Sunday, November 12, 2017

Banton v. Banton (Part 2)

In my post last week, I wrote about Mr. Justice Cullity’s decision in Banton v. Banton, 1998 CanLII 1496 finding that two wills made by George Banton, one dated December 21, 1994 and the other dated May 4, 1995 were invalid. In both wills, Mr. Banton had left his estate to Muna Yassin, whom he met after he moved into a retirement home, disinheriting his five children, who were his beneficiaries under his previous will. He and Ms. Yassin were married on a few days before he made the December 21, 1994 will, when he was 88 years of age, and she, 31. Mr. Justice Cullity found that Mr. Banton was suffering from delusions about his children when he made the wills, and he did not have the requisite capacity to make them, and that Ms. Yassin exercised undue influence to obtain the benefit of the wills. Accordingly, she did not benefit under the wills.

But I indicated that there were some twists. Today I will write about one.

Under Ontario law, when Mr. Banton married Ms. Yassin, a marriage revoked a will unless the will was made in contemplation of the marriage. If the marriage was valid, then the effect of the marriage was to revoke Mr. Banton’s previous will leaving the residue of his estate to his children. Because Mr. Justice Cullity found that the wills he made after his marriage were invalid, then a significant portion of his estate would go to Ms. Yassin as his spouse pursuant to Ontario’s laws governing intestate heirs. On the other hand, if the marriage were not valid then Mr. Banton’s previous will leaving the residue of his estate to his five children would still be in effect.

Mr. Justice Cullity considered two issue in respect of the marriage. First, whether Mr. Banton consented to the marriage. Second, whether Mr. Banton’s had the mental capacity to marry.
With respect to the first issue, Mr. Justice Cullity found that Mr. Banton did consent to the marriage. He wrote:

[134]      Marriage is, of course, a legal contract and, to some extent, it is governed by the laws applicable to contracts in general. I am satisfied, however, that it is not subject to the operation or application of the presumptions and principles which determine whether contracts may be avoided on the ground of undue influence. Fraud, of course, is another matter but the evidence in this case does not support such a finding. To that extent authorities such as Countess of Portsmouth v. Earl of Portsmouth (1828), 1 Hagg. Ecc. 355, 162 E.R. 611, are distinguishable.
[135]      A marriage can be set aside on the ground of duress or coercion of a degree sufficient to negative consent. Although I am in respectful agreement with Mendes da Costa J. in A.S. v. A.S. (1988), 1988 CanLII 4713 (ON SC), 15 R.F.L. (3d) 443 (U.F.C.) at pp. 453-6, that fear need not be proven, the evidence does not warrant a conclusion that there was duress in this case with respect to George Banton’s participation in the marriage.
[136]      In late September and early October 1994 George Banton had tried to resist Muna’s attempts to seduce him into marriage but, in November, he capitulated and consented to it. Although I have also found that marriage was part of Muna’s carefully planned and tenaciously implemented scheme to obtain control and, ultimately, the ownership of his property, as far as the marriage was concerned he was, at the end, a willing victim. Shortly thereafter he told Victor [one of Mr. Banton’s children] that he had wanted “one last fling”.
As noted above, Mr. Justice Cullity found that Mr. Banton did not have capacity to make a will a few days after the marriage. He also found after considering conflicting expert opinions that Mr. Banton did not have capacity to manage his financial affairs at the time of the marriage. But these findings of incapacity are not determinative of Mr. Banton’s capacity to marry. Legal capacity is transaction specific. Someone who might not be able to meet the legal criteria to make a valid will, may still have the capacity to enter into a marriage.

Mr. Justice Cullity found that Mr. Banton did have the ability to understand the nature of a marriage relationship and its obligations. He wrote:

[142]      It is well established that an individual will not have capacity to marry unless he or she is capable of understanding the nature of the relationship and the obligations and responsibilities it involves. The burden of proof on this question is on those attacking the validity of the marriage and, in my judgment, it has not been discharged in this case. There is virtually nothing in the evidence to suggest that George Banton’s mental deterioration had progressed to the extent that he was no longer able to pass this not particularly rigorous test. The medical evidence indicates his acceptance of the marriage and even in the last months of his life when he was at Village Park, he spoke of his wish to return to his wife—albeit along with his then caregiver and companion, Ms. Yolanda Miranda.
[143]      The only matter that raises any doubt in my mind with respect to George Banton’s understanding of the responsibilities of marriage are the fact that he permitted Muna to return him to Lifestyles the day after the marriage, and that he remained there until the beginning of April 1995 when he moved to Muna’s apartment. I do not believe I would be justified in concluding from this that he did not appreciate that the duty to cohabit is inherent in the marriage relationship. I believe it is far more likely that he would have preferred to cohabit with Muna but that this was not part of her plan until the commencement of the guardianship proceedings made it desirable, from her point of view, that he be continuously under her control, and not accessible to his family. We do not know what reason Muna gave him for returning him to Lifestyles on December 18 but, as I have already indicated, I am satisfied that he was, by then, completely under her domination and quite incapable of insisting on his right to cohabit with her.
[144]      George Banton had been married twice before his marriage to Muna and I find that, despite his weakened mental condition, he had sufficient memory and understanding to continue to appreciate the nature and the responsibilities of the relationship to satisfy what I have described as the first requirement of the test of mental capacity to marry.
Mr. Justice Cullity rejected the argument that in order to have capacity to marry, Mr. Banton was also have the capacity to manage his finances. There is a distinction between the capacity to make financial decisions and the capacity to make personal decisions. The fact that someone no longer has the ability to make financial decisions does not preclude them from marrying if he is still capable of making personal decisions. Mr. Justice Cullity wrote:

[157]      While I believe that it may well be the case that a person who is incapable both with respect to personal care and with respect to property may be incapable of contracting marriage, I do not believe that incapacity of the latter kind should, by itself, have this effect. Marriage does, of course, have an effect on property rights and obligations, but to treat the ability to manage property as essential to the relationship would. I believe, be to attribute inordinate weight to the proprietary aspects of marriage and would be unfortunate. Elderly married couples whose property is administered for them under a continuing power of attorney, or by a statutory guardian, may continue to live comfortably together. They may have capacity to make wills and give powers of attorney. I see no reason why this state of affairs should be confined to those who married before incapacity to manage property supervened.
[158]      George Banton was found by Dr. Chung to have capacity as far as personal care was concerned. Moreover, despite his physical problems, his weakened mental condition and his loss of memory, he was able to carry on more or less normal discourse on simple everyday matters. Strangers, like Carol Davis and Mr. Allen, who met him briefly did not notice anything abnormal about his mental state. On the basis of a one-hour examination Dr. Silberfeld concluded that he had capacity to manage his property. Obviously he was still capable of presenting a brave face to the world. The more thorough examination by Dr. Chung revealed what those close to him already knew: that his judgment was severely impaired and his contact with reality tenuous. Despite these problems, I have no doubt that, with care and attention and avoidance of stress, he was capable of coping with the more mundane problems of everyday living and I do not see why the right to marry should be withheld from persons in his position.
Accordingly, the marriage was valid, and Ms. Yassin was entitled to a large share of Mr. Banton’s estate under Ontario law governing the disposition of an estate when someone dies without a will.
But there is still more to this story. To be continued. 

Sunday, November 05, 2017

Banton v. Banton (Part 1)

I have recently reread the case of Banton v. Banton, 1998 CanLII 14926, a decision of Mr. Justice Cullity of the Ontario Supreme Court. This case may be referred to as a predatory-marriage case. What interests me most, though, is the interplay of legal issues. Mr. Justice Cullity considers in his decision the capacity to make a will, and the impact of delusions on capacity, undue influence, the capacity to marry, the validity of a residence trust, and the use of a power of attorney to settle a trust. I think this case is well worth a few blog posts. I will start with the challenges to the validity of two wills.

Until a couple years before his death, George Banton had a loving, trusting relationship with his five children. He had made a will in 1991, in which he left the residue of his estate to be divided equally among his children. He had appointed his two sons, Victor and George Jr. as attorneys under an enduring power of attorney.

In 1990, he was diagnosed with prostate cancer, and then had several operations, including surgery to remove his testicles in November 1993, after which his mental functioning deteriorated. He also had significant hearing problems. In 1994, while in a retirement home he met a waitress, somewhat younger than he (she was 31, and he, 88). Her name is Muna Yassin. They married on December 17, 1994. He left his new wife his estate by will dated December 21, 1994, and then he made an identical will on May 4, 1995.

He and Ms Yassin met with a solicitor on December 19, 20 and 21. On the first meeting the solicitor was concerned about the age difference and asked for a marriage certificate, which they brought in the next day. The solicitor testified that his recollection was that on Dec 20, he met with Mr. Banton alone in the boardroom and that was his practice. Mr. Banton instructions were that he wished to leave everything to Ms. Yassin, and if she predeceased him to the Salvation Army.

When he made the 1994 will, in reply to his solicitor’s question about why he was not leaving anything to his children, Mr. Banton said that they were not interested in him, were only interested in his money, and only paid attention to him after he became involved with Muna Yassin. He made similar statements to others, and later in a guardianship proceeding he made allegations of abuse against his sons.

There was little evidence about the 1995 will, which was made in the context of the guardianship proceedings, and was identical to the 1994 will.

The children challenged the wills, alleging that their father did not have capacity to make the wills, and that Ms. Yassin procured the wills by the exercise of undue influence.

Mr. Justice Cullity set out the legal criteria of capacity to make a valid will:
[55]           The principles for determining testamentary capacity were summarized in the celebrated passage from Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (Q.B.) as follows:
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not been made [at p. 565].
Mr. Banton was able to describe his assets to his solicitor, and Mr. Justice Cullity found that he knew the nature and effect of wills and had a sufficient understanding of his assets to make a will.
The validity of the wills turned on the question of whether he was able to “comprehend and appreciate” the claims of his children, or whether he was influenced in making the wills by insane delusions.

Mr. Justice Cullity described insane delusions in the following paragraphs of his decision:

[61]           I have already held that virtually all of these allegations of George Banton about his children’s motives and behaviour were unfounded. The additional statement to Muna about his poor relationship with his children prior to the marriage was quite extraordinary but, given his other allegations and despite my findings with respect to Muna’s credibility which I will refer to later in these reasons, I cannot exclude the possibility that it was made. The question is whether his allegations about his children should be characterized as “insane delusions” in the sense in which that term has been used traditionally in this area of the law. The reported decisions contain many attempts at definition of which the following have often been cited with approval:

Delusion is insanity where one persistently believes supposed facts (which have no real existence except in his perverted imagination) against all evidence and probability and conducts himself however logically upon the assumption of their existence. [Am. & Eng. Cycl., Vol. 9, p. 195, cited by Sedgewick J. in Skinner v. Farquharson (1902), 1902 CanLII 87 (SCC), 32 S.C.R. 58 at p. 76.]

… insane delusions are of two kinds; the belief in things impossible; the belief in things possible, but so improbable, under the surrounding circumstances, that no man of sound mind would give them credit; to which we may add, the carrying to an insane extent impressions not in their nature irrational. [Prinsep v. Dyce Sombre (1856), 10 Moo. P.C. 232 at p. 247, 14 E.R. 480.]
[62]           As the second of these passages indicates, “insane” delusions are not limited to beliefs that are so bizarre that their content, by itself, evidences mental disorder. The precise connotations of the language employed in 19th Century cases—many of them involving instructions to juries—may not be entirely consistent with modern linguistic usage. Such delusions include beliefs whose extreme improbability is apparent only when the surrounding facts are known. These are obviously the more difficult cases. Delusions with respect to the behaviour and attitudes of the deceased’s relatives are relatively common in the reported cases and they often fall into this category. Dr. Silberfeld acknowledged that George Banton’s allegations about his children could be delusions. In all cases where delusions of this kind are alleged to exist there will be a question whether the belief should be characterized merely as quite unreasonable, on the one hand, or as something that, in the particular circumstances, no one “in their senses” could believe: Macdonell, Sheard and Hull on Probate Practice (4th ed., by Rodney Hull, Q.C., and Ian Hull, 1996) at pp. 33-34. Cases on either side of the line include Royal Trust Co. v. Ford (1971), 1971 CanLII 139 (SCC), 20 D.L.R. (3d) 348 (S.C.C.), where the will was upheld, and Harwood v. Baker (1840), 3 Moo. P.C. 282, 13 E.R. 117, and Re Zabudny, [1958] O.W.N. 68 (H.C.), in which wills were set aside. The correct approach to the question is, I believe, accurately stated in Atkinson on Wills (2nd ed. 1953):

The nature of the belief is not necessarily the turning point, or even the apparent lack of a basis for such belief. Rather the question is whether, considering all the facts and circumstances, it is fairly shown that the will proceeded from and on account of a deranged mind [at p. 246].

Mr. Justice Cullity found that Mr. Banton’s beliefs about his children were delusions, and these delusional beliefs were the basis of Mr. Banton’s decision to exclude them. Accordingly, the wills were invalid.  

He also found that Ms. Yassin unduly influence him. This finding was based on circumstantial evidence of her behavior when contrasted with her testimony. Although she portrayed herself as passive, there was evidence of her actively trying to get his bank to allow him to make large withdrawals, of her isolating him from his children and grandchildren during a time period he was living with her, and of providing most of the instructions on his behalf when he was contesting guardianship proceedings by the Public Guardian and Trustee.

Ms. Yassin did not benefit under the wills. But there are twists in this story.

Sunday, October 15, 2017

2017 Canadian Elder Law Conference

I have the privilege of speaking at this year's Canadian Elder Law Conference at the Pan Pacific Hotel, in Vancouver, B.C. The 2017 Conference will be held on Thursday, November 2, and Friday, November 3.

I will be on a panel with Sara Beheshti of O'Sullivan Estate Lawyers LLP in Toronto, and Kimberly Whaley of Whaley Estate Litigation Partners, also based in Toronto. Our topic is "Capacity, Undue Influence, and Independent Legal Advice: How To Interview and When To Insist On Independent Legal Advice."

The Conference is presented by the Canadian Centre for Elder Law and the Continuing Legal Education Society of British Columbia.

You can find the full agenda and registration information here.

Saturday, October 07, 2017

B.C. Supreme Court Rules Committee Inviting Comments on Proposed Changes to Probate Rules

The Attorney General’s B.C. Supreme Court Rules Committee is requesting comments on proposed changes to the probate rules. You can read the proposed changes here.

A couple of the proposed changes caught my eye. One proposed changes to broaden the class of persons who may file a notice of dispute to oppose an estate grant. As I previously wrote the current Rule 25-10 (1) is too restrictive. Only those to whom notice of the application for an estate grant must be given are entitled to file a notice of dispute. In the case of an application to probate a will, the applicant must give notice to all of those who are named beneficiaries in the will, and anyone else who would be entitled to share in the estate on an intestacy. However, someone who does not fall within one of those categories, but who is a beneficiary under a previous will, does not appear to have the right to file a notice of dispute. The proposed change would allow anyone with an interest under a prior or later will to file a notice of dispute.

A second proposed change the caught my eye is a proposed change to Rule 25-14 which currently provides that some types of claims could be commenced by a requisition if there has been no application for an estate grant. For example, currently you can apply to pass over and executor by requisition, if no application for an estate grant has been filed.

Requisitions are in my view inappropriate for commencing litigation. There are no rules governing who is entitled to notice of the application, nor times for responding. The proposed change would eliminate the ability to make applications by a requisition. The exceptions under the proposed changes are applications which may appropriately be made without giving anyone notice. For example, under the proposed changes, you would be able to make an application to shorten the 21-day waiting period to file a submission for an estate grant following the date you mail a notice to the beneficiaries and those who would be entitled to a share of the estate on an intestacy.

In most cases, a petition would replace a requisition. 

You may make comments by email to  until October 16, 2017.

Sunday, September 10, 2017

Undue Influence by Inducing False Beliefs: Re: Patterson Estate

Undue influence usually implies coercion. Someone may challenge a will or a benefit in a will on the basis that another procured the will or benefit by applying pressure to the will maker. The pressure may be overt threats of violence, or perhaps subtler forms of pressure such as an implied threat by the will maker’s caregiver to withdraw care.

A recent decision of the Nova Scotia Supreme Court, Re: Patterson Estate, 2017 NSSC 221, identifies as undue influence a child procuring a will by inducing her mother to believe that her other children did not care about her.

Joan Patterson had four children, Reed Patterson, Randall Patterson, Darlene Marriott, and Marlene Patterson. She died on June 13, 2016, the age of 70, and her husband had died four months before. Marlene Patterson had been estranged from both of her parents for about 20 years, but reconciled in 2012. On March 4, 2016, Joan Patterson moved from her home into Marlene Patterson’s home. On May 13, 2016, she made a new will, leaving her estate to Marlene Patterson, disinheriting her other three children.

Mr. Justice Wright found that Joan Patterson’s will was properly signed and witnessed in accordance with Nova Scotia law. She knew and approved of the contents of the will, and she had testamentary capacity.

The decision turned on whether Marlene Patterson procured the will by fraudulently inducing her to disinherit her other children. Mr. Justice Wright quoted from John Poyser’s book Capacity and Undue Influence (which I have reviewed here) in setting out the legal issue:
[17] In pressing their grounds of fraud as a subspecies of undue influence, the applicants rely on the following passage from the text book Capacity and Undue Influence (Carswell 2014) authored by John E.S. Poyser (at pg. 318):

Testamentary undue influence is typically thought of in terms of coercion. There is good reason for that. Dozens of cases have stated that conduct must amount to coercion if it is to amount to testamentary undue influence. Yet there are also abundant comments in the same cases and others that open the door to characterize testamentary fraud as a second type of conduct that can amount to undue influence. Coercion forces a person to do something against his or her will. Fraud operates differently. Testamentary fraud is an effort to fool a person into believing a false state of affairs that is then instrumental in causing that person to make a testamentary gift that otherwise would not have been made. As indicated earlier, persuasion is permitted, but persuasion is not permitted when it is mounted on a foundation of deliberate lies. Testamentary undue influence by coercion is difficult to establish. It is often pled but rarely proved as the facts rarely sustain it. Undue influence by fraud will be more easily sustained. Isolation, falsehood, and ingratiation are a common recipe employed by predatory family and peers in a bid to subvert a vulnerable person’s property at death.
[18] In the pages that follow, the author traces the development of fraud as a subspecies of undue influence in the case law. He refers to the decisions in Anderson v. Walkey, 1961 CarswellOnt 91 and in Timlick v. Crawford, 1965 CarswellBC 86 as instances where Canadian courts have invalidated a Will on the grounds of undue influence, not as the result of coercion, but as the result of manipulation and deceit.
[19] It is also noted (at pg. 324) that the party alleging undue influence has to prove not only the impugned conduct but that it in fact caused the Will-maker to sign the Will.
Marlene Patterson’s sister and brothers alleged that she had manipulated her mother into making the will isolating them from their mother and making false statements about them. Darlene Marriott testified that Marlene Patterson had asked her to assist her in persuading their mother’s disinherit their brothers. It was also evident that Marlene Patterson assisted her mother and making notes for her meeting with the lawyer who drew the will.

Mr. Justice Wright found that Marlene Patterson did in fact induce her mother into making the will she did by manipulation.

[87] It is not only from these suspicious circumstances but rather from the evidence as a whole, including Marlene’s lack of credibility, that the Court is prepared to draw the inference that Joan was induced to form the false beliefs she held about her other childrens’ lack of caring, through manipulation and deceit on the part of Marlene under whose control she remained after the move. Joan then acted on those false beliefs in changing her Will as she did. I therefore find that the actions of Marlene, on a balance of probabilities, crossed the line into the sphere of undue influence. As noted earlier, while persuasion is permitted without legal consequence, persuasion of a testator is not permitted when it is mounted on a foundation of untruths induced by the proponent of a Will.
In the result, the May 13, 2016 will is invalid.

Saturday, August 19, 2017

Sato v. Sato

Things would be simpler, but not nearly as interesting, if everyone remained in the same place.

Hiroyuki Rex Sato, often referred to as Rex, immigrated with his family to British Columbia in 1969. He became a Canadian citizen in 1975. Following his graduation from university, Mr. Sato lived and worked in several different cities, first in Toronto, then back in Vancouver, followed by the Cayman Islands, Tokyo, Guernsey, and then Luxembourg. He died on March 7, 2015 in Japan where he was being treated for cancer. For Canadian income tax purposes, the Canada Revenue Agency agreed that he became a non-resident of Canada in 1999.

Mr. Sato made a will in Vancouver on May 19, 2011, while visiting. In his will, Mr. Sato appointed his sister Helen Sato as his executor, and divided most of his estate equally between his two sisters. This will was his last.

Makiko Sato and Rex Sato were married in April 2013. At that time, he was living in Luxembourg. He had moved there in 2009, and remained a resident of Luxembourg until his death.

The issue Mr. Justice Funt was asked to decide in Sato v. Sato, 2017 BCSC 1394, was whether Mr. Sato was domiciled in Luxembourg at the time of his marriage or still in British Columbia. Why is that important?

The law in British Columbia in April 2013 was that a marriage revoked a will unless the will was made in contemplation of marriage. (The law has since changed in British Columbia, and a marriage occurring on or after March 31, 2014, no longer revokes a prior will.) If the court found that Mr. Sato was domiciled in British Columbia, then British Columbia law would apply. The result would then be that Mr. Sato’s will was revoked, and his wife would inherit estate on the basis that he died without a valid will.

But the law in Luxembourg was different. Under Luxembourg law at the time marriage did not revoke a will. If Mr. Sato were domiciled in Luxembourg, then his marriage did not revoke his 2011 Will, and his sisters would inherit the residue of his estate.

Although Mr. Sato was resident in Luxembourg, and had not resided in British Columbia since 1999, domicile means something more than residence. To change domicile, it is necessary to both reside in a new place, and intend to permanently settle their. Mr. Justice Funt quoted from several cases, including the following at paragraph 9 of his decision:

[9]            In Osvath-Latkoczy v. Osvath-Latkoczy, [1959] S.C.R. 751, the Supreme Court of Canada considered whether the appellant’s domicile of choice was Ontario. Justice Judson writing for the Court stated at 753:

The principle to be applied is that stated in Lord v. Colvin, which was adopted in Wadsworth v. McCord, and followed in Gunn v. Gunn:

That place is properly the domicile of a person in which he has voluntarily fixed the habitation of himself and his family, not for a mere special and temporary purpose, but with a present intention of making it his permanent home, unless and until something (which is unexpected or the happening of which is uncertain) shall occur to induce him to adopt [some] other permanent home.
Mr. Justice Funt found that Mr. Sato was not domiciled in Luxembourg. When Mr. Sato applied to Canada Revenue Agency to determine his residency status when he left Canada, Mr. Sato wrote in the form that he intended to return to Canada. He wrote that he had a strong desire to be involved in international business, and planned to retire in Canada.

Helen Sato had the burden of showing that Mr. Sato had changed his intention to eventually retire in Canada. She was unable to provide sufficient evidence to persuade the Court that Mr. Sato intended to make Luxembourg his permanent home. There was some evidence that Mr. Sato wished to retire in Japan, which Mr. Justice Funt noted “further supports the proposition that the deceased did not intend to reside in Luxembourg indefinitely.”

The result is that Mr. Sato’s marriage revoked the 2011 will, and his wife, Makiko Sato, is entitled to his entire estate as the intestate heir.

Saturday, July 29, 2017

Capacity to Marry: Devore-Thompson v. Poulain

Marriage has significant legal implications on the succession of property. Yet, I don’t come across either in my practice or my reading, that many cases where a marriage is challenged on the basis that someone did not have the mental capacity to marry. I certainly don’t see as many cases challenging the validity of a marriage as I do challenging the validity of a will or transfer of property.

In a recent decision, Devore-Thompson v. Poulain, 2017 BCSC 1289, Madam Justice Griffin found that Donna Walker did not have the capacity to marry on June 14, 2010, when she went through a marriage ceremony with Floyd Poulain. The validity of the marriage was challenged by Ms. Walker’s niece Donna Devore-Thompson, who was an executor named in a will Ms. Walker made before her marriage ceremony, and who was close with her.

The question of whether Ms. Walker had the capacity to marry is significant, because if she did have capacity and the marriage were valid, pursuant to the Wills Act, the marriage would have revoked all of her previous wills. Because she had no descendants, Mr. Poulain would be entitled to her estate as her surviving spouse on the basis that she died without a valid will. I should add that the Wills Act was revoked and replaced by the Wills, Estates and Succession Act on March 31, 2014. Although the new legislation no longer has a provision that says that a marriage revokes previous wills, the Wills Act still applies to revoke prior wills on marriage if the marriage took place before March 31, 2014 (unless the will was made in contemplation of the marriage).

The court also found that Ms. Walker did not have the mental capacity to make her will on July 2, 2009, or a previous will in February, 2007, but I will focus this post on her capacity to marry.

Madam Justice Griffin sets out in some detail the evidence of family, friends and others as well as expert evidence concerning Ms. Walker’s mental functioning. This is a sad story of Ms. Walker’s decline over several years to the point where she could no longer use eating utensils properly, didn’t appear to know how to use stairs, she had difficulty using a telephone and her grooming declined significantly. She became paranoid that family were trying to take her money, when there was no basis for such a suspicion.

The law on capacity to marry is set out in the decision as follows:

[43]         The starting point for understanding the test for capacity to marry is the notion that a marriage is a contract. Similar to entering into any other type of contract, the contracting parties must possess the requisite legal capacity to enter the contract.
[44]         That said, the common law has developed a low threshold of capacity necessary for the formation of a marriage contract. The capacity to marry is a lower threshold than the capacity to manage one’s own affairs, make a will, or instruct counsel: see Wolfman-Stotland v. Stotland, 2011 BCCA 175 at para. 26, leave to appeal ref’d [2011] S.C.C.A. No 242 (S.C.C.), [Wolfman-Stotland]; and A.B. v. C.D., 2009 BCCA 200 at para. 27 [A.B.].
[45]         In Hart v. Cooper, [1994] B.C.J. No. 159 (B.C.S.C.) at para. 30, Lowry J. described the prerequisites for marriage in the following manner, “a person is mentally capable of entering into a marriage contract only if he or she has the capacity to understand the nature of the contract and the duties and responsibilities it creates”.
[46]         In A.B., the Court of Appeal addressed the issue of marriage capacity. The Court accepted the characterization of capacity to enter a marriage as being equivalent to the capacity to form an intention to live separate and apart, which was restated in Wolfman-Stotland. In Wolfman-Stotland, the Court remarked that the capacity to marry requires “the lowest level of understanding” in the hierarchy of legal capacities.
[47]         In Wolfman-Stotland, the Court referred to Calvert (Litigation Guardian of) v. Calvert (1997), 32 O.R. (3d) 281 (Ont. Gen. Div.), aff’d (1998), 37 O.R. (3d) 221 (Ont. C.A.), leave to appeal ref’d [1998] S.C.C.A. No. 161 (S.C.C.), which contains a useful discussion of the hierarchy of capacities:
[54] Separation is the simplest act, requiring the lowest level of understanding. A person has to know with whom he or she does or does not want to live. Divorce, while still simple, requires a bit more understanding. It requires the desire to remain separate and to be no longer married to one’s spouse. It is the undoing of the contract of marriage.
[55] The contract of marriage has been described as the essence of simplicity, not requiring a high degree of intelligence to comprehend: Park, supra, at p. 1427. If marriage is simple, divorce must be equally simple. The American courts have recognized that the mental capacity required for divorce is the same as required for entering into marriage: re: Kutchins, 136 A. 3d 45 (Ill., 1985).
[56] There is a distinction between the decisions a person makes regarding personal matters such as where or with whom to live and decisions regarding financial matters. Financial matters require a higher level of understanding. The capacity to instruct counsel involves the ability to understand financial and legal issues. This puts it significantly higher on the competency hierarchy. It has been said that the highest level of capacity is that required to make a will: Park, supra, at p. 1426. …
[48]         The authorities suggest that the capacity to marry must involve some understanding of with whom a person wants to live and some understanding that it will have an effect on one’s future in that it will be an exclusive mutually supportive relationship until death or divorce.
[49]         I leave open the possibility that in some cases a marriage can take place without an immediate plan to live together, such as in a situation where two people work in different cities. But there is no suggestion in this case that the alleged Marriage was a long-distance one. Here Mr. Poulain claimed that he and Ms. Walker were living together.
[50]         A lack of capacity to marry will render a marriage void ab initioRoss-Scottv. Potvin, 2014 BCSC 435 at para. 39.
Madam Justice Griffin, in finding that Ms. Walker did not have capacity at the time of the marriage ceremony, considered the types of factors a person entering into a marriage should be able to understand. She wrote:
[343]     As of the date of the marriage ceremony, Ms. Walker was at a stage of her illness where she was highly vulnerable to others. She had no insight or understanding that she was impaired, did not recognize her reliance on Ms. Devore-Thompson and Ms. Devore-Thompson’s assistance, and was not capable of weighing the implications of marriage to Mr. Poulain even at the emotional level.
[344]     The fact that Ms. Walker told some people that she had married Floyd Poulain does not overcome all of the evidence as to her disordered thinking. This does not mean she had any understanding of what it means to be married.
[345]     It is also clear that Ms. Walker’s mental capacity had diminished to such an extent that by 2010 she could not have formed an intention to live with Mr. Poulain, or to form a lifetime bond. She did not understand, at that stage, what it meant to live together with another person, nor could she understand the concept of a lifetime bond.
[346]     Ms. Walker did not have a grip on the reality of her own existence and so could not grip the reality of a future lifetime with another person through marriage.
[347]     I find on the whole of the evidence, given her state of dementia, Ms. Walker could not know even the most basic meaning of marriage or understand any of its implications at the time of the Marriage including: who she was marrying in the sense of what kind of person he was; what their emotional attachment was; where they would be living and whether he would be living with her; and fundamentally, how marriage would affect her life on a day to day basis and in future.
[348]     I conclude that Ms. Walker did not have the capacity to enter the Marriage.
[349]     Since I have concluded that Ms. Walker did not have the capacity to enter the Marriage, the Marriage is void ab initio. Because the Marriage is void ab initio, s. 15 of the Wills Act does not apply and, therefore, the Marriage does not revoke the prior wills.

In British Columbia, a person who has lived in a marriage-like relationship with another for at least two years immediately before the other’s death has the same rights to property if the other dies without a will, and the same rights to apply to vary a will. There are quite a few cases dealing with whether there was in fact a marriage-like relationship, but I am not aware of any where a marriage-like relationship has been challenged on the basis that a person did not have the mental capacity to enter into a marriage-like relationship. It would be interesting to see how the factors the courts consider in determining whether a person has capacity to marry might be applied to a marriage-like relationship. One difference is that a legal marriage takes place at a certain time, while a marriage-like relationship develops over time. What if when two people begin cohabiting in a marriage-like relationship they both have capacity to marry, but one declines to the point where she would not have capacity to marry before they have been in a marriage-like relationship for two years?