Bill 245 and predatory marriages in estate law

Bill 245 and predatory marriages in estate law

On March 2, 2021, Bill 245, the Accelerating Access  to  Justice  Act, passed  its  second  reading  in the Ontario legislature. There remains to be a third reading before the Act can receive royal assent, but from reading the Hansard debates, it is optimistic that Bill 245 will become law.

As wills, trusts and estates practitioners it is important to note these changes to the legislation – in particular, the change in legislation regarding wills and the marital status of the testator.

Marital status and the SLRA

Schedule 9 of Bill 245 has proposed amendments to the Succession Law Reform Act (SLRA).

The following are the proposed changes to be made to the sections in the SLRA relating to marital status:

  • It is proposed that 16, where a will is revoked by the marriage of the testator, is repealed.
  • An addition is proposed for 17 to add other instances  where  a  testator’s will shall be construed  as if  the  former  spouse had predeceased  the testator. Most notably, the proposal  for  s.  17  is to  include  spousal separation between married spouses to be construed as if the spouse had predeceased the testat or.
  • Following the theme of separation, the proposed addition of 43. 1 adds that intestacy rules do not apply in respect of any or all property if the person and the spouse are separated at the time of the person’s death.

The changes reflect the name of the bill as accessibility to justice is accelerated through the proposed amendments. This accessibility to justice is most notable in the proposed s. 16 revocation .

How changes promote accelerated access to justice

 Current Section 16:

Revocation by marriage 16 A will is revoked by the marriage of the testator except where,

  • there is a declaration in the will that it is made in contemplation of the marriage;
  • the spouse of the testator elects to take under the will, by an instrument in writing signed by the spouse and filed within one year after the testator’s death in the office of the Estate Registrar for Ontario; or
  • the will is made in exercise of a power of appointment of property which would not in default of the appointment pass to the heir, executor or administrator of the testator or to the persons entitled to the estate of the testator if he or she died intest ate .

As some estate litigation practitioners may have experienced, an unfortunate situation can occur

when an elderly testator marries a significantly younger spouse. Unless there was a declaration in contemplation of marriage, the elderly testator’s previous will is revoked, leaving the beneficiaries a difficult journey to regain their inheritance, and almost always at a cost. Unless a new will is created, the new younger spouse jumps to the front of the line and if a new will is actually created, it may be the case that the new will is borne from coercion or undue influence. This was the case in Banton v. Banton [1998] O.J. No. 3528.

Problems with current law as in Banton v. Banton

Banton is a classic example of predatory marriage. In Banton, 88-year-old George Banton met a 31- year-old woman named Muna Yassin, and they had”… formed a friendship, which quickly developed into a close attachment … .” After surgery for one of his many physical ailments, Banton’s doctor assessed and issued a Certificate of I ncompetence. Shortly after the declaration of incompetence, Banton, with Yassin, withdrew $10,000 from his bank account and attempted to cash more of his cheques.

When his children discovered the withdrawal and attempted withdrawals, they, as Banton’s attorneys for property, put everything  in a trust to protect his assets. The trust was created similar to Banton’s will executed in 1991. After the withdrawals were stopped, Yassin married Banton and he made a will that left everything to her.

Based on the evidence, the court found Banton’s will that left everything to Yassin to be invalid because he was incapable and it was procured through undue influence. Unfortunately for the children, the court found that the marriage was valid.

Predatory marriages

A problem with respect to capacity  is the  lower standard  required  for the  capacity  to  marry  as compared to the capacity to make a will or appoint a power  of attorney.  The act of marriage  may  be simple to understand and carry a lower bar for capacity (although when is love ever that simple), but there are still consequences to  marriage  that invoke  financial  repercussions  in  some  instances,  as seen above.

For individuals with less time – such as the elderly – marriage is extremely problematic as marriage more than likely revokes a will. For people with more time in their lives to  make a new  will, this is not as big of a problem as compared to older individuals (but everyone should endeavour to have a will

– see our previous article: Estate COVID problems part two: The importance of a will).

It is because of the revocation in s. 16 that makes the elderly extremely vulnerable to predatory marriages due to factors that include, but are not  limited to,  the deterioration  of the mind and body and loneliness . The elderly become likely targets  for  parasites  that  need to  only  come into a  senior’s life for a short period of time to steal a large amount of money from rightful beneficiaries. Yassin was married to Banton for just over a year and a half.

Why the new law is better than status quo

If the revocation by marriage is repealed, then the Banton estate would not have lost money to a predatory marriage. They would have been successful in the will challenge, and Banton would not have died intestate. He would have died subject to his true testamentary intention as in his previous will where he was capable. His five children and 18 grandchildren would not have given up a part of their inheritance to an outsider.

From the Hansard, MPP Robert Bailey addressed the floor and advocated for Bill 245. He stated the bill’s intent to combat predatory marriages through the s. 16 amendment “the proposed changes in Bill 245 that will benefit seniors who may enter predatory marriages.”

This amendment may not rid Ontario of predatory marriages, but it is a good place to start .

The Wife and the Mistress – Can they both be Dependants?

What happens when a man is married, but is in another relationship? Can their mistress be considered a dependant (in addition to their wife)?

The wife and the mistress

In the case of Prelorentzos v. Havaris (2015) the deceased had died at the age of 71 leaving behind his wife with whom he had separated from but never divorced. During the time of his separation, he lived with a woman named Helen whom he initially took in as an act of kindness as she had nowhere else to live. Helen claimed that she lived with him in the same household for about 9 years and that she was a common law spouse of the deceased.

The court noted that the only missing link in this case was whether Helen and the deceased had cohabited. The deceased’s wife claimed that even though they lived together, it was merely a brother-sister type relationship. The wife claims that the deceased always intended to resume his relationship with her and  this is why they never got divorced.

Moral Considerations are important

Justice Grace quoted Cummings v. Cummings (2004) and Tataryn v. Tataryn Estate (1994) and concluded in paragraph 233 that “moral considerations are important in this case.”

[111]   When faced with such an application the court is required to consider the interests of all dependants even if some of them seek no relief.   As Blair J.A. said in Cummings v. Cummings (2004) at para. 27:

When judging whether a deceased has made adequate provision for the proper support of his or her dependants and, if not, what order should be made under the [SLRA], a court must examine the claims of all dependants, whether based on need or on legal or ethical obligations.  This is so by reason of the dictates of the common law and the provisions of ss. 57 through 62 of the Act.

…..

[231]   Non-financial considerations must also be considered.  Blair J.A. used the phrase “moral and ethical obligations” in Cummings, supra at para. 27.  At para. 40 of that decision, Blair J.A. addressed the need to consider such matters in proceedings under Part V of the SLRA.  He wrote:

In my view these questions have been resolved by the decision of the Supreme Court of Canada in Tataryn v. Tataryn Estate…There, the court held that a deceased’s moral duty towards his or her dependants is a relevant consideration on a dependants’ relief application, and that judges are not limited to conducting a needs-based economic analysis in determining what disposition to make.  In doing so, it rejected the argument that the “judicious father and husband” test should be replaced with a needs-based analysis: see para. 23.  I see no reason why the principles of Tataryn should not apply equally in Ontario, even though they were enunciated in the context of the British Columbia Wills Variation Act…in which the language is somewhat different from that of the Succession Law Reform Act.

The court decided that even though sufficient evidence was missing, Helen was still deemed to be the deceased’s common law spouse (by a very thin margin). Therefore, Helen was be entitled to support and was awarded $30,000.

Case Dependant

In this case, the court did not focus on the fact that the deceased already had a wife. Rather, the court was concerned with the moral obligations of the deceased to provide support to Helen. It is evident that even though Helen was a “mistress” she was still deemed to be a common law spouse.

Judges are continually defining the limit and scope of dependants and who shall be considered to be a dependant still varies from case to case.

 

Online Romance & Dependant Support

Who is a dependant?

As opposed to the English law principle laid down by Cockburn CJ in Banks v. Goodfellow (1870) LR 5 QB 549 that a testator enjoys absolute freedom in giving out his estate to any person of his choice, Part V of Succession Law Relief Act (the “SLRA”) makes a provision for dependants to claim support from the estate of the testator, even if they were given something (but not enough or “adequate” support).

Part V of the SLRA was introduced to protect dependants, including individuals in a common law relationship or a parent who was the responsibility of the deceased so that they do not become deprived of their wealth.

Section 58 of the SLRA states that if a person dies (either testate or intestate) without making appropriate provision for the support of his dependants, the dependant may (themselves or through their parents) apply to the court for support. The court shall thereafter order support to be paid from the estate of the deceased to the dependant.

However, who is considered to be a dependant for the purpose of the Act? Section 57 of SLRA states that the spouse, parent, child, brother or sister of the deceased whom the deceased was providing support (or under any legal obligation to provide support) immediately before his death shall be considered his dependants.

Online Romance

Definition of “Spouse”

There have been several cases where courts define the scope of what it means to be a ‘dependant’.

In Stajduhar v. Kerzner 2017 ONSC 4954, Branislava Stajduhar contended that she was a dependant of Jeffrey Kerzner, deceased, merely because she was in an online romantic relationship with him. She had claimed to have been committed to him since August 2009 until his death (December 31, 2016).

The issue was whether Ms. Stajduhar met the definition of a ‘spouse.’

The SLRA defines spouse to include the definition of “spouse” from the Family Law Act (the “FLA”). In s. 29 of the FLA,  “spouse” is defined as including “either of two persons who are not married to each other and have cohabited… continuously for a period of not less than three years.”

Further, the SLRA defines cohabit to mean to “live together in a conjugal relationship, whether inside or outside marriage.”

Ms. Stajduhar claimed that she was in a committed relationship with Mr. Kerzner and that she was being supported by him until the time of his death.

Place of Residence

Justice Dunphy denied Ms. Stajduhar’s claim due to the fact that she was not living with the deceased and that the relationship was not continuous. Justice Dunphy found no clear evidence that they cohabited. His honour defined a residence to mean a “readily identifiable…place where both are ordinarily to be found most of the time when they are at ‘home.'”

This case is helpful to show what the court will (and will not) consider when looking at a relationship and a dependant support application. It is evident that living together is crucial.

While love can be found online, there are other parameters set out in the SLA which judges will take into consideration when determining support, such as the deceased providing support immediately before death, being a couple, living together, and having a continuous relationship for not less than three years.