Predatory marriage and probate

The concept of ‘predatory marriage’ may not mean a great deal to English lawyers, and certainly not probate practitioners, but with an aging population, and legislation in apparent need of reform, the harm caused by predatory marriage seems set to increase and can have serious and permanent testamentary effects.

The term ‘predatory marriage’ is generally accepted to apply to forced marriages faced by individuals (usually elderly) whose mental capacity is in doubt or who are vulnerable to undue influence (we shall call this person “A”). These are the same individuals whose estates are often subject to a probate claim after they have passed away.

The issue with a predatory marriage, which would come as a surprise to most practitioners, is that a scheming partner (“C”) can engineer a solution that by-passes a Will dispute and can land C with the entire estate with no ground for a disappointed beneficiary (“B”) to complain after A’s death.

The difference between void and voidable marriage

The void and voidable concept in law is what such a scheming partner can rely upon to prey on a vulnerable victim.

If A marries whilst lacking capacity and/or was unduly influenced to do so, the effect of the Matrimonial Causes Act 1973, section 12(c) is that the marriage will not be deemed void, but merely voidable – as in contract law.

The difference is significant, given that a party to a voidable marriage or contract will need to apply to the court to have the arrangement annulled. This must be done during life.

Until that declaration is made, the marriage is treated as valid under section 16 of the 1973 Act. Such declaration is also prospective, not retrospective.

The consequences of a predatory marriage

The 1973 Act has significant implications for the law of probate. A valid marriage revokes any previous wills made by that individual (Wills Act 1837, section 18(1)). So, the effect of the 1837 and the 1973 Acts are such that, even if a marriage is later declared a nullity, its effect will still have been to revoke any previous Wills that person may have made in life while deemed to have capacity.

In order to mitigate this effect, that same individual would have to reinstate those earlier Wills, or else die intestate. Whilst the effect of the law causes an inconvenience in this scenario, if the marriage is set aside during life and A has capacity and is free from undue influence, he or she can make a new Will, and the issue is readily rectified.

But what happens if that person has since lost capacity to make a Will? Or, worst of all, what if they die before the marriage can be nullified? This scenario can all too easily be engineered deliberately – in other words a predatory marriage. Say A’s capacity is uncertain, and their scheming partner C knows this. C can connive to marry A (possibly abroad and / or in secret) creating a marriage which is voidable - but not void - thanks to the 1973 Act.

The marriage here revokes the Will previously made by A, the benefit of which was received by person B. However, if A dies soon after, C gets their hands on the estate thanks to the intestacy rules (assuming A has no issue). B is disinherited and without recourse – even though the Will was made when A had capacity and wanted B to inherit. B cannot apply to the court to set aside the marriage after A’s death and there is no probate claim to make.

Most lawyers think it clear that this area of law needs urgent reform. It is inconsistent with the criminal law. Forced marriage is a criminal offence under section 121 of the Anti-social Behaviour, Crime and Policing Act 2014, but the civil system provides no relief for B. It is worth noting that the problem of void and voidable marriages was not always this way. Prior to the Nullity of Marriage Act 1971 (the effect of which was, for these purposes, identical to the 1973 Act) and the decision of the Court of Appeal in Re Roberts [1978] 1 WLR 653, there were cases where beneficiaries applied successfully after the death of the testator (the person who made the Will) to have their voidable marriage declared null and void. This is no longer possible.

What can be done now?

Unfortunately, as is the premise of this article, once A has died, options are limited. As such, those that wish to look after A’s best interests would be well advised to consider:

1. Advising A to set aside the marriage during life. If A has lost capacity, the Court of Protection will have to be involved;
2. Ensure a new Will is prepared. Again, the Court of Protection would have to be involved if A has lost capacity.

The above, however, is an imperfect and costly solution. In addition, if A were to be married in secret, the marriage and the consequences of it would not be known until it was too late. If only option 2 were adopted, it should be noted that by the marriage, A has granted their spouse a right to receive reasonable financial provision from their estate under the Inheritance (Provision for Family and Dependants) Act 1975, regardless of the terms of their will. This would risk the unfortunate consequence of the will beneficiaries being locked into high risk and costly litigation following the deceased’s death in order to defend their loved one’s testamentary wishes and their beneficial interest.