Predatory marriages and Wills: will new reforms help?

A “predatory marriage” typically involves an older person who is vulnerable due to changes in their cognitive function, who is led into marriage by a (younger) person for financial gain. Although the phrase coined is “predatory marriage”, this applies equally to civil partnerships.

Predators often select a vulnerable person, isolate them from their loved ones, and then marry them. This marriage is not forced, which means that it is valid despite this manipulation.

As matters stand under English law, when a person marries, their Will is automatically revoked (unless some limited exception applies). Unless another Will is made, the intestacy laws will apply and a significant portion (if not all, depending on the value) passes to the surviving spouse. The rationale behind this rule is to give protection to surviving spouses and ensure provision is made for them when their spouse dies, but predators are taking advantage of this protection.

In the case of a predatory marriage, the older, vulnerable person is more likely to die first. Without a Will, their Estate passes under the laws of intestacy and the predator-spouse inherits most (if not all) of the Estate instead of their family. This will not usually be the intention of the vulnerable person, and they probably never even knew it would happen.

The Law Commission has now published its report and recommendations on Modernising Wills Law. One of its proposals is that the rule that a marriage revokes a Will should be abolished. One factor in support of this proposal is the concern about predatory marriages.

Mental capacity to marry and to make a Will

The test for mental capacity to marry is relatively low, but the test for mental capacity to make a Will is much higher. This means that a person might have the mental capacity to be able to marry which automatically revokes their Will, but not the mental capacity to make a new Will.

Parties marrying only need to understand the broad concept of marriage and the duties that spouses owe to each other. Someone can have a low level of cognitive function but still be able to marry.

Even if someone does lack mental capacity to marry, the marriage is not automatically void, it is simply voidable and cannot be voided after death. Family members often do not know about a predatory marriage until after death when it is too late to void it and, importantly, the Will remains revoked.

The test for mental capacity to write a Will is much higher than to marry (and would remain so even if the Law Commission’s other recommendation on reform of the test is adopted). The test requires the person making a Will to understand the exact nature of the act of making a Will.

The mismatch between these tests is highlighted by the Law Commission as a key reason for reform of the law.

Would changing the rule on revocation stop predatory marriages?

The hope is that if a Will survives a marriage, the new spouse will not benefit under the intestacy laws and predators would be dissuaded from entering into predatory marriages. This is a sensible conclusion but does not represent the whole picture.

Many older and vulnerable people do not have Wills. This proposed change in the law therefore does nothing to protect them. It may in fact simply shift the focus of predators onto this other group.

Even if the previous Will remained in place, the new spouse would have a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the “1975 Act”). This allows a surviving spouse who did not receive any or sufficient provision in a Will to bring a claim against the Estate. A dedicated predator is likely to explore this avenue, however good or bad their claim, and this type of litigation may well increase as a result of the proposed reform. This can be both expensive and emotionally difficult for children of the deceased and may ultimately end in a significant portion of the Estate passing to the predator anyway.

Predators will also not just be thinking about the position after death. They may simply think the marriage makes it easier to take assets during the vulnerable person’s lifetime. The increased public awareness of the misuse of Lasting Powers of Attorney to take advantage of vulnerable people demonstrates that lifetime financial abuse is prevalent (and far more damaging for the vulnerable person than the post-death arrangements). Safeguarding at this level would be helpful in addition to reforms to testamentary arrangements.

Additional and alternative solutions

The Law Commission acknowledges that its proposal is unlikely to eliminate predatory marriages. Further reform or protection will be needed even if the proposed reform is adopted.

Steps could be taken to make it easier for marriages to be invalidated if someone lacked capacity. For example, a mechanism for these to be declared void retrospectively (including after death) could be introduced. This would prevent the predatory spouse from benefiting under the intestacy rules or having a claim as a spouse under the 1975 Act.

Practical proposals could assist such as (i) publishing intended marriages online, (ii) each of the couple meeting with the officiant separately in advance, and (iii) allowing concerned parties to lodge a caveat in advance of any marriage.

There are other factors in favour of the proposal abolishing the rule that a Will is revoked on marriage and the impact of predatory marriage should not be overplayed. Likewise, campaigners and reformers looking to end predatory marriages will need to continue their campaigning following the Law Commission’s proposals: there is still work to be done to end the damaging practice.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, May 2025