A Specific Type of Elder Abuse
In a past article [here], we discussed the need for advisors to be wary of financial elder abuse.
A less-common form of financial elder abuse is the “predatory marriage”.
This occurs where a person (the “predator spouse”) enters into a long-term relationship or marries an older adult who has diminished mental capacity. This often results in the predator spouse gaining access to the elder’s assets (whether during the elder’s life or after death, or more commonly both). Normally, predatory marriages occur along with other questionable transactions – such as a new Will leaving a substantial gift to the new spouse, or putting assets into joint tenancy with the new spouse.
However, problems can arise even if the elder spouse does not gift away assets to the predator spouse, or change his/her Will in favor of the predator spouse. This is because the family and estate laws in British Columbia give a spouse automatic legal rights to the assets and estate of the other spouse, just by virtue of being married or in a marriage-like relationship for two years.
Predatory marriages are generally more difficult to set aside than a suspect Will or questionable asset transfer. The Courts have traditionally held that marriage requires only a minimal level of mental capacity – a lower level than making a Will or transferring an asset. Courts may also be reluctant to interfere with marriages to avoid suggesting that people with low mental capacity are not be able to validly express their relationships through marriage.
However, as the prominence of elder abuse issues increases, we would not be surprised if Courts become more willing to set aside truly predatory marriages. In that sense, a recent British Columbia case where the Court did agree that a predatory marriage be set aside, Devore-Thompson v. Poulain, may be considered a sign of things to come. Click here to read this Court decision.