Last week, as the ‘Free Wills Month’ initiative got into full swing, the Law Society called on government to update a 19th-century wills law that is ‘not fit for the future’.
Last May, the Law Commission recommended a raft of changes to the current law, which is still largely based on the Wills Act 1837. The proposals include updating the law on capacity, formalities and electronic wills. One of the more controversial recommendations is to abolish the rule that a will is automatically revoked by a marriage or civil partnership – in an attempt to tackle the growing problem of ‘predatory marriage’.
Predatory marriage is where someone coerces or manipulates a vulnerable elderly person into marrying them, so they can inherit their estate. Under current law, once the marriage or civil partnership takes place, any will previously in place is invalidated.
The true extent of predatory marriage is hard to quantify, because it does not usually come to light until the victim has died; and by law, a marriage cannot be challenged after the death of one of the parties. In its report, the commission said that while predatory marriage is not necessarily common, it is ‘far from uncommon’ and ‘far more widespread’ than it had previously thought.
When BBC Radio 4’s ‘File on 4’ contacted 176 solicitors about predatory marriage, it discovered that 98 suspected cases had been received by their firms during 2020. Meanwhile, Predatory Marriage UK told the commission it was contacted by around two families per month with suspicions of predatory marriage.
Facts often followed the same pattern. The predator moves in fast on the elderly person. They befriend family members before becoming more hostile and isolating the victim, marrying them in secret and keeping the marriage hidden even after the death. The behaviour patterns are so similar that the organisation reported rumours that a ‘how-to’ guide to predatory marriage may be circulating on the dark web.
One solicitor told the commission of a particularly harrowing example of attempted predatory marriage. The younger, female partner – of a few months – of an elderly male client arranged a marriage at the local registry office. The client did not turn up, as he did not want to marry her. Then she tried to force him to change his will, leaving everything to her – but he had a heart attack and died in the firm’s reception before signing the new will. The solicitor believed the predatory partner had seen marriage as an easier option than getting the victim to change his will. Her coercive behaviour did not come to light until after the client’s death.
This evidence of abuse is clearly worrying, but there is another side to the coin. The rule that a will is automatically revoked by marriage or civil partnership offers financial protection to surviving spouses and civil partners. Marriage is a positive action, a new chapter in someone’s life. If no new will is made after marriage, should the law really assume that any existing will, no matter how old, no matter if it was made before the testator had even met their marital partner, still represents their true intentions – ignoring the more recent action of getting married? The risk of unintended financial hardship for surviving spouses is clear, and potentially far more widespread than the issue of predatory marriage, concerning as that is.
In its proposals, the commission acknowledges that a change in the law would disadvantage spouses and civil partners compared to the current position. However, it suggests they will still be ‘protected’ by the Inheritance (Provision for Family and Dependants) Act 1975, enabling them to make a claim against the estate for reasonable financial provision if needed. This is where legal rights shatter into tiny pieces as they slam against the cold, hard reality of legal costs.
Bringing a claim under the 1975 act is very expensive and out of reach for the ordinary person. This is not an area of the law where it is easy to find a lawyer willing to act under a no win, no fee agreement. Depending on the outcome, the potential bill could run into tens of thousands of pounds. Ironically, the more the surviving spouse is in need of financial support, the less likely they are to be in a position to bring a claim for it.
Tackling the growing issue of predatory marriage while safeguarding the financial needs of surviving spouses is not easy and I do not claim to have the answer. Whatever steps are taken, however, legislators must be clear-eyed about the cost of using our court system, and how difficult it is for parties to enforce their rights in this area of law.
The Gazette will examine the issue of modernising the law on wills in more detail in the 10 April issue
Rachel Rothwell is editor of Gazette sister magazine Litigation Funding and a former Gazette news editor
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