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48 N O V E M B E R / D E C E M B E R 2 0 1 8 w w w . c a n a d i a n l a w y e r m a g . c o m initio. In the process, she rejected Poulain's claims that they had lived together before and after the wedding, dismissing him as a "dishonest witness." Despite her client's success, Clough says, the case highlights the need for further law reform to protect vulnerable individuals further upstream. "Whether the person is still alive or has passed away, it's a long, complex, difficult and expensive process to apply after the fact to undo the marriage," she says. In any case, Clough says, predatory spouses are frequently able to deplete or divert the bulk of a person's assets long before family members suspect something is wrong. In addition, Whaley says, the significance of the decisions is easily overstated, describing both Hunt and Devore-Walker as outliers for the overwhelming amount of medical evidence available to the judge decid- ing on capacity. "In many cases, you won't have the luxury of that evi- dence. When a person is intent on exploiting some- one financially, they tend to try to sequester them and keep them from going to the doctor, which means there generally won't be any medi- cal records," she says. Suzana Popovic-Montag, managing partner of Toronto estates and trusts law bou- tique Hull and Hull LLP, says the situation in Ontario could be improved by scrapping pro- visions in the province's Succession Law Reform Act, which states that a person's marriage revokes all their existing wills. Alberta got rid of automatic revocation in 2012, followed by British Columbia in 2014, while marriages in Quebec never revoked wills under its civil code. "Most people don't even know that they could be undoing a lifetime of estate planning by getting married," says Popovic- Montag, explaining that if a person dies without making a fresh will, their spouse stands to inherit the first $200,000 of their estate under the SLRA plus a share of the remainder split with the deceased's children. But Whaley says the effect of repealing automatic revoca- tion would be limited, and she is urging provincial lawmakers to adopt a Predatory Marriage Prevention Act drafted by her colleague Albert Oosterhoff, a lawyer and professor emeritus at Western University's law faculty. The act would explicitly define the capacity to marry in terms of a person's ability to understand the nature of the contract, its rights and obligations, as well as their ability to take care of themselves and their property. Under the draft law, officiants would be required to satisfy themselves that both parties have capacity to enter the mar- riage. It would also create a mechanism for concerned family members to object in advance to the marriage of an incapable person by registering a caveat with the issuer of marriage licences. In the meantime, Whaley urges estates litigators to advance arguments for the invalidation of predatory marriag- es on equitable grounds where medical evidence is lacking on capacity. She says there is a case to be made that marriages entered into fraudulently or under undue influence should be set aside. "They haven't been applied yet in Canada, but we should give courts every tool available to set aside these marriages," Whaley says. "When a person is intent on exploiting someone financially, they tend to try to sequester them and keep them from going to the doctor, which means there generally won't be any medical records." Kimberley Whaley, WEL Partners L E G A L R E P O R T Order your copy today. Visit www.store.thomsonreuters.ca or call 1-800-387-5164 for a 30-day, no risk evaluation CONNECT INSTANTLY TO ONTARIO'S LEGAL COMMUNITY ONTARIO LAWYER'S PHONE BOOK 2019 Ontario Lawyer's Phone Book is your best connection to legal services in Ontario with more than 1,400 pages of essential legal references. More detail and a wider scope of legal contact information for Ontario: • Over 26,600 lawyers listed • Over 8,700 law firms and corporate offices listed • Telephone numbers, e-mail addresses, office locations and postal codes Perfectbound Published December each year On subscription $87.50* One time purchase $91* Order No. L7798-8405 ISBN 978-0-7798-8405-6 Multiple copy discounts available

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