The author of this article argues the need for legal reform is "obvious" given that potentially malicious acts of a third party can destroy a person's will or how they will be remembered.

The following guest article is one of several pieces that this news service is running under the theme of “protecting the client,” explaining how the world of wealth management goes far beyond just investment and tax compliance. The article comes from James Lister, partner at Stevens & Bolton. The editors are pleased to share these views; the usual editorial disclaimers apply. To respond, email tom.burroughes@wealthbriefing.com

What is predatory marriage?
The concept of predatory marriage is every bit as nefarious as it sounds. Many elements of it were on display in the recent hit BBC series the Sixth Commandment, chronicling the actions of Ben Field in his attempts to extort money from two vulnerable older people. The concept describes the idea that a person (the predator) might deliberately try to engineer a marriage to another person knowing or suspecting that that person does not understand (or is not capable of understanding) the consequences of getting married. Most frequently, this is because the victim lacks the mental capacity to understand the act of marriage or what it means for their affairs. 

In effect, the concept relates to the idea of taking advantage – that with some pre-meditation, a third party might set out to procure themselves some kind of benefit from a marriage which the person is either not capable of or cannot understand.  

It is difficult for us to have any data about how widespread or commonplace predatory marriage is. We know that the number of cases that are brought to court regarding this are limited; one explanation for which could be because of the current state of the law, which is badly in need of serious reform. In essence, the problem relates to the interaction between the act of marriage and making a will. Getting married automatically revokes a will, but if that marriage is later declared invalid, the will is not reinstated. 

The state of the law
The legal principles here are relatively straightforward. Readers will be aware of the relatively high test for testamentary capacity, i.e., the test required to show that a person is mentally capable of making a will. The principles of that test involve the person making a will understanding the act that they are trying to complete, the people who might expect to benefit from their estate, and an understanding of the assets and liabilities in their estates to which their will will give effect. 

The test for marriage is similar, in the sense that the person needs to understand the nature and effect of the act that they are about to undertake, including the consequences of a potential future divorce. Marriage in this sense is often described as a contract, although the legal sources appear to support the idea that the test to marry should be the same as the test for testamentary capacity.  

The problem, however, is like that regarding will making – a lack of capacity is not always immediately obvious to a third party (for instance a registrar) who does not know the people involved. This is exacerbated by the ability of many people with fluctuating capacity to “present” well in social situations, and providing a veneer of capacity where in fact there are concerns. Just as with an elderly relative taken to a new solicitor by someone who wishes to have a new will made in their favour, it may be difficult for that solicitor to make a judgment about capacity in a short meeting. In the same way, a marriage registrar might struggle to spot that one of the two people before them in fact lacks capacity. 

This is perhaps best dealt with by the following example:

Imagine that Mrs Smith has been living on her own for some time, following the death of Mr Smith. Mrs Smith had a happy family life, and her three children are well set up in life. Her niece and nephew, however, are not so fortunate and Mrs Smith made a will after her husband’s death dividing her estate between her children and her niece and nephew.  

During the pandemic, a local handyman (some 30 years her junior) becomes close to Mrs Smith while carrying out odd jobs at her property. Mrs Smith has already been diagnosed with Alzheimer’s disease and her condition is gradually worsening. Without her children readily able to get access to her during the lockdowns, Mrs Smith is persuaded that she and the handyman are in love, and they marry in secret at the local registry office.

As per the law, Mrs Smith’s will is immediately revoked by her marriage. When her children learn of this, they immediately seek a declaration from the court that the marriage is invalid because of their mother’s lack of capacity, and they succeed. But by now, Mrs Smith lacks the ability to make a new will, meaning that absent some further remedial action, she will die intestate, defeating her wishes about helping her niece and nephew.

This will, rightly, strike you as an odd outcome – if a marriage can be declared void after the event, why should that same marriage still be allowed to revoke a will? 

That is, nevertheless, the current state of the law unless and until it is reformed. 

What can be done?
In predatory marriage cases, everything depends on speed and information. As noted in the example above, a marriage can be declared void by the court for a lack of capacity by one of the participants, provided an application to that effect is made and succeeds.

If the person retains sufficient capacity to make a new will, then they can do so, although if they lacked capacity to marry, it seems unlikely that this will be the case. In that event, the principal saving act is for an application to be made to the Court of Protection for a statutory will on behalf of the person concerned. This is a process where the court will effectively make a new will on behalf of the person who has lost capacity. This is often seen as a last resort, but plainly would be capable of achieving the preferred outcome in circumstances where the person concerned has not died, but lost capacity. Unfortunately, in cases where capacity has been lost and the person has since died, there is very little that can be done unless the beneficiaries can be persuaded to change the dispositions on intestacy.

While various attempts have been made to put amending legislation before parliament, no action has yet been taken, but the need for reform is obvious. It cannot be right that the potentially malicious acts of a third party destroy a person’s will or the way in which their family will remember them, particularly after that person has lost capacity to make decisions for themselves and parliament should now legislate to cure the potential injustice.