A disturbing and increasing trend in dysfunctional families is the advent of the predator spouse who takes advantage of elderly victims and assumes control of usually financial affairs and marries the victim in short order.

Even if the family had been reasonably functional prior to this event, the interference of the predator spouse upon an elderly loved one can wreak severe consequences for both the victim and his or her family.

Every estate litigator has likely had experience with the predator spouse.

Typically they are much younger women, often a caregiver, who single out an elderly and vulnerable man who is typically recently widowed , and does so for the purpose of personal profit and exploitation.

Family members are usually cut off, excluded from the life of their loved one and not informed of the marriage ceremony.

The goal of the predator spouse is to enter into a legal form of marriage, while making the victim increasingly excluded from family members and totally dependent upon the predator. The overwhelming control exerted by the predator spouse is often backed up with the terrifying threat of putting the elderly spouse in a care facility .

In my experience the elderly widower is often cognitively impaired, significantly depressed and unable to care for himself. The predator spouse is often skilled at befriending such victims and often has a history of prior marriages for the same exploitive purpose.

The children are often beside themselves as they see both their family connection totally disrupted, as well as their possible inheritance going to an intervening stranger.

The relationship usually begins as either a hired caregiver or as someone who quickly befriends the elderly person and gains his trust through companionship and assistance. Many such men find the younger female predator to be sexually irresistible and cannot avoid the “temptation”.

The marriage ceremony often occurs in secret within several weeks of the start of the insidious relationship.

One of the major difficulties with such marriage ceremonies is that they are often very difficult in law to set aside, primarily on the basis of lack of mental capacity.

The courts generally speaking have had difficulty in defining exactly the test for capacity to marry, but seem to have adopted a standard that it is to be treated as quite low on the basis that marriage is a “simple contract.“ The judicial reasoning in my opinion could not be more incorrect given the complexity of current matrimonial laws, particularly as they relate to the division of property and assets, and the consequent  difficulty of divorce in present day.

Such judicial reasoning continues however that marriage is a “simple contract” requiring very little cognitive reasoning to understand the consequences of same.

Cases of the Predator Spouse

There has been at least one judicial decision where the court recognized the effect that a marriage has on one’s property and children and a higher standard of capacity to marry was applied.

That decision was in Alberta case of Barrett Estate v. Dexter 2000 ABQB 530. In that decision, the deceased had been tested for mental capacity prior to his death, and was found to have significantly impaired cognitive function and judgment. A geriatric physician opined that a person must understand the nature of the marriage contract, the state of previous marriages, one’s children and how they might be affected.

Probably my most egregious case was a widower who began to frequent the services of a prostitute who “specialized in seniors”. Within a short while the prostitute moved in with the elderly man, changed the locks and telephone number and cut him off from his three children. They married shortly thereafter, she arranged for him to change his will to provide for her exclusively, and  within three months of their marriage, she physically beat him to death, and was convicted of his murder.

Another successful challenge to a predator marriage was in Juzumas v Baron 2012 ONSC 7220 where the marriage was set aside on the basis that the contract of marriage was unconscionable due to the inequality of bargaining power, and undue influence.

The court stated as follows:

8     In his text, The Law of Contracts, John McCamus addresses the “cluster of doctrines” that apply “where a stronger party takes advantage of a weaker party in the course of inducing the weaker party’s consent to an agreement.” John D. McCamus, The Law of Contracts, 2nd ed. (Toronto: Irwin Law, 2012), at p. 378. The cluster of doctrines includes undue influence and unconscionability. If any one of these doctrines applies, the weaker party has the option of rescinding the agreement.

9      McCamus describes the equitable doctrine of undue influence as providing a “basis for setting aside a gift or a transaction where the transfer of value has been induced by an ‘unconscientious use by one person of power possessed by him [or her] over another.'” McCamus, at p. 402; see also Morrison v. Coast Finance Ltd. (1965), 55 D.L.R. (2d) 710 (B.C. C.A.), at p. 713; and Knupp v. Bell (1968), 67 D.L.R. (2d) 256 (Sask. C.A.), at p. 259. He addresses the distinction between the two categories of undue influence: actual and presumptive undue influence. As an example of actual undue influence, McCamus refers to Craig v. Middleton, [1970] 2 All E.R. 390 (Eng. Ch. Div.), in which a caregiver threatened an elderly dependent with abandonment: McCamus, at p. 403-404. The onus is on a plaintiff to establish actual undue influence.

10      A presumption of undue influence arises from the nature of a recognized relationship (e.g., solicitor and client, doctor and patient etc.). The presumption can also arise from the particular circumstances of the case, where one party has the ability or potential to “dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power.” Goodman Estate v. Geffen, [1991] 2 S.C.R. 353 (S.C.C.), at p. 377.

11      Such a presumption is rebuttable by evidence that the transaction was an exercise of independent free will: Geffen, at p. 379; and Bank of Montreal v. Duguid (2000), 47 O.R. (3d) 737 (Ont. C.A.), at para. 24-25. Evidence of free will may be demonstrated by evidence of independent legal advice, or at least an opportunity for the individual