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Monday, August 31, 2020

Ontario AG considering changes to estate law to curb predatory marriages

From time to time, the law in various areas gets a good shake-up. Usually this is done to bring older laws up to date with current values and realities. It appears that there may be such a shake-up pending for wills law in Ontario.

The current discussion is focused on the fact that in Ontario (as in some other provinces), a will that was made before marriage is revoked when the person marries. This is not necessarily a problem for a person with the mental capacity to make a new will. However, this rule can - and does - result in financial abuse of a person who doesn't have the capacity to make a new will.

For example, let's say Bill is in his 80s, is widowed, and has a will in place that leaves his estate among his children and names his oldest child as his executor. Bill marries Mary and his will is revoked. If Bill has dementia or some other issue that prevents him from having the capacity to make a new will, then he is stuck with intestacy law. When Bill passes away, Mary will be the person with the right to be his estate administrator, and she will automatically be entitled to a large share of his estate.

You can imagine how easily this situation may be abused. I have personally handled files in which an older person has been taken advantage of in this way, and there's not a whole lot that can be done under current law.

But, you  may ask, if he has dementia and can't make a will, can he even get married? Actually, yes he can. A person getting married must have the capacity to do so, but the test for capacity is much lower than the test for making a new will. To put it bluntly, it's easier to marry someone and automatically revoke his will than it is to get him to make a will in your favour.

This is the situation now being investigated in Ontario. How they decide to deal with it is not yet known, as there could be solutions ranging from taking that whole revocation section out of the statute to expanding court powers to validate wills. We'll see where it goes.I'm definitely in favour of modernizing the law.

To read a more detailed article from, about the proposed changes, click here.

1 comment:

  1. Lynne, I believe most people will agree to such an update.
    In your example you indicate 'dementia'. I believe that there are a situations where some family members are predators when it comes to their aging parents ie. Wills, Power of Attornery etc. and Dementia. This too, should be reviewed and updated. I am involved in such a matter.


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