The British Columbia Court of Appeal very recently issued a decision resulting in that province’s first marriage to be set aside due to incapacity. At issue in the decision was a woman with Alzheimer’s (the “woman”). A challenge was filed regarding a) a marriage that the woman had entered late in her life, and b) the woman’s two wills. The challenge was filed by the woman’s niece (the “niece”).

Marriage and a Will Following a Diagnosis of Alzheimer’s

The woman had died in 2013. She had been diagnosed with Alzheimer’s in 2005. In 2010 she had married her husband (the “husband”). The niece brought the challenge following the woman’s death out of concern that the woman’s Alzheimer’s had resulted in an incapacity to enter into marriage or sign the two wills. The woman did not have any children, and the niece was her only family living close by. Throughout her life, the woman had a strong independent spirit and, following her diagnosis, had refused to accept her condition.  As a result, she continued to live independently with the assistance of the niece. At trial, the niece presented evidence that the woman had shown multiple signs of degrading health between 2007 and 2009, including confusion and trouble with hygiene. In 2007, the niece was named power of attorney of the deceased and began to help her with her banking. The woman signed a will (the “2007 will”) leaving her estate to a nephew, a cousin, and two nieces (including the niece who filed the challenge). The woman met the husband in 2006. According to the niece, the husband didn’t notice any mental health issues with the woman after they began their romantic relationship.  The niece testified at trial that the family was suspicious of the husband’s motives and had tried to keep him from visiting the woman in the hospital in 2009. The woman signed the contested will in 2009, removing the niece and other family members and including a gift to the husband.  She ultimately married the Defendant in 2010.

The Marriage

With respect to the question of whether the marriage was valid, the Court reviewed the common law test of marriage, which states:

…the capacity to marry must involve some understanding of with whom a person wants to live and some understanding that it will have an effect on one’s future in that it will be an exclusive mutually supportive relationship until death or divorce.

The Court then reviewed the niece’s evidence, which included testimony from a number of people who had known the woman. The witnesses all overwhelmingly gave evidence that the woman had been suffering from Alzheimer’s and was confused and unable to understand or assess what was happening around her as early as 2007. The husband was the only person to give evidence in support of his position that the woman had been living a healthy life and had been a willing participant in their relationship. In setting aside the marriage, the Court ruled it was:

clear that [the woman’s]’s mental capacity had diminished to such an extent that by 2010 she could not have formed an intention to live with [the woman], or to form a lifetime bond. She did not understand, at that stage, what it meant to live together with another person, nor could she understand the concept of a lifetime bond.

The Court continued:

I find on the whole of the evidence, given her state of dementia, [the woman] 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 future.

The Will

With respect to whether the 2009 will was valid, the Court concluded that:

…[the woman] lacked testamentary capacity at the time of the 2009 Will. I find on the evidence that [the woman]’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 Court ultimately ruled the woman had not had the necessary capacity to make either the 2007 or 2009 will. NULaw and its predecessors have been providing estate and trust advice to its clients for over 50 years. We have represented clients in challenges to powers of attorney as well as the contesting of wills. Call us at 416-481-5604 or contact us online to schedule a consultation.    

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