Predatory marriages

George Banton was 88 years old when his wife passed away.  George had some health issues, including prostate cancer, severe deafness, mobility issues and some cognitive impairment.  George had five children and with his concurrence, it was decided that he should sell the family home and move into a retirement facility.

It was there that he met Muna, a 31-year-old restaurant server. Within five months, George and Muna were married. None of George’s family were at the wedding, including his five children.

After getting married, George did a new Will, leaving his estate to Muna. Approximately one year later, George passed away.

His children challenged both the Will that George had prepared, arguing he lacked testamentary capacity, and the marriage he entered into with Muna, arguing he lacked the capacity to marry.

The matter went to trial and the judge concluded that, in fact, George did not have the capacity to do a new will. However, the judge also concluded that George did have the capacity to enter into marriage with Muna and as a result, Muna was able to claim a portion of George’s estate as his widow.  If you are interested in reading the case, Banton v Banton, 1998 CanLII 14926 (ON SC), please click here

What is a predatory marriage?

The term “predatory marriage” is not in common use, but it is being referred to more and more frequently by the courts in appropriate circumstances. Put simply, a predatory marriage is where a person takes advantage of another individual who has limited capacity and marries them for financial gain.

The number of Canadians who suffer from dementia or dementia-related cognitive issues is rising sharply. According to the Alzheimer’s Society of Canada, today there are more than half a million Canadians living with dementia with 25,000 new cases being diagnosed every year. By the year 2031, the number of Canadians suffering from dementia is expected to rise to almost 1,000,000 which would be an increase of approximately 66 per cent.

A predatory marriage is a form of financial elder abuse.

The Banton case illustrates how vulnerable our senior population is to this form of elder abuse. The problem relates to the fact that historically, marriage has been viewed as a simple contract. In fact, an early English decision referred to the contract of marriage as follows:

“the contract of marriage is a simple one, one that does not require a high degree of intelligence to comprehend.”

In the Banton decision, the court concluded that while George did not have the requisite capacity to give instructions to draw a new will, he did meet the lower standard of capacity which resulted in the court concluding that his marriage was valid.

If you lack the ability to manage yourself and your property, or if you do not understand the contract and duties and responsibilities associated with marriage, then it is likely that you do not have the capacity to marry. 

Marriage instantly vests property rights and obligations in both parties and the simple act of marriage may find both parties immersed in a complex web of those rights and obligations.

The problem

In Manitoba, under the provisions of The Wills Act, marriage revokes all previous wills. It is interesting to note that Quebec, and more recently Saskatchewan, Alberta and British Columbia, have introduced legislation whereby marriage does not revoke a previous will. Currently, Ontario and the Maritimes find themselves in a similar position to that of Manitoba.

Considering the relatively low capacity threshold one requires to marry, many have suggested that the consequences of having a prior will voided restricts the testamentary freedom of the will-maker because they are subject to automatic revocation of their will without the ability to make a new one, and results in a disproportionate penalty to the family of the individual who has been preyed upon. 

In March of 2020, the Manitoba Law Reform Commission released a report recommending that The Wills Act be amended so that marriage no longer revokes a will. However, no changes to The Wills Act have been implemented to date as a result of this recommendation.

What can be done?

As noted above, Saskatchewan, Alberta and British Columbia have introduced legislation that would protect, to some extent, an existing will, notwithstanding a subsequent marriage. In jurisdictions where this is not the case, such as Manitoba, the only possible protection against such a predatory marriage (absent a court application to set the marriage aside) is the prevention of the marriage itself.

In Manitoba, if a committee has been appointed under The Mental Health Act to look after the affairs of an incapable person (one who lacks capacity to manage his/her own affairs), that person can still get married. However, under the provisions of The Marriage Act, a psychiatrist must certify in writing that the person has the capacity to understand the nature of the contract of marriage and the duties and responsibilities it creates in order for the intended marriage to be valid.

Under British Columbia’s Marriage Act, if a family member is concerned that someone might be considering marriage and the family member does not consider that the person has the capacity to marry, a caveat can be filed with the Vital Statistics Agency of British Columbia that would prevent the issuance of a marriage licence until such time as the issue of capacity is further reviewed or the caveat withdrawn.


As noted above, as our population ages, issues of capacity will become more pervasive. Within the context of the marriage contract, capacity threshold to marry is quite low and as a consequence, a growing portion of our population is being exposed to potential financial predation through marriage.

There is no one approach or template to follow when a family member is diagnosed with dementia in regards to how best to protect them from predation, whether it is through a predatory marriage or otherwise. Within the context of marriage, we think the best advice is to stay close, be supportive and be vigilant with respect to the family member’s activities and the relationships they are developing with their acquaintances and caregivers.