Canadian Lawyer

May 2024

The most widely read magazine for Canadian lawyers

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30 LEGAL REPORT TRUSTS AND ESTATES As Canada's population ages, predatory marriage is an increasingly serious problem. Lawyers discuss the law's shortcomings and obstacles to reform Courts lack tools to fight predatory marriage IN 1994, 88-year-old George Banton married a 31-year-old restaurant server who worked in his retirement home. Banton had prostate cancer, for which he had three surgeries between 1991 and 1993, and doctors predicted his life expectancy was between two and three years. Before their marriage, Banton's five children grew concerned about his relationship with the restaurant server, Muna Yassin. Banton's daughter took him to see a doctor who deemed him financially incompetent and issued a Certificate of Incompetence under the Mental Health Act. News that Banton, accompanied by Yassin, had gone to the bank to withdraw $10,000 from his account and cash several cheques led two of his sons, who acted as powers of attorney, to transfer his money into a trust for which they would be the trustees. Two days after the trust was executed, Banton married Yassin. A few days later, they had a will prepared under which his entire estate would be left to Yassin. Banton's children were successful in setting aside the will on the grounds of testamentary incapacity and undue influence from Yassin. However, Ontario Superior Court Justice Maurice Charles Cullity found Banton had the capacity to marry Yassin, and their marriage was valid. Banton v. Banton is a classic example of predatory marriage and how the courts have lacked the tools to fight it. "There were several difficulties," says Albert Oosterhoff, a professor emeritus at Western University's Faculty of Law who specializes in wills, trusts, and property law. "One is that the test for capacity to marry is a very lenient one." Oosterhoff, who is also firm counsel at Whaley Estate Litigation Partners, says that if a person understands what a marriage is, they are deemed capable of entering a marriage. Another problem was that, at the time, a new marriage automatically revoked a

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