This article was originally published in the WEL Newsletter, Vol.7 No.6, September 2017
by Kimberly Whaley and Albert Oosterhoff
Devore-Thompson v. Poulain, 2017 BCSC 1289, 28 E.T.R. (4th) 78, (CanLII), http://canlii.ca/t/h50wc
In a recent decision, the British Columbia Supreme Court set aside a marriage for lack of the requisite capacity to marry. The court declared the marriage void ab initio, in a claim brought by a family member after the death of the incapacitated victim. The Court also set aside two Wills based on the testator’s lack of testamentary capacity. This lengthy decision (74 pages) is the first case since the 2014 case of Ross-Scott v. Potvin to provide further ammunition on remedying the now out of date common law treatment of decisional capacity to marry.
Ms. Walker was an older adult, who had been previously married and divorced, but she had no children; instead, she thought of her sister’s children as her own. She was a strong independent woman until her diagnosis of Alzheimer’s disease in 2005. According to those close to her, Ms. Walker’s condition progressively deteriorated in the years following her diagnosis, to the point where she forgot how to use utensils and a phone, could no longer cook, forgot who people were, and could not clean or care for herself. Ms. Walker, however, refused to acknowledge her declining health and steadfastly insisted on remaining independent. Her niece, the Plaintiff in this case, loved her aunt dearly and increasingly as it came to be necessary, assisted her aunt to live independently as long as possible.
In early 2007 Ms. Walker saw Dr. Maria Chung who prepared a consultation report. The report recommended that Ms. Walker’s driver’s license be revoked before she injured herself or others. Dr. Chung also recommended that Ms. Walker get her affairs in order by executing a continuing power of attorney for property (“CPOAP”). Dr. Chung continued to care for Ms. Walker after the initial consultation and provided evidence at the trial.
Following Dr. Chung’s advice, Ms. Walker made a new Will as of February 16, 2007 and appointed her niece as her attorney under a CPOAP. As of May 17, 2007, Ms. Walker also signed a representation agreement appointing her sister and her niece as her representatives under the Representation Agreement Act, R.S.B.C. 1996, c. 405, giving them each independent authority to make health and personal care decisions on her behalf.
Her affairs were in order and everything was settled. Or so the niece thought. It was discovered later that Ms. Walker had executed a new Will in 2009 and granted new powers of attorney.
On September 14, 2010, a Certificate of Incapability was issued pursuant to s. 1(a) of the Patients Property Act, R.S.B.C. 1996 c. 349, declaring Ms. Walker incapable of managing her legal and financial affairs. The Public Guardian and Trustee (PGT) was appointed committee. Ms. Walker died on December 26, 2013.
The “Predatory” Relationship
Unknown to Ms. Walker’s caring niece, while Ms. Walker’s health was deteriorating significantly she was being “preyed on” by a younger man for financial gain.
Ms. Walker met this man, Mr. Floyd Poulain in 2006 at the local mall when he asked her for five dollars and her address and phone number. Her long-time friend expressed surprise to Ms. Walker that she would give a stranger her phone number and address. Ms. Walker got mad at her friend and said how else was he going to pay the five dollars back? Ms. Walker and Mr. Poulain went on to have dinner together and this began Mr. Poulain’s “campaign” seeking financial gain from Ms. Walker.
Unbeknownst to her family and friends, Mr. Poulain took Ms. Walker to a lawyer in 2009 for Ms. Walker to execute a new Will. The lawyer testified at the trial but had to rely on his “sparse notes” as he could not recall the meeting. His notes indicated that Mr. Poulain stayed with Ms. Walker while she was meeting with the lawyer. The evidence demonstrated that the 2009 Will was prepared from handwritten notations to the 2007 Will. The notations were in Mr. Poulain’s handwriting. The notes struck out the appointment of Ms. Walker’s friend as executor, and inserted “Floyd S. Poulain”. Mr. Poulain also struck out the gift of Ms. Walker’s car to her nephew with the instruction “omit” (as Mr. Poulain had already taken over Ms. Walker’s car). There was also a note “to make power of attorney Floyd S. Poulain.”
Madame Justice Griffin, in her decision, noted “I find there to be a high probability that Ms. Walker sat in front of [the lawyer] and pretended to know what was going on by nodding and smiling a lot and saying very little. Others noted her smiling a lot and Ms. Walker was quite determined not to let on that she was having cognitive difficulties.” Justice Griffin found difficulty placing any weight on the evidence provided by the lawyer; noting that nothing in his evidence suggested that based on his standard practices he was able to detect Ms. Walker’s capacity.
Shortly thereafter, the niece became aware that Ms. Walker had placed her condominium up for sale, in contradiction to her earlier assertions that she enjoyed living in her condo. The family intervened, and the listing was cancelled. Ms. Walker’s actions were likely prompted by Mr. Poulain. Around this time Ms. Walker also became highly suspicious of family members, including her niece who had been assisting her the most. Mr. Poulain was reportedly fueling her suspicions.
Ms. Walker and Mr. Poulain were married in June of 2010. Ms. Walker did not inform any of her family members that she intended to marry Mr. Poulain. In fact, she had said that she did not intend to remarry. The marriage caught her close family members and her treating physician completely off guard. Mr. Poulain testified that it was her idea.
Mr. Poulain was unable to recall any material details of the wedding under cross-examination; including who the witnesses were (they were supplied by the marriage commissioner). There was one photograph produced at trial where Ms. Walker and Mr. Poulain were together and her facial expression was vacant. The marriage commissioner’s evidence was unhelpful on the issue of whether Ms. Walker had capacity to marry as he could not remember the marriage ceremony and does hundreds of ceremonies. He had “no practice of testing for capacity” (the Court noted that “it is not suggested he should have”) and simply asks the parties to say “I do not” and “I do” to the standard questions.
Justice Griffin noted it was likely that Ms. Walker was prompted on what to say at the ceremony and went along with it and the fact that the marriage ceremony took place was of little help in determining capacity. Mr. Poulain admitted that he told Ms. Walker that “marrying him would help her get back her freedom, her freedom of choice”.
When Dr. Chung learned about the marriage from the niece, she made an urgent referral to the PGT stating her opinion that Ms. Walker was incapable of entering into a marriage relationship “as she is moderately-severely demented and has significant impairment of executive function”. Dr. Chung continued to be of the opinion, at the trial of this matter, that Ms. Walker was not capable of consenting to marriage and not capable to sign the 2009 Will.
After the marriage, Mr. Poulain and Ms. Walker consulted with another lawyer at the same office where her 2009 Will was executed. This second lawyer’s file was produced at trial but the lawyer was not called as a witness. The file suggests that the lawyer was told Ms. Walker had had a stroke but was not advised of her Alzheimer’s diagnosis. The file also indicated that the consultation was about obtaining greater access to Ms. Walker’s bank account. The lawyer wrote a letter to Scotiabank seeking information about Ms. Walker’s account balance and why she was not permitted to access her account. Ms. Walker’s niece (her attorney under the power of attorney for property) had put a $500 withdrawal limit on her account as all of Ms. Walker’s bills were automatically deducted from her bank account. There was no need for Ms. Walker to obtain large sums of cash. Justice Griffin observed that this evidence pointed to “concerted efforts by Mr. Poulain to try to get access to Ms. Walker’s funds at Scotiabank post-Marriage; repeated contact with [the lawyer]; approaching the Scotiabank; and approaching another bank”.
When the niece learned of the involvement of the second lawyer she informed the lawyer of her power of attorney and her suspicions of Mr. Poulain. Nevertheless, the lawyer “pressed on for a while” including preparing a new power of attorney appointing Mr. Poulain as Ms. Walker’s attorney. The authenticity of this document was also at issue since the niece claimed that she was with Ms. Walker until 4:00 p.m. on the date it was purportedly signed and she never mentioned an appointment with a lawyer. It was not until the PGT’s office communicated with the lawyer that he wrote a letter to Mr. Poulain concluding that he ought not to represent Mr. Poulain.
The day after the new power of attorney was purportedly signed, Ms. Walker had a fall in her condominium and was taken to the hospital. A note was found after Ms. Walker was in hospital in which Mr. Poulain had written “will you please go over to the bank and withdraw $40,000. . . it is really really important”.
Mr. Poulain claimed that he had no knowledge of Ms. Walker’s health condition and that he never observed anything out of the ordinary in her behaviour. He testified that even in September of 2010 when Ms. Walker was admitted to the hospital, she was fine, there was no change in her memory or other cognitive function from the time that he knew her.
The Court nevertheless found that the evidence showed a consistent campaign by Mr. Poulain to try to get access to Ms. Walker’s funds post-marriage:
I find it likely on the evidence that Mr. Poulain had long been fanning the fire of Ms. Walker’s anxiety and paranoia by suggesting that the plaintiff was unfairly restricting her access to her own money, and that the intensity of these efforts increased after the Marriage.
Justice Griffin also noted that Mr. Poulain “claims to have been trying to help Ms. Walker access her own money but his evidence is highly suspect. He suggested to Ms. Walker that she go to a lawyer to try to move her money from Scotiabank to another bank. He claims he did so because she was being exploited and oppressed and disrespected by the plaintiff. All of this is false: the plaintiff was not exploiting, oppressing or disrespecting Ms. Walker and there was no reason for Mr. Poulain to believe that she was doing so.”
Further, Her Honour concluded:
the whole of the evidence leads me to conclude that it is likely that Mr. Poulain manipulated Ms. Walker by suggesting that she could not trust her niece, the plaintiff, and that the plaintiff was stealing from her or trying to steal from her, thereby taking advantage of Ms. Walker’s vulnerable mind and inserting himself in her life as her ally. . .I have reluctantly concluded that Mr. Poulain was a dishonest witness who was motivated to overstate Ms. Walker’s mental abilities and to deny that she had any impairment so that he could try to support his actions in respect of the 2009 Will and in respect of their Marriage, and in order to justify his other actions such as trying to get her more access to her money held at Scotiabank, and to get her to move that money to another bank.
At the heart of the application was the question of whether Ms. Walker’s had the requisite decisional capacity to enter into the marriage and execute the Will at the relevant times. The niece brought the proceedings naming three beneficiaries under the 2009 Will. Of those beneficiaries, only Mr. Poulain defended the claim. The others did not contest the application.
Justice Griffin made a very thorough analysis of the evidence before her and ultimately concluded that Ms. Walker did not have the requisite decisional capacity to marry. As such, the marriage to Mr. Poulain was set aside and declared void ab initio. Her Honour also found that, based on the evidence, Ms. Walker did not have the requisite decisional capacity to execute a Will neither in 2009, nor even in 2007, leaving the question of Ms. Walker’s estate open for further inquiry.
Legal Capacity to Marry
Justice Griffin began her analysis by noting that the starting point is “the notion that a marriage is a contract. Similar to entering into any other type of contract, the contracting parties must possess the requisite legal capacity to enter the contract.” Referring to Hart v. Cooper,  B.C.J. No. 159 (B.C.S.C.) at paragraph 30, Justice Griffin confirmed that “a person is mentally 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.”
Relying on Wolfman-Stotland, 2011 BCCA 175, leave to appeal refused  SCCA No. 242, which in turn referred to Calvert (Litigation Guardian of) v. Calvert (1997), 32 O.R. (3d) 281 (Ont. Gen. Div.), aff’d (1998), 37 O.R. (3d) 221 (Ont. C.A.), leave to appeal ref’d  S.C.C.A. No. 161 (S.C.C.) Justice Griffin observed:
The authorities suggest that 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.
Pursuant to Ross-Scott v. Potvin, 2014 BCSC 435 at para 39, a lack of capacity to marry will render the marriage void ab initio.
Relying on the evidence presented at trial, Justice Griffin concluded:
 As of the date of the marriage ceremony, Ms. Walker was at a stage of her illness where she was highly vulnerable to others. She had no insight or understanding that she was impaired, did not recognize her reliance on Ms. Devore-Thompson [the niece] and Ms. Devore-Thompson’s assistance, and was not capable of weighing the implications of marriage to Mr. Poulain even at the emotional level.
 The fact that Ms. Walker told some people that she had married Floyd Poulain does not overcome all of the evidence as to her disordered thinking. This does not mean she had any understanding of what it means to be married.
 It is also clear that Ms. Walker’s mental capacity had diminished to such an extent that by 2010 she could not have formed an intention to live with Mr. Poulain, 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.
 Ms. Walker did not have a grip on the reality of her own existence and so could not grip the reality of a future lifetime with another person through marriage. I find on the whole of the evidence, given her state of dementia, Ms. Walker 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.
 I conclude that Ms. Walker did not have the capacity to enter the Marriage.
 Since I have concluded that Ms. Walker did not have the capacity to enter the Marriage, the Marriage is void ab initio. Because the Marriage is void ab initio, s. 15 of the Wills Act does not apply and, therefore, the Marriage does not revoke the prior wills.
With respect to the 2009 Will, the court concluded that the circumstances surrounding the document were suspicious and concluded based on the evidence presented that Ms. Walker did not have testamentary capacity at the time that the 2009 Will was purportedly signed.
The niece sought an order propounding the 2007 Will should she succeed on other issues. The original copy of the 2007 Will was unavailable. Forgoing the technical Probate Rules, Madam Justice Griffin found that here too, the practical and first issue to be decided was the question of whether the deceased had the requisite decisional capacity to make a Will. Relying on preceding evidence, it was concluded that on a balance of probabilities, Ms. Walker lacked the requisite decisional capacity to execute the 2007 Will. The Court declined to determine the future of Ms. Walker’s estate as it had not been asked to do so.
Whether a person has capacity to marry is often complicated and may perhaps be more complex than in this particular set of facts since this case is one where there was consistent, strong and compelling evidence from several credible witnesses. This is a strong precedent for all future claims where a party seeks to set aside a predatory marriage for want of the requisite decisional capacity to enter into the contract of marriage.
The age old test attributed to the requisite decisional capacity to marry being described as a “simple test,” simply no longer has any place in today’s society where marriage is anything but simple. This is particularly so with the highly complex property rights that now attach to marriage and moreover, the existence of very complicated family units-the consequences of which are legally vast.
This case is a reminder of the important role that lawyers play in protecting vulnerable older adults with diminished capacity, since in this instance the evidence indicated the lawyers perhaps failed to follow best practices. The testimony regarding the preparation of the 2009 Will, and the 2010 power of attorney suggested that no inquiries were made of the deceased’s capacity. Instead, notations made by a predator, with a vested interest in the changes to the Will, were accepted as instructions. This was neither probing, nor prudent.
There are many further developments that will assist in the remedy of the wrongs done by these unions including to mention but a few, in Ontario reforming the legislation making it such that marriage does not revoke a Will; by creative legislative reform which could prevent these marriages from taking place; by introducing legislated caveats to prevent the issuance of a marriage license and the solemnization of marriage in cases where capacity is lacking, which BC enjoys; and by making marriage commissioners more accountable. These marriages perpetrated under false pretenses rob our elderly of their dignity and their intended heirs of the gifts of their loved ones.
 Devore-Thompson v. Poulain, 2017 BCSC 1289, 28 E.T.R. (4th) 78 (“Devore”).
 2014 BCSC 435.
 Devore, para.4.
 Devore, paras. 255 & 329.
 Devore, para. 294.
 Devore, para. 303
 Devore, para. 328
 Devore, para. 252
 Devore, para. 253
 Devore, para. 262
 Devore, para. 248
 Devore, paras. 273-275
 Devore, para. 43
 Devore, para. 48