Properly Plan or Possibly Suffer the Fate of the Banton Family

Taking the initiative to properly plan your affairs will reduce the likelihood that you or your loved ones will suffer the fate of the Banton family. If you doubt the importance of proper planning and taking appropriate measures to protect yourself and your family, consider the following reported case.

George Banton was frail, incontinent, hearing impaired and unable to walk. He was vulnerable and Muna Yassin, a waitress in the restaurant located in Mr. Banton’s nursing home, took advantage of him and his family.

How were Mr. Banton’s five children disinherited? Very simply, 31 year old Muna seduced 88 year old George into marrying her.

Muna didn’t stop at marriage, however. She coerced George into making two new wills, which left his entire estate to her. Muna gave instructions to the lawyer who prepared George’s new wills. Muna took George to his bank to withdraw significant sums of money. When the bank refused to allow George to withdraw funds, Muna was persistent in her demands that George be allowed to withdraw his money. Muna was so persistent that the bank representative wrote to the Public Guardian and Trustee indicating that George’s assets would fall into “malicious” hands if a statutory guardian wasn’t appointed.

The Public Guardian and Trustee commenced proceedings to be appointed George’s statutory guardian of property but George died before that proceeding was completed.

After George’s death, Muna and George’s children battled in Court over George’s assets. Of the many issues to be decided, the significant issues included the validity of George’s new Wills and the validity of George’s marriage to Muna.

In the end, Muna won. She took the bulk of George’s Estate when George passed away. The question that remains is how could this happen?

George’s children alleged their father did not have the required mental capacity to make a valid Will. They also attacked the Wills, alleging that Muna coerced George into making the Wills.

George’s children succeeded in attacking the Wills. The Court found that George lacked the required mental capacity to execute either Will. Justice Cullity also found that Muna forced George to execute the Wills, such that the Wills were not an expression of George’s wishes; they were an expression of Muna’s wishes.

The matter didn’t end there, however. If George’s marriage was valid, George’s previous Wills would be revoked by virtue of section 16 of the Succession Law Reform Act. Given the invalidity of the Wills executed after the marriage, section 16 would result in George dying without a valid Will at all. So what then?

By way of background, sections 45 and 46 of Ontario’s Succession Law Reform Act dictates that in circumstances where a person dies without a valid Will and is survived by a spouse and children, the surviving spouse gets the first $200,000.00 of the Estate of his or her deceased spouse and one-third of the assets in excess thereof. Accordingly, in Banton, the Act would result in Muna getting the bulk of the Estate if the marriage was valid.

The Court struggled with this issue. Did George marry voluntarily? Did George consent to marry? Did George have the mental capacity to marry?

The Court noted that a marriage can be set aside on the grounds of duress or coercion of a degree sufficient to negative consent. Having found that George was coerced into executing two Wills, couldn’t His Honour have simply found that Muna forced George to marry her?

While the inference that Muna forced George to marry her seems to be an easy one following the finding of coercion with respect to the two Wills, it wasn’t so easy according to Justice Cullity’s view of the evidence.

When George’s son asked him why he married Muna, the Court was told that George replied, “I wanted one last fling.” Libido aside, Justice Cullity was presented with other independent evidence. Yolanda, George’s care-giver at the nursing home, testified that even after George’s marriage and after George was returned to his nursing home from Muna’s apartment, George spoke of his wish to return to his wife. Additionally, other independent medical evidence apparently confirmed George’s acceptance of his marriage.

But what does the Court mean when it found that George consented to the marriage? George may have accepted the marriage, but did he understand the marital relationship and all it entails at the time he married Muna?

The Court stated that one must understand the nature of the relationship of marriage and the obligations and responsibilities marriage involves before one can be said to have the capacity to marry.

For whatever reason, neither Muna nor George’s children presented any expert medical evidence to the Court regarding George’s capacity to make a Will or marry. Instead, Justice Cullity was left to decide the issues with evidence relation to George’s capacity to manage property.

His Honour heard from one expert who opined that George was capable of managing both his property and person. Cullity J. also listened to another expert who found that George lacked the ability to manage his financial affairs, but that George could understand information relevant to making decisions concerning his health, nutrition and safety as well as the consequences of not making a decision.

After hearing the evidence, Justice Cullity found that George was not capable of managing his property. However, Justice Cullity found that being incapable of managing property does not mean that one cannot have the capacity to marry.

In the end, Justice Cullity had no doubt that George was capable of coping with the mundane problems of everyday living and he did not feel that the right to marry should be withheld from persons in this position. As a result, the Court found that George had the capacity to marry Muna and consequently, Muna got the preferential share of $200,000.00 and one-third of any assets in excess thereof.

Do not let this happen to you or your family. Please,

  • make a VALID WILL, with assistance from a competent lawyer;
  • make POWERS OF ATTORNEY FOR PERSONAL CARE AND FOR PROPERTY;
  • appoint ONLY someone you trust as your Estate Trustee and Attorney;
  • consider a professional Estate Trustee and a professional Attorney (i.e. lawyer, accountant or trust company);
  • allow your Attorney to manage your financial affairs before you
    become the least bit vulnerable and put in place appropriate safeguards;
  • If you don’t think it can happen to you, THINK AGAIN.

Family Law

general Information & Procedure

Child Support

Spousal Support

Property

Enforcement of Support

Variation of Support

Cohabitation Marriage and/or Separation Agreements

Family Law Legislation and Links

Estates

general Information & Procedure

Trustee Duties & Trustee Compensation

Estate Litigation

Estate Planning, Administration and Litigation Links