Testamentary Capacity: Knowledge and Approval

Testamentary Capacity: Knowledge and Approval

One of the components of testamentary capacity and a valid will is that the testator must have knowledge and approval of the contents of the will before it is signed.

In his book Capacity and Undue Influence (Toronto: Carswell, 2014), John E.S. Poyser discusses the distinction at page 235:

Lord Justice Moore-Bick went on to comment on the distinction between testamentary capacity, on the one hand, and knowledge and approval on the other, giving an elegant formulation to distinguish between them (emphasis added):

The use of the expression “knowledge and approval” is liable to give the impression that the court is concerned with whether at the time he executed the will the testator must be able to reconsider all the dispositions he has made. That would require testamentary capacity, but that is not what is meant by the convenient expression “knowledge and approval”. Modern authorities recognise that a clear distinction is to be drawn between testamentary capacity and knowledge and approval. As the judge observed in this case

….testamentary capacity includes the ability to make choices, whereas knowledge and approval requires no more than the ability to understand and approve the choices that have already been made.

Paraphrasing a different comment elsewhere in the reasons for decision, the twin requirements of knowledge and approval in testamentary capacity ensure that the will is the product of the conscious intention of a sound mind. Knowledge and approval is the “conscious intention” in that formula.

Russell v Fraser (1980) 118 DLR (3d) 733 BCCA

“In my view it is clear from decisions of high authority that where the propounder of the will is shown to have participated in the drawing and preparation of the will and to take a benefit under the will, he must satisfy the conscience of the court that the part of the will under which he benefits had the full knowledge and approval of the testatrix. I refer to Fulton v. Andrews (1875) L.R. 7 HL 448, Wintle v. Nye, [1959] 1 W.L.R. 284, [1959] 1 All E.R. 552 (both decisions of the House of Lords). Fulton v. Andrews was applied in Re Timlick; Timlick v. Crawford, supra, and by the Supreme Court of Canada in Re Martin; MacGregor v. Ryan, supra. Other decisions have also applied Fulton v. Andrews and Wintle v. Nye.”

The will-maker must be aware of the magnitude of the residue of her estate and must appreciate the effect of the disposition of her estate .

Faulkner v Faulkner 1920 SCC 386 seems to suggest that the test for knowledge and approval is perhaps not very high.

A lawyer prepared a will as instructed by the testator, who was fully competent when giving instructions, but when the will, so drawn was presented for execution, the will maker was not in a condition to sign his name and refused to execute it as a marksman. Three days later on the day he died, it was again presented and read over to them, clause by clause, by the lawyer who as each  was read asked if he understood it, and he indicated that he did. The will was then executed by the testator, making his mark on the will with the lawyer guiding his hand, as the testator could not see.

The court held that the evidence of the lawyer and of the physician in attendance to establish that the mental capacity of the testator to follow the reading of the will, and to realize that his instructions had been carried out, had been met.

The court cited the decision of the privy Council Perera v Perera (1901) AC 354 , that stated the law, as follows:

“If a person has given instructions to a solicitor to make a will, and the solicitor prepares in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he or she should be able to think thus far – I gave my solicitor instructions to prepare will making a certain disposition of my property; I have no doubt that the lawyer has given effect to my intention, and I accept the document which is put before me, as carrying it out.”

Testamentary Capacity and Lay Witnesses

Testamentary Capacity and Lay Witnesses

In a testamentary capacity case James v Field 2001 BCCA 267  recognized that the observation of a lay witness may carry as much weight as that of a doctor or other expert.

That observation was recently followed in Wilton v Koestlmaier 2018 BCSC 1257 which restated that the trial judge in his or her observations of a lay witness as to testamentary capacity, may carry as much weight as those of a doctor and referred to Re Schwartz (1970) 10 DLR (3d) 15 at paragraph 22, in which the Court of Appeal of Ontario adopted the words in Re  Price (1946) 2 DLR 592 .

“The jurisprudence supports the view that the trial judge, engaged in determining whether a testator has testamentary capacity, is entitled to prefer the evidence of lay witnesses to the evidence of experts.”

As was stated in Laslo v Lawton 2013 BCSC 305 at paras 198-199, testamentary capacity is not a medical diagnosis. It is a legal construct, and a court may reach a conclusion regarding the testator’s capacity the conflicts with the medical diagnosis or the outcome of a medical test, including an MMSE.

Testamentary Capacity: The Modern Restatement

Testamentary Capacity: The Modern Restatement

The modern restatement of the test for testamentary capacity means that the will maker is sufficiently clear in his/her understanding and memory to know, on his/her own, and in a general way:

1) The nature and extent of his property;
2) the persons who are the natural objects of his bounty and
3) the testamentary provisions he is making, and he must moreover, be capable of
4) appreciating these factors in relation to each other, and
5) forming an orderly desire as to the disposition of his property.

That summary of the five factors of testamentary capacity is from Re Schwartz (1970) can DLR 15(Ont.CA), at 32 where the court provided a modern restatement of the test for testamentary capacity from the seminal case of Banks v Goodfellow (1870) LR5 QB 549.

Re Schwartz in turn was adopted by the Supreme Court of British Columbia in the decision Lazlo v Lawton 2013 BCSC 305 .

Laszlo at paragraph 189 stated that timing is the key, with there being two relevant time factors:

1) The testator must have testamentary capacity when he or she give will instructions;
2) and must have testamentary capacity when the will is executed.

The court in Lazlo went on to recognize that faltering mental capacity is prone to fluctuate and that the authorities permit variation of the degree of capacity required at these pivotal times.

For example, when a testator is competent to provide will instructions, but is not competent at the time required to execute the will, the will may still be valid so long as at the time of execution, the testator was capable of comprehending that he or she was signing a will drawn in accordance with his or her previous instructions. Re Brownhill Estate (9186) 72 NSR (2d) 181

Assessing whether a will maker possesses testamentary capacity is a question of fact and is a highly individualized inquiry.

The will maker must have had the mental capacity to appreciate and comprehend the nature and effect of the essential elements of the testamentary act, including an appreciation of the claims of persons who are the natural objects of his or her estate, as well as an appreciation of the extent of the property to be disposed.

As the Laszlo decision stated at paragraph 242, the criteria requiring the will maker to understand the nature and extent of the property being disposed of as a common area of uncertainty ( the value of one’s estate). This has particularly been the case in areas like Vancouver where property values have dramatically increased for an elderly long time property owner to the point where they are almost unbelievable.

Suspicious Circumstances and Testamentary Capacity

Suspicious Circumstances and Testamentary Capacity

It’s important that will drafters be aware of and watch for any suspicious circumstances that might exist when taking will instructions.

Preparing a will in the presence of suspicious circumstances simply increases the risk that the wills draftsperson might end up testifying about the validity of the will in subsequent years.

The litigation issue is usually an allegation of lack of testamentary capacity when the will instructions were given and when the will was acknowledged (signed?) , both being requirements of a valid will.

The Doctrine of “Suspicious Circumstances”

In addition to testamentary capacity, the propounder of a will must establish “that the testator knew and approved of the contents thereof.” With regard to this requirement, the Supreme Court of Canada in Lidstone, 1931 SCR 695

“When it has been established that a will has been duly executed by a testator having testamentary capacity, and also established that it was read by, or read over to, the testator before execution, there arises ordinarily, in the absence of suspicious circumstances, a strong presumption that he knew and approved of its contents, but there is no inflexible rule on the subject. If, however, there are circumstances which arouse the suspicions of the Court — as, for example, if the will was prepared by a person who takes a benefit under it – the party propounding the will must remove the suspicion by proving that the testator knew and approved of the contents of the document, and it is only when this has been done that the onus of proving fraud or undue influence is thrown on the opponents of the will.”

The doctrine of suspicious circumstances may arise in circumstances in which the background concerning the making of the will gives rise or should give rise to some suspicion.

The doctrine is intended to ensure that there is no doubt that the making of the will was the free and voluntary act of the testator.

In dealing with the will, the Supreme Court of Canada in Vout v. Hay 1995 125 D.L.R. (4th) stated that when dealing with the doctrine of suspicious circumstances and the onus of proof, the party alleging undue influence must prove it, and the question becomes which is more persuasive: the evidence calling into question the validity of the will (the suspicious circumstances) or the evidence supporting it.

It is crucial that a will practitioner look for and identify factors which might appear to be suspicious and to ensure that there is ample evidence to override those circumstances as having had an effect on the testator, prior to the execution of the will. Again there should be a detailed record made of the practitioner’s observations after “probing the mind of the potential will maker” , and the notes preserved.

A seemingly in-exhaustive short list of the innumerable circumstances which might be suspicious is as follows:

(a) where a gift is made to a person with whom the testator had a close relationship but which was not known or recognized by the testator’s family;

(b) where a gift is made to a person who is in a position to influence the testator, such as a care-giver, or the worst example, the party preparing the will;

(c) where an apparently unwarranted, undeserving, or unpopular gift is made to a beneficiary who, in the minds of the those left behind, should not receive the gift;

(d) where a gift is made to a beneficiary to whom the testator has had no close relationship, such as a charity;

(e) where the division of assets among the children of the testator is substantially unequal, or a certain child or children are harshly treated;

(f) where the will substantially deviates from previous wills . Always review previous wills prior to taking instructions and having a new will executed.;

(g) where a gift is made to a person standing in a fiduciary relationship;

(h) where the beneficiary accompanies the testator on each trip to your office during the process to complete the will;

(i) where you receive the testator’s instructions from someone other than the testator;

(j) where there has been a recent serious illness or hospitalization;

(k) where there is any question at all about testamentary capacity;

(l) where there are indications of alcohol abuse or medications that are potentially mind altering, being used;

(m) where there is a hasty or unwise marriage or common-law relationship;

(n) where there is evidence of depression;

(o) where there is a language/cultural disability or illiteracy;

(p) if you have been asked to prepare a will for someone by which you are to inherit, then you should ensure that the testator receives independent legal advice, and preferably take no part whatsoever in the preparation of the will.

(q) The recent widower and the young woman to inherit everything scenario

In circumstances where the testator has a will and substantial changes are being made, it would be prudent for the wills drafter to enquire of the testator as to the provisions of the previous will and the reasons for the changes.

Similarly if a child or children are being disinherited, the wills drafter should consider preparing a detailed memorandum pursuant to the provisions of the Wills Variation Act, ( now S 60 WESA) and enclosing a copy of that signed memorandum with the original will. The memorandum’s facts must be accurate so that the testator is not subsequently viewed by the court as being vindictive, as opposed to objective.

Laszlo v Lawton 2013 BCSC 305

The law relating to testamentary capacity and suspicious circumstances was canvassed in Laszlo v Lawton 2013 BCSC 305.

The court recognized that faltering mental capacity is prone to fluctuate and the court authorities permit variation of the degree of capacity required at these pivotal times.

To lack of testamentary capacity does not mean that the testator must be in a perpetual state of substandard competence. Seemingly rational persons may be without mental capacity while seemingly compromised persons may possess it. It may change in fluctuate slightly or wildly so that at times a person may be of sound mind, while at other times may not be.

The Courts recognize that dementia can impair a testator’s mental powers, such that he or she is not capable of making a will, however, a diagnosis of dementia, standing alone, does not automatically correspond to testamentary incapacity.

Similarly, a person who is judicially declared incapable of managing his or her affairs pursuant to adult guardianship legislation or suffers a chronic psychotic illness such as schizophrenia may still have the capacity to make a valid will.

The issue of whether a testator has the requisite capacity to make a will is a question of fact to be determined in all of the circumstances. Testamentary capacity, however, is not a medical concept her diagnosis- it is a legal construct.

Medical evidence, while important and relevant, is neither essential nor conclusive in determining the presence or absence of testamentary capacity.

Lay witnesses who have known the testator for many years can be very significant witnesses, and it is open to the court to accord greater weight to lay evidence than to medical evidence, or reject the medical evidence altogether.

The leading decision of Vout v Hay (1995) 2 SCR 876 , affirmed that the legal burden of proving due execution of the will and both testamentary capacity and that the testator knew and approved of the contents of the will is with the party propounding the impugned a will.

There is a rebuttable presumption that the testator does it stop the requisite knowledge and approval and testamentary capacity were the will was duly executed.

The Vout decision clarified that the presumption may be rebutted by evidence of well grounded suspicions, known as “suspicious circumstances” relating to one or more of the following circumstances:

1) surrounding the preparation of the will;

2) tending to call in to question the capacity of the testator;

3) tending to show that the free will of the testator was overborne by acts of coercion or fraud.

This presumption, places and evidentiary burden on the party challenging the will to induce or point to some evidence which accepted, would tend to negative knowledge and approval or testamentary capacity Vout at para. 27.

The usual civil standard of proof, namely proof on a balance of probabilities generally applies to dispelling the suspicious circumstances that have been raised. As a practical matter, the extent of proof required will be proportionate to the gravity of the suspicion, which will vary with the circumstances peculiar to each case.

The courts are clear that a general miasma of suspicion that something is unsavory may have occurred will not be sufficient. Clark v. Nash (1989) 61 DLR (4th) 409 BCCA


Suspicious circumstances exist in a wide array of situations and are not necessarily sinister in their nature. Very often a close observation and questioning of the testator will reveal one or more of a non-exhaustive list of circumstances which might give rise to being labeled suspicious circumstances and thus reversing the onus of proof in a testamentary capacity case.

Accordingly, will drafters should spend extra time questioning such a testator, and confirming records and ownership documentation in determining whether the suspicious circumstances are sufficient to question whether the proposed testator has sufficient mental capacity.

Assessing Mental Capacity: MMSE Mental Capacity Tests

Accessing Mental Capacity: MMSE Mental Capacity Tests

MMSE mental capacity tests, also known as Mini Folstein tests are frequently used by the medical profession as a screening test in assessing mental capacity.

Lawyers frequently attempt to tender the results of the MMSE results as evidence of lack of mental capacity.

The courts have determined that such tests are simply a screening test and are not determinative of capacity – they are merely an indicator that tells a doctor as to whether a full capacity test should be made.

This is particularly the case when the test is administered on a simple occasion as it is well-known that such scores can rise or fall over a period of time.
See Lazlo v Lawton 2013 BCSC 305.

Courts can therefore reach a conclusion regarding mental capacity that conflicts with the medical diagnosis or the outcome of on MMSE or other medical test.

In Lowery v . Falconer 2008 BCSC 516 the family doctor examined the testator shortly before she signed the will and concluded that she was competent. Several months later, the doctor performed, thenE and confirmed that she was capable of managing her own financial and legal affairs.

Despite these medical findings, the court concluded that the testator lacked capacity, and set aside the will.

In Shkuratoff v Shkuratoff 2007 BCSC 1061 the court expressed apprehension about reliance on the score results of the MMSE in the absence of a robust explanation of the role that it plays in making the legal determination of testamentary capacity.

The court looked to the circumstances surrounding the assessment to determine the reliability and wait to be attached to the medical evidence.

In British Columbia Public Guardian and Trustee v Egli 2003 BCSC 1716 the court reviewed the admissibility of expert evidence to support a finding of incompetence. In the course of that review, the court noted that courts of sometimes allowed expert evidence, but have been very careful about the weight to be attached to that evidence. She cited Lynch v . Lynch estate (1993) 138 AR 41 (QB) where the court allowed counsel to lead psychiatric evidence about whether the individual was suffering from Alzheimer’s disease at a particular point in time.

However, the court diminished the weight which could be attached to this evidence, noting that the circumstances of the assessments were not apparent from the record, the reasons for the doctor’s conclusions were unclear, and his qualifications were unknown. Further, the judge noted that the doctor was not cross-examined on his assessment.

In Egli , the court further commented that the opinion sought to be admitted for the purpose of proving the truth of the opinions are not straightforward or mechanical observation. The opinions are psychiatric in nature. They are steeped in the expert skills of a geriatric mental health worker. They are not of kin to observation, such as blue toes. The opinions about Mr. Egli’s global assessment of functioning, his scores in the various mini mental status exams, and the diagnoses of his cognitive functioning. Our subjective opinions, requiring review of information, interviews, and deliberation of the author of the opinions. The court had not heard any evidence concerning the qualifications of the individuals who made the diagnoses and cannot therefore assess the degree of reliability that should be ascribed to the opinions.

It is also to be noted that a mental capacity assessment must be done by a doctor, and the nurses not qualified. Cooper v . Cooper 2000 BCSC 1650 at paragraph 4

Can You Prove Mental Incapacity for a Will?

Can You Prove Mental Incapacity for a Will?

Nykoryak v Anderson 2017 BCSC 1800 is a decision that in many respects is indicative of how difficult it is to succeed in having a will set aside on the basis of lack of mental capacity.

The court found that the testator who is aged 93, when he executed his last will had sufficient mental capacity to do so, despite some underlying cognitive issues. The evidence of his doctor and the lawyer who drafted the will was accepted by the court in proving that he had testamentary capacity.

The court held that the law is clear that the issue to be decided is not whether the deceased suffered from cognitive impairment when the will was executed, but rather, whether, despite the cognitive impairment, the deceased was able to:

1) Understand the nature and effect of a will understand the extent of what was being bequeathed under the will;

2) remember the persons who might be expected to benefit under the will

3) understand the nature of the claims that may be made by a person who is excluded by the will;

4) understand the extent of what was being bequeathed under the will

The lawyer who took instructions for the will had filed an affidavit at a summary trial, hearing, setting out his discussions with the testator. It was clear that the testator could not of had the discussion he had with the lawyer, if he did not meet the foregoing criteria.

In addition, the testator’s long time physician had provided an opinion in the form of an expert report that although the testator had some underlying cognitive issues at the time he executed his will, including some short-term memory loss and occasional confusion, he was nevertheless probably aware of what he was doing at the time.


The Law

The test for testamentary capacity was commented upon in Bull Estate v. Bull 2015 BCSC 136 at paragraphs 114 – 117:

114- the test for testamentary capacity is not overly onerous. Sufficient mental capacity to make a will may exist, despite the presence of cognitive deterioration, and the testator may have sufficient mental capacity even if his or her ability to manage other aspects of his/ her affairs is impaired.

115- simply having an imperfect or impaired memory does not in itself absent testamentary capacity unless it is so great as to leave no disposing memory. A disposing mind and memory is on able to comprehend of his own initiative and volition. The essential elements of the will making, property, objects, just claims to consideration, revoking of existing dispositions and the like. Moore v Drummond 2012 BCSC 1702 at 158

116- the testator should have an appreciation of the claims of the persons who are natural objects of his/her estate and the extent of his or her property of which he/ she is disposing Allart Estate v Allart 2014 BCSC 211 at para 30

117- Because testamentary capacity is a legal question, and not a medical question, a medical opinion, although valuable and relevant is not determinative of testamentary capacity Laszlo v. Lawton BCSC 305 at para 190

In the Ontario decision Birtzu v. McCron 2017 ONSC 1420 at para 40 the court stated:

40- the applicant notes that testamentary capacity is not the same thing is the capacity to manage one’s property and the capacity to confer a power of attorney. I agree. This does not mean the test is higher for testamentary capacity, rather, it is different. Should this point need illustration, none better can be found, then in the decision Palahnul v Palahahnuk Estate 2006 OJ 5304 were a will made by an 80-year-old testator had been found incapable of caring for her own person or her own property. The testator was cared for by a niece, under an agreement with the public Guardian and trustee, the court found:

Testator requirements for making a valid will:

The requirements for a testator to have a sound disposing mind in order to make a valid will include the following:

  • The testator must understand the nature and effect of a will
  • The testator must recollect the nature and extent of her property
  • The testator must understand the extent of what she is giving under the will
  • The testator must remember the person she might be expected to benefit under her will
  • The testator were applicable must understand the nature of the claims that may be made by a person she is excluding from the will.

Establishing a lack of testamentary capacity

Isolated memory or other cognitive deficits do not establish lack of testamentary capacity.

Such things as imperfect memory, inability to recollect names and even extreme imbecility, do not necessarily deprive a person of testamentary capacity. The real question is whether the testator’s mind and memory are sufficiently sound to enable him or her to appreciate the nature of the property was bequeathing, the manner of distributed and the objects of his or her bounty.

Care must be taken in reading the physicians clinical notes are in interpreting their diagnoses.

Diagnosing someone is having dementia does not necessarily mean the person is demented. Diagnosing someone is having Alzheimer’s dissolving the person lacks capacity, though it may foretell a loss of capacity. If the disease progresses, as expected. Delete from an initial diagnosis to a conclusion of legal incapacity is unwarranted and very dangerous reasoning.

Predatory Marriage

Predatory Marriage

Probably every experienced estate litigation lawyer has had court actions involving a predatory spouse. The phenomenon is disturbing and increasingly common in our society as individuals both live longer and accumulate more wealth.

In simple terms, predatory spouses take advantage of elderly victims and assume control of their financial affairs and often culminate in a secret marriage. The consequences for the victim and their immediate family are traumatic and significant.

Predatory marriage refers to a marriage ceremony entered into for the singular purpose of exploitation, personal gain and profit. Love and personal commitment are simply not part of the equation. The relationship typically begins when a caregiver persuades a vulnerable person to marry. The victim is usually elderly, dependent, vulnerable and suffering from significant cognitive impairment.

The marriage ceremony is usually secretive and the victim is thereafter closeted away from their loved ones as the predator takes control and management of the victim’s financial affairs.

Historically, the courts took an overly simplistic approach to marriage in that they equated marriage to a simple contract requiring minimal mental capacity. In other words, “any idiot can get married”.

Ironically, perhaps, if the contract to enter marriage is so simple, then why does a significant percentage of the legal profession engage in full-time work trying to extricate the parties from the supposedly simple contract?

The Law

One of the early leading cases is from 1885. Durham v. Durham 10 P.D. 80 provided a quote that has been frequently adopted by Canadian courts: “the contract of marriage is a simple one, which does not require a high degree of intelligence to comprehend”.

It is only in recent years that the courts have taken a more realistic approach to the level of mental capacity required to enter into a valid marriage. The law may still be described as being in a state of flux, and the courts typically still view the capacity to marry as a lower threshold than the capacity to manage one’s affairs, make a will, or instruct counsel.

The leading case in British Columbia is Wolfman–Stotland v. Stotland 2011 BCCA 175, which set out the hierarchy of capacity required for various decisions, holding that:

  1. separation is the simplest act, requiring the lowest level of understanding;
  2. divorce, while still simple, requires a bit more understanding in that it requires the desire to remain separated and no longer be married;
  3. American courts have recognized that the mental capacity required for divorce is the same as that required for entering into marriage;
  4. financial matters require a higher level of understanding than marriage;
  5. the capacity to instruct counsel involves the ability to understand financial and legal issues, which puts it significantly higher on the competency hierarchy;
  6. the highest level of capacity is that required to make a will.

A lack of mental capacity to marry will render a marriage void ab initio (as if it had never occurred) per Ross-Scott v. Potvin 2014 BCSC 435.

The law presumes that an adult has capacity unless the contrary is established. The onus of proof for establishing lack of mental capacity to marry is on the person asserting the same.

3 Recent Cases Involving Predatory Spouses

1. Juzumas v. Baron 2012 ONSC 7220

This case involved a predatory marriage where the victim, Mr. Juzumas, was an 88-year-old vulnerable male who was mentally incompetent. The court set aside a wedding and a transfer of his property to the predator’s son on the basis of the doctrines of undue influence and unconscionability.

Ms. Baron, the predator spouse, was a 64-year-old widow who had been married previously 6 to 8 times and had a history of caring for older men with the expectation of receiving an inheritance through their estates. She befriended Mr. Juzumas and promised to live together and care for him. He married her and signed a will naming her as the executrix and sole beneficiary.

After the marriage ceremony Ms. Baron continued to live in a separate apartment with her 23-year-old son and only visited her purported husband for several hours a week. She became increasingly abusive controlling and domineering towards Mr. Juzumas.

Without her knowledge, Mr. Juzumas ultimately changed his will to leave Ms. Baron only a modest bequest of $10,000. When she found out she embarked on a campaign to ensure that she received Mr. Juzumas s’s home. Through the assistance of a lawyer, an agreement was drafted that transferred the property to Ms. Baron’s son and Mr. Juzumas was left with a life interest in his home.

At the time of the transfer, Mr. Juzumas was 91 years of age, vulnerable, in failing health and completely dependent on and dominated by his abusive spouse. He lived in constant fear of being abandoned to a nursing home, with which Ms. Walker continually threatened him.

He commenced a court action to set aside the transfer of the property and sought a divorce and dissolution of the marriage.

The court set aside the transfer of land on the basis of the doctrines of undue influence and unconscionability, both of which may be used “where a stronger party takes advantage of a weaker party in the course of inducing the weaker party’s consent to an agreement”.

The court found that there was actual undue influence by reason of the fact that Ms. Baron threatened an elderly dependent with abandonment to a care home.

The court also found presumptive undue influence by reason of the fact that she was a caregiver who had the ability or potential to dominate the will of the other, whether through manipulation, coercion, or outright but subtle abuse of power.

It was incumbent upon the wife to rebut the presumption of undue influence and demonstrate that the transaction was an exercise of independent free will, which she was completely unable to do.

The court also relied upon the doctrine of unconscionability which gives the court the jurisdiction to set aside an agreement resulting from an inequality of bargaining power. The onus is on the defendant to establish the fairness of the transaction.

2. Hunt v. Worrod 2017 ONSC 7397

The facts of this case are perhaps as egregious as they possibly may be with respect to predatory marriages.

As a result of a catastrophic head injury, the 50-year-old Mr. Hunt had been in a coma for 18 days and hospitalized for four months. The injury left him with what doctors described as a wasted, shrunken brain.

Three days after leaving hospital, Mr. Hunt was spirited away by the defendant Worrod, a former girlfriend, for a secret wedding that gave her legal rights to his future wealth and his landscaping business, home and expected $1 million personal injury settlement.

Mr. Hunt’s concerned children contacted the police, who located him in a motel just hours after the purported wedding took place. His sons had been made his legal guardians by court order.

Mr. Hunt never lived with his purported wife after the marriage. Before the accident he had had an on-again, off-again relationship with Ms. Worrod and had concluded their relationship with a separation agreement that resolved all of their property and legal obligations to each other. In fact, he had been required to contact the police to remove her from his residence when the relationship ended.

It was noted that Ms. Worrod was an extreme alcoholic who had hit Mr. Hunt when drunk and was generally unable to act and care responsibly for herself while intoxicated.

Evidence at trial from various medical experts was conclusive that Mr. Hunt was intellectually devastated with serious physical and cognitive issues that made him increasingly malleable and easily influenced through emotional stimulation, including sexual relations.

The medical evidence was consistent that Mr. Hunt suffered a classic case of frontal lobe syndrome that limited his ability to reason abstractly, problem solve, make decisions or consider alternatives, and that he lacked insight and self-awareness. His cognitive limitations severely limited his ability to understand the consequences of his behaviors and actions.

All of the various medical experts who testified made it clear that Mr. Hunt did not have the capacity to marry. As stated in Ross-Scott v. Potvin 2014 BCSC 435:

“A person is capable of entering into a marriage contract only if he or she has the capacity to understand the nature of the contract and duties and responsibilities it creates. The assessment of a person’s capacity to understand the nature of the marriage commitment is informed, in part, by an ability to manage themselves and their affairs. Delusional thinking or reduced cognitive abilities alone may not destroy an individual’s capacity to form an intention to marry as long as the person is capable of managing their own affairs.”

The court concluded that Mr. Hunt did not have the requisite capacity to marry as he did not understand the nature of the contract he was entering into and the responsibilities the contract created.

The marriage was declared void ab initio and Ms. Worrod was ordered to have no further contact with Mr. Hunt.

3. Devore-Thompson v Poulain 2017 BCSC 1289

The deceased, Donna Walker, suffered from Alzheimer’s disease and in September 2010 was declared by the court to be incapable of managing her financial and legal affairs because of her dementia. She had moved into a care facility in September 2010, where she remained until her death in late 2013 at age 74.

Ms. Walker had purportedly married the defendant Poulain in June 2010 but they never lived together, either before or after the marriage ceremony.

The overwhelming evidence of several lay witnesses, as well as a treating geriatric psychiatrist, was that Ms. Walker had lacked mental capacity to marry in 2010.

For example, one lay witness testified that Ms. Walker had told her that she did not know where she was married, who married her, or even why she married the defendant. Once again, the marriage was done in secret and there were no friends or family at the wedding service.

There was one photograph taken at the wedding ceremony which clearly indicated that Ms. Walker’s facial expression was vacant.

After her first marriage ended, Ms. Walker had always told those close to her that she never wished to marry again. She was very close to her family and friends but never expressed to a single witness that she was in love with the defendant, that she knew anything about him, that they had any kind of future together, or that she wanted to get married and spend the rest of her life with him.

The evidence of the treating geriatric psychiatrist was most significant, in that she testified as follows:

  1. Ms. Walker did not understand reality, absorb information or make decisions based on the correct facts, and that she had no insight or judgment.
  2. On learning of the purported marriage, the psychiatrist had made an urgent referral to the Public Guardian and Trustee stating that Ms. Walker was incapable of entering into a marriage relationship as she was moderately to severely demented and had significant impairment of executive function. She also noted that Ms. Walker was at significant risk for abuse as a vulnerable adult.
  3. Ms. Walker did not have a grip on reality but insisted that she was fully independent for self-care and household management, despite much evidence to the contrary.

The defendant testified that he had no concern about Ms. Walker’s mental capacity.

The court had no difficulty in finding the defendant to be a completely untruthful witness who was motivated by a desire for financial gain from Ms. Walker’s assets.

The court concluded that Ms. Walker’s mental capacity had diminished to such an extent that she could not have formed an intention to live with the defendant or to form a lifetime bond. At the time of the marriage she did not understand what it meant to live together with another person, and could not know even the most basic meaning of marriage or understand any of its implications, including who she was married to, in the sense of what kind of person he was, what their emotional attachment was, that they would be living together, and fundamentally how marriage would affect her life on a day-to-day basis in the future.

Accordingly, the court found that Ms. Walker did not have the capacity to marry the defendant and the marriage was declared void ab initio. Two wills done by Ms. Walker in 2007 and 2009 were also set aside by reason of her lack of capacity.


The advent of a rapidly aging population with significant wealth will certainly lead to a rise in the increasingly common phenomenon of predatory marriage.

The legal issue of mental capacity to enter into such a marriage will increasingly become more relevant and litigated.

The legal test for capacity to marry is in a state of flux. It will undoubtedly continue to evolve as more instances of predatory marriage are brought before the courts and they become more accustomed to recognizing such predatory behavior.

To some extent I believe it is a situation where the courts need to be more cognizant of the significant number of predators in our society who prey upon the infirm and vulnerable.

The concept that only a low level of mental capacity is required to enter into a marriage is an anachronism that needs to be corrected, given the complexity of current family law, particularly as it relates to property entitlement to the assets of one spouse.

At present, to succeed in having a purported predatory marriage set aside, it is necessary to prove on the balance of probabilities that the victim lacked mental capacity to understand the nature of the marital contract, which typically requires both the testimony of lay witnesses and medical evidence of lack of capacity.

The Juzumas v. Baron decision is significant in that the court also invoked the doctrines of undue influence and unconscionability in setting aside the purported marriage. Hopefully it will be followed by other court decisions as useful tools to remedy a wrong suffered in the context of a predatory marriage and financial abuse.