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When elderly adults get married | Steve Benmor

Monday, March 09, 2020 @ 11:46 AM | By Steve Benmor


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Steve Benmor %>
Steve Benmor
All over the world, people choose to get married for a variety of reasons. Some get married out of love; some marry due to physical or emotional attraction. Some get married for economic reasons. Some marry for immigration purposes. Some people get married because they want companionship.

There are many other reasons that people marry, but the last one, companionship, is one of the most popular reasons why older adults get married. Whether they had never married before, are divorced or are widowed, older adults have very different, but understandable, motivations for marriage.

Under Ontario law, the very act of marriage has legal consequences. Marriage automatically nullifies a last will and testament. Marriage also automatically creates legal and estate rights between the married spouses.

For example, if a man marries a woman who moves into his home, which is registered in his name alone, he presumptively owes her half of the home’s equity if they separate or at his death. Although there are exceptions and defences that can be raised by the husband or his executor after his death, Ontario law grants the wife in this scenario an automatic right to occupy the home and receive half its value even though they may have only been married for a brief period of time.

Marriage also triggers spousal support obligations. The lower earning spouse is entitled to receive spousal support from the higher earning spouse. This entitlement even extends beyond the death of the payer. That is, the payer’s estate can be liable to the surviving spouse for spousal support. Lastly, marriage creates an automatic right to property division equivalent to half of the rise in the spouses’ overall net worth from the date of marriage to the date of separation or death.

So when an elderly parent reveals to his adult children that he has decided to remarry, considering the potential financial consequences to him and his estate, it is understandable why some adult children would challenge his decision.

This is exactly what recently happened in Ottawa with Joe Overtveld’s children. They are trying to have this 91-year-old’s marriage to his 55-year-old bride in 2018 annulled. What makes this case most sensational is that Overtveld has an estimated net worth of $27 million.

When challenged by his adult children as to why he secretly married a much younger woman, he answered by saying he wanted companionship in his final years. The children, however, are convinced that this was a predatory marriage motivated by his wife’s financial greed, and that their elderly father is mentally incompetent and could never have understood the consequences of his decision to marry. The children have taken control of Overtveld’s finances by exercising a power of attorney that he had signed several years earlier when he was travelling.

From a legal standpoint, adult children in a situation like this are only able to obtain a remedy if they can prove that their parent lacked the mental capacity to marry. As the population ages and people are living longer, the onset of dementia and Alzheimer’s disease is being witnessed in larger portions of the elderly population. While their adult children are busy in their own lives, elderly parents are spending time with companions or private caregivers or in nursing homes, where they may choose marriage for love, attention and companionship.

It is very likely that these types of cases will increase in frequency in the coming years. Lawyers, mediators and judges will need to grapple with the contest between an adult child’s right to protect their elderly parent and the parent’s right of autonomy and free choice. The key questions that will need to be answered are:

  • Did the older adult have the capacity to marry?
  • Does the adult child have standing to bring an application for an annulment of a parent’s marriage?
  • Does the lawyer have a client who has the mental capacity to receive legal advice and give instructions?
  • Is the value of the older adult’s estate relevant?
  • What are the different levels of mental capacity (e.g. capacity to sign a will, sign a marriage contract, get married, add a new spouse onto joint accounts and real estate, get separated, reconcile, etc.)?

In the last few years, we have already begun seeing these types of cases, including Hunt v. Worrod 2017 ONSC 7397 and Chuvalo v. Chuvalo 2018 ONSC 311. In some of these cases, the Public Guardian and Trustee may become involved, or a Litigation Guardian may be appointed to make future legal decisions for the older adult.

The adult children may look to the Substitute Decisions Act to assume control of their parent’s legal rights by seeking a mental capacity assessment to prove that their parent could not have appreciated the meaning and consequences of marriage. Three such assessments were obtained for Overtveld.

If it doesn’t settle out of court, the Overtveld case will shine a light on this intersection of health law, family law, estates law and elder law. It may also give guidance to practitioners on their legal and ethical duties to their client, heirs and executor. It is likely that legislation may be introduced to protect vulnerable seniors. But this will be a very sensitive balancing act.

Steve Benmor of Benmor Family Law Group is certified as a specialist in family law and is the founding chair of the elder law section of the Ontario Bar Association. E-mail him at steve@benmor.com.

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