Protection against “predatory marriages”: should marriage revoke a will?

Labour MP Fabian Hamilton has presented a private members’ bill to the House of Commons which seeks to protect vulnerable individuals from the unexpected consequences of a “predatory marriage”; but is the proposed approach the correct way to tackle this issue?

All references to marriage in this article should be taken as references to marriage and civil partnerships.

What is a “predatory marriage”?

This term refers to the situation where a predatory spouse marries an elderly or vulnerable person (who may not have capacity to consent) for personal or financial gain.

What is the test for capacity to enter into a marriage?

An individual has capacity to marry if they are able to understand the nature of the marriage contract and the duties and responsibilities that normally attach to a marriage. This is a much lower threshold than the capacity required to create a will (also known as testamentary capacity).

The problem

What many people do not realise is that getting married revokes a will (unless the will is made in contemplation of the marriage). This is on the basis that succession rights change so dramatically following a marriage that it would not be appropriate for a pre-existing will to remain valid.

Consequently, if an individual gets married and does not replace their will, they risk dying intestate with their property passing in accordance with the intestacy rules prescribed by law. Under the intestacy rules, a spouse or civil partner is entitled to a significant share of the estate. This puts vulnerable people at risk of being induced to enter into a marriage or civil partnership by somebody who seeks only to receive a windfall on the vulnerable person’s death. Often the family of the vulnerable person does not even know the vulnerable individual has married and it is only on their death that they realise they have been disinherited.

How does the new Bill propose to deal with this problem?

The Bill takes a multi-faceted approach to dealing with the problem:

• Better assessment of capacity to marry: registrars will receive better training to safeguard vulnerable individuals who seek to marry. In addition to this, a simple questionnaire would be completed which seeks to assess whether an individual has the necessary capacity.
  
  
• Notices of marriage should be published on the internet: this will increase the likelihood of friends and family being able to intervene at an early stage to challenge whether the individual does in fact have the requisite capacity to marry.
  
  
• A change to the rules to ensure that marriage should not revoke a will in every case: it will be interesting to see the test imposed to ascertain whether or not a will should be revoked.

Although it is encouraging to see positive action being taken to highlight this issue with a view to protecting vulnerable individuals, there is a question over whether this is the correct approach to take. The obvious question must be whether, if there is such a drastic change to succession rights following marriage, the test for capacity to marry should itself be amended and brought in line with the test for capacity to make a will. This would require a medical assessment in certain circumstances.

Of course, we also have to remember that just because somebody wants to take a step that is objectively unwise, or even against the wishes of their family and friends, that does not necessarily mean they do not have the capacity to make that decision.

The Bill is due to have its second reading in Parliament on 25 January 2019. In addition to this, the Law Commission consultation on reforming the law on wills in the UK (most of which dates back to 1837) closed earlier this year – it is therefore likely we will see further changes to the way we prepare and think about wills. Watch this space!

If you require further information on anything covered in this briefing please contact Caroline Gordon, or your usual contact at the firm on +44 (0)20 3375 7000.

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

© Farrer & Co LLP, November 2018