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Charming love story, or predatory marriage?

Last week’s episode of the radio show This American Life features a love story that might strike those of us in the estates litigation field as particularly remarkable. For those not familiar, This American Life is a weekly American public radio show, which each week features stories centered on a particular theme. Episode 572, titled “Transformers” contains vignettes about those who have tackled big fears or undergone remarkable transformations of one sort or another. The particular story I am referring to, Act 1 of the episode, is about a couple who meet and fall in love in a nursing home.

He is 62, blind, and has lost a leg. She is twenty-eight years his senior, hard of hearing, and in a wheelchair. The story is developed largely through an interview with the elderly lady’s grandson, who describes what an astonishing personality change this relationship represents for his grandmother. After she and her husband separated over thirty years ago, she basically swore off men. Now, suddenly, one year after her move into a nursing home, she is planning to marry a man she first met in the hallway a few months earlier. Her family described this change as so abrupt it was “like she’s been inhabited by an alien.” They worried she had confused her medications and was experiencing some kind of adverse effect.

Dramatic late in life changes in personality, coupled with sudden marriage plans, ring alarm bells. Loss of capacity and even predatory marriage come to mind. In Ontario, marriage revokes a Will, and the legal requirements for capacity to marry are much less onerous than those for testamentary capacity, with the result that elderly people can end up in a situation in which they are unduly influenced to marry, and the new spouse then has automatic entitlement to their assets on the resulting intestacy. (For an interesting discussion of the difficulties resulting from this legal landscape, and the apparent inconsistency of someone having capacity to enter a marriage that entirely alters their testamentary plan, while being simultaneously incapable of altering that testamentary plan themselves, see Kimberley Whaley and Ameena Sultan’s Paper, “Capacity and the Estate Lawyer”.1)

The good news is, because this is a feel-good radio show and not a client consultation, it becomes clear as the episode unfolds that there is nothing sinister going on. Both lovebirds are interviewed and recorded talking about the development of their relationship and their feelings for one another. Both give the impression of capable, consenting, and love-struck adults. (This does not mean, of course, that there aren’t testamentary planning concerns arising from the marriage: both should consider their estate plans and update their Wills.)

At the end of the episode, I was left thinking what a wonderful record this interview provided for anyone who might subsequently, or even contemporaneously, have concerns about the sincerity or validity of either person’s motivations for marriage. Not everyone would want to have the history of their courtship recorded and aired on public radio. But, in the same way that some practitioners videotape clients’ instructions with respect to the drafting of their Will, at least when there are concerns that their testamentary capacity may be challenged later, perhaps we should consider videotaping the nursing home courtship?

I’m joking, of course. But it is nice to see the family of this elderly lady so involved in her life at the nursing home, and actively investigating the source of her sudden desire to marry. And it’s nice to listen to a happy story that, although it might initially resemble an estates litigation scenario, appears at the moment to be far from it.

1. Estates, Trusts & Pensions Journal, Volume 32.3 (May 2013) at 215.


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