A Thought Experiment

Recently, I had the opportunity to co-author a paper on deathbed retainers with Justin de Vries. In drafting this paper, I had the occasion to think about deathbed wills from every conceivable angle. The idea for this blog started as footnote 81: a hypothetical thought experiment on the legal interaction between a deathbed marriage and a deathbed will.

Case law on deathbed retainers and wills stand at around a dozen. Cases on deathbed marriage are even rarer. To date, there is no Canadian case involving the combination of a deathbed marriage and a deathbed will. However rare, these scenarios must have happened at some point in history, and it’s a possibility that one of these may make it to an Ontario court some time in the future.

Celebrity Deathbed Marriages

The term “deathbed marriage” has an unfortunate stigma. However, a deathbed marriage does not have to be a predatory one. They can be a genuine expression of true love. Like a deathbed will, a deathbed marriage is just a marriage done at some point in advance of, and in contemplation of death. There can be a spectrum of scenarios based on a person’s specific diagnosis, physical health, and mental capacity. The “deathbed” is proverbial, not literal.

The best example which comes to mind is found at the end of the 2002 romantic drama, “A Walk to Remember”. At the end of that film, despite a diagnosis of terminal cancer, Mandy Moore’s character Jamie marries Shane West’s Landon in the church where her mother was once married. There was not a dry eye in the house (mine included).

Some of you might know, this story was based on true events regarding the author’s sister. On further research, I discovered other celebrity deathbed marriages such as rapper Eazy-E’s marriage to his wife 12 days before death, and a relatively unknown deathbed marriage between Robert Kardashian and Ellen Kardashian (née Pierson) which occurred in August 2003, before his death that September[1].

The Law

In a deathbed marriages scenario, estate planning is a practical consideration. Without proper planning and advice, there may be a myriad of unintended legal consequences. In Ontario, a married spouse is automatically entitled to equalization of net family property on divorce, separation or in this case death under section 5(1) the Family Law Act, RSO 1990, c F.3 [“FLA”]. They are also entitled to dependant support under Part V of the Succession Law Reform Act, RSO 1990, c S.26 [“SLRA”], to take under testate succession under Part II[2].

Notably, on April 2021, Ontario made updates to its SLRA. Among others, schedule 9 of Bill 245 repealed section 16 of this act, which provided for automatic revocation of prior wills on marriage by a testator. The policy rationale behind this change was to protect testators against predatory second or third marriages. Prior to this change, it was easier for a potentially predatory spouse to marry an elderly person, and automatically stand to inherit under intestacy if a new will is not created after the marriage by the elderly testator. After this date, a solicitor must work with the testator to revoke their prior will and update their estate planning to reflect current wishes, e.g., if they wish to benefit the newly wedded spouse.

For solicitors, accepting a retainer to draft a deathbed will is fraught with risk. Once accepted, the solicitor owes a duty of care to both the testator and potential beneficiaries of the will to be executed. If the will is not validly executed as a result of some action(s) by the solicitor which fell under the standard of care of an ordinary prudent solicitor, disappointed beneficiaries who would have otherwise received under that will have a solicitor’s negligence claim[3].

The April 2021 update means that solicitors now have a compressed timeline to update a deathbed testator’s will. Failing to do so, if the testator passes away after the marriage but before the will is validly executed, the new spouse would have a strong potential disappointed beneficiary claim.

Had Robert Kardashian’s deathbed marriage taken place in Ontario after April 2021, and if there was a prior will benefiting his prior spouse Kris Jenner, if he wanted to benefit Ellen Kardashian, the drafting solicitor would have had to work quickly to create or update any marriage agreements, revoke prior wills and update his estate planning. This would all have to be done before the testator has deteriorated too far and loses testamentary capacity. At that point, an intestacy is unavoidable.

The Takeaway

There is a delicate policy balance to be found in most legislation. Laws which might impact deathbed wills and marriages are no different. Statistically, it may well be that our government has achieved the most desired balance for society as it is now. For every genuine deathbed marriage in the style of “A Walk to Remember”, there may be more instances of predatory marriages.

However, medical advances are allowing humans to live longer and more functional lives. This might arguably increase the chances of fruitful second, third, or even deathbed marriages, and alter the existing, delicate policy balance.

One perhaps unintended consequence of the April 2021 changes to the SLRA is to make the already thorny situation of deathbed retainers even less appealing in combined situations of deathbed marriages and wills. A further consequence of that may be testators in this combined situation will have a very difficult time getting access to justice with regards to their legal estate and marriage planning.

Will there ever be an Ontario case of a combined situation of a deathbed marriage and will in our life time? If so, would the repealing of section 16 of the SLRA feature prominently? Only time will tell.

 

[1] It is not the aim of this blog to speculate on whether these marriages were genuine or predatory. It suffices to say that these marriages are of public record and are good analogues for legal analysis.

[2] The definition of “spouse” under the SLRA holds the same meaning as it does in section 29 of the FLA, and includes two people who were married to each other. In a deathbed marriage scenario, it would be hard for a spouse to qualify for dependant support as a common law spouse, as they may not be able to satisfy the requirements of being in cohabitation continuously for a period of not less than 3 years, or to be in a relationship of some permanence if they are parents of a child.

[3] As first set out in White v. Jones, [1995] 2 AC 207, [1995] UKHL 5, and subsequently incorporated into Canadian common law for the first time by the Alberta Court of Appeal in Graham v. Bonnycastle, 2004 ABCA 270.