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Thursday, January 25, 2018

Retired insurance broker's daughters try to stop him remarrying amid fears over their inheritance

I've come across an interesting article in a UK news outlet about three daughters who didn't want their 80-something Dad to re-marry. They were concerned that they would lose their inheritance if he remarried because in that jurisdiction, marriage automatically revokes an existing will (as it does in some, but not all, provinces of Canada). His existing will divided a healthy chunk of the estate among his daughters and some to the woman he wanted to marry. The daughters worried that the new wife would get more of the estate and they would get less.

The man has dementia and the daughters sought to block the marriage in court on the ground that their father did not have the mental capacity to get married.

I always find estate litigation interesting when I look at the motivation of the parties involved. I can see how caring sons and daughters might be alarmed at the idea of an elderly parent with dementia and a hefty bank account getting married. There is, after all, a possibility that the parent is vulnerable and being taken advantage of.  I certainly don't blame adult children for staying alert to that possibility.

However, in this case, the father and his girlfriend had been together for 20 years already by the time all of this arose. She was not a Johnny-come-lately who saw a financial opportunity and pounced on it. She was there for the long term. Also, as I noted above, the girlfriend was going to get a large sum of money from his will without marrying him. In other words, it doesn't seem to me that the daughters were motivated by wanting to protect their father from a predatory marriage. Also relevant is the fact that the father had already made one of his daughters his attorney under his Enduring Power of Attorney, so he was keeping them involved and was not isolated.

The father was put through a number of medical assessments and court hearings. There were, of course, contradictory findings as there always are in lawsuits. Eventually the judge decided that there would be no more assessments and no more hearings, and concluded that the father did have the mental capacity to marry. The doctor who made the final report accepted by the judge said that "...the man had the capacity to marry and knew his will would be revoked, and that his daughters' financial position would be affected by that and his marriage. The man also understood that his children might receive less than before, and that his wife might receive more".

It's unfortunate that this man's plans for his personal happiness had to be all about money and his daughters' fear of losing that money. The silver lining is that the court has clarified what it means for an elderly person in this position to have the mental capacity to marry. It gives the rest of us some guidelines.

To read the news story, which gives more detail, click here.

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