Kimberly A. Whaley

by Amy Cull and Kimberly A. Whaley

Not long ago, Amy Cull wrote a blog about the fact that marriage revokes a Will in Ontario (see blog post). The main thrust of the article was this: marriage revokes a Will in Ontario, unless, of course, the Will expressly declares that it was prepared ‘in contemplation of marriage.’¹ Although that exact phraseology is not mandatory², seldom do Wills ever actually contemplate an upcoming marriage, or, as is demonstrated from the case law on the subject, seldom do they contemplate it adequately and sufficiently.³ Worse still, the problems with this blanket rule are compounded by, what we refer to as, the ‘predatory marriage.’

Although the topic of predatory marriages is better explained and explored in our book, Capacity to Marry and the Estate Plan, a Canada Law Book publication, which was co-authored by Kimberly Whaley, Dr. Michel Silberfeld, Heather McGee and Helena Likwornik, the crux of the issue is as follows: The requisite capacity to marry has been, historically, a low threshold to cross. As, in some cases, the ‘elder’ years result in an increased risk of capacity issues, such as dementia or other illnesses, as well as other health issues, loneliness, and consequent vulnerability, this means that elderly individuals, who may be more susceptible to influence and manipulation as a result, are preyed upon by unscrupulous opportunists hoping to share in the marriage spoils. The fact that marriage revokes a Will in Ontario makes it that much easier for predator spouses to cash in after the demise of their newly wedded spouse.

As predatory relationships of this nature usually happen quickly, often without others knowing, in most cases, the deceased does not have an opportunity to revise his or her Will before marriage, such that it is prepared in contemplation of marriage. Nor are they able to revise their Will after marriage if the unsuspecting spouse passes away not long after the wedding vows are shared, or lacks requisite testamentary capacity. Consequently, their carefully considered estate plan and any deliberate provision they may have made for their minor children, or other dependants, goes completely out the window.

If you don’t think this will happen to you, or a loved one of yours, we would caution you to take note. It happens much more frequently than you would think.

Indeed, our office was contacted by Maureen Daigle, who was recently featured in an article in the Financial Post on this very topic. Maureen kindly wrote to us to thank us for our writing on these interrelated topics, which hit very close to home as a result of a horrible tragedy experienced by her family, just over a year ago. The note from Maureen was appreciated by our office and in particular Kim Whaley, who is quite passionate about this issue and has written and spoken extensively on it, in hopes of legislative reform and considered application of the requisite test for marriage in light of the fact that marriage revokes a Will.

Maureen told our office that on July 3, 2010, her brother, then only 64 years old, recently retired, and a successful man in life and in business, took his own life. He had never suffered from a mental illness, nor had he ever, to her knowledge, considered suicide. His suicide took place only 14 days after his marriage to a woman he had met on the internet who he had known for a total of 14 months and cohabitated with for 10. Although he had prepared a Will two years prior, which sought to leave his entire estate to his only child from a previous marriage, at the time he executed his Will, he had not been contemplating marriage.

The news of her brother’s unexpected death was not the worst of it. Maureen and her family were shocked to learn that his new wife, of such a short duration, stood to inherit the bulk of her late brother’s estate and would have complete control of his home and possessions, all as a result of Ontario’s succession laws. These facts were provided to us by Maureen and we make no representation as to the facts, as presented.

Although Maureen, and likely too, her family and extended family, knew they may never find answers to why her brother chose to take his own life, Maureen knew she could find out more about what she labels ‘a very unfair law’ in Ontario, and she has since started a blog to research this law across Canada. Maureen has graciously agreed to permit our office to link her blog: www.mosmuse.wordpress.com.

It is with our sincere sympathy and regret for Maureen and her family’s loss that we post this blog.

On a final note, with the exception of Quebec, all of the provinces in Canada share similar succession laws. Change is coming, we have learned, as both Alberta and British Columbia have recently repealed equivalent provisions in their succession legislation. The potential for injustice suggests that it may be time for Ontario to get on board as well.

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Footnotes:
1. Succession Law Reform Act, R.S.O. 1990, c. S.26, ss. 15(a) and 16(a).
2. Owers v. Hayes (1983), 1983 CarswellOnt 621; MacLean Estate v. Christiansen (2010), 2010 CarswellBC 2128.
3. Coleman v. Coleman (1976), [1975] 1 All E.R. 675

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.