Partner and contentious trusts and probate expert Jenny Ray discusses the rise in predatory marriages and considers the need for reform of the Wills Act 1837, which was recently published in The Times.
Predatory marriages have long been a juicy staple of television drama. We love the frisson of an unscrupulous and beautiful younger person taking advantage of a vulnerable, usually elderly, person, and inveigling them into marriage so that they become the main beneficiary of their victim's estate. The marriage automatically revokes any earlier Will and the deceased's family are left spitting blood and vowing revenge.
The recent case of Langley v Quin has shown the heartbreaking reality of the increase in predatory marriages in real life, and the limited tools available to family, loved ones and the Courts to protect vulnerable victims.
Undue influence or coercion are also often used to persuade victims to prepare a new Will which solely benefits this new spouse. However, even if such a Will is found to be invalid, the predator could still benefit under intestacy as is potentially the case in Langley v Quin.
These cases are complicated by the test for capacity to marry which is lower than the test for testamentary capacity. While there is obviously a clear public policy reason for keeping the test for capacity to marry at a relatively low threshold in terms of human rights, this can create a worrying anomaly when it comes to estates. Vulnerable individuals can be exposed to the risk of predatory marriage because people may have the required capacity to marry, but not the capacity to make a new Will after marriage.
Family members face an uphill the battle to protect their loved ones. They can apply to the courts to put a statutory Will in place. However, this can be expensive, lengthy and complex process.
Statutory Wills can only be obtained where family members know that a marriage has taken place. Regrettably, as is often the case with financial abuse, victims are groomed and distance is placed between them and their loved ones. This means family members often find themselves in the dark.
Even where the marriage can be ended, the old Will cannot be revived. Moreover, if the marriage is only discovered after the victim has died the Court cannot annul the marriage. This leaves the predatory spouse free to benefit from intestacy rules.
Loved ones are well advised to apply for Statutory Wills to be put in place before death. If they do not, they face losing control of the estate to a predatory widow or widower.
Recent cases point up the need for reform of the Wills Act 1837 (section 18(1)), to remove the automatic revocation of a Will by marriage, ensuring vulnerable individuals are protected and that their loved ones are able to more easily challenge Wills stemming from predatory marriages.
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