Posted by Legal Futures Associate Estate Research
Wills: Families being blindsided by the law
One of the issues currently being considered by the Law Commission (and by the Law Society and Society of Trust & Estate Practitioners) is whether marriage should no longer automatically revoke a will.
As any practitioner within private client law will know, it is the law in England, Wales and Northern Ireland that marriage has this effect.
Section 18(1) of the Administration of Justice Act 1982 replaces section 18 of the Wills Act 1837, which provides that a will made on or after 1 January 1983 is no longer revoked by marriage if at the time it was made:
- The testator or testatrix was expecting to marry a particular person;
- They did not intend to revoke their will by the subsequent marriage to that person;
The equivalent provision for Northern Ireland is the Wills and Administration Proceedings (NI) Order 1994, and for civil partnerships it is in schedules 4 and 14 of the Civil Partnership Act 2004.
However, this current law is being exploited by individuals who prey on elderly, and often infirm, people near the end of life.
They form a close relationship, resulting in a speedy marriage – often without their family knowing. Known as a ‘predatory marriage’, it can be emotionally and financially damaging to the victim and their family – and the law is not on their side.
Dominic Hendry, head of Estate Research’s private client team, warns about the implications of marriage revoking a will: “As a probate genealogist and in line with societal changes, we are increasingly seeing cases involving second and third marriages, stepchildren, and blended families.
“A common case for us is where marriage has revoked a will that the children of the deceased believed to still be valid.
“Of course, they only realise the situation once their parent has sadly passed away, and now they will never know for sure whether it was their parent’s true wishes to leave them with no share of the estate or if it had been a simple oversight of not updating their will.”
A truly sad and worrying case is that of Daphne Frank’s mother, Joan Blass, who died at home on 26 March 2016. She was nearly 92, with advanced vascular dementia and terminal cancer.
Four days later, Daphne received a phone call from her mother’s GP. He said: “Daphne, did you know your mother was married?” Despite living next door to her mother, Daphne was unaware of this marriage or the devastating impact it would have on her life.
The man and Joan had five months to the day before she died. He was 67. The only people invited were his son and a lady from the pub.
Joan met the man at the garden gate and the first her family knew of him was when he had moved in. When Daphne met him, her mother asked her who he was — Joan had no recollection.
Daphne went to the police early on and was told they could do nothing because he was there at her mother’s invitation.
Daphne says: “My mum made a will in 2004, leaving everything to children. But her marriage in 2015 revoked this will. We not only lost our inheritance, but we didn’t even get a say in her funeral arrangements or where she was buried. My mother has no headstone — and we are left alone as the law is not on our side.”
Daphne has been campaigning for change in the Wills Act 1837; of 176 solicitors she spoke to, between them they reported 98 inquiries about this issue in a single year — about two a week. With 900,000 people living with dementia, it’s a straightforward ‘crime’ to commit.
Andrew Bishop, a principal associate at Shoosmiths, says: “At the moment, there is no requirement to check at the time of marriage whether there is a power of attorney in place, and I think that could be easily put into place.
“It doesn’t mean that someone has a lack of mental capacity when signing a power of attorney – many people with dementia in the early stages would have the capacity to marry.
“But the fact that the power of attorney would be in place would at least highlight to the registrars that there might be a problem if someone with dementia, with a power of attorney in place, did arrive to get married.”
“And the other interesting thing is now the marriage notification is published in only one registry office. If notifications of marriage were easily searchable on an internet database, then families could keep a look out for any potential marriage.”
Stephen Lawson, a partner at FDR Law, continues: “I have seen cases like Joan’s, and that is why I am concerned and will remain worried about trying to find a solution to prevent this from happening.
“However, I do know that very few lawyers know about a caveat to stop a marriage being granted, which is under the Marriage Act of 1914.
“Eleven people registered caveats to stop the then Prince Charles from getting married to Camilla – but obviously, you can get the caveat dismissed, and that’s what happened with Charles, which is why he’s so happily married now.
“But lawyers only sometimes know about caveats under the Marriage Act. It’s not a perfect remedy, but it’s something that can be done.
“In terms of what we see with predatory marriage, it is part of the widespread abuse of older people. That’s financial abuse, gaslighting, coercive control, grooming and predatory marriage.”
So, what could be done to protect against predatory marriage?
Stephen Lawson believes that one of the protections that could be built in is that a registrar could be required to check if a power of attorney was registered and, if so, notice of the marriage should be given to the person holding it.
Daphne Franks continues: “I know that the forced marriage unit is rolling out training to registrars on predatory marriage, which is excellent, and they’re bringing in a set list of questions.
“It would be exciting and valuable to bring a check in for a power of attorney simultaneously because this was the missing bit when my mother married.
“She’d lost capacity, and she didn’t even know what a marriage was, and she certainly didn’t know what a will was. For her, having a power of attorney failed to protect her.”
The question of whether marriage should revoke a will and the protections against the current legalisation being used fraudulently to deny the true wishes of somebody lacking capacity are an ongoing debate within private client circles.
Practitioners will undoubtedly be looking on with interest at the Law Commission’s findings on whether a law that has been in place since the 1830s needs to be changed for the 21st century.
To hear the entire webinar where Daphne Franks shared her very personal story of predatory marriage and where Stephen Lawson and Andrew Bishop debated if the Wills Act 1837 needs reforming, see here.
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