In an earlier post, we discussed Ross-Scott v. Potvin, 2014 BCSC 435, a case in which the only living relatives of the deceased challenged what they viewed as a predatory marriage between their elderly uncle and his younger caregiver. The uncle, Mr. Groves, was 77 years old when he married his 56-year-old caregiver, Ms. Potvin, whom he had only known for three years. He died a year later, leaving a will which substantially benefited his new spouse instead of his niece and nephew. In the years leading up to his death, Mr. Groves suffered from cognitive impairments due to progressively worsening dementia. After his death, his niece and nephew challenged the validity of the marriage on the basis that Mr. Groves lacked the capacity to consent to the marriage. The court dismissed that claim, finding that Mr. Groves was capable of understanding the implications of the marriage contract, despite medical evidence of diminished capacity (see here for our discussion of that finding). In today’s post, we will examine the niece and nephew’s attacks of the marriage and Mr. Groves’ will based on the allegation of undue influence.
Allegation that undue influence vitiated capacity to marry
The niece and nephew attacked the validity of the marriage on the basis that Mr. Groves was subject to undue influence that deprived him of the freedom to freely and fully consent to become Ms. Potvin’s spouse. In this case, Mr. Groves was terrified of being sent to a nursing 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 cared for him and promised that she would not let him be taken to a home unless he was completely disabled. The niece and nephew argued that coercion and undue influence occurred due to the following factors: the age difference between the parties; the secrecy surrounding their marriage; the fact that Mr. Groves did not have a lot to contribute to the relationship; the increased gifts that were allocated to Ms. Potvin; the fact that Mr. Groves was isolated, alone or residing in a remote location; and the fact that Mr. Groves had dementia and was vulnerable. Indeed, the niece and nephew asserted that there was no evidence to support a bona fide marriage.
Was this a predatory marriage procured by undue influence over a vulnerable senior?
The question was whether Mr. Groves was a vulnerable person and in a state of incompetence and unable to resist pressure improperly directed on him by Ms. Potvin. The burden of proof regarding a challenge to a marriage based on a claim of undue influence is the same as the burden of proving a lack of capacity claim and rests with the party who raises the allegation. The niece and nephew failed to meet the burden of proving that Ms. Potvin’s actual influence deprived Mr. Groves of his own free will to marry or refuse to marry her. Mr. Groves was undoubtedly vulnerable at the time of the marriage. He had worries and concerns that he would not be able to remain in his home for the balance of his life but nothing in the evidence revealed that Ms. Potvin threatened or coerced him in any way. He had significant needs that were met by Ms. Potvin. Ms. Potvin did not initiate the marriage and did not threaten Mr. Groves with abandonment.
Allegation that the will benefitting the new spouse was the product of undue influence
The niece and nephew pointed to what they viewed as suspicious circumstances around the making of Mr. Groves’ wills in the latter years of his life that questioned his capacity and tended to show that his free will was overborne by Ms. Potvin’s coercion. Between June 2008 and November 2009, Ms. Potvin was transformed from a mere acquaintance to the beneficiary of the bulk of Mr. Groves’ estate on intestacy. Mr. Groves’ earlier wills had left the bulk of his estate to his niece and nephew. The post-marriage will executed in 2010 named Ms. Potvin as the sole executor and beneficiary of the majority of his estate, less a small bequest of $10,000 to each of the niece and nephew. They argued that Mr. Groves’ worsening dementia, inability to care for himself, and anxiety about his future – including where he would live – made him completely dependent on Ms. Potvin and thus susceptible to her “prevailing influences” in preparing his will.
What amounts to undue influence in making a will?
A testamentary disposition will not be set aside on the ground of undue influence unless it is established on the balance of probabilities that the influence on the will-maker was so overpowering that the document reflects the will of the influencer and not the will-maker (see here for our BC estate litigation lawyers’ discussion of the elements to establish undue influence in relation to testamentary dispositions). It is recognized that some amount of persuasion and mere influence is permissible so long as it does not amount to undue influence. The evidence necessary to successfully challenge a will must meet a standard of coercion. Some factors to be considered in an analysis of an undue influence claim include:
- whether moral obligations to family members existed;
- the closeness of the relationship between the will-maker and family members;
- the closeness of the relationship between the will-maker and the named beneficiaries (e.g., because of provided services, a long pattern of friendship, or any evidence of affection);
- any evidence of the will-maker having medical illnesses, delusions or other indications of mental instability; and
- a solicitor’s evidence on the circumstances surrounding the will’s execution.
Changes to will were planned and deliberate
The evidence clearly showed that Mr. Groves had episodes of being paranoid, subject to delusions, suffering memory problems and anxiety, and was living with dementia and cognitive disabilities. However, Mr. Groves retained decision-making powers and the evidence established that he was competent to make the will under review. Although he was in declining health, Mr. Groves applied his mind to a new will. Mr. Groves’s letter to his solicitor reflected his concern that his marriage would change the way his estate would be distributed. That letter and a subsequent letter revealed a thoughtful, planned and deliberate step in his life and, in the court’s view, it reflected that he was competent when he signed the 2010 will. Other evidence of his communications with his advisers and doctor indicated that his will represented the implementation of his testamentary goals.
No coercion of undue influence in making of final will
No evidence demonstrated that Ms. Potvin brought about the 2010 will by coercion or influence. Mr. Groves was capable of understanding the nature and importance of the changes that were incorporated into his last will. He acted reasonably in the face of many changes in his life and moreover, he had no moral obligations to benefit anyone other than Ms. Potvin by making provisions for others in his will. This was not a case in which a parent has, by marrying, disentitled children from their expectations of sharing in a parent’s estate. The niece and nephew had no communication and little connection to Mr. Groves. On the other hand, Mr. Groves had a close relationship with Ms. Potvin before and after marriage. She was caring for him, and he benefited from her company and care. With no one else close to him providing him care, Ms. Potvin would have been uppermost in Mr. Groves’ mind when he considered dividing his estate. His decision to change his will after the marriage was evidence of an active mind capable of understanding the role of Ms. Potvin and niece and nephew in his life.
Bottom line on using undue influence to attack predatory marriage or suspicious will
Vulnerability and dependency are hallmarks of predatory marriage. A vulnerable person may be subject to the exercise of undue influence by a predator spouse or other person such as a caregiver who is in a special relationship with the vulnerable person. Indeed, dependency by one on another can raise the presumption of undue influence. However, mere influence does not amount to undue influence or coercion, and a vulnerable or elderly person with diminished capacity can still possess the free will to make a decision to marry or change their estate plan.