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Law Commission consults on whether predatory marriage should revoke a will

A recent consultation by the Law Commission has sought views on whether a will should be revoked in the case of a predatory marriage. The consultation closed on 8 December 2023 and a report is expected by the end of 2024.

predatory-marriage

Laura Cowan

Under current law, a will is revoked when a person marries, so any bequests made prior to the marriage are no longer valid.  This is of particular concern when a marriage is classed as predatory.

A predatory marriage is when a vulnerable person suffering from issues relating to their mental capacity is persuaded to marry someone (the predator) or enter into a civil partnership with someone who has an intention to exploit them financially.

The Law Commission says that the number of predatory marriages is rising, possibly due to an ageing population and an increase in dementia and, that whilst the public may not be fully aware of the rule that marriage revokes a will, knowledge of it by potential predators may also be one of the reasons for the rise.

If a vulnerable person marries, their existing will is revoked, and if they don’t make a new will, the spouse or civil partner will automatically be entitled to a large amount of that person’s estate when they die under the intestacy laws.  The surviving spouse or civil partner will automatically inherit the first £322,000 of the deceased’s estate plus half of everything above that amount and their personal possessions.  If there are no surviving children, grandchildren or great grandchildren, the spouse or civil partner will inherit the whole estate.

Anything that is in a joint account will pass automatically to the surviving spouse or civil partner and they may automatically inherit any property owned jointly – depending on how it is held.  The surviving spouse or civil partner is also entitled to make funeral arrangements for the deceased – and this can often cause issues with other family members. Providing the vulnerable person has capacity to do so, they could also be persuaded to write a new will making the spouse or civil partner the beneficiary of their estate.

The law relating to wills is mainly governed by Victorian law – the Wills Act 1837, supplemented by case law.  The Law Commission originally commissioned a review into wills in 2017, but the increase in predatory marriage has led to it commissioning a supplementary review to consider whether the general rule that marriage revokes a will should remain in relation to predatory marriages.

There are opposing views to changing the law relating to wills and marriage.  On the one hand, doing so could protect previous beneficiaries, including children from previous relationships, such as would have been the case for Daphne Frankes, founder of  Predatory Marriage UK. When her 91-year-old mother died, Daphne discovered that she had married a much younger man in secret.  Daphne’s mother had dementia and terminal cancer and she did not even know she was married.  However, on the other hand, keeping the rule protects the surviving spouse and, of course, the majority of marriages are not predatory.

The issue is complex, and the Commission was originally of the view that it could be possible for testators to be able to opt out of the rule – perhaps by stating in their will that they do not wish it to be revoked by a subsequent marriage – but the Commission has since changed its view and the supplementary review looks more closely at this issue.

In a recent survey of 895 member legal firms by the Law Society, 42% said the law should change to stop marriage or civil partnership revoking a will, and 42% said they thought that it should not.  Twenty percent of solicitors said they had clients who they suspected had entered into a marriage in which the other party would subject them to financial abuse and at least 10% said they had clients who they suspected had married without the mental capacity to do so.

Laura Cowan, head of Graysons’ private client department said:

“This is a troubling issue, and I am pleased that the Law Commission is investigating further.  At present, there is very little that can be done when someone dies who has been subject to a predatory marriage. It will be interesting to hear what the Law Commission’s final recommendations are.  In the meantime, if you are looking after the interests of someone who is elderly, vulnerable or who has lost capacity and who you believe has entered into a suspicious marriage, you may be able to involve the Court of Protection to have the marriage declared void (the effect of a void marriage is that it never legally existed so the will would not have been revoked).   Furthermore, it may be possible to make a new will through the Court of Protection or you may be able to enter a caveat against a marriage with a relevant superintendent registrar if you have concerns about a vulnerable family member. Finally, if a family member has died and you feel that you have been unfairly excluded from an inheritance a claim under the Inheritance (Provision for Family and Dependants) Act 1975may be possible.”

If you need advice regarding a will, contact our experts now. They have many years’ experience in a wide range of situations and will be able to offer guidance and advice.

Author: Laura Cowan, head of Graysons’ private client team.

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