Predatory Marriage

The capacity threshold for marriage is lower than for making a will. That gap is what makes predatory marriage possible, and it is the heart of every one of these cases.

Book My 15-Minute Assessment →

Predatory MarriageCapacity to MarryAnnulmentEstate Consequences

A person may lack capacity to change their will and still be found capable of marrying.

The Short Answer

What is a predatory marriage?

A marriage in which one party is vulnerable because of diminished capacity, typically through age or cognitive decline, and the other appears to have married them for financial advantage. Ontario applies a lower capacity threshold to marriage than to making a will, which means a person can be found incapable of changing their will yet capable of marrying, with substantial estate consequences.

Your Legal Team

Lawyers licensed by the Law Society of Ontario

270+ Google reviews, complimentary 15 minute assessment

THE GAP

Two Different Capacity Thresholds

Ontario law applies different capacity standards to different acts, and they are not aligned.

The test for capacity to marry has historically been treated as relatively undemanding: broadly, whether the person understands the nature of the marriage contract and the duties and responsibilities it creates. The test for testamentary capacity is considerably more demanding.

The consequence is that a person may be incapable of making a valid will and still be found capable of entering a valid marriage. That is not a theoretical gap. It is the mechanism.

The leading illustration is Banton v. Banton, in which the children succeeded in setting aside the will for incapacity and undue influence, and the court nevertheless found that the testator had capacity to marry.

THE CONSEQUENCES

What a Marriage Changes

Marriage brings entitlements that arise regardless of what any will says. A surviving married spouse may have an election under family law between taking under the will or intestacy and claiming an equalisation payment. Spousal status affects intestacy distribution and can support a dependant support claim.

Ontario has also repealed the rule that marriage automatically revoked an existing will. That change removed one predatory marriage mechanism, the automatic disinheritance of existing beneficiaries, and it did not remove the others.

Because that reform is relatively recent, which rules apply can depend on when the marriage and the will occurred. That is a question worth resolving early rather than assuming.

WHAT CAN BE DONE

The Routes Available

Annulment on the basis of incapacity to marry. Difficult, because the threshold is low, but not impossible where the evidence is strong.
A will challenge, where a will was also made or changed around the same time.
Attacking transfers of property made during the relationship, on capacity or undue influence grounds.
Guardianship or capacity proceedings, where the person is still alive and further dissipation is a risk.
A passing of accounts, where the new spouse has also been acting under a power of attorney.

In practice the marriage is often not the strongest line of attack. The transfers and the will frequently are.

BE REALISTIC

Why These Cases Are Hard

Reported predatory marriage decisions are relatively few, and the low capacity threshold is why. Establishing incapacity to marry requires showing the person did not understand the nature of the contract, which is a lower bar to clear than most families expect and therefore a higher one to attack.

Courts are also properly cautious about setting aside a marriage. An older person is entitled to form a new relationship, and disapproving children are a common feature of cases where nothing improper occurred.

Where we act, the honest assessment usually includes which of the available routes is genuinely strongest, and that is often not the annulment.

PREVENTION

What Actually Reduces the Risk

A marriage contract, entered into while capacity is clear, addressing property and estate expectations.

A will made and reviewed with proper capacity evidence, and beneficiary designations kept current, since those pass outside the estate regardless.

And, unglamorously, family contact. Isolation is the precondition for most of these situations. A parent who is regularly seen alone by more than one person is considerably harder to isolate.

General information

This page is general information about Ontario and Canadian law published by Lexaltico LLP. It is not legal advice, it does not account for the facts of any particular situation, and reading it does not create a solicitor-client relationship. Rules change, and whether any option is available to you depends on your own circumstances.

Elder and vulnerable persons

Common Questions

Frequently Asked Questions

Can a marriage be annulled after death?

It can be challenged, though it becomes more difficult once the person who could give evidence about their own understanding has died.

Does marriage still revoke a will in Ontario?

No. That rule has been repealed, though which rules apply can depend on the dates involved.

Is the new spouse entitled to a share regardless of the will?

A surviving married spouse may have an election under family law and may bring a dependant support claim. Marriage confers entitlements a will cannot simply remove.

What if my parent was diagnosed with dementia?

A diagnosis does not by itself establish incapacity to marry, given the low threshold. It is relevant evidence rather than an answer.

Should we focus on the marriage or the money?

Often the money. Transfers and will changes are frequently the stronger claims, and an honest assessment says so.

Book My 15-Minute Assessment

Talk to Us About Predatory Marriage in

Our lawyers offer a 15-minute initial assessment for most matters. Call, email, or book online. Do not sign anything before speaking with us.

Lexaltico LLP

Downtown Toronto

55 University Ave, Suite 1100
Toronto, ON M5J 2H7

North York

2 Sheppard Ave East, Suite 303, Toronto, ON M2N 5Y7

Phone

+1 416 333 6200

Hours

Monday to Friday: 9:00 AM to 5:00 PM
Evenings & weekends by appointment

Call for an Initial Assessment →

Related Estate Litigation Pages & Guides

Estate Litigation Overview Capacity Assessments Passing of Accounts Estate Trustee Removal

Book My 15-Minute Assessment

Ready to Talk? Book My 15-Minute Assessment

No obligation, no cost for the first conversation. We will tell you honestly whether we can help.

A lawyer replies within 24 hours on business days. Urgent? Call +1 416 333 6200, answered 24/7. Submitting this form does not create a solicitor-client relationship.

Speak to a lawyer about your situation.

Contacting us does not create a solicitor-client relationship. Please do not send confidential information until we have confirmed we can act for you. We aim to reply within one business day. Sending this form does not meet any court deadline or limitation period.

If you or a child are in immediate danger, call 911. This form is not an emergency service and is read during business hours. Assaulted Women’s Helpline 1-866-863-0511, Talk4Healing 1-855-554-4325, both open around the clock.

Book My 15-Minute Assessment