Finding that a person has the mental capacity to marry is curiously a low test to meet. It is less than testamentary capacity, in other words having the mental capacity to make a Will even though it has far-flung implications. I recommend our article of March 2014 titled Predatory Marriage Elder Abuse and the Court’s Power to Fix Wrongs as a starting point.
In 2021, a disappointed child of an earlier marriage attempted to cancel his father’s subsequent marriage. In the case of Tanti v. Tanti, a decision confirmed by the Ontario Court of Appeal featured a fact situation in which the father, an elderly gentleman with worsening dementia married a much younger woman. The son from an earlier marriage attempted to be appointed guardian of his father’s property and his recent wife also made a similar application. The turning point was whether or not the marriage was a valid one.
The court in the end held that the elderly fellow indeed understood both the nature of the marriage and the duties and responsibilities that flowed from it. The court held specifically that this was not a predatory marriage. The court held that the test for capacity to marry is a simple one. The parties must understand the nature of the marriage contract and the duties and responsibilities that flow from it. Understanding the content of the marriage contract (generally not an actual written contract but the upspoken promises exchanged between husband and wife) does not require a high degree of intelligence. The parties must agree to live together and love one another to the exclusion of all others. A person may be capable of marrying despite having been declared incompetent or having had a guardian for a person or property. In this particular case, there are a number of factors that pointed to the fellow having the capacity, and the marriage was held to be valid. The parties had been together for a number of years prior to marriage and the husband was not diagnosed with dementia until after the wedding. The husband also took a number of steps of his own volition that were consistent with appreciating the consequences of the marriage. The disgruntled son attempted to argue that the degree of mental capacity needed for a valid marriage was similar to granting a power of attorney over the property. The Court of Appeal’s answer was sorry.
The reason that this has been extremely important to date is that a marriage cancels all prior Wills. This law is about to change effective January 1, 2022, whereby there is no such automatic cancellation of earlier Wills and is a welcome step in remedying real predatory marriages.