A member of our team recently attended a Vulnerability Conference and heard Daphne Franks telling her story about her wonderful mother Joan, who sadly passed away in March 2016.
In short, Daphne’s mother Joan had severe vascular dementia and only when her mother passed away, did Daphne and her family discover that she was in fact married. You can read Daphne’s story in full here and we encourage you to take the time to read it. Daphne’s story resonated with our colleague, which is what lead her to write this piece. We wish to raise awareness about predatory marriage and the need to reform the law in this area.
What is a Predatory Marriage?
A predatory marriage is the practice of one person marrying another for the sole purpose of gaining access to their assets and their Estate. In such situations, there is typically ‘the predator’ and the person they choose to marry for the purposes of the aforementioned. Usually ‘the predator’ will choose someone who is vulnerable and does not have the mental capacity to agree to get married or have the awareness of what this marriage will mean. The predator will take advantage of that person and lead them into it. The marriage usually takes place covertly, to avoid any interference from family members.
Can a marriage take place if one of the parties does not have mental capacity?
The current guidance is that Registrars should undertake separate interviews with both parties, before the marriage. However, this is only guidance and so often if the interviews are conducted together, ‘the predator’ has the opportunity to interject and conceal that the other person lacks capacity. In addition, Registrars have little to no training in how to assess capacity or general safeguarding.
How can they access their assets and Estate?
In England and Wales, marriage revokes a Will and so unless a Will is put in place after a person gets married, their Estate will fall in accordance with the Rules of Intestacy (see our blog here for more information on the Rules of Intestacy). Under the Rules of Intestacy, a spouse will inherit the first £322,000 of a person’s Estate plus all personal belongings and half of the remainder of the Estate (assuming the deceased has children). As such, in leading a person into marriage, ‘the predator’ has revoked their Will and ensured that they receive a large chunk, if not all of, the Estate.
The people taken advantage of usually do not have capacity to get married and sometimes are not even aware that they have gotten married. They most certainly would not understand the implications of this on their Will and the need to put a new Will in place, nor would they usually have the capacity to put a Will in place under the test set out in Banks V Goodfellow.
Can a Predatory Marriage be annulled?
In Daphne’s case, she only discovered that her mother was married after she had passed away, by which time it was too late for anything to be done, as the marriage cannot be annulled after this point. If both parties to the marriage are still alive, it may be possible to annul the marriage. However, even if the marriage was annulled, the fact that the marriage took place in the first place, has already revoked the Will and the person’s Estate would again fall in accordance with the Rules of Intestacy (expect there is now no surviving spouse). Should this not align with their wishes, it is possible for a Deputy to make an urgent application for the Court of Protection for a Statutory Will.
The Court or Protection can make or change a Will on behalf of someone who lacks the mental capacity to do it themselves.
The ability to make a Will is called ‘testamentary capacity’. A person lacks testamentary capacity if they do not understand:
– What making a Will means
– How much money or property they own
– How making a Will may affect certain people such as:
• People mentioned in the Will
• Anyone left out of the Will
• Anyone who might otherwise inherit if the person died intestate (without making a Will)
Just because someone might struggle to make decisions about their finances does not mean they lack testamentary capacity and they may still be able to express their wishes to make a Will. We can help you assess whether your loved one is able to make a Will or whether you should make an application to the Court of Protection.
The Court of Protection will only make a Statutory Will where it is in your loved one’s best interests and they will put significant value on their known wishes and feelings.
It is usually someone with the authority to make decisions on behalf of the person lacking mental capacity who makes the Statutory Will application – an Attorney under a Lasting Power of Attorney or a Court of Protection Deputy.
It is important to remember that that Attorney or Deputy cannot make a Will on behalf of their loved one without making an application to the Court of Protection, despite having legal authorisation to make other decisions.
Statutory Wills can also be useful for other purposes such as:
– To reduce someone’s liability for Inheritance Tax
– To change a Will that is out of date (for example, because one of the beneficiaries has died)
– To reflect a significant change in value of the estate (for example, because the person received compensation)
It is usually someone with the authority to make decisions on behalf of the person lacking mental capacity who makes the Statutory Will application – an Attorney under a Lasting Power of Attorney or a Court of Protection Deputy.
It is important to remember that that Attorney or Deputy cannot make a Will on behalf of their loved one without making an application to the Court of Protection, despite having legal authorisation to make other decisions.
You must complete and submit a number of forms along with supporting documents to the Court of Protection:
– An application form
– A witness statement
– An information form
– An assessment of capacity form
Supporting documents you must provide include:
– A copy of your loved one’s existing Will (if there is one)
– A copy of the proposed new Will
– A copy of your Deputyship Order or Lasting Power of Attorney
– Details of the executors who will administer the estate after your loved one has died
– Your loved one’s family tree
– Reasons why the beneficiaries included in the Will might expect to benefit
– Your loved one’s address or details of where they live (such as a care home)
– Details of your loved one’s assets
– Accounts showing your loved one’s estimated income and outgoings
– Details of any Inheritance Tax your loved one’s estate may become liable for after they die
The Court will consider all the evidence then make a decision in your loved one’s best interests about whether to make a Statutory Will.
Because of the complexity of the application process, it always helps to have an experienced solicitor by your side to help you collate the information and ensure it is accurate.
What can be done to prevent a Predatory Marriage?
The marriage usually takes place covertly and so often in these cases family members only find out after the loved ones have passed away. However, it is possible to lodge a caveat against a marriage. To do this, you usually need to provide your name and address, along with the details of the two persons whose marriage you object and state your grounds for objection. In terms of predatory marriage specifically, you would usually need to provide a medical assessment from a GP or medical practitioner outlining their concerns in respect of the persons capacity to marry.
BLOG: Why is it important to protect my wealth when getting married?
It is important to consider protecting your wealth when you are getting married, especially in circumstances where there are significant assets, property, businesses or inheritance involved.
A Blog by Jane Auty.
How can the law be reformed to prevent a Predatory Marriage?
There are a number of ways in which the law needs to be reformed in respect of the elements of predatory marriage. The first being that marriage revokes a Will, especially given that the capacity threshold to enter into a marriage is much lower than the capacity required to put a Will in place. In addition, there needs to be a requirement that Registrars conduct separate pre-marriage interviews and that they are suitably trained to assess capacity and recognise safeguarding issues.
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