Our Vancouver estate litigators and family lawyers have been examining the issue of predatory marriage in BC and concerns that such marriages may be on the rise due to COVID-19 (i.e. the required social distancing and isolation of elderly people). It is possible for a marriage to be found void due to lack of capacity where the marriage is between an elderly or otherwise vulnerable individual with cognitive impairments and a “predatory spouse” who marries exclusively for the purpose of gaining access to the vulnerable spouse’s finances or estate.
Standing to challenge a predatory marriage
A significant issue in these types of cases is that there is little to no recourse for concerned friends or family when a vulnerable person has fallen victim to a predatory marriage. In BC, only the spouses have standing to challenge the validity of the marriage while both spouses are alive. Saskatchewan is in the process of amending its Marriage Act and Wills Act to give standing to friends, family and the public guardian to step in to challenge a predatory marriage. Unfortunately, BC has not yet proposed similar changes to its laws.
Vulnerable spouse challenges property transfer in predatory marriage
In the majority of cases involving predatory marriage, the vulnerable or elderly spouse lacks the capacity to understand that they are being taken advantage of or dies before they have the chance to bring legal action. A rare exception to that is the case of Juzumas v. Baron, 2012 ONSC 7220, in which a man who was 95 years old at the time of trial succeeded in setting aside the transfer of his home to a predator spouse. The court set aside the transfer of property on the basis of the doctrines of undue influence and unconscionability, both of which may be used “where a stronger party takes advantage of a weaker party in the course of inducing the weaker party’s consent to an agreement.”
The facts in Juzumas v. Baron are worth examining in detail, as they provide a prime example of tactics to induce a predatory marriage, shocking elder abuse, and the far-reaching damage a predatory spouse can wreak on one’s affairs from both an estate law and family law perspective.
Younger “caretaker” takes advantage of elderly man
Galina Baron “befriended” Kazys Juzumas in 2006 and promised to care for him so he could avoid being placed in a nursing home, something he greatly feared. Kazys began paying Galina for her work as his housekeeper and caregiver. A year later, Kazys, then age 89, married Galina, then age 65. By that point, Galina had convinced Kazys that his ability to remain living in his own home depended on her ongoing care, and she promised to move in with him to better assist him. Kazys spoke limited English and had no family in Canada of his own. He married her because she promised to keep him from being sent to a nursing home.
Will prepared in contemplation of marriage
In contemplation of marriage, Galina arranged for a lawyer to prepare a will for Kazys which named Galina as the sole executor and beneficiary of his estate. The lawyer did not meet with Kazys on his own and did not provide Kazys with independent legal advice. Galina and Kazys were married in September 2007. After the ceremony, Galina dropped Kazys at a subway stop and the 89-year-old took transit home alone. Galina continued to live in her apartment with her university-aged son Yevgeni. She never moved in with Kazys as she promised. She only visited her purported husband for a few hours each week, and became increasingly abusive, controlling, and domineering towards Kazys, who continued to pay her each month for her “services”. A month after the wedding, Galina had Kazys add her name to his bank account.
Abused spouse executes new will
Galina had been married 6 to 8 times before and had a history of caring for older men with the expectation of receiving an inheritance through their estates. Galina was sophisticated and knew from these previous relationships that an expectation of inheritance is not enforceable. Testamentary dispositions can easily be reversed by the will-maker, and that is precisely what happened. By February 2009, Kazys felt ill-treated by Galina and frustrated with her failure to live at the house and care for him as he anticipated she would. In his view, she did not live up to her bargain. Kazys hired a new lawyer to prepare a will which left his estate to his niece, with a modest $10,000 bequest to Galina.
Predatory spouse finds out new will executed; elder abuse escalates
When Galina found out about the new will near the end of April 2009, she embarked on a campaign to ensure that she got Kazys’ house, which at that point was valued at over $600,000. Galina convinced Kazys to sign a document transferring his house to Galina’s son, subject to a life interest to Kazys. Galina considered that a transfer to her son’s name would divert any suspicion from her and at the same time the transfer would not impact her disability pension or her entitlement to subsidized housing. When the transfer of the house was signed, Kazys was vulnerable and completely dependent on and dominated by Galina, who persisted in her threats that he would otherwise be abandoned to a nursing home.
Transfer of property set aside due to unconscionability and undue influence
Kazys later succeeded in obtaining a court order to set aside the transfer. At the time he executed the transfer, the then 91-year-old Kazys was in failing health. He was vulnerable and in fear of being abandoned to a nursing home. He signed the transfer under the domination, control, and intimidation of his significantly younger wife/housekeeper Galina, as well as under the influence of her son, Yevgeni. Galina’s threat of Kazys being put in a nursing home ensured that Kazys would sign what she wanted. In the court’s view, the transfer resulted from their undue influence of a vulnerable elder. In addition, the inequality of the bargaining power and the unfairness of the transaction rendered it unconscionable. Kazys did not have the benefit of independent legal advice or any understanding of the irrevocable nature of the document he signed. Tellingly, the lawyer involved in the transfer did not explain to Kazys that he was virtually eviscerating the will he had executed only one month prior or suggest that he might consider writing a new will. The court also granted the requested divorce. All other claims were dismissed, including Galina’s family law claim for equalization of property, with costs to Kazys.
Take home point on predatory marriage
Depending on the circumstances, there may be a number of legal options to challenge transfers of property within a predatory marriage or by a vulnerable person to a financial predator, including the doctrines of undue influence and unconscionability, discussed above, or other legal principles such as absence of consideration for the transfer or non est factum.
If you have concerns that a you, a family member, or a friend is being taken advantage of by a financial predator, contact Onyx Law Group’s team of Vancouver family law and estate litigation lawyers for a 30-minute free consultation.