What is predatory marriage and how can it impact your will?

Predatory marriage occurs when a person marries another for financial gain. More specifically, it is where a vulnerable person is induced into a marriage with another, who is only entering into the marriage for financial gain. There is no claim per se for a ‘predatory marriage’ but such marriages may lead to claims both relating to the marriage itself and the estate of the vulnerable party.

Is a predatory marriage invalid?

For a marriage to be valid both of the parties to the marriage must have capacity to marry. This means:

1. They understand the nature of the marriage contract;
2. They understand the duties and responsibilities that usually arise out of a marriage;
3. The essence of the marriage is for two people to live together and love one another; and
4. They must not lack capacity to enter into sexual relations. Note that this point relates to whether someone has mental capacity to enter into sexual relations, for example,. whether they understand the nature and mechanics of the sexual act, have an understanding of choice and consent, and can understand the consequences of sexual relations such as the risk of pregnancy or contracting sexually transmitted infections. The question of whether the person has physical capacity to have sexual relations or whether they actually do so within the marriage is irrelevant.

This is a very low bar. Of specific importance is that capacity to marry relates to the act of marriage and is not specific to the person. A person may have capacity to marry in general even if the specific marriage they are entering into is a very bad idea, for example, because they person they are marrying would be mentally, socially, physically, or financially bad for them.

So long as the vulnerable person has capacity to marry, the marriage is valid.

If the vulnerable person did not have capacity to marry, the marriage is voidable. This means that the marriage may be annulled under the Nullity of Marriage Act 1971 and that annulment is effective from the date it takes place. This is a subtle but important difference to the marriage being void which would mean it would be treated as if it had never taken place at all.

Wills and capacity

A person must also have mental capacity to enter into a will, known as “testamentary capacity”. However the test for testamentary capacity is very different to the test for capacity to marry, and also a much higher hurdle. This can be a significant problem for families of people who are lured into predatory marriages for the reasons set out later in this article.

The test for capacity to enter into a will is as set out in the case of Banks v Goodfellow 1873. The Banks v Goodfellow test requires that the person making the will (the “Testator”) must:

1. Understand the nature of the will and its effect;
2. Have some understanding of the extent of the property of which they are disposing under the will – in layman’s terms they must understand what is in their estate;
3. Be aware of the people for whom they would usually be expected to provide; and
4. Be free from any delusion of the mind that would affect their dispositions to the people for whom they would usually be expected to provide.

Marriage and wills

One of the key consequences of marriage is that it revokes any will which was entered into before the marriage took place (except for wills which specifically state that they have been made in contemplation of marriage). Crucially divorce or annulment does not resurrect any wills which were revoked by the marriage.

In addition to revoking any wills, marriage has two key impacts on inheritance rights:

1. If the vulnerable party dies without a will (i.e. intestate) either because their previous will was not revoked, or because they never had a will in the first place, their spouse is entitled to:
   a. If the testator had no children, the entire estate; or
   b. If the testator had children, to the first £270,000 of the estate and then 50% of any further amounts, with the child(ren) receiving the other 50% in equal shares, if there is more than one child.
2. A spouse would have standing to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (usually known as a “1975 Act Claim”).

The problem with capacity

One of the big issues with the different capacity tests is that it is easy to see a situation where the vulnerable person may have sufficient capacity to get over the low hurdle for capacity to marry, but not the much bigger hurdle which would allow them to make a will.

This issue could conceivably lead to a situation where:

1. The vulnerable person (A) marries B;
2. Their will is revoked; and
3. They are unable to make a new will to correct the changes made to the distribution of the estate by the marriage because they do not have capacity.

What can families do about predatory marriages

The steps which can be taken depend on the level of capacity and when the marriage is discovered;

1. If A intends to marry B and does not have capacity and the intention to marry is discovered before the marriage takes place the family may be able to alert the local Registry Office by lodging a caveat against the marriage under section 29 of the Marriage Act 1949. However, this wouldn’t prevent a religious marriage. The family may also be able to obtain protective orders and/or injunctive relief from the Court of Protection or obtain a forced marriage protection order from the Family Courts.
2. If A and B marry and A does not have capacity to marry but the marriage is discovered once it has taken place, the marriage is voidable, and the family could apply to the court to have it annulled. In the matter of inheritance, A is unlikely to have testamentary capacity if they did not have capacity to marry. In some cases, this may matter very little if the effect of the intestacy rules would mirror A’s previous wishes. In other cases, a will would be very important. For example, if A had a very large and complex estate and the previous will was used to allow the estate to pass more tax efficiently. In those cases, it may be possible to apply to the Court of Protection for a statutory will.
3. If A does have capacity to marry and the marriage is not discovered until after it has taken place. Unfortunately, there may be little which can be done about the marriage itself. If A does not have testamentary capacity, it may still be possible to apply for a statutory will, but it may be difficult to convince the Court of Protection to approve a will which does not benefit the spouse or to make a statutory will simply because there is likely to be a dispute post-death. Families should also be aware of potential challenges to the will from the spouse who would have standing to bring a 1975 Act Claim.

The above examples all assume that the marriage has been discovered during A’s lifetime. The situation is unfortunately much more complicated if, as sometimes happens, the marriage is not discovered until after A has died.

Marriages discovered post-death

If the marriage is discovered once A has died, any possibility of ending the marriage and putting in place a new will has been lost.

In the case of Re Roberts [1978] the potential beneficiary of Mr Roberts’ last will sought to challenge Mr Roberts’ wife’s entitlement to the estate. He argued that consent was a fundamental principle of marriage and without it, the marriage was not a marriage at all. It should be treated as having never taken place. This argument failed. The Court of Appeal decided that even if the marriage were voidable, it could not be annulled post-death, and even then, the previous will would still be revoked because the annulment would not act to resurrect a previous will.

This leaves families in the unfortunate situation where there is very little which can be done post-death. Some family members may be able to bring 1975 Act Claims, but they would need to fall within the categories of people entitled to claim. In the case of adult children of the deceased, this usually requires a financial dependency on the deceased in order to establish grounds to bring a claim. In those cases, the court would also need to bear in mind the potential claim that the spouse might have which – given that spouses are entitled to a higher level of provision from the estate and are not required to show financial dependency – is often a better claim than those of other family members.

Arguments for reform

There are a number of potential options for reform which have been posed over the years, including:

1. Amending the Wills Act so that marriage does not automatically revoke previous wills. However, given that predatory marriage is, thankfully, relatively rare there is a reluctance to introduce such a sweeping change to the law. The consequences of this amendment would likely cause far more problems than it would solve. Perhaps a better solution would be a limited amendment to the Wills Act which would mean that a will is not revoked by a marriage which is entered into by a person without capacity or entered into under coercion or duress.
2. Introducing a law which means a spouse cannot benefit from the estate of someone who has been coerced into marriage. A similar law exists in the context of a criminal act where a person cannot obtain an inheritance as a result of an unlawful killing. -. Whilst this idea has been postulated among the legal industry, no steps have been taken to introduce any such law.
3. Make predatory marriage a crime. In theory coercing someone into a marriage is already a crime, carrying a prison sentence of up to seven years. The difficulty with this proposal is the level of evidence which would be required in order to secure conviction would be high and often difficult to obtain. It also does not address the issue of any prior will have been revoked by the marriage and may not therefore fix the issues faced by the families of the deceased.

Ultimately none of these are a perfect solution. Instead, families should focus on preventing predatory marriages by keeping close contact with loved ones and being aware of the potential risk factors including new and close friendships, often with much younger people, secrecy surrounding friendships, extreme isolation and loneliness, and cognitive impairment including dementia.

If your family has been affected by predatory marriage or you require any advice regarding claims against an estate, please contact the contentious probate team at B P Collins by emailing enquiries@bpcollins.co.uk or calling 01753 889995.