Today’s Wills and Probate has learned that the Law Commission is aware of concerns around predatory marriage, and “will be considering [the issue]” in its upcoming supplementary consultation paper on wills, which it says is due to be published in September.
Predatory marriage refers to a situation where an individual, often vulnerable due to age or impairment, is coerced or manipulated into a marriage for the purpose of financial exploitation.
Of course, as the current position stands, a marriage will revoke a will. Unless an individual makes a further will, the law of intestacy decides how an individual’s assets will be divided.
STEP’s “warning signs and preventative action” blog on predatory marriage states:
“Practitioners, families, and friends of victims need to be alert to the possibility of predatory marriage and financial abuse. They should not be lulled into a false sense of security and think that the victim ‘could never get married because they lack the capacity to marry’. The capacity to marry is a relatively low threshold. As the case of Joan Blass shows, lack of capacity is not always identified by wedding registrars. Be vigilant, be alert.”
Proposed reforms – should marriage revoke a will?
Despite the lack of reform around this issue, Daphne Franks, University Teacher at Leeds Institute of Medical Education, campaigned to change the law after losing her mother, who had dementia, to a predatory marriage. Predatory Marriage UK is aimed at reforming marriage laws and procedures to protect people with dementia.
Predatory Marriage UK state that they aim to change the law such that a marriage does not automatically revoke a will and to create an offence of predatory marriage.
On this, Ian Bond, partner specialising in Lifetime and Estate Planning at Irwin Mitchell, said that he had the pleasure to have discussed predatory marriage with Daphne Franks and others involved with the Predatory Marriage UK campaign, and can see both sides in the argument. He continued:
“For the public, I can see the logic for a change in the law in England & Wales – to match that in Scotland – so that marriage does not revoke an existing will. If the law is changed so that an existing will remains valid after marriage, then the new spouse is protected in law as they have the ability to bring a claim under the Inheritance (Provision for Family & Dependants) Act 1975.
Such claims can then be argued in Court with a full set of facts; the claim may or may not be successful. The Court could then decide if the deceased is (or could have been) the victim of a predatory marriage and make any necessary order from this.”
Jade Gani, CEO & Head of Private Client at Circe Law, said that she personally agrees that the law should be changed so that a marriage does not revoke a will. She stated that this will “safeguard those who are most vulnerable and susceptible to predatory marriages because the marriage will no longer automatically result in the desired financial reward for the criminal”. She added:
“Alternatively, a more rigorous capacity threshold to enter marriage or a change in law to allow a marriage to be void (not voidable) after death – thereby preventing the revocation of a will – could also actively reduce the risk.”
What practitioners should be aware of with regards to predatory marriage
Practitioners should be aware that “predatory marriage” is not a legal concept: there is no common law or statutory definition, said Ian Bond, continuing:
“There is no requirement for a party to a marriage to consider the impact of the Wills Act on their will and few people, if any, get legal advice before they get married. Having a low test of capacity to marry means that unscrupulous predators can exploit an older vulnerable person and marry them, knowing that the marriage will revoke any previous will so that they will benefit from the deceased’s estate under the intestacy rules when they die.”
More on this, practitioners should remember that “whilst pressure applied can be physical, emotional or psychological – predators will sometimes implement pervasive tactics that are harder to spot,” said Jade Gani.
She added that practitioners must “remain vigilant, ask probing questions, and take swift action where required”.
Stephen Lawson from Nicholson Jones Sutton Solicitors has worked alongside Daphne Franks throughout the campaign. Speaking about what practitioners should be aware of, he said that there are “steps that can be taken to prevent predatory marriage” and the easiest step is to “register a caveat against marriage – this is not the well-known caveat to prevent a Grant of Probate being issued – but a caveat under s29 of the Marriage Act 1949”.
Campaign success and changes
The Law Commission’s Weddings Report in July 2022 proposed that some of the changes that Daphne is campaigning for should be put into practice.
These changes include couples being interviewed separately before marriage – at the moment it is best practice but not mandatory – and the notification of marriage to be posted on an easily searchable internet database.
They are also planning a review in September 2023 into section 18 of the 1837 Wills Act – whether marriage should revoke a will.
Daphne has had a lot of success with raising awareness of predatory marriage and has now done over 120 talks nationally to conferences, safeguarding professionals, registrars, solicitors, and the police. She also spoke at the Angus Adult Protection Committee. She said:
“The other problem is that people are not told at marriage that marriage revokes a will, yet many people do not know this.
I really don’t know why people are not told as part of the pre-marriage information – it’s ludicrous, as is the fact that there is currently no link with Power of Attorney – and yet everyone assumes there is. I had people almost yelling at me ‘But you must have known about the wedding! You had Power of Attorney!’.
I am hoping, as well as for legal change, for much better safeguarding at marriage and for all authorities – police, social services, registrars – to link up to work together to identify the predators and stop future predatory marriages.”