Can an elderly, reclusive man suffering from cognitive decline due to dementia have the capacity to marry his caregiver? That was the question to be decided in Ross-Scott v. Potvin, 2014 BCSC 435. In that case, the man’s mental capacity was diminishing and he had moments of delusional thinking, but the evidence did not satisfy the burden of proof that he was incapable of understanding the implications of the marriage contract. The decision of Mr. Justice Armstrong in this BC estate litigation matter is helpful as it sets out the legal test for capacity to marry, but it is also significant for its discussion about what makes a “usual” marriage.
Marriage is a contract and motivations are varied
Our BC estate litigation and family lawyers have recently focussed on the issue a predatory marriage. An important principle is that a party entering a marriage must freely exercise the choice to marry and must understand the inherent marital obligations akin to a contractual relationship. As with any type of contract, the parties must possess the requisite legal capacity to enter it (see here for our BC estate litigation lawyers’ discussion of levels of capacity). The decision to marry and the motivation for the decision are diverse. For example, an elderly or functionally impaired person may choose to marry his or her caregiver. Such a decision may be crucial to an elderly person’s autonomy, as was the case in Ross-Scott v. Potvin. The challenge for the courts is protecting vulnerable people wishing to make their own decisions from the risks of abuse or influence that may exist in a relationship of dependency that might interfere with free will.
Facts in Ross-Scott v. Potvin BC estate litigation matter
Mr. Groves and Ms. Potvin met in 2006. She was his next-door neighbour and began providing him with care and assistance. They married in 2009 when he was 77 years old and she was 56. Before they met in 2006, neither had been married and neither had children. Mr. Groves was reclusive and did not appear to have friends or a social life. He suffered from cognitive impairment due to progressively worsening dementia which was compounded by depression and anxiety. He also suffered from some delusional thinking in relation to his finances. He was terrified of being sent to a home. He was not capable of caring for himself and needed assistance to be able to remain in his house, which Ms. Potvin provided. She promised that she would not let him be taken to a home unless he was completely disabled.
Challenge to validity of marriage based on capacity of elderly spouse
One year after the wedding, Mr. Groves died. Mr. Groves’s only living relatives were a nephew and niece who lived in Great Britain and had not seen Mr. Groves in 25 years. Mr. Groves’s niece and nephew (the “Plaintiffs”) attacked the validity of the marriage and Mr. Groves’s 2010 will, which bequeathed $10,000 to each of the Plaintiffs with the balance of the estate passing to Ms. Potvin. The Plaintiffs argued that Mr. Groves’s cognitive impairments, his dependence on Ms. Potvin, and his inability to manage his affairs demonstrated his lack of capacity to form the intention to marry Ms. Potvin. A lack of mental capacity to marry will render a marriage void ab initio (i.e.,as if it had never occurred). The Plaintiffs also challenged the validity of Mr. Groves’ wills that benefitted Ms. Potvin (check back on our blog later for our discussion of that aspect of the claim). If the Plaintiffs’ claim were successful, they would receive significant benefits from Mr. Groves’s estate as his only living heirs, and Ms. Potvin would receive a reduced amount or nothing from Mr. Groves’s estate depending on whether his will was valid. If the marriage were void, Ms. Potvin would not have standing to challenge Mr. Groves’s will, nor would she inherit if Mr. Groves were found to have died intestate (i.e., if his will were found to be invalid).
Test for capacity to marry
A party entering a marriage must freely exercise the choice to marry and must understand the inherent marital obligations akin to a contractual relationship. The starting point of the analysis is that marriages are presumed valid in the absence of clear and cogent evidence to the contrary. The burden of proving a lack of mental capacity is borne by the party who challenges the validity. The Plaintiffs in this BC estate litigation matter failed to meet the burden of proof that would permit the court to declare the marriage null and void. Per Mr. Justice Armstrong in Ross-Scott v. Potvin:
 A person is capable of entering into a marriage contract only if he or she has the capacity to understand the nature of the contract and the duties and responsibilities it creates. The assessment of a person’s capacity to understand the nature of the marriage commitment is informed, in part, by an ability to manage themselves and their affairs. Delusional thinking or reduced cognitive abilities alone may not destroy an individual’s capacity to form an intention to marry as long as the person is capable of managing their own affairs.
The evidence must focus on the spouses’ ability to make personal decisions about the way that person wishes to live their life and must clearly identify features of the person’s decision making powers that would establish the person did not understand the simple promises made and given at the time.
Cognitive impairment does not necessarily eliminate capacity to marry
There was evidence that Mr. Groves’s mental and physical health were in decline when the wedding took place in 2009. There was also evidence that Mr. Groves was incapable of managing some of his day-to-day affairs and activities of daily living. However, as our BC estate litigation team has previously discussed, a cognitively impaired person who is incapable of managing their own affairs may still be competent to marry. Per Mr. Justice Armstrong in Ross-Scott v. Potvin:
 A person may be incapable of writing a cheque or making a deposit to a bank account and thus be described as being incapable of managing their financial affairs. Similarly, temporary delusions, depression, or anxiety may impact a person’s ability to make other life decisions. But these factors do not necessarily impact a person’s ability to consciously consider the importance of a marriage contract. Nor do they necessarily impact formation of an intention to marry, a decision to marry, or the ability to proceed through a marriage ceremony.
The Plaintiffs failed to prove, on the balance of probabilities, that Mr. Groves did not have the capacity to marry or was unable to consent to his union. His capacity to form an intention to marry was intact, and he was able to understand the nature of his pending marriage to Ms. Potvin. At that time, he was anxious, intermittently delusional, and his health was declining; however, he was still mentally able to function in different contexts, including instructing his lawyer, his financial advisor, and his accountant. Mr. Groves planned to marry Ms. Potvin and spoke to his advisors about his plan in a fashion that showed he had an active mind capable of understanding the role of Ms. Potvin and the Plaintiffs in his life. The evidence satisfied Mr. Justice Armstrong that Mr. Groves exercised his free will when he decided to marry Ms. Potvin with whom he had a relationship and who was already caring for him with a promise of continued support for life.
Allegation of “sham marriage”
This BC estate litigation matter raised an interesting question about one’s motivation to marry and what marriage should entail. The Plaintiffs alleged that the marriage between Mr. Groves and Ms. Potvin was a sham marriage in part because no kiss was exchanged or because other usual indicia of a marriage celebration were absent. The marriage was not a usual marriage involving two parties contemplating a new and long life together that might be a basis for a public celebration. Instead, the marriage was a quiet and discreet affair in which a lonely, non-social 77-year-old man wished to form a union with a woman and to remain in his home until he died.
Motivation for marriage in the Ross-Scott BC estate litigation case
Spouses can marry for a number of reasons and even unsavoury motives for marriage will not constitute that union as a “sham”. The marriage in this BC estate litigation matter was not a sham marriage. Mr. Groves’s motive for marrying Ms. Potvin was to enjoy her company, support, and assistance until he died. The facts clearly established that the marriage was a conscious act on his part that relieved his anxiety and brought peace of mind and stability to his life. No one else in the world was doing for him what Ms. Potvin offered. She agreed to marry Mr. Groves and made a commitment to be company for him and care for him until he died. This case did not include facts where one spouse abandoned the other when the going got tough. In fact, the situation was the opposite: Ms. Potvin continued to honor her commitment to Mr. Groves until he died, except for the last three months of his life when the burden became too great and he required hospitalization. Even for a spouse in a conventional marriage situation, the care of a terminally ill or seriously disabled spouse can become unmanageable.
Take home point on sham or predatory marriage from our BC estate litigation lawyers
Predatory marriage is a concern in BC, particularly given the aging population. It is important to understand that the issue of mental capacity to marry is nuanced. A cognitively impaired person who is incapable of managing their own affairs may still be competent to marry, even where the marriage is to a caregiver. While the nature of dependency inherent in the relationship may raise suspicion, in every case the parties’ intentions and capacity must be examined to determine the validity of the marriage. In the BC estate litigation case discussed above, the elderly man’s desire to enter into a marriage relationship with his caregiver was mainly to ensure he had a companion and ongoing care in his own home until he died. That arrangement was not a sham marriage. Rather, it reflected the contract he understood would form the basis of their marriage covenant and the challenge to the validity of the marriage was dismissed. Check back for another post from our BC estate litigation and family lawyers analyzing the Plaintiffs allegations that the both the marriage and Mr. Groves’ will were the products of undue influence.