‘Look how far you’ve come’ is the cutting barb thrown by Marcia Roy, wife of media mogul Logan, at Willa, girlfriend of Connor Roy, in HBO’s Succession. Willa’s retort of ‘Well look at us both, right’, is a wry acknowledgment of their shared status in the family as ‘gold diggers’. While Logan and Connor are far from victims and at the extreme end of the wealth scale, with an ageing population, individuals on the hunt for elderly, wealthy spouses are on the rise.
An increase in predatory marriages has now attracted the scrutiny of the Law Commission, which is setting its sights on potential loopholes in the law being exploited by so-called predators. Currently, under English Law, an existing will is declared null and void by marriage or civil partnership. This month, the Commission called for this rule to be reconsidered to protect against predatory marriages.
A predatory marriage recognises where a vulnerable, often elderly, party has been induced to enter a marriage, usually for financial gain. A marriage will automatically cancel out any prior will, leaving the vulnerable party to die intestate (without a will) and the surviving spouse able to claim the first £270,000 and half of the rest of their estate – or indeed the entirety of the estate if there are no children or direct descendants.
It is clear to see how these rules are ripe for exploitation and why many are calling for reform to wills to disincentivise this perniciousness. However, it would be a mistake to just do away with this rule as the only route to reform. In fixing one problem, another, far more serious, problem will be created: a classic case of whack-a-mole.
Opening the litigation floodgates
Most marriages are not predatory. As a society, we still attach significant weight and incentives to marriage, such as through an unlimited exemption from Inheritance Tax on all assets when a spouse dies. We should not deprioritise spousal rights to fix predatory marriages.
There are no restrictions on allocating assets away from your spouse and benefitting others, such as adult children. You can of course simply create a new will after the marriage, or indeed ahead of the marriage, so long as it is made expressly in contemplation of the marriage it will remain good. Prenuptial agreements also exist for good reasons.
However, scrapping the rule that a pre-existing will is cancelled out by marriage will inevitably mean assets will be distributed according to outdated wills that no longer reflect current family structures or relationships, and do not even account for the new spouse. Many of us are dreadfully slow at completing personal administration. The rule is important in safeguarding surviving spouses when the other party has failed to make a new will which provides for them.
Otherwise, if outdated wills stay intact, there will be a steep rise in claims under the Inheritance Act 1975 being brought by spouses against the beneficiaries of the will. The Law Commission’s suggestion that the rise in litigation will only be modest is, in my view, miscalculated. Moreover, it is unreasonable to expect that after losing your spouse, you should be put through the emotional trauma of an inheritance dispute.
Revoking the rule also does not solve the problem of predatory marriages. Where there is no will to revoke, the predatory spouse would still take the lion’s share of the inheritance on intestacy. This would only be a sticking plaster on the more widespread and pressing issue of financial abuse, which we need to do more to tackle.
What are the alternatives?
The Law Commission appears to be suggesting an ‘all or nothing approach’, having ruled out the possibility of more flexible reforms.
One idea suggested was to allow people to opt out of the rule when making their will. However, this would be making a choice in a vacuum, without knowing what the future holds. Another suggestion was to bring the legal threshold for capacity to marry in line with the capacity to make a will, which is recognised to be a higher threshold. However, we should not make it harder for those who do suffer from mental health conditions such as dementia to exercise the freedoms of non-disabled people if they retain capacity.
Instead, we should be identifying a tailored solution for families who discover, post-death, that their relative has been the victim of a predatory marriage. Allowing for this exception to the rule would provide a post-death remedy, so that those who prey on the vulnerable cannot benefit from their own crimes.
If you discover a loved one is entering into a predatory marriage or has been forced to make a will, there are several remedies already available. You can go to the High Court or, if there is reason to believe the individual has lost capacity or is vulnerable and cannot protect themselves, the Court of Protection. Marriages can be stopped by the courts, and wills on behalf of people who have lost capacity can be made. We must be vigilant to protect the elderly and vulnerable but doing away with spousal rights will not get to the root of predatory marriages.
Nicola Bushby is a Partner at law firm Boodle Hatfield and specialises in private client and Court of Protection litigation.