The Law
Section 18(1) of the Wills Act 1837 provides that marriage automatically revokes any pre-existing will, unless the will was made specifically in contemplation of the marriage. Marriage can therefore fundamentally change the entitlements to an estate after death. Concerns may therefore arise since the bar for mental capacity to enter into a marriage is much lower than that required to make a will. This disparity exposes elderly or impaired people to the risk of exploitation via predatory marriage for financial gain.
A predatory marriage occurs when a vulnerable party has been enticed, coerced or manipulated into the marriage by a party who stands to gain financially through exploitation. Such marriages are typically associated with people who suffer from mental illness or cognitive impairment, such as dementia. As the proportion of elderly people increases within the population and dementia becomes an increasing societal challenge, it is important that the law keeps abreast of these changes.
When a marriage revokes a will, unless the individual in question makes a further will, the rules of intestacy will dictate how assets are to be distributed. In a predatory marriage the deceased’s intended prior beneficiaries may have been the victim’s children, but as a consequence of the invalidated will, these close family members may be bypassed in favour of the predatory spouse.
The level of mental capacity required to make a will is markedly higher than the capacity required to marry. In Sheffield City Council v E and another [2004] EWHC 2808 (Fam) it was held that the contract of marriage was a simple one, which did not require a high degree of intelligence to understand. In comparison, the recent case of Baker v Hewston [2023] EWHC 1145 (Ch) suggests both the test established in Banks v Goodfellow [1870] LR 5 QB 549 and the test under the Mental Capacity Act 2005 should be considered when assessing the level of mental capacity required to make a will. The latter test provides that a person is unable to make a decision for themselves if they are unable to understand information relevant to the decision, to retain that information, to use or weigh up that information when making a decision or to communicate their decision. Similarly, the Banks v Goodfellow test requires the individual:
- To understand the nature of making a will and its effects;
- To understand the extent of the property of which they are disposing;
- To be able to comprehend and appreciate the claims to which they ought to give effect.
Banks v Goodfellow further provides that the individual concerned should have no disorder of the mind that “poisons” their affections, perverts their sense of right or prevents the exercise of their natural faculties.
Examples of predatory marriage
A troublesome and well-known example of predatory matrimony is that of Joan Blass. Joan was 91 years old when she met 67-year-old Colman Folan, in the same year as her dementia diagnosis. It was only after Joan’s death in 2016 that her family learned she had secretly married Colman in 2015. Joan’s will, dated 2004, had bequeathed her entire estate to her children. The marriage invalidated that will and her estate was distributed under the rules of intestacy to her new husband. Her family was told Joan did not have capacity to make a new will, yet the Registrar had allowed the marriage to take place. This was despite the fact that, at the relevant time, she had not been able to remember her own name. This case calls into question whether sufficient weight is given to the requirements of the Mental Capacity Act 2005. If Joan had indeed been unable to remember her own name, was she genuinely able to ‘understand, retain, use and weigh information as to the reasonably foreseeable consequences of a marriage, including that the marriage would automatically revoke their will,’ as required under Section 3 of the Mental Capacity Act 2005.
The case of X v A [2021] EWFC 118 shows how the courts still hold power to combat predatory marriage and elder abuse. In that case, the marriage in question was held by HHJ Gibson to be void, since it was later discovered the elderly wife had undiagnosed dementia at the relevant time and the respondent’s coercive and controlling behaviour had resulted in her transferring half the value of her property to her spouse within a month of the marriage. While not all affected families have the financial resources to bring a case to court, this case highlights that, where there is a laxity which permits a dementia patient clearly lacking capacity to marry, the courts may well take action if it is brought to their attention.
Warning signs
Perpetrators will often present as charming and helpful, seemingly acting in the best interests of the vulnerable person. They use coercion and gaslighting to gain trust and induce the victim to comply. They will control the narrative when dealing with external authorities and later encourage the victim to change their will. Anyone concerned about a friend or relative should refer to the Law Society’s guidance on financial abuse which sets out the key indicators and risks. Charities such as Refuge can also help to support those in need.
What can be done to help?
Anyone concerned about potential predatory marriage may lodge a caveat to prevent the marriage pursuant to Section 29 of the Marriage Act 1949, or seek an injunction against the perpetrator to prevent the marriage and/or stop contact with the intended victim. Such an injunction can be sought under Section 16 of the Mental Capacity Act 2005 or under a Forced Marriage Protection Order pursuant to Section 63A of the Family Law Act 1996.
It may be possible to have an existing marriage annulled followed by the drafting of a new will, or, if the victim lacks capacity, to apply for a statutory will. Again, this has financial implications since restoring the individual back to their pre-predatory position may be expensive and time-consuming. Preventative measures are therefore time critical.
If the victim has died, a claim may be possible under The Inheritance (Provision for Family & Dependants) Act 1975.
Reform
While the Law Commission has stated that it is aware of concerns around predatory marriage, reform is yet to be implemented. Its supplementary consultation paper on wills, published on 5 October 2023, considers this.
Reform could include:
- Greater safeguarding prior to marriage. Presently it is not mandatory to interview the parties separately. Mandating Registrars to separately interview the parties and make referrals for medical capacity assessments if they have concerns would align with solicitors’ duties to take instructions from joint clients separately if one party appears vulnerable.
- Training for Registrars to identify the warning signs of coercive control, and more rigorous testing for matrimonial capacity.
- Amending the Wills Act 1837 so that marriage does not automatically revoke a will (as is currently the case in Scotland).
- Fraud could be added to the permitted reasons to annul a marriage after one party has died.
- Predatory marriage could be made a criminal offence.
Comments
As the elderly live longer and consequently the proportion of the population suffering from dementia and other forms of cognitive impairment increases, it is imperative that reform ensures either a legal requirement for a party to a marriage to consider the implications of the Wills Act 1897 on their existing will or a more robust threshold test for matrimonial capacity. This would help to safeguard the vulnerable against predators with knowledge of intestacy law, because the marriage will no longer automatically result in a deceptively obtained financial benefit. In the meantime, vigilance and increased awareness of the risks and signs of predatory marriage is key.