Mental capacity and marriage.

• Author: Todd, Trevor
• Position: Feature Report on Older Adults and the Law - Reprint

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Most of us have heard of the infamous case of playboy playmate Anna Nicole Smith who laid claim to the estate of her 90-year-old husband. This odd couple met at a topless bar where Smith earned her living. He was 89 and she was 26. Their marriage lasted just over one year before the husband died, leaving an estate of $475 million. He died in 1995 and the litigation is still before the courts.

From time to time, newspapers report similar situations involving a lonely, enfeebled old man who marries a much younger waitress or caregiver. Increased longevity will undoubtedly give rise to yet more disputes about the validity of such marriages.

Some courts have made apparently contradictory findings that a deceased senior, who is not mentally capable of executing a will, is still mentally capable of marrying, thereby revoking his or her existing will. Just such a case is the 1998 Ontario case of Banton v. Banton. It involved an 86-year-old man who formed a friendship with a 31-year-old waitress from the restaurant of his retirement home. She persuaded him to secretly marry and to prepare two wills in her favour. At the time of the marriage and the execution of the wills, the court found that the deceased suffered from terminal cancer, serious hearing problems, restrictions of physical mobility, incontinence, and depression. It found he was cognitively impaired and enfeebled.

The court concluded that Mr. Banton did not have testamentary capacity when he signed his wills in this woman's favour and that it was her undue influence that procured the wills. Nevertheless, the Court found that he had sufficient mental capacity to enter into his marriage and thus the marriage was valid.

The court ruled that although the test for testamentary capacity is quite stringent, the test for capacity to marry is not. Capacity to marry requires only that the person understand the nature of the relationship and its responsibilities. In this case, the testator had some experience in that he had been married twice before. The court concluded that he had sufficient capacity to enter into the marriage and was not coerced into doing so.

In fact, cases as far back as the 1885 case of Durham v. Durham have ruled that it does not require a high degree of intelligence to comprehend the significance of entering into a marriage.

The 1994 Hart v. Cooper decision of the BC Court of Appeal is a good example of the extent of evidence required to set aside a...