Capacity to marry is often raised in the context of an allegation of a predatory marriage. But what about when the adult children disapprove of the union and devise a scheme to protect their inheritance from the purported “gold digger”?

This was the scenario in the case of Tanti v Tanti et al., 2020 ONSC 8063. The relationship between Paul Tanti (“Paul”) and Sharon Joseph (“Sharon”) was never accepted by Paul’s children from his first marriage. There was an age gap between Paul and Sharon (Paul was older) which appeared to be a factor for those who questioned the genuineness of the relationship as well as Sharon’s motivations. The court confirmed that, absent evidence of duress at the time of marriage, the financial benefits which one spouse may receive as a result of the marriage is irrelevant to the determination of the capacity to marry. In finding that Paul was capable of marrying Sharon, the court adopted “a flexible and individualized approach that seeks to balance the autonomy of elderly persons against their unique vulnerability, while avoiding reasoning based on impermissible stereotypes.” (Tanti v Tanti, at para 4).

In order to be legally capable of marrying, an individual must understand the nature of the marriage contract and the duties and responsibilities that it creates. The capacity to marry is lower than the capacity to manage property and to make a will. In Tanti v Tanti the court considered the factors relevant for determining whether an individual had the capacity to marry, and the weight to be given to retrospective capacity assessments. The court assessed: (i) Paul and Sharon’s relationship prior to the marriage; (ii) Paul’s cognitive capacity leading up to and immediately after the marriage; (iii) Paul’s understanding of the marriage ceremony and vows, and the obligations it created; and (iv) Paul’s interactions with professionals contemporaneous to the marriage.

The retrospective capacity assessments of the medical professionals which were obtained by Paul’s son, Raymond Tanti (“Raymond”) were not given any weight by the court as they were not made contemporaneous to the marriage. In addition, the court found that Raymond had greatly influenced the experts, by providing information about Sharon that was unproven at the hearing. Lastly, certain statements made by Paul about his marriage were made in the presence of Raymond and, therefore, not reliable due to the influence exerted by Raymond on his father.

The court found that Paul’s decision to marry Sharon was rational considering their long-term relationship and the benefits it afforded to Paul, namely daily companionship. The court also found that Paul’s decision was motivated, in part, by the interference of Raymond. It was Paul’s hope that marrying Sharon would lead to acceptance of the relationship and less intrusion by Paul’s family.

As in Tanti v Tanti, a challenge to the validity of a marriage due to lack of capacity will often be driven by the financial implications of the marriage, particularly those that arise when one spouse dies. The current law in Ontario provides for the automatic revocation of a will by operation of marriage. This means that an individual who does not have the capacity to revoke a will by making a new one, can revoke their will (intentionally or not) by getting married. This may result in an intestacy if a spouse does not, or cannot not, make a new will before death.

The Accelerating Access to Justice Act, 2021, S.O. 2021, c. 4 – Bill 245 (the “Act”), seeks to change that. Schedule 9 proposes amendments to the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”) that include repealing sections 15(a) and 16 which provide that a will is automatically revoked upon marriage, except in specific circumstances, such as when made in contemplation of marriage.

When Schedule 9 of the Act comes into force, it will do away with the automatic revocation of a will upon marriage. But it will also eliminate the entitlement of a surviving spouse to receive a share of the deceased spouse’s estate in certain situations. For example, it seems inevitable that there will be valid marriages in which one spouse’s will pre-dates the marriage but does not provide for the new spouse. In those situations the deceased spouse’s estate will be governed by the pre-marriage will and not in accordance with the intestate laws of Ontario. The surviving spouse will no longer receive the preferential share nor any portion of the residue of their spouse’s estate because there will be no intestacy. In order to receive something of the deceased spouse’s estate, the surviving spouse will need to make a claim for dependant’s relief and/or elect to receive an equalization of net family property.

Perhaps Schedule 9 of the Act will result in fewer court challenges, like the one in Tanti v Tanti, or perhaps it will simply change how the legal battle is begun.

(Sections 2 and 3 of Schedule 9 of the Act, to which this blog post refers, are proclaimed to come into force on January 1, 2022).