In my post last week, I wrote about Mr. Justice Cullity’s decision in Banton v. Banton, 1998 CanLII 1496 finding that two wills made by George Banton, one dated December 21, 1994 and the other dated May 4, 1995 were invalid. In both wills, Mr. Banton had left his estate to Muna Yassin, whom he met after he moved into a retirement home, disinheriting his five children, who were his beneficiaries under his previous will. He and Ms. Yassin were married on a few days before he made the December 21, 1994 will, when he was 88 years of age, and she, 31. Mr. Justice Cullity found that Mr. Banton was suffering from delusions about his children when he made the wills, and he did not have the requisite capacity to make them, and that Ms. Yassin exercised undue influence to obtain the benefit of the wills. Accordingly, she did not benefit under the wills.
But I indicated that there were some twists. Today I will write about one.
Under Ontario law, when Mr. Banton married Ms. Yassin, a marriage revoked a will unless the will was made in contemplation of the marriage. If the marriage was valid, then the effect of the marriage was to revoke Mr. Banton’s previous will leaving the residue of his estate to his children. Because Mr. Justice Cullity found that the wills he made after his marriage were invalid, then a significant portion of his estate would go to Ms. Yassin as his spouse pursuant to Ontario’s laws governing intestate heirs. On the other hand, if the marriage were not valid then Mr. Banton’s previous will leaving the residue of his estate to his five children would still be in effect.
Mr. Justice Cullity considered two issue in respect of the marriage. First, whether Mr. Banton consented to the marriage. Second, whether Mr. Banton’s had the mental capacity to marry.
With respect to the first issue, Mr. Justice Cullity found that Mr. Banton did consent to the marriage. He wrote:
 Marriage is, of course, a legal contract and, to some extent, it is governed by the laws applicable to contracts in general. I am satisfied, however, that it is not subject to the operation or application of the presumptions and principles which determine whether contracts may be avoided on the ground of undue influence. Fraud, of course, is another matter but the evidence in this case does not support such a finding. To that extent authorities such as Countess of Portsmouth v. Earl of Portsmouth (1828), 1 Hagg. Ecc. 355, 162 E.R. 611, are distinguishable.  A marriage can be set aside on the ground of duress or coercion of a degree sufficient to negative consent. Although I am in respectful agreement with Mendes da Costa J. in A.S. v. A.S. (1988), 1988 CanLII 4713 (ON SC), 15 R.F.L. (3d) 443 (U.F.C.) at pp. 453-6, that fear need not be proven, the evidence does not warrant a conclusion that there was duress in this case with respect to George Banton’s participation in the marriage.  In late September and early October 1994 George Banton had tried to resist Muna’s attempts to seduce him into marriage but, in November, he capitulated and consented to it. Although I have also found that marriage was part of Muna’s carefully planned and tenaciously implemented scheme to obtain control and, ultimately, the ownership of his property, as far as the marriage was concerned he was, at the end, a willing victim. Shortly thereafter he told Victor [one of Mr. Banton’s children] that he had wanted “one last fling”.
As noted above, Mr. Justice Cullity found that Mr. Banton did not have capacity to make a will a few days after the marriage. He also found after considering conflicting expert opinions that Mr. Banton did not have capacity to manage his financial affairs at the time of the marriage. But these findings of incapacity are not determinative of Mr. Banton’s capacity to marry. Legal capacity is transaction specific. Someone who might not be able to meet the legal criteria to make a valid will, may still have the capacity to enter into a marriage.
Mr. Justice Cullity found that Mr. Banton did have the ability to understand the nature of a marriage relationship and its obligations. He wrote:
 It is well established that an individual will not have capacity to marry unless he or she is capable of understanding the nature of the relationship and the obligations and responsibilities it involves. The burden of proof on this question is on those attacking the validity of the marriage and, in my judgment, it has not been discharged in this case. There is virtually nothing in the evidence to suggest that George Banton’s mental deterioration had progressed to the extent that he was no longer able to pass this not particularly rigorous test. The medical evidence indicates his acceptance of the marriage and even in the last months of his life when he was at Village Park, he spoke of his wish to return to his wife—albeit along with his then caregiver and companion, Ms. Yolanda Miranda.  The only matter that raises any doubt in my mind with respect to George Banton’s understanding of the responsibilities of marriage are the fact that he permitted Muna to return him to Lifestyles the day after the marriage, and that he remained there until the beginning of April 1995 when he moved to Muna’s apartment. I do not believe I would be justified in concluding from this that he did not appreciate that the duty to cohabit is inherent in the marriage relationship. I believe it is far more likely that he would have preferred to cohabit with Muna but that this was not part of her plan until the commencement of the guardianship proceedings made it desirable, from her point of view, that he be continuously under her control, and not accessible to his family. We do not know what reason Muna gave him for returning him to Lifestyles on December 18 but, as I have already indicated, I am satisfied that he was, by then, completely under her domination and quite incapable of insisting on his right to cohabit with her.  George Banton had been married twice before his marriage to Muna and I find that, despite his weakened mental condition, he had sufficient memory and understanding to continue to appreciate the nature and the responsibilities of the relationship to satisfy what I have described as the first requirement of the test of mental capacity to marry.
Mr. Justice Cullity rejected the argument that in order to have capacity to marry, Mr. Banton was also have the capacity to manage his finances. There is a distinction between the capacity to make financial decisions and the capacity to make personal decisions. The fact that someone no longer has the ability to make financial decisions does not preclude them from marrying if he is still capable of making personal decisions. Mr. Justice Cullity wrote:
 While I believe that it may well be the case that a person who is incapable both with respect to personal care and with respect to property may be incapable of contracting marriage, I do not believe that incapacity of the latter kind should, by itself, have this effect. Marriage does, of course, have an effect on property rights and obligations, but to treat the ability to manage property as essential to the relationship would. I believe, be to attribute inordinate weight to the proprietary aspects of marriage and would be unfortunate. Elderly married couples whose property is administered for them under a continuing power of attorney, or by a statutory guardian, may continue to live comfortably together. They may have capacity to make wills and give powers of attorney. I see no reason why this state of affairs should be confined to those who married before incapacity to manage property supervened.  George Banton was found by Dr. Chung to have capacity as far as personal care was concerned. Moreover, despite his physical problems, his weakened mental condition and his loss of memory, he was able to carry on more or less normal discourse on simple everyday matters. Strangers, like Carol Davis and Mr. Allen, who met him briefly did not notice anything abnormal about his mental state. On the basis of a one-hour examination Dr. Silberfeld concluded that he had capacity to manage his property. Obviously he was still capable of presenting a brave face to the world. The more thorough examination by Dr. Chung revealed what those close to him already knew: that his judgment was severely impaired and his contact with reality tenuous. Despite these problems, I have no doubt that, with care and attention and avoidance of stress, he was capable of coping with the more mundane problems of everyday living and I do not see why the right to marry should be withheld from persons in his position.
Accordingly, the marriage was valid, and Ms. Yassin was entitled to a large share of Mr. Banton’s estate under Ontario law governing the disposition of an estate when someone dies without a will.
But there is still more to this story. To be continued. . .