A campaign to change the law which currently puts a marriage before a will has reached Parliament, after children found themselves conned out of inheritance by ‘predator scammers’.

Daphne Franks’s late mother was the victim of such a scam. But Daphne has now gained the support of MP Fabian Hamilton who will seek Parliament’s backing to change the law.

In a ‘predatory marriage’, a person’s vulnerability is exploited by someone inducing them to marry. The classic example is an older person with cognitive impairments who is taken advantage of by someone much younger.

Very few members of the public are aware that marriage revokes a will. The problem has already been addressed in Canada and in some American states, where marriage no longer revokes a will.

Solicitor Sarah Young, from Ridley & Hall says: “When someone marries in the UK, any will they had made previously automatically becomes invalid. When they die, their estate will pass under the intestacy rules where it is unlikely that children from a previous marriage will receive anything.”

A case study

Daphne’s mother Joan was 87 and in the early stages of dementia in 2011 when she was befriended by a 63 year old man, who we will call “Ranlyn” who cynically exploited Joan’s vulnerability.  Joan lived on her own with support from Daphne who lived next door to her.  Despite Daphne’s concerns about Ranlyn’s motivation she had no tangible evidence of any wrongdoing until she discovered after her mother’s death, that she and Ranlyn had been married.  Astonishingly she found out that despite having power of attorney for her mum and managing her finances for her because of her dementia, it was still possible for her mother to be married in secret without any notification being given to her or anyone else.

So although Daphne, her husband and all Joan’s family and friends are absolutely confident that her mum had no clue that she was married, on her death, her husband inherited everything she possessed.

“You do not have to have the same level of mental capacity to marry, as you do to make a valid will,” explains Solicitor Sarah Young from Ridley & Hall in Huddersfield. She is supporting Daphne’s campaign to change the law, and says: “Daphne is certain that her mother lacked capacity to marry but, legally, it is incredibly difficult to challenge.”

Daphne is horrified at the lack of safeguards: “I was shocked to discover that registrars who carry out marriages have no training about the legal test for capacity to marry. They are given no useful guidance on how to assess mental capacity, or even that they should consider the possibility of dementia at all. They are supposed to be told to stop a marriage if they have any concerns, though we know that some have been told to only report it after the ceremony. In my mother’s case, one of the registrars freely admitted afterwards that she had concerns on the day, but the marriage went ahead anyway.”

Solicitor Sarah Young, from Ridley & Hall in Huddersfield who supports Daphne’s campaign to change the law, explains:

“The huge problem that this creates is that capacity is time and act specific; without any direct evidence as to lack of capacity at the time of the wedding it is virtually impossible for a marriage to be annulled after the event.  Even if steps are taken to annul a marriage, the marriage is still valid up until the degree of nullity … which creates the ridiculous situation that the invalid marriage would still revoke a will made before the marriage.”

In Joan’s case because she lacked capacity to make a new will after her marriage, she died intestate so her entire estate passed to her predatory spouse.  To Daphne’s great distress this meant that Ranlyn had control over her mother’s funeral arrangements which meant that she was buried rather than cremated, as had been her wish. Her court battle to overturn Ranlyn’s control of the funeral arrangements was unsuccessful, even though Joan’s GP testified in Court that in his opinion she did not have capacity to marry.  The Police spent a year building a case against Joan’s husband for Forced Marriage under the Anti-Social Behaviour Act, 2014 but it failed at the CPS stage because no evidence is kept at marriage – once the ceremony is over, it is impossible to prove what happened on the day.

The tragedy of the situation is also compounded during a parent’s lifetime for their children and other relatives because the predatory spouse becomes next of kin. This means that the victim’s family can be, quite legally, frozen out of their parent’s life – they may know that their parent is unhappy and or confused, but have very little power to take any action.

The problem of predatory marriage is well recognised abroad – in Canada (British Columbia, Alberta and Quebec) and in some states in America, the law has been changed so that marriage no longer revokes a will.

Sarah Young, who is an expert in financial abuse of the elderly, is concerned that this is a phenomenon that is going to increase:-

“Elderly parents of adult children, living alone and with declining cognitive faculties are particularly at risk.  A change in the law is needed to address the circumstances in our society that have created a high risk of financial abuse of the elderly”.

She goes on to say: “A report published in 2018 in the Lancet Public Heath Journal analysed the projected health needs of the elderly in England between 2015 and 2035.  The fastest growing demographic in the UK is elderly people over 85 whose numbers are projected to more than double by 2035, increasing by 1.5 million.  The report also predicts that the number of people aged over 65 with dementia and at least two other diseases will double by 2025 and treble by 2035.  The baby boomer generation has benefited from increasing property prices and is now a relatively wealthy section of the population.  While medical science has increased the average life span, it has not made comparable progress in reducing the cognitive impairment associated with the aging process.  Many families are fragmented, with divorce, separation and work opportunities often leaving older people isolated within their communities”.

Daphne Franks feels very strongly that registrars should receive better safeguarding training to prevent predatory marriages taking place in the first instance, but also that changing the law could act as a significant disincentive to potential predators:-

“I want to raise awareness of this form of abuse to try to prevent the nightmare that I found myself in happening to any other family.  Changing the law so that marriage no longer revokes a will won’t prevent every predator, but I hope that it will put off at least some unscrupulous individuals.  I have spoken to many people over the last few years, very few of whom were aware that marriage revokes a will, so it seems to me that changing the law would not cause a problem but might help to protect the elderly and vulnerable.”

Fabian Hamilton MP supports Daphne’s campaign and it is hoped that enough support can be gathered to enable this important change to the law to be introduced as soon as possible.

Hamilton will present his 10-minute bill, which is co-sponsored by Preet Gill MP, on 21 November 2018.

Notes to editors about mental capacity

Section 3 of the Mental Capacity Act 2005 states that a person is unable to make a decision for himself if, as a result of an impairment in the mind or brain, he is unable:-

1. To understand the information relevant to the decision.
2. To retain that information.
3. To use or weigh that information as part of the process of making the decision.
4. To communicate his decision.

In deciding whether someone has the capacity to marry the court must ask three specific questions:-

• Does the person understand the nature of the marriage contract?
• Does the person understand the duties and responsibilities that normally attach to marriage?
• Does the person have capacity to consent to sexual relations?

The 2017 case of EJ v SD decided by the Court of Protection held that having capacity to marry should also include the requirement that a person should be able to “understand, retain, use and weigh information as to the reasonably financial consequences of a marriage including that the marriage would automatically revoke the person’s will.”

 Sarah Young Director – Litigation

Sarah Young is a partner with Ridley & Hall Legal Limited. Sarah is a specialist in inheritance disputes. She is a member of the Association of Contentious Trust and Probate Specialists (ACTAPS) and Solicitors for the Elderly (SFE).

Daphne Franks is the daughter of Joan Blass, a victim of a predatory marriage. Daphne is campaigning for a change in the law so that marriage no longer automatically revokes a will in England & Wales.