Capacity To Marry

capacity to marry
Date: 09 Dec, 2021

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.

Will Interpretation

Will Interpretation
Date: 14 Oct, 2021

How does a court interpret a Will when the meaning of the Will is not particularly clear or makes no sense?

This issue has been debated by courts for a lengthy period of time.

In the recent 2021 Superior Court decision of Justice David Broad in Fletcher v. VanSickle, the guiding principles of the law were discussed at length. Picking up on the 2021 Ontario Court of Appeal decision in Ross v. Canada Trust Company, the court held “a court’s task can be stated simply. It is to determine the testator’s – the willmaker – actual or subjective intention as to how he or she intended to dispose of his or her property.” The general concept has been described as the armchair rule. “Placing the court in the armchair of the willmaker as they were preparing their Will. All of the circumstances, family relationships, assets of the willmaker at the time of making the will are taken into account in a lens through which to read the words contained within the Will. The Judge is to look at the entire Will and after full consideration of all the provisions and language used, try to find what intention was in the mind of the willmaker. The court should then strive to give effect to it and to do so unless there was some rule or principle of law that prohibits it from doing so.” An example of a prohibited clause would be one that was obviously racially prejudiced. The court is to assume the same knowledge the willmaker had at the time of making the Will in regard to the nature and extent of his or her assets, the makeup of his or her family and his or her relationship to his family members. Generally speaking, this armchair rule applies when the willmakers intention cannot be ascertained from the plain meaning of the Will’s language.

There is another interesting aspect to this which seems counterintuitive. At times, the court may make a an interpretation of a Will using the armchair rule even if the words in the Will themselves do not appear to be ambiguous or unclear. One can look at the Manitoba Court of Appeal 2015 decision in Zindler, which cited Feeney’s Canadian Law of Wills. It concludes that the most recent trend in Canadian cases seems to indicate that evidence of surrounding circumstances should be taken into account in all cases before a court reaches any final determination of the meaning of words. This is true even if the words themselves do not appear to be ambiguous or unclear.

The starting point is attempting to figure out what the willmakers’ intention was from the plain meaning of the Wills’ language and only when the judge cannot determine that intention, the judge is supposed to take a step back and consider the bigger picture of the surrounding circumstances applying the armchair rule.

It is not unusual for aggrieved parties attempting to attack a Will, to use evidence that arises after the date of the making of the Will to show how it was either completely unfair or unreasonable and therefore clearly could not have been the intention of the willmaker. However, that is contrary to the armchair rule. While a Will speaks as of the date of its death, for the purposes of interpretation, it is as of the date that the Will was drafted. What did the willmaker know at that time? If circumstances changed after that date, it was the responsibility of the willmaker to create a new Will.

Invasion Of Privacy

Date: 08 Oct, 2021

Tort law aka civil claims for damages is not a fixed class. An example of a Tort that we are all familiar with is negligence such as when a person is not paying attention and causes you harm in a motor vehicle accident. However, as society and technology moves along Tort law, which is generally judge-made law, evolves and in rare circumstances creates a new tort or cause of action to sue someone.

In the Alberta Court of Queen’s Bench decision, in ES v. Shillington released on September 16, 2021 the court created a new tort called public disclosure of private facts. The concept has been driven by the 21st century phenomenon of revenge porn postings on the internet. In this particular case, a woman’s long-standing boyfriend contrary to her specific instructions released intimate photographs that she had sent on to her boyfriend as a private gift. Without her permission and contrary to her specific instructions, he over a number of years posted these photographs on various social media outlets, which eventually found their way onto the internet. His behavior towards her included other horrible misdeeds such as assault, battery, sexual assault and intentional infliction of mental distress. The judge held, for a case like this to be successful, there needs to be at least four factors. One, the defendant publicized an aspect of the plaintiff’s private life. Two, the plaintiff did not consent to the publication. Three, the matter publicized or its publication would be highly offensive to a reasonable person in the position of the plaintiff. Four, the publication was not a legitimate concern to the public.

The defendant, a member of the Canadian Armed Forces, never defended the action and the court penalized him significantly. The Court ordered general damages of $80,000, aggravated damages of $25,000 and punitive damages of a further $50,000. Further, costs were awarded against him. Obviously, this is behaviour that could not be taken lightly and now there is an additional remedy. This Alberta case follows on the heels of a 2016 decision, Jane Doe 464533 v. Capital N. D. , in which the 18 year old defendant shared a sexually explicit video of he and his one-time girlfriend online. In that particular case, damages of over $100,000 were assessed against the defendant. This in turn is also based upon an earlier decision Jones v. Tsige which granted $10,000 in damages after a bank employee illicitly checked out confidential information about her husband’s former wife. The court set no cap on the amount of damages, leaving it for each individual court to make its own assessment. This is a dignity based tort and an example of the court expanding its abilities even in the absence of any legislation to assist.

These claims for damages can even be part of estate litigation, when a victim pursues a claim against a deceased, but it must be done in a timely fashion. This all sounds complicated and it is, but it shows one of the strengths of the Common Law system we enjoy, namely it is not static and Judges as well as Legislators can create new laws.


Date: 08 Feb, 2021

Another common method of attacking the validity of a Will is an allegation of undue influence.  For a claim of undue influence to be effective, one would need to prove that the intent of the person making the Will had been overwhelmed and replaced by the person exerting the undue influence.  Imagine the scenario of a caregiver forcing an elderly person in their care to change their Will and leave all to themselves in the place of the person’s children.  The starting point for the law in this area is the decision of the eminent estate lawyer and later judge, Justice Cullity.  He set out the test in his seminal decision of Scott v. Cousins.  Undue influence is not simply influenced or persuasion.  In essence, it must go beyond that and reach the level of coercion.  In other words, it is not simply influenced or even persuasion, such as by a child attempting to convince a parent to divide up their estate in one fashion or another.  That is not the point.  As discussed originally in the 1885 English case of Wingrove v. Wingrove, the concept is only when the will of the person who is making the Will is coerced into doing that which he or she does not desire to do, that is what amounts to undue influence.  There is a presumption in favour of undue influence that arises out of certain family relationships and that applies to various transactions that take place during the testator’s life, (see the blog articles on the presumption of resulting trust) but they play no part in the law of wills.  The persons against whom such presumption arises in those transactions are typically those that a testator might naturally wish to share in their estate.  As an example, adding one child to the parent’s bank account, will likely not be held to be a valid transfer or gift.  But leaving that child all or part of an estate in a will is not subject to attack so easily.

Such persons are entitled to press what they think are their proper moral claims.  Undue influence is not simply bad influence but must amount to coercion.  Persuasion and advice do not amount to undue influence, so long as the free will of the testator to accept or reject is not lost.  Appeals to the affection or ties of the relative, or seeking gratitude for past services or even pity all may be fairly pressed upon the testator.  The testator may be led, but not driven and the testator’s Will must be the product of their own desires, not the record of what someone else wants.  There is no undue influence unless the testator if they could speak would say, this is not my wish, but I must do it.

The onus of proving undue influence rests on the person alleging the undue influence, all of which is to be proven on the balance of probabilities.  The influence imposed by some other person on the deceased must be so overpowering that the document reflects the Will of the influencer and not of the deceased.  A tall order, but there are certain circumstances that give rise to a presumption that undue influence may very well exist.

Not a simple test, and to prosecute such an attack requires experience and finesse based on evidence.


Date: 05 Feb, 2021

We have commented elsewhere about the traditional methods of attacking a Will.  One of those areas is claiming the will-maker aka the Testator, lacked testamentary capacity.  In simple English, the person writing the Will did not have the mental wherewithal to actually make a Will.  The legal phrase is a lack of testamentary capacity.  There are a number of seminal cases on the point such as the old English case of Banks v. Goodfellow and the 2003 Ontario Court of Appeal decision in Hall v. Bennett Estate.  The concept is to answer the following questions with a yes on the part of the testator:

1. Did they understand the nature and effect of the Will or Codicil?

2. Did they recollect the nature and extent of his or her property?

3. Did they understand the extent of what he or she was giving away under their Will or Codicil?

4. Did they remember the people that they normally might be expected to benefit under their Will?

5. Did they understand the nature of the claims that might be made by the people that are being cut out of the Will?

The courts are guided by long-established principles:

  1. The importance of testamentary freedom and autonomy that only when the law requires it, should the courts jump in to challenge and change a Will.  In other words, within certain limits, a person making a will can distribute his or her estate as they see fit.
  1. That as long as one can prove that the Will was properly signed and met the formalities of the Succession Law Reform Act, that in the absence of suspicious circumstances, the person making the Will is presumed to have known and approved its contents and possessed the aforesaid necessary testamentary capacity to make the Will.

In other words, if all of the usual formalities such as the Will being in writing, signed generally in front of two witnesses, the courts begin with the assumption that the Will is valid in every regard and that the person making it knew what they were doing.  It is for those persons who are attempting to set aside the Will to show why the testator lacked the appropriate testamentary capacity.

Arbitration – Pros and Cons

Date: 12 Dec, 2019

A helpful alternative to court may be mediation and/or arbitration.  We have canvassed mediation in another blog.  Arbitration requires the written agreement of the parties to have their matters decided by an independent third party chosen by the parties themselves.  Unlike judges in which one has no influence on their selection, the parties directly chose by mutual agreement who will decide their matter.  Also, arbitration can be faster, cheaper and if no appeal is ever launched, completely confidential.  Arbitrators in the family/estate litigation law field are generally highly experienced family/estate litigation law lawyers or retired judges, whom the parties’ lawyers have a great deal of faith in being able to grasp complex issues and deal with matters in a fair fashion. 

However, as in all choices in life, there are negatives that one must be aware of.  For arbitration to be binding, all the formalities under the Arbitration Act, including certificates of independent legal advice, must be fulfilled or arbitration cannot proceed. 

In arbitration, the arbitrators’ jurisdiction is completely limited within the four corners of the arbitration agreement.  The appeal process must be specifically laid out. 

A critical component of deciding a family/estate litigation law case is the necessity of complete financial disclosure.  Arbitrators do not have the ability to order third parties such as banks to release information unlike the authority granted to judges.  Another issue is the enforcement of an arbitration award.  The arbitrator has no ability to find a party in contempt and impose the penalties that such a finding makes available in the court system.  If there is an appeal, then all of the confidentially is lost. 

It is not uncommon to find separation agreements that simply indicate that in the event of a future dispute, such disputes must be resolved by way of arbitration.  These are actually not binding as for an arbitration to proceed, all the various formalities under the Arbitration Act must completed.  That includes the signing of a certificate of independent legal advice for each party.  As long as that is missing, the arbitration cannot proceed. 

It is an alternate solution, but one in which the pros and cons must be laid out before a decision to participate can be made. 


Date: 12 Dec, 2019

One’s entitlement to support from an estranged spouse or common law partner is governed either by the Divorce Act or the Family Law Act. After death, a dependent that has not been properly looked after by the deceased in their Will may bring an application for dependent relief under the Succession Law Reform Act. In most circumstances, if a party is a dependent of a deceased that failed to make such a provision, they may commence an action under the Succession Law Reform Act for dependency relief. One cannot contract out of that obligation unlike the right to receive spousal support under both the Divorce Act and the Family Law Act.

The courts have held on a number of occasions the purpose of a dependent support order under the Succession Law Reform Act is significantly different than the purpose of a spousal support order under the Divorce Act. One needs to start with the decision in Cummings² a 2004 decision of the Ontario Court of Appeal and the decision in Phillips- Renwick vs. Renwick Estate a 2003 trial decision of the Ontario Superior Court of Justice.

While support if bared under a valid agreement can be waived one cannot contract out of the entitlement to dependent relief under the Succession Law Reform Act.

How to fix a will after death rectification

Date: 02 Oct, 2019

In rare circumstances, the court can repair a Will improperly drafted by a lawyer.

The law can be found in various cases including the Bank of Nova Scotia, the Haugrud 2160NSC 8150 affirmed on appeal, Whittingham v. Crese and Ross v. Caunters. The court has held that it will fix a Will if the lawyer made a mistake in one of these three situations:

  1. The lawyer accidentally make a mistake because of a typographical or clerical error.
  2. The testator (the person making the Will) instructions were not understood.
  3. Where the testator’s instructions were given but for some reason were failed to be carried out.

One usually would have to look at the notes of the lawyer and contrast them with that which had actually been drafted and the Will that was finally signed.

The court has the power to add or remove words if the court is satisfied:

  1. Upon reading the Will, it is clear that a mistake was made in drafting it.
  2. The mistake does not accurately or completely express what the testator’s intentions were.
  3. The testator’s intention must be so clear from the words of the Will that no other contrary intention can be assumed.
  4. The proposed correction by adding or removing words must give effect to what the testator intended from reading the Will as a whole and in light of the surrounding circumstances.
  5. The court will admit outside evidence (that is something other than reading the incorrectly drafted Will) to establish the error when it comes from the lawyer who made the mistake and can swear directly about what the testator intended. It is also old law that a court is to interpret a Will with a presumption against an intestacy. By virtue of an intestacy, one means that there is no proper disposition of the assets and then the testator’s instructions are being frustrated.

While complicated and not frequently done, it is a remedy available and is in sharp contrast to the usual view of the court in Ontario that a Will speaks only within its four corners without looking at outside evidence.


Date: 11 Sep, 2019

The law is the following:

  1. The Superior Court of Justice has inherent jurisdiction to remove trustees.
  2. The choice of the estate trustee is not be interfered with lightly.
  3. Removing an executor should only occur on the clearest cases and where there is no other realistic alternative.
  4. Anyone who has a financial interest in the estate may apply to remove an executor. The court’s main guide in deciding whether or not to remove an executor is the welfare of the beneficiaries.
  5. The parties seeking to remove an executor must show that failing to remove a complaint of executor will likely prevent the terms of the Will from being properly carried out. Removing an executor is not meant to be a punishment for past misconduct.
  6. Fighting or friction between the parties is not a reason alone for removal.

See Ford Kramer v. Mazman – Justice Casullo

Removing an Executor #3

Date: 11 Sep, 2019

As we have discussed elsewhere on this website, removing an executor also known as an estate trustee is not easy. In the recent case of Ford Kramer v. Mazman, a decision by Justice Casullo sitting in Newmarket, he outlined and reiterated the law on this point. Two sisters were the sole beneficiaries of their childless aunt’s Will. The aunt however had named a lifelong friend as the executor.

This already is a red flag. Our firm’s practice is to not appoint executors who have no financial interest unless there is an excellent reason to do so. The dynamics make for inherent difficulties. Why should an executor work hard when they have no financial interest in the estate being administered.

In any event, one of the two beneficiaries was especially close their aunt. The aunt apparently having full mental capacity attempted to bequeath her home to one of the nieces. This was plainly obvious and the friend was aware of that intention. A hand written Will known as a holographic Will was done by the aunt in which she indicated that she wished that transfer to take place. This holographic Will was a change to an earlier Will that she had made and was as such titled a Codicil. Before she could have a proper amendment to her Will prepared, the aunt died. The relationship between the Aunt’s friend/executor and the nieces quickly deteriorated. Nasty emails were exchanged, and the friend claimed that the second Will/Codicil was invalid. The friend went so far as to attempt to drive a wedge between the two sisters, who had always been close and on the same page with respect to their aunt’s estate.

The nieces brought an application to the court to have the friend removed as estate trustee. As pointed out in a number of earlier decisions, including that by Justice Quinn in the Radford Estate and by Justice Shaw in the Walsh and Witford Estate, the law is the following:

  1. The Superior Court of Justice has inherent jurisdiction to remove trustees.
  2. The choice of the estate trustee is not be interfered with lightly.
  3. Removing an executor should only occurin the clearest cases and where there is no other realistic alternative.
  4. Anyone who has a financial interest in the estate may apply to remove an executor. The court’s main guide in deciding whether or not to remove an executor is the welfare of the beneficiaries.
  5. The parties seeking to remove an executor must show that failing to remove a complaint of executor will likely prevent the terms of the Will from being properly carried out. Removing an executor is not meant to be a punishment for past misconduct.
  6. Fighting or friction between the parties is not a reason alone for removal.

The court felt that this test was met and the friend was removed.

Another issue is whether or not the two nieces were required to post a bond or security. This is necessary unless dispensed with by a court as neither of the nieces lived in Ontario. The test for such dispensation is encapsulated in the decision of Justice Brown in the Henderson Estate, a 2008 decision of the Ontario Superior Court. The court wants to see Affidavit evidence on the point, which should cover the following issues:

  1. The identity of all the beneficiaries of the estate.
  2. The identity of any beneficiary who is a minor or incapable person.
  3. The value of the interest of any minor or incapable beneficiary of the estate.
  4. Executed consents from all adult beneficiaries to the appointment of the applicants as executors and to an order dispensing with a bond. This should be attached as an exhibit. The last occupation of the deceased.
  5. Evidence as to whether all the debts of the deceased have been paid, including any obligations under any support agreement orders.
  6. Evidence as to whether the deceased had operated a business at the time of death and if the deceased did, whether any debts that business had been or maybe claimed against the estate and a description of each debt and its amount.
  7. If all debts of the estate have not been paid, evidence of the value of the assets of the estate, the particulars of each debt amount and name of creditor and an explanation of what arrangements have made with those creditors to pay their debts and what security the applicant proposes to put in place in order to protect those creditors.

Justice Casullo felt that the nieces had met that test and dispensed with the necessity of a bond.

Justice Casullo was obviously not impressed by the friend/executor and felt that she had acted in a mean spirited fashion, and ordered that she should be passed over as estate trustee. The judge felt that this was far more than a case of friction, but rather a case of outright hostility between the friend and the nieces.

As an aside, the friend/executor was eventually ordered to pay the legal fees of the nieces of almost $30,000.00 out of her own pocket. The case is not finished and there still remains to be a formal passing of accounts, a process that is discussed elsewhere in this blog.

It is fair warning to all involved, firstly that it is not simple and is clearly extremely expensive to remove an executor. One can well imagine that nieces’ legal fees probably far exceeded the almost $30,000.00 they received in costs. For a judge to have made such a decision would have only come after a number of lengthy and expensive steps had been undertaken.