Wednesday, December 9th, 2020
With an ever-aging population come new challenges and concerns. How do we best help manage our elderly relatives’ financial affairs if they are struggling to do so themselves; how do we ensure they receive the best and most appropriate care possible if they are struggling at home; how do we protect them from harm or scams to which they may be vulnerable, especially when many of them experience loneliness and are desperate for company? The list is endless, and the worry never really ceases. And added to that list is now the concept of a “predatory marriage” – which is actually quite as frightening and alarming as it sounds.
Predatory marriage is where a (usually younger) person befriends and earns the trust of an older, vulnerable person, and develops a relationship with them. This then culminates in a marriage, into which the elderly person has entered by intimidation and coercion. By consequence, the “predator” can become the sole or main inheritor of the vulnerable person’s estate.
How does this happen? It is, in a way, a peculiar contradictory quirk of the law that is exposed when marriage and wills are considered together.
The relevant law around making wills has been developed over quite literally hundreds of years. A good starting point is perhaps The Wills Act of 1837, which provides what is required for a formally valid will. This has then expanded and evolved with case law, all of which have given useful guidance and interpretations of the statutory law. Most notably is the case of Banks v Goodfellow (1870), which remains a reliable precedent, and which developed the three elements that must be satisfied in order to have capacity to make a will: sound mind, sound memory and sound understanding. Case law has also explored what counts as revocation, or partial revocation, or even conditional revocation.
These are questions that have been probed, analysed, and applied to thousands of circumstances. As a result, many factors must be borne in mind when making and revoking wills, otherwise the will could fail or be successfully challenged.
Notwithstanding the above, however, many may not be aware that by entering into a marriage, any previous wills are automatically revoked courtesy of section 18 of The Wills Act 1837, save those circumstances where the will was made at a time when the testator was expecting to enter into such a marriage. This is regardless of the fact that the threshold that must be met in order to get married is arguably not necessarily akin or the same as the threshold that must be met in order to have the legal mental capacity to make or change a will. (Let us not forget ‘the golden rule’, whereby if there is any doubt as to the testator’s capacity to make a will, solicitors are generally expected to obtain a capacity report from a medical professional before proceeding with the will. The same does not appear to be the case for marriage registrars.)
Alas, the law appears to falter further. The Matrimonial Causes Act 1973 provides that where, for example, at least one party is underage or the parties are too closely related, the marriage is void. However, where a party to the marriage lacked mental capacity, the marriage is voidable (section 12 (c) of the 1973 Act). This has two further consequences: firstly, an application will need to be made to the Court, a likely daunting, lengthy and expensive task, and, even if the court grants the application, the nullity of the marriage is prospective, not retrospective (section 16 of the 1973 Act).
What does that mean?
Whilst the predatory marriage may be voided, it does not change the fact that the marriage took place and existed until the point the court grants a decree of nullity. Therefore, the automatic revocation caused by that marriage of any previous wills stands.
The concerns regarding predatory marriage were raised in parliament last November by Fabian Hamilton, the Labour MP of Leeds North East, after learning the story of his constituent, Daphne Franks and her mother Joan Blass. It was reportedly not until after her 91 year old mother died that Mrs Franks discovered her mother had married a gentleman more than twenty years her junior, even though she had advanced vascular dementia. According to an article in the Yorkshire Post in November 2018, Mrs Franks had voiced concerns about her mother’s situation, but had been reassured that a person must have the requisite capacity to enter into a marriage. Notwithstanding this, Mrs Franks reportedly said she later discovered that her mother had apparently been unable to give her address or date of birth at the ceremony, but that the ceremony still went ahead.
The marriage revoked the late Mrs Blass’ will, the beneficiaries of which had apparently been her two daughters.
Shocked and concerned by his constituent’s story of a predatory marriage and its consequences, this led Fabian Hamilton MP to put forward the Marriage and Civil Partnership (Consent) Bill 2017-19, which proposed to make several changes to the current law. For example, that prior wills should no longer be revoked by marriage; that marriage registrars should be provided with extra training so as to be able to quickly recognise when a party to the marriage may be a vulnerable person; that registrars should be provided with detailed marriage questionnaires which could warn registrars that a capacity assessment may be appropriate; and an overhaul of the public notices required for marriage to make it easier for family members to intervene.
At the time of writing, the UK parliament website states that the Bill failed to complete its passage through Parliament before the end of session, which means it will not be making any further progress (https://services.parliament.uk/bills/2017-19/marriageandcivilpartnershipconsent.html).
For now, Section 18 of the Wills Act 1837 continues to prevail and only time will tell if the mood in parliament will change, and if action will be taken to close this loophole which allows vulnerable people and their families to, unfortunately, fall victim to predatory marriage.
Amaya Huntly is a Solicitor in Hanne & Co’s Private Client department.