Emily Clough, a partner in our Estates & Trusts group, was successful counsel for the plaintiff in a complex and precedent-setting case released yesterday by the British Columbia Supreme Court. The decision, Devore-Thompson v. Poulain, 2017 BCSC 1289, marks the first reported case in British Columbia wherein a marriage was set aside due to mental incapacity.
The question of capacity to marry is rarely brought before the courts. Historically, the threshold for capacity to marry was quite low. A marriage was considered a “simple contract”, something “not requiring a high degree of intelligence” to comprehend. In both of the last prominent decisions in this province concerning the mental capacity to marry (Hart v. Cooper,  B.C.J. No. 159 (B.C. S.C.), and Ross-Scott v. Potvin, 2014 BCSC 435 ), individuals suffering from significant mental impairments were still found to be capable to marry.
In Devore-Thompson v. Poulain, the court was asked to consider two primary questions. First, whether an individual suffering from dementia had the mental capacity to marry. Second, whether the will she made before her death, which left all of her real estate to her new husband, should be set aside for a lack of capacity. The deceased did not have any children of her own, but she maintained close relationships with her sister, her sister’s children, and various friends. Her closest niece successfully brought the case. It was the niece’s evidence that she brought the case to have her aunt’s dignity restored.
There was a stark divide between the evidence of the recent husband versus the evidence of the deceased’s family and friends. The husband’s evidence was that nothing was wrong with the deceased’s mental health. He said they married for love, and denied that he was financially motivated to marry. The deceased’s family, close friends, banker, and geriatric physician all gave evidence of the deceased’s mental and physical decline due to Alzheimer’s disease. Their evidence portrayed a vibrant social woman who sadly lost her capacities over time. By the time of the marriage, the deceased was unable to function independently. She was determined to be incapable and placed into a care facility within a few months of the marriage.
Madam Justice Griffin considered all the available evidence, and held that the defendant had manipulated the deceased. This manipulation ranged from prompting her to make large bank withdrawals to fostering an irrational paranoia that the deceased’s family was stealing from her. Justice Griffin then found the following, with respect to the deceased’s capacity to marry:
 I find on the whole of the evidence, given her state of dementia, [the deceased] could not know even the most basic meaning of marriage or understand any of its implications at the time of the Marriage including: who she was marrying in the sense of what kind of person he was; what their emotional attachment was; where they would be living and whether he would be living with her; and fundamentally, how marriage would affect her life on a day to day basis and in the future.
And, in relation to the deceased’s capacity to make her last will:
 I have concluded that the plaintiff lacked testamentary capacity at the time of the 2009 Will. I find on the evidence that [the deceased]’s dementia had advanced to such an extent by 2009 that she could neither understand the extent of her property nor who her natural beneficiaries would be. Since she did not have a basic understanding of her estate or her natural beneficiaries, she would necessarily be incapable of dividing her estate.
The marriage was therefore declared void from the outset, and the deceased’s will set aside.
There is a growing concern for “predatory marriages”, wherein a vulnerable person with cognitive impairments is preyed upon. It is relatively simple to get married — the marriage commissioner typically only asks the parties to say “I do”. This case will help set the precedent for the test of capacity to marry for vulnerable adults with cognitive impairment, in British Columbia and in Canada.
Emily Clough will be presenting to the Canadian Elder Law Conference in November 2017 regarding the capacity to marry.