Predatory marriages are on the rise in Ontario. Predatory marriages occur when a financial predator enters into a relationship with an elderly person for the sole purpose of gaining access to the elderly person’s finances and estate on death. In Ontario, predatory marriages can have a serious impact on the elderly person and his or her estate, as marriage (even to a financial predator) revokes an existing Will.
Where the elderly person’s existing Will is revoked, and provided that the elderly person does not have capacity to make a new Will, the elderly person will be deemed to have died intestate. The effect of dying intestate is that the financial predator, as the married spouse, would be entitled to a preferential share of up to $200,000. The financial predator would also be entitled to one half or one third of the elderly person’s estate, depending on how many children the elderly person had at the time of his/her death.
With predatory marriages on the rise, Ontario’s Attorney General is considering modifying the rule that marriage revokes a Will. If the Attorney General abolishes this rule entirely, this would have the effect of preventing financial predators from taking advantage of the intestacy rules and benefitting upon the elderly person’s death. In fact, Ontario would not be the first province to modify this rule as Alberta and British Columbia have done away with this rule all together.
There are two main policy reasons for why this rule exists. First, marriage is a significant event that should cause the individuals who are marrying to address their estate planning needs. Second, individuals ought to provide financial considerations for their spouse, and upon the dissolution of a marriage as a consequence of death, the interest of a spouse should be given priority concern.
There is no doubt that these policy concerns are still relevant today. However, it is encouraging to see Ontario’s Attorney General giving consideration to this rule with predatory marriages on the rise. But even if this rule is abolished, the problems associated with predatory marriages are still not resolved. Arguably, the financial predator would have recourse by suing the elderly person’s estate on his/her death for equalization under the Family Law Act or dependent’s support under the Succession Law Reform Act.
All this to say that, there is unfortunately no quick and easy fix to stop predatory marriages. However, we are hopeful to see what comes out of the legislature in the coming months. We will be sure to keep you posted.
This blog post was written by Sarah Macaluso, a member of the Wills and Estates teams. She can be reached at 613-369-0374 or at [email protected].
