Predatory marriage and its effects on estates
Released On 28th Jun 2022
There has recently been a lot in the news about the apparent rise in what are known as “predatory marriages”, particularly in respect of the effect that they can have on a person’s estate when they pass away.
What is a “predatory marriage”?
A “predatory marriage” usually involves a situation where one person in the couple does not have the required mental capacity to consent to the marriage but is led into it, and taken advantage of, by the other party to secure financial or other gains.
Sadly, it seems that “predatory marriage” is on the rise, partly due to an increasingly ageing population and an increase in conditions such as dementia and Alzheimer’s.
Many campaigners on this issue refer to certain patterns of behaviours, referred to as “grooming”, where the predatory spouse looks to ingratiate themselves in the other person’s life (perhaps starting as a carer or helpful neighbour), before then gradually alienating them from their family and friends, before the marriage then often takes place in secret.
What impact can it have on an estate?
Currently, the legal position is that a marriage automatically revokes any earlier wills that a person has made.
Accordingly, where a “predatory marriage” takes place, unless a person then makes a further will (which they may not be able to do if they do lack capacity), the rules of intestacy will apply to their estate upon their death.
The effect of that are as follows:
(i) If the deceased dies leaving an estate worth less than £270,000, the entire estate will pass to the surviving spouse;
(ii) If the deceased dies leaving an estate worth more than £270,000, the surviving spouse will inherit:
a. all the personal property and effects of the deceased;
b. the first £270,000 of the estate (known as the “statutory legacy”);
and c. half of the remainder of the estate, if the deceased has surviving children.
(iii) If the deceased has no surviving children, then the entire estate will pass to the surviving spouse.
Also, the surviving spouse will have the entitlement in priority to be appointed as the personal representative of the estate. This means that they will be allowed to administer the estate and, perhaps more concerningly, to deal with the deceased’s funeral (to the exclusion of the family).
“Predatory spouses” are, therefore, taking advantage of the above-mentioned laws to secure a significant financial benefit through “predatory marriage”.
The above is the case, even if the court were to subsequently declare the marriage as being void as a result of a lack of capacity.
What is being done?
A campaign against “predatory marriage”, known as “Justice for Joan” was started following a case involving an elderly lady, Joan Blass. It is seeking to change the laws and procedures around marriages to better safeguard vulnerable individuals like Joan.
Joan was 91 years old and suffering from severe vascular dementia, diagnosed in 2011, as well as terminal cancer. It was only after Joan died in 2016 that her daughter, Daphne Franks, discovered that her mother had been married the previous year. Joan did not realise she had been married and often asked why there was a man living in her home with her.
As a result of Joan’s marriage, her will dated 2004 (which left everything to her daughter and son) was revoked and her new husband inherited the entire estate under the rules of intestacy.
Daphne got in touch with her local MP, Fabien Hamilton, who was shocked by the story. Subsequently, he introduced a Private Member’s Bill, the “Marriage and Civil Partnership Consent Bill” in Parliament in November 2018. The purpose was to stop marriage automatically revoking previous wills and to introduce protections against “predatory marriage”. The bill was passed unanimously but ran out of parliamentary time. However, work is continuing to try to effect change.
For the time being, one useful tool is the ability to apply for a caveat with the Registrar of Marriages, seeking to prevent a marriage from taking place, where there are such concerns.
The test for capacity
The Mental Capacity Act 2005 defines the term of “capacity” and stresses that mental capacity is presumed to be present unless proven otherwise, even where a decision is considered an unwise one.
Unfortunately, the level of capacity required for a valid marriage is relatively low and, notably, much lower than the capacity required for a valid will.
In the case of London Borough of Southwark v KA (2016) EWCOP 20, it was held that an individual need only demonstrate a “rudimentary”’ understanding of the financial consequences of marriage.
However, in the case of re DMM (2017) EWCOP 32, it was held that a person should be able to “understand, retain, use and weigh” the specific fact that marriage revokes a will. In that case, the daughter was able to obtain an injunction to prevent the marriage from taking place. That is clearly not possible when the family is not aware of the marriage until it has taken place or until the death.
By contrast, the test for testamentary capacity (i.e. the capacity required to make a valid will) was outlined in the case of Banks v Goodfellow (1870) LR 5 QB 549. That says that a testator must:
(i) understand the nature of making the will and its effects;
(ii) understand the extent of the property of which they are disposing in the will;
(iii) be able to understand and appreciate any claims against their estate; and
(iv) have no mental disorder that poisons their affections or prevents them from exercising their natural faculties and that influences them to execute a will that they would not have executed without that disorder.
There is a reasonable and legitimate argument that if a marriage has the effect of revoking a will, then it should be subject to the same test of capacity as is required to make a will.
That is particularly so as the same level of capacity is required to validly revoke a will in other ways (i.e. by destruction).
The Inheritance (Provision for Family and Dependants) Act 1975
At present, if a “predatory marriage” takes place, then the only real recourse available to families is to try and reclaim some of their inheritance by making a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”).
This is a piece of legislation which allows certain categories of persons to bring a claim against an estate if they either aren’t provided for or aren’t provided for sufficiently under the rules of intestacy.
A child, former spouse who hasn’t remarried, a step-child, or someone who was maintained by the deceased, would be entitled to pursue a claim under the 1975 Act.
The claim is for “reasonable financial provision” which is required for the claimant’s maintenance. Accordingly, there has to be some element of financial need or necessity to underpin such a claim. Further, the level of such need is likely to be critical in determining the value of a claim under the 1975 Act and so it is unlikely to achieve perhaps the “just” outcome that families may be seeking.
From another perspective, if the changes being sought by the campaigners and pursuant to the “Marriage and Civil Partnership Consent Bill” are made, then there is likely to be the real potential for claims under the 1975 Act by surviving spouses who aren’t “predatory spouses”.
That is because if a marriage doesn’t revoke earlier wills made, then there would be a real need on a person’s part to make a new will after their marriage to reflect the changes in their life and to ensure that their new spouse is provided for upon their death.
Otherwise, the terms of a will that may have been made a number of years before, prior to their entering into a relationship with their new spouse, would take effect and may not provide for them.
A spouse is able to pursue a claim against the estate under the 1975 Act. Further, the claim is again for “reasonable financial provision” but the difference is that they do not need to show a maintenance requirement.
Further, there is something known as the “divorce hypothesis” which means that, as a yardstick or starting point, for claims under the 1975 Act by surviving spouses, the courts will look at what the claimant would have received upon a divorce the day before the date of death (usually 50% of the matrimonial assets).
We can help you
If you are involved in a situation where there has been a “predatory marriage” involving a loved one and you wish to pursue a claim against the Estate, or your spouse has passed away and allegations are being made of a “predatory marriage” having taken place and/or a claim is being brought against the estate, or your spouse has passed away and you have not been reasonably provided for, then please contact contact us., Our Contested Wills, Trusts and Estates Team is here for you on 01823 625841.
