Lawyers split over action on wills to address ‘predatory marriages’

Wills: Exploitation fears

Private client lawyers are divided over whether the rule that marriage or civil partnership automatically revokes a will should be scrapped as a way to combat ‘predatory marriages’.

However, both the Law Society and the Society of Trust and Estate Practitioners (STEP) agreed that a new Act was needed to introduce electronic wills, subject to safeguards.

The Law Commission launched a supplementary consultation on electronic wills in October, six years after its original proposals, asking whether a new Wills Act should give the justice secretary an enabling power to introduce electronic wills at some point in the future or whether they should be introduced on the face of the legislation.

The commission also asked whether marriage or civil partnership should automatically revoke a will, given concerns over ‘predatory marriages’ – where a person marries someone elderly or who lacks mental capacity as a form of financial abuse.

In their responses, both the Law Society and STEP opposed a change in the law on revocation, while acknowledging that members were evenly divided on the issue.

The society said its survey of 895 specialist wills and probate solicitors earlier in the year showed that 42% wanted the law to be changed to stop marriage or civil partnership automatically revoking a will, while 42% opposed it.

In any case, the society said there was a need for “further action to prevent the exploitation of vulnerable people”, saying a fifth of lawyers surveyed reported having a client they suspected was in a marriage that the other person entered into to subject them to financial abuse.

The Matrimonial Causes Act 1973 could be amended, so that if a marriage was entered into when someone lacked capacity to marry, then it would be deemed void from the start and would not revoke a will.

Another option would be for the laws on want of knowledge and approval and/or on undue influence to make a will to be applied to revocation of a will at the point of marriage in “suspicious circumstances”.

Like the society, STEP opposed changing the law on automatic revocation while admitting that practitioners were “well and truly divided on this issue” and calling for the need to raise public awareness of the rule.

On electronic wills, STEP said they should only be valid if registered and stored on a government-authorised central storage system. “It is thought that this could be done using blockchain technology.”

STEP called for a new Electronic Wills Act which “on the face of that act” permitted electronic wills and contained a list of the requirements that must be met for an electronic will to be valid.

Chancery Lane took a different approach, calling for the new Wills Act to contain an enabling power allowing the justice secretary to bring forward secondary legislation on electronic wills.

The justice secretary would be “required to undertake advice from an expert and representative committee” before doing so.

Both STEP and the Law Society supported retaining the option of a paper will to ensure that people who might struggle to make a will electronically are not disadvantaged.

Nick Emmerson, president of the Law Society, commented: “While we are not opposed to the use of technology to facilitate will-making, we recognise concerns around the risk of fraud and undue influence.

“It is important that the requirements for an electronic will provide the right level of protection. We hope that if electronic wills are introduced, more people will be encouraged to write wills.”

He added that it was “alarming” that a fifth of solicitors had expressed concern about clients being involved in predatory marriages.

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