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The Law Commission’s consultation in which it has sought views on whether marriage should continue to revoke a will in light of concerns regarding predatory marriages, closed on 8 December 2023.
A predatory marriage involves a vulnerable person who generally suffers from mental capacity issues, being targeted and persuaded to marry someone who is seeking to exploit them financially. Under the law as it stands, marriage revokes previous wills and the intestacy rules mean “the predator” as a spouse will usually go on to receive the majority of the vulnerable person’s estate when they die. They are also entitled to deal with the funeral arrangements, sometimes leading to the family being excluded.
It is unusual for solicitors dealing with estate disputes to encounter circumstances where serious wrongdoing has occurred, yet there is no adequate legal remedy available.
It is a complex issue, particularly given that many people suffer from conditions which cause their capacity to fluctuate such that they may have capacity one day, but not the next. People may also be vulnerable to coercion but not meet the threshold to be considered to lack capacity. There is protection in place for people who are coerced into giving away assets during their lifetime or if they are unduly influenced when making a will, but not for predatory marriages.
Can’t the marriage be invalidated if the vulnerable person did not have capacity?
Section 12(1)(c) of the Matrimonial Causes Act 1973 confirms that if a marriage has been entered into when someone lacked capacity to marry it is voidable rather than void from the outset. This means that the marriage would be cancelled from the point that it is declared to be void. By that stage the will has already been revoked and if the vulnerable person has died, the predator will still be entitled to inherit the estate.
Can’t the vulnerable person simply make a new will if they don’t want the predator to benefit?
A lot of people are not aware that marriage revokes a will, and so may not be aware of the need to consider making a new will. The test for capacity to marry is also different to the test for capacity to make a will, so someone may be considered to have sufficient capacity to marry, but not be able to make a new will due to lack of capacity. A statutory will could be made for someone who lacks capacity, but the fact of the predatory marriage is often kept hidden from the family until after the vulnerable person has died.
Can’t the family of the deceased bring a claim under the Inheritance (Provision for Family and Dependants Act) 1975 (“the Inheritance Act”)?
While children of the deceased can bring a claim against the estate if adequate provision has not been made for them under a will, such claims are unlikely to be successful unless they were financially dependent on the parent or are otherwise unable to support themselves.
So should the law change?
There are differing views amongst the legal profession about whether the law should change or not and for good reason. There is significant concern that the remedy could cause more issues than it resolves. The majority of marriages are not predatory, and if marriage does not revoke previous wills, this could lead to loving spouses being left out of their loved one’s estates, and being forced to bring a claim under the Inheritance Act following their passing.
However, we come across these cases more often than people may think, and consequently this is not a theoretical exercise. It is not right that someone can cynically take advantage of a person at their most vulnerable point, and be financially rewarded for their efforts.
One option proposed by the Law Commission is where someone does not have testamentary capacity at the time they marry, and are unlikely to recover capacity, then the marriage would not revoke an earlier will. This does not address the issue of a predator inheriting where there is no previous will, but that problem could be at least partially resolved if the law is changed so that a marriage is declared void from the outset if someone is later found not to have had capacity to marry.
Either of these changes to the law would require the family to prove that their loved one lacked capacity after the event, but that is already the case in many will validity challenges, and it would at least provide an imperfect remedy, where currently there is none.
further information
If you have any questions or concerns about the topics raised in this blog, please contact Anna Metadjer.
about the author
Anna Metadjer has extensive litigation experience, acting for both domestic and international clients on complex, multi-jurisdictional, trust and estate disputes. Anna acts for clients bringing and defending claims relating to estates, including disputes regarding the validity of wills, estate administration, and claims under the Inheritance (Provision for Family and Dependants) Act 1975. She regularly advises beneficiaries and trustees regarding allegations of breach of trust, disclosure requests, and the removal of trustees.
We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
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