There has been much in press this month about the ongoing legal battle between the daughter of the late Robert Harrington, Jill Langley, and his widow Guixiang Qin in respect of Mr Harrington’s Will. Mr Harrington died in May 2020, aged 94, 11 months after marrying his 54 year old carer, Ms Qin, to whom he left his entire estate, cutting out his only child, Jill Langley. Mr Harrington’s late wife of 66 years had died in January 2018.
Ms Langley accuses Ms Qin of exerting undue influence over Mr Harrington in respect of his Will and also alleges lack of testamentary capacity on Mr Harrington’s part to make the Will.
This case is one of alleged “predatory marriage” – a term often used where a considerably younger individual marries an elderly person (“P”), commonly where they might be recently bereaved and therefore at their most vulnerable, in order to obtain an interest in their estate.
These are often disturbing cases and a highly emotional time for the families involved. Key to help prevent such cases is ensuring that P has an active and present support network around them. Social isolation is a fundamental step when grooming for predatory marriage so that P becomes dependent on the perpetrator, who then acts as gatekeeper to friends and family. Families should therefore consider whether P could live with a family member. If that is not possible and the perpetrator is firmly in situ, the family should report concerns to Social Services by way of a safeguarding alert.
Other steps that the family can consider include the following:
- Putting P’s solicitors, bank, medical practitioners and professional advisers on notice of concerns about the relationship between the perpetrator and P.
- Arranging for P to undergo a mental capacity assessment to determine whether P has capacity to put a new Will in place, decide who to have contact with, put Lasting Powers of Attorney (LPAs) in place, manage their financial affairs and/or marry. Knowing whether P has capacity or not to make certain decisions will determine what legal avenues the family can pursue in order to help P.
- If marriage is suspected, lodging a caveat at the local marriage registrars highlighting concerns over P’s capacity to marry, for the registrar to look into the matter and decide whether the marriage should go ahead or not. If the marriage itself can be halted, that will in turn avoid the perpetrator gaining entitlement to P’s estate under intestacy rules.
- If P has no capacity to decide who to have contact with, consider applying to the Court of Protection for an injunction preventing contact between P and the perpetrator.
- If there are concerns that P might start making lifetime gifts to the perpetrator, lodging an alert with the Land Registry to be put on notice if anyone applies to deal with P’s home.
- Arranging for P to seek advice from a solicitor to put LPAs in place, appointing someone other than the perpetrator as attorney to help them manage their affairs, assuming they have capacity to do so.
Prevention is much better than trying to redress the situation post death if the perpetrator has been left an interest in the estate under P’s Will. In such circumstances, the family can bring a claim alleging that the Will is invalid on the grounds of undue influence or lack of testamentary capacity, as Ms Langley did in the abovementioned case.
To challenge a Will on the grounds of undue influence, the burden of proof of coercion (i.e. that the testator was influenced to the extent that their free will was completely oppressed) rests on the claimant; there is no presumption of undue influence. Due to the difficulties in having sufficient evidence to prove undue influence beyond reasonable doubt, successful cases are few and far between. As an alternative, the family could instead consider a claim on the grounds that the testator did not know and approve the Will contents, which may have a higher prospect for success if there are suspicious circumstances about how the Will came to be made.
Where a Will is challenged for lack of testamentary capacity, it is the common law test to assess capacity in Banks v Goodfellow that is to be used rather than the statutory test in the Mental Capacity Act 2005 (as held in James v James and others [2018] EWHC 43 (Ch), whilst the more recent case of Baker v Hewston [2023] EWHC 1145 (Ch) used the statutory test as a cross check to the common law test).
Ultimately, the more the family can do during P’s lifetime, to frustrate a perpetrator’s grooming of P, the better. In any event, they should keep a note of all the concerns about the relationship with the perpetrator and any evidence to help prove their coercion over P as it might prove vital on P’s later death.
