An issue that is causing increasing concern among those seeking to protect the vulnerable is that of ‘predatory’ marriages or romantic relationships. An individual lacking mental capacity, such as an elderly person suffering from dementia, may be at risk of exploitation by a potential partner whose intention is to obtain control of that individual’s assets on death, to the detriment of the individual’s family or others named in their will.
Under the Wills Act 1837, the general rule is that, unless the will is made in contemplation of marriage, entering into a marriage revokes any existing wills made by either party. This rule is not widely understood and leaves vulnerable individuals who have left assets in their wills open to exploitation by ‘predatory’ suitors.
On marriage, the will is revoked and the individual’s assets will then pass under the intestacy rules, with the majority or all of their assets then falling under the control of the predatory suitor. This will occur irrespective of the wishes of the individual’s family, who may not even find out that the marriage has taken place until it is too late.
The risk to vulnerable individuals is exacerbated by the level of mental capacity required to enter into a marriage being lower than that required to make a will. Recent case law has indicated that vulnerable individuals should not be denied the right to marry purely as a result of their lack of mental capacity. In the case of (Re DMM), it was held that the understanding that marriage revokes a will is “information a person should be able to understand, retain use and weigh to have capacity to marry”; a relatively low bar.
However, the mental capacity of individuals is not routinely checked by marriage registrars, resulting in many marriages being allowed to proceed where a party has insufficient mental capacity. In addition, even if the marriage is declared voidable on the basis of a party’s lack of mental capacity, a voidable marriage still revokes a will.
How the risk can be mitigated
We have recently seen an increase in predatory marriage cases and have experienced first-hand the damage that can be done to an individual and their wider family.
We have seen cases where family members of a deceased individual have only found out post-death that their vulnerable relative had married a predatory suitor in secret, hence revoking their will.
The sad fact is, in this situation, there are not many options open to the family to pursue. It may be possible for a close family member, such as a spouse, or someone who had been financially dependent on the deceased, to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. However, this can be a long, drawn-out and expensive process with no guarantee of success.
Where the predatory marriage is discovered during the vulnerable individual’s lifetime, the family has a better chance of averting the potential damage. In this situation, it is important that the vulnerable individual has a new will drafted, ensuring that their wishes as included in the previous will are again included in a valid will.
If the individual’s mental capacity has dropped below the level required to make a will, it may be possible to apply to the court for a statutory will, i.e. creating a will on behalf of someone who lacks mental capacity to make one themselves. In addition, an application may need to be made to the Court of Protection for a Deputy to be appointed to manage the individual’s financial affairs.
We have also received enquiries from families who are concerned about vulnerable relatives and are looking to gain some pre-emptive protection against a potential predatory marriage. In this case, it would be possible, under s29(1) of the Marriage Act 1949, to enter a caveat at a Registry Office. This would have the effect of preventing the superintendent registrar issuing a marriage certificate until the subject matter of the caveat, namely the vulnerability of the individual, has been examined. However, this would provide no protection against a marriage entered into outside the UK.
Another important protection against a predatory marriage is to ensure the vulnerable individual’s will is kept under review and, when any marriage is planned, it is redrafted to be “in contemplation of marriage”. In this case, marriage will not revoke the will. However, this would not offer protection in the situation described above, where the marriage occurs in secret, as specific details of the spouse need to be included in the will.
Calls for change in the law
The issues surrounding predatory marriage, and its potentially devastating impact on families, have been gaining increasing attention among lawmakers and, as the population ages, these issues will become crucial to address.
Calls for reform of the law in this area have been led by Fabian Hamilton, Labour MP for Leeds North East, who raised a private members’ bill known as the Marriage and Civil partnership (Consent) Bill. The aim of this bill was to “require the person registering a marriage or civil partnership to attest the valid consent of both parties to the marriage or civil partnership before it is solemnized; and for connected purposes.”
The proposals included a proposed change in the law so marriage no longer revokes a will in every case; to include better training for registrars on mental capacity issues; and to provide for the publication of notices of intention of marriage on the internet. The bill received its first reading in November 2018, but did not go any further.
Charities representing vulnerable individuals, together with families who have fallen victim to predatory suitors, continue to campaign for changes in the law. Yet, it remains to be seen whether any reforms will be made.
Generally speaking, awareness needs to be raised about this subject, not only throughout the profession, but also among the general public. Organisations such as Solicitors for the Elderly and the Society of Trust and Estate Practitioners are alert to this matter, and slowly but surely, it is gaining vital attention in the national press.
Matthew Duncan and Helen Freely are partners at Druces LLP. James Flanagan is a solicitor at Druces LLP. druces.com...