Your father, recently widowed and in declining health, has just announced he's remarried — to a much younger caregiver. You've never met her. Now, you're wondering: what happens to the house, his savings, and the Will you thought protected your family?
These aren't rare scenarios. They're the warning signs of what legal professionals call a predatory marriage — and the legal system doesn't always catch them in time.
What is a predatory marriage?
A predatory marriage typically refers to a union in which a younger individual (usually female) becomes involved in a relationship with an elderly person (usually male) with the primary objective of securing financial benefit. These situations are especially concerning when the older individual is experiencing cognitive decline or social isolation, making them particularly vulnerable to undue influence.
How do predatory marriages arise?
Often, there is a pre-existing relationship between the two individuals: occasionally, the two people can be casual acquaintances of each other or, more usually, an employer-employee relationship exists in which the younger person is providing caregiving services to the older person. In fact, there are several examples where the caregiver was providing assistance to an elderly couple prior to the passing of the wife; the caregiver then continues to provide caregiving services to the now widower husband.
Progression of relationship
While the relationship between the two parties usually begins rather innocently, the “plot thickens” following the loss of a spouse at which time the often elderly widower is lonely, vulnerable, suffering from declining independence and mental sharpness, and open to receiving care and attention, particularly from a younger individual.
How simple is it for a marriage to occur?
Unless children or other family members or friends are closely involved in the care and well-being of the elderly individual, the progression of the relationship may proceed unnoticed. Nothing out of the ordinary will necessarily be apparent to the outside world. In fact, the marriage will likely occur without anyone else's knowledge and will often be a low-key, civic marriage ceremony. The legal test for capacity to marry is not a terribly high one and it is unlikely that anyone will inquire extensively into the circumstances. The elderly individual may often be perfectly willing to have the ceremony occur “in secret” because of privacy or embarrassment.
How does the predatory spouse win a financial gain?
Historically, entering into a marriage automatically revoked any prior Will in Ontario, unless the Will was made in contemplation of marriage. This legal rule created a significant loophole for individuals seeking to benefit from the estate of a vulnerable person — effectively nullifying previous estate plans and causing the deceased to die intestate (without a valid Will).
Fortunately, recent legislative amendments in Ontario have closed this gap: marriage no longer revokes an existing Will. However, this does not fully prevent financial abuse. A new spouse may still pressure or persuade the older individual to execute a new Will — often to the exclusion of children or long-standing beneficiaries.
Even in the absence of a new Will, the surviving spouse may assert statutory claims against the estate, such as:
- A preferential share under intestacy rules;
- A claim for dependant's support; or
- An equalization claim under family property legislation.
These claims can significantly reduce the assets available to the deceased's intended heirs.
Takeaway
If you have a parent, relative, or close friend who is elderly — particularly after the death of a long-time spouse — remain vigilant. Be cautious about confronting your relative or friend directly, since they may take offence to your intrusion and may become quite defensive. Instead, seek out professional advice as to how you may best assist the person in these circumstances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
