After five children, George lost his first wife in 1971 and his second in 1994. Thankfully, rich, distraught, old George had 31 year old waitress Yassin to listen to his concerns every morning at the restaurant.
Naturally 31 year old Yassin, fell in love with 90 year old George, moved him into her apartment, married him, changed his will, got power of attorney over him and waited for him to die, which George did in 1996.
The children tried to deal with the estate, but along comes Yassin with her will and her power of attorney. “It is all mine!” she says. Jackpot!
No! says Cullity J. of the Ontario Superior Court, (Banton v Banton) it’s not good enough for Yassim to trot out a ‘doctor’s opinion’ that says George was ‘competent‘ when he changed his will to give everything to Yassim. A bald statement of ‘competent’ from a Yassim doctor, does not satisfy the proof required that George understood the moral consequences of cutting his children out of the will.
Cullity J describes her as: ‘a very unimpressive and unsatisfactory witness…intelligent in a worldly sense and calculating’ (para 65).
Naturally, Yassim tried to use s.21 of the Family Law Act to void the sale of George’s previous matrimonial home, since she was now the ‘wife’.
What was really going on was Yassim trying to increase the George estate, by the inclusion of the (sold) matrimonial home. Because George’s earlier wife had not consented to the sale, the sale should be void according to s.21 (1) of the Family Law Act. This was the sharp legal corner which Cullity J. had to negotiate. The judge had to determine that the transaction was not in accordance with s.21 of the Family Law Act, and the same time avoid the absurdity of the new wife, a stranger to the second marriage, stepping into the shoes of the second wife and benefiting from a legal provision meant only for the second wife.
Cullity J. (para 143) had to traverse a sharp legal angle here in finding a previous sale by George’s sons to be ‘voidable’ but not void.
Being voidable means that the proper party (the second wife) might ask the court to void the transaction. Being strictly void however, destroys the transaction even if a total stranger to the transactions asserts voidance.
Cullity J. allowed the sale by the sons to survive because Yassim had no standing to attack it.
However, because the sons were more concerned with maintaining George’s assets and Culitty J. determined that ‘re-investing’ proceeds was beyond the terms of the power of attorney that had been given to the sons, the sons had to put the invested monies back into the original sale proceeds account. That is, back into the estate.
Long story short: all the assets went into the estate. George was declared to have died intestate which meant that Yassim, as the ‘wife’, still got at least half, under the Succession Law Reform Act (s.45)
