Earlier this year we looked at how the test of capacity varies depending on the situation and how it may be possible that the threshold required for a person to marry is lower than that to make a Will. Campaigners are now hoping to change the law in order to protect vulnerable testators and their families from exploitation by ill-intentioned individuals entering into a marriage for financial gain.
The current framework
Under section 18 of the Wills Act 1837, marriage automatically invalidates a previous Will unless the Will was written in contemplation of a particular marriage. If the threshold for testamentary capacity to marry is lower than that to make a Will you may end up in the situation where a person has married (which automatically revokes their Will) but are unable to execute a new Will due to lack of capacity. If that is the case the rules of intestacy will apply and their entire estate (or a significant proportion of it) may pass to their new spouse leaving other family members with little or no inheritance.
While case law has shown that to marry a person must understand the financial consequences of entering into that marriage, there is no requirement for a registrar to assess whether both parties understand what they are doing in entering the marriage contract. The law does provide protections to prevent marriage under duress however if the parties seem content to marry it does not mean the test of mental capacity has been satisfied.
It is easy to see how a person may exploit the current loophole by entering into a marriage with someone who lacks capacity to make a Will with the intention of financial or other gain. These situations are becoming known as “predatory marriages”.
These marriages may happen in secret meaning family members may not even be aware of the situation until after their loved one passes away and their only recourse may be to bring an action in court – an often lengthy and costly process.
Campaigning for change
On 21 November 2018, MP Fabian Hamilton presented the Marriage and Civil Partnership (Consent) Bill – a bill that seeks to establish certain safeguards against these “predatory marriages”.
The Bill is being prepared for publication. If the Bill receives the necessary support, in its current form it would establish that:
- marriage should no longer revoke a previous Will;
- registrars are trained to ensure that robust procedures for safeguarding vulnerable individuals are put in place;
- certain procedures such as a simple questionnaire are put in place to alert registrars that an individual may be vulnerable and that a medical capacity assessment may be required before the marriage is registered; and
- notice of intention of a marriage should be published on the internet to allow families to be informed of an upcoming wedding even if they are not invited to the wedding itself.
The Second reading is scheduled for Friday 25 January 2019 and there are still many stages the Bill has to pass through before the law would change. However it does raise further awareness of how marriages generally revoke previous Wills and of the potential loophole that currently exists.
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