In December 2023, the Law Commission entered into a consultation to consider whether marriage should continue to revoke a Will in light of concerns regarding predatory marriages.
A predatory marriage is a form of financial abuse where a person (the predator) intentionally enters into a marriage with someone who is elderly and or lacks the mental capacity to exploit the vulnerable person financially, with the view of inheriting their estate upon the vulnerable person’s death.
Unfortunately, current provisions relating to marriage arguably appear to facilitate the predator’s intentions against society’s most vulnerable.
In the majority of cases, a person’s Will is no longer considered to be valid if that person has entered into a marriage or a civil partnership after the date on which their Will was signed.
This means that for most vulnerable people, in the absence of a new Will, the predatory spouse or civil partner will stand to inherit most of the estate, if that vulnerable person dies without a Will. The effect of this can be devastating, both emotionally and financially, for close loved ones.
The exception to this rule is potentially when a Will is expressly made ‘in contemplation of the marriage’ (or a civil partnership) with the specific individual they are entering into the marriage or civil partnership with.
At the moment, the test for whether a person has the necessary mental capacity to marry is lower than the mental capacity threshold to make a Will. This means that a person could be considered to have sufficient capacity to marry but may lack sufficient capacity to make a new Will.
Another issue is that predatory marriages are often kept concealed from the vulnerable person’s family, until after the vulnerable person has passed away. This currently leaves the family no option but to consider making a claim under the Inheritance (Provision for Family and Dependants) Act 1975, which may not necessarily be successful.
This is not as straight forward as it may seem. The Inheritance (Provision for Family and Dependants) Act 1975 only allows certain people to apply to the court. Permitted persons can, on the ground that either the deceased’s Will or the application of the intestacy rules does not provide reasonable financial provision from the deceased’s estate. However, the Inheritance (Provision for Family and Dependants) Act 1975 does not apply to everyone and, unless the application is made by a spouse or civil partner, it will be necessary to establish a financial maintenance need.
One proposal made to the Law Commission is that, in the event that a person does not have capacity when they marry, and they are unlikely to recover capacity throughout the duration of the marriage, then the marriage would not revoke any valid Will previously made by the now vulnerable person.
Unfortunately, this does not address a situation where the vulnerable person enters into a marriage with a predator and they do not already have a valid Will prior to the existence of the marriage. Another issue with this point is that, in some cases, a person’s capacity may fluctuate. As such, it may be difficult, if not impossible, to determine completely whether a person had the capacity to enter into the marriage at the time.
One of the reasons against proceeding with the concept that a marriage should not revoke a Will, and why this concept has not been adopted by the Law Commission to date, is due to the outdated notion that all families are the same. If the act of marriage did not revoke a Will, in some instances, this would effectively disadvantage second families, who risk not being left any financial provision within the deceased’s estate. In turn, this would arguably leave them no option but to make a legal claim under the Inheritance (Provision for Family and Dependants) Act 1975, should the relevant criteria apply.
Whilst there is still a lot for the Law Commission to consider, it’s clear that a reform is necessary to help protect the most vulnerable and their loved ones from the world’s financial predators.
If you are concerned about the mental capacity of a loved one entering into a Will or marriage, seek legal advice as soon as possible. Our contentious probate team are on hand to address any concerns and answer your questions. Get in touch with them today.
