Canadian Lawyer

May 2024

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32 LEGAL REPORT TRUSTS AND ESTATES needle along," says Kimberly Whaley, an estate litigator and the founding partner at Whaley Estate Litigation Partners. After their father experienced a steep cognitive decline, Chuvalo's children filed divorce proceedings on his behalf against their stepmother, Joanne, with whom Chuvalo had long been separated. Joanne claimed they had reconciled, but the children accused her of kidnapping, extortion, brainwashing, and preying on Chuvalo's vulnerable state for financial gain. The judge ruled that Chuvalo lacked the capacity to reconcile based on a doctor's expert opinion that his cognitive deterioration robbed him of the ability to appreciate the consequences of his choices. While Chuvalo's case represented slight progress in equipping the legal system to deal with predatory marriages, legislative reform is necessary, say Whaley and Oosterhoff. Barbara Kimmitt practises wills, trusts, and estates and is a partner at Bennett Jones LLP. She says predatory marriages are a "really tricky, unfortunate" societal problem but do not represent a gap that provinces or federal governments should fill. Kimmitt says spouse trusts could provide some protection against predators. When one spouse dies and leaves their estate to their surviving spouse in a trust, the trustee will have control, not the spouse. If a new, predatory person comes onto the scene and tries to coax money from the vulnerable, surviving spouse, then they must also persuade the trustee to release the funds. She says the downside of a spouse trust is that it requires an annual tax return and adherence to disclosure rules. Equitable remedies are another tool to counter the plunder that accompanies a predatory marriage, says Whaley. Relevant equitable doctrines include undue influence, unconscionability, unjust enrichment, statute as an instrument of fraud, and the principle that "no one shall profit from wrongdoing." "But in my view, there has to be a statute that a court can go to, to have a tool to look at the undue influence, to look at the capacity, from a modern-day view and establish whether or not the situation was predatory. "If there were predatory marriage legislation, it will give our courts the ability to legislatively have a tool to deal with the inequities," she says. One of the challenges with drafting legislation to fight predatory marriages, says Oosterhoff, would be doing so such that people with intellectual disabilities are not precluded from marrying. He says lawmakers could give the courts more discretion to determine whether one party is pursuing the marriage to access the other's property and prevent that from occurring. "We need to make the marriage legislation much more strict," he says. In most provinces, those who issue marriage licenses and those who officiate at weddings are not required to inquire into the capacity of the marrying parties, says Oosterhoff. "What we need is a serious investigation by them into their capacity to marry. It's got to be more than just a little chat. "We need better legislation for that." Oosterhoff believes governments must take the problem much more seriously and must investigate whether legislation is appropriate. In the meantime, he says, families must take precautions and remain aware and vigilant about predatory marriage. While they may live far away from their aging loved ones, families must be aware if there is a caregiver or some other type of person who is making inappropriate advances. Families could consider whether the elderly relative should move in with them. They may also consider having their loved one undergo capacity assessments to determine whether they have the capacity to marry, enter a power of attorney for property and personal care, or make a will. "All those things, if you do them in advance, then you cut off the predator at an early stage," says Oosterhoff. "If you don't do anything until after the victim dies, then it's much more difficult to bring proceedings." "There has to be a statute that a court can go to, to have a tool to look at the undue influence, to look at the capacity, from a modern-day view and establish whether or not the situation was predatory" Kimberly Whaley, Whaley Estate Litigation Partners ACTIONS LAWYERS SUGGEST COULD CURB PREDATORY MARRIAGES Change law to strengthen test for capacity to marry Use spousal trusts Use equitable remedies Bolster marriage legislation requiring officiants to better assess capacity Change the law to provide courts more discretion to determine whether one party is motivated by access to other's property

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