This summer, the British Columbia Supreme Court issued its decision in Devore-Thompson v. Poulain, 2017 BCSC 1289 which deals with a woman’s capacity to marry.
The facts are that in 2005 Donna Walker was diagnosed with probable Alzheimer’s disease. The diagnosis was later confirmed. Ms. Walker died on December 26, 2013 at the age of 74. Ms. Walker’s niece challenged the validity of both Ms. Walker’s June 14, 2010 marriage to Floyd Poulain and a Will Ms. Walker executed on July 2, 2009 on the grounds that Ms. Walker did not have sufficient capacity to enter into the marriage or execute the Will.
We often deal with questions concerning capacity when talking about Wills and Powers of Attorney, but one must also have capacity in order to enter into a marriage. The threshold to be able to marry is low – often said to be one of the lowest thresholds.
In the case of Hart v. Cooper,  B.C.J. No. 159 (B.C.S.C.) (para. 30), Lowry J. described the requirement for marriage as follows,
“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.”
If there is a lack of capacity to marry, then it renders the marriage void ab initio, which means it is invalid from the outset.
Courts have said that the capacity to enter into a marriage is equivalent to the capacity to form an intention to live separate and apart, which was discussed in the British Columbia Court of Appeal case of Wolfman-Stotland v. Stotland, 2011 BCCA 175. In Wolfman-Stotland, supra, the Court stated that the capacity requires “the lowest level of understanding” in the hierarchy of legal capacities.
In the Devore-Thompson v. Poulain case, there were no friends or family invited to the marriage ceremony. There were no independent witnesses to describe how Ms. Walker acted at the ceremony. The marriage commissioner could not remember the ceremony. The Court found that at the date of the marriage ceremony, Ms. Walker was at a stage of her illness where she was highly vulnerable to others. She did not have insight or understanding that she was impaired, did not recognize her reliance on others, and was not capable of weighing the implications of marriage. The Court found that Ms. Walker’s mental capacity had diminished to such an extent that by 2010 she was unable to be able to form an intention to live with Mr. Poulain or to form a lifetime bond.
The Court summarized as follows:
“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.”
Ultimately, the Court concluded that Ms. Walker did not have the capacity to enter into the marriage, which meant that the marriage was void ab initio. The implication is that the marriage therefore did not revoke any prior wills; however, the Court also found that Ms. Walker didn’t have the capacity to make her 2009 Will.
Cynthia A. Taylor
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