This Blog was written by: Alicia Mossington (Godin), Estate and Trust Consultant, Scotia Wealth Management

My colleagues have written several recent articles on capacity. “Capacity” is an interesting area of law and the test for capacity differs radically depending on the subject and setting. Testamentary capacity or capacity to make a Will, is different then capacity to make personal care decisions which, in turn, is different then capacity to marry.

Historically in Ontario marriage revoked a Will yet there was a disconnect between testamentary capacity and capacity to marry. The threshold for capacity to marry is much lower, which could and in some documented cases, has, resulted in an unequitable distribution on death.

The Ontario Court of Appeal reviewed the question of capacity to marry in the case Tanti v Tanti, et al.[1] Paul Tanti, described as an elderly man, met Sharon in 2014 and in 2018 Sharon moved into Paul’s home. Sharon was described as Paul’s younger live-in companion, and Paul’s son Raymond, was not pleased with the relationship. During his weekly visits to Paul’s home, Raymond pressured Paul to end the relationship. Paul did not end the relationship, and he and Sharon were married in 2019.

Under the law as it existed in Ontario at the time, Paul’s marriage would have revoked an existing Will (unless the Will had been made specifically in contemplation of the marriage). Shortly after the marriage Paul granted Sharon power of attorney. When Raymond learned of the marriage and power of attorney, he obtained a guardianship order over his father and while Sharon was away, changed the locks on Paul’s home and left a note stating Paul was living with Raymond. Sharon moved to set-aside the guardianship order, and the trial judge considered Paul’s capacity to enter into the marriage.

The Court of Appeal reflected on the trial judge’s description of the issue of capacity to marry:

The requirements of legal capacity vary significantly as between different areas of law and must be applied to the specific decision, act or transaction at issue. For example, it is generally agreed that the capacity required to marry is lower than the capacity required to execute a will or grant a power of attorney for property or personal care: Whaley, at pp. 45-46.[2]

The test for capacity to marry is a simple one. The parties must understand the nature of the marriage contract, and the duties and responsibilities that flow from it: Chertkow v. Feinstein, 1929 CanLII 513 (AB CA). Understanding the content of the marriage contract does not require a high degree of intelligence; the parties must agree to live together and love one another to the exclusion of all others: Lacey v. Lacey (Public Trustee of) [1983] B.C.J. No. 1016 (S.C.).[3]

The court in Ross-Scott v. Potvin, 2014 BCSC 435 at para. 200 noted that the inability to manage one’s financial affairs would “not necessarily impact a person’s ability to consciously consider the importance of a marriage contract. Nor do they necessarily impact formation of an intention to marry, a decision to marry, or the ability to proceed through a marriage ceremony.” A person may be capable of marrying despite having been declared mentally incompetent or having had a guardian for person or property: Whaley, at p. 45.[4]

There have been several cases similar to Tanti over the years. Significant changes to the Succession Law Reform Act came into force on January 1, 2022 including changing the effect of marriage and separation on an existing Will, and the rights of separated spouses under Wills.

Now, the act of marriage will not revoke a Will signed after January 1^st or a Will signed before January 1^st where the marriage occurred after January 1^st.[5] A Will can only be revoked by:

1. executing a new Will
2. declaring ones intention, in writing, to revoke the Will; or
3. burning, tearing up or otherwise destroying ones own Will.

Marriage is still a significant life event, and individuals should make sure to review their Wills, powers of attorney and broader estate plans before and after marriage to ensure that their wishes are properly reflected and addressed.

[1] 2021 ONCA 717 (application for leave to appeal to the Supreme Court of Canada dismissed 7 April 2022 (39955)).

[2] 2020 ONSC 8063 para 42.

[3] Ibid at para 43.

[4] Ibid at para 44.

[5] Succession Law Reform Act, s. 17(1).