they are making a Will.  The capacity test for getting married is much lower:  you must understand the nature of the relationship and its responsibilities.  In other words, it is quite possible for an individual to have the capacity to enter into a marriage, but not to create a Will.

As such, a predator spouse can win simply be getting the pawn to the altar.  With the Will revoked, the spouse dies intestate with the new spouse receiving a significant or total share of the estate.  In Charlie’s case, because he had no children, an intestacy would have resulted in Galina receiving everything.

Many lawyers consider Ontario’s position to be out of date.  In Quebec marriage does not revoke a Will.  Within the past few years, both B.C. and Alberta have “updated” their estate laws so that  that marriage no longer revokes a Will.  Many estate pratitioners – including Kim Whaley and counsel at her firm, Professor emeritus Albert Oosterhoff, argue that this move combined with a more stringent capacity test for marriage is required to combat predatory marriages.

Given our aging population, rising rates of Alzheimer’s and related dementias and the significant money at play, until changes are made, this is unlikely to be the last we hear of predatory marriages.

Thanks for reading.



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About Elaine Blades