Bethan Byrne, Managing Associate,Mishcon de Reya
Hello and welcome to this Mishcon Digital Sessions on predatory marriage. I’m Bethan Byrne, Managing Associate and Professional Support Lawyer in the Private Wealth Disputes Team and I am joined by my colleagues Hannah Dart, a Managing Associate in our Tax and Wealth Planning Team and by Sheena Cassidy Hope, a Partner and Professional Support Lawyer in our Family Team. Today we plan to cover what is meant by predatory marriage. Why has this topic been in the press so much recently? What proposals for reform have been made or are being considered? And what can you do if you are worried about a family member? So, to start with Hannah, can you explain what is meant by predatory marriage and why this has recently been in the press?
Hannah Dart, Managing Associate, Mishcon de Reya
Yes so, predatory marriage can be defined as marriage with inheritance or financial gain as the driving factor. The word ‘predatory’ is itself inflammatory, it conjures up unpleasant hunting images at the expense of the vulnerable victim. Many of us have read about Daphne Franks, who is leading a campaign to change the law to put additional protections in place for those who lack capacity to marry. Miss Franks’ high profile campaign followed her discovery that her mother, Joan Blass, who was ninety-one and suffering from dementia, had been befriended by a man over twenty years her junior and that they had, unknown to Daphne, married. The result being that Miss Blass’ previous will, leaving her estate to her children, was automatically revoked. Her estate passed instead to her new husband, who Miss Franks refers to as “The Predator”.
Bethan Byrne, Managing Associate, Mishcon de Reya
Can you tell me a bit more about the statutory position in relation to marriage and inheritance.
Hannah Dart, Managing Associate, Mishcon de Reya
So the act of marriage automatically revokes a will. That’s in accordance with the Wills Act and the rule hasn’t changed since 1837. And when you think about it, it’s quite hard to justify the continuation of that rule so, there’s no other life event that triggers revocation of a will. If you get divorced, your will is broadly read as if your ex-spouse had predeceased you. All its other provision remain valid. If you have a child, your will remains valid even if it makes no provision whatsoever for that child. If someone happened to be thinking about their succession planning following either of these life events, they would arguably be just as likely to want to amend their will as they would following a marriage yet the law doesn’t force them to review their plans by revoking the pre-existing arrangements. It’s very paternalistic and it concludes that marriage just should change a person’s plans in this way. It’s also really easy to think of situations where revocation of a will following marriage is not appropriate, particularly when we think about modern families and lifestyles. Couples might have been together for many years before marriage and already have wills, leaving everything to each other. Why would they want to revoke those wills when they get married? Couples might signa prenup before they marry, saying neither is going to have a claim against the other’s assets. Again, why would they want pre-existing wills to be revoked? They might leave their assets to, for example, their children from a previous relationship. Even leaving aside those situations, automatic revocation doesn’t necessarily make sense. England doesn’t have forced heirship like other countries, saying that you have to leave a certain share of your estate to a surviving spouse. If someone dies without a will, the intestacy rules don’t provide that the surviving spouse inherits the entire estate unless it’s worth less than £270,000 and they don’t have any children. Which rather begs the question of why the act of marriage has any automatic impact on a will at all.
Bethan Byrne, Managing Associate, Mishcon de Reya
And have there been any plans for reform?
Hannah Dart, Managing Associate, Mishcon de Reya
Yes. The Law Commission looked at it in 2017. Unfortunately, they didn’t come to a firm recommendation, partly because they noted it is a delicate question of policy. They did suggest it would be helpful to understand the public’s awareness of the present rule before reaching a conclusion. I am not aware of any formal research in that regard but certainly my own impression, as someone who advises people on estate planning, is that people aren’t familiar with the rule. But they can be alarmed when we tell them, potentially many years after they married, that they don’t actually have a valid will in place because the ones they signed before they married were revoked without their knowledge.
Bethan Byrne, Managing Associate, Mishcon de Reya
One of the considerations in the Law Commission Wills Consultation was whether marriage should automatically revoke a will where a person marries after having lost testamentary capacity. Can you explain a little bit more about the relevant tests for capacity and why this is important?
Hannah Dart, Managing Associate, Mishcon de Reya
Yes, so the test of testamentary capacity remains that which was set out in a case called Banks and Goodfellow back in 1870. The case says that there are four things that a testator must do. They have to understand the nature of a will and its effect, so what a will is. They have to understand the extent of the property they can dispose of, so what they own. They have to be aware of who they might be expected to make provision for, so that could be family or friends or people like that, it’s not that they have to make provision for them but they just have to know who they would be expected to make provision for. And they have to be not suffering from any delusion of the mind. Then we have the Mental Capacity Act in 2005, which rewrote a lot of the law around mental capacity and impose some new principles in determining someone’s capacity to make decisions. So, for example, a person should be assumed to have capacity unless proven otherwise, all practical steps should be taken to help them make a decision before treating them as unable to make a decision, they are not treated as unable to make a decision merely because they make an unwise decision. For the purposes of the Mental Capacity Act, a person lacks capacity to make a decision if they are unable to make decision for himself in relation to the matter because of an impairment of or a disturbance in functioning of the mind or brain but it has been held that we still look at the Banks and Goodfellow principles to ascertain testamentary capacity specifically. If someone doesn’t have the requisite level of capacity, they are unable to make the decision in question. So, if someone executed a will but it was subsequently shown that they did not meet the Banks and Goodfellow test, the Court could declare that will to be invalid.
Bethan Byrne, Managing Associate, Mishcon de Reya
Thanks Hannah. So, Sheena, is it correct say that capacity to marry is effectively a lower bar than for other acts?
Sheena Cassidy Hope, Partner, Mishcon de Reya
I’d say fundamentally, the question as to whether a party has capacity to marry is the same as whether they have capacity to carry out any other act. That is to say, whether they have ability to understand the nature and quality of the transaction in question. Having said that, marriage has been said to be a simple contract which doesn’t require a high degree of intelligence to understand and there were two elements to the enquiry from a legal perspective. The first is whether the person intending to get married understands the nature of the marriage contract. The second is whether they understand the duties and responsibilities that normally attach to marriage, for example, the sharing of a home and domestic life and the expectation of enjoying each other’s company and support. While a couple must understand there may be financial consequences to the marriage and there is a Court of Protection case which said that should include understanding that a previous will would be automatically revoked, a subsequent family division case considered it is not of the essence of the marriage contract for the spouses to know of, let alone understand, the financial consequences of marriage or its dissolution.
Bethan Byrne, Managing Associate, Mishcon de Reya
So, do you think it is right to have different tests for marriage and capacity to enter into a will? I’ll start with you, Hannah, from a private client perspective.
Hannah Dart, Managing Associate, Mishcon de Reya
We often say the will is perhaps the most important document someone will ever sign. It dictates not just who will receive your assets but also in appointing executors, who has control of those assets and it can extend to the appointment of guardians to care for minor children. Given the testator will not be around to supervise what goes on or to explain their wishes, all of these choices are monumental decisions and ones which are not always easy. As a lawyer preparing wills, I am expected to follow the golden rule. What that means is, if I have any doubts whatsoever as to a testator’s capacity, I seek a medical opinion and it’s an obligation we take seriously because we know how important the wishes we record in a will are. So I certainly agree that putting in place a will requires a high level of capacity. And that said, marriage of course also has enormous consequences. When I think of clients for whom I’ve requested a medical opinion before preparing a will for them, it does seem strange to me that a registrar would not have the same obligation to request a medical opinion before marrying them. Is it not a decision of equal importance? But how then do we balance that with the right of everyone to a family life with which the state should not unduly interfere.
Bethan Byrne, Managing Associate, Mishcon de Reya
Thank you, Hannah. And Sheena, from a family law perspective, do you have a differing view?
Sheena Cassidy Hope, Partner, Mishcon de Reya
I’m definitely going to start by saying I disagree with Hannah when she says a will is the most important document someone can sign. A marriage register is a far more important document that people may sign. But in terms of capacity perspective, I think to a degree it depends on whether one takes a more general or a more legalistic view of what marriage actually is. I’d suggest marriage is more universally understood concept than something like creation of a will. Decisions relating to marriage, just as the decisions relating to relationships more generally, are more frequently emotional decisions than for example those regarding property. The right to form a marriage has been considered a fundamental right and for most people, marriage is viewed far more as a personal decision than a legal transaction, although it does have significant legal implications, a very great number of people don’t really consider that side of it all when deciding whether or not to marry someone. For them, it’s more about making things official and entering into a formal commitment with another person. That’s also one of the reasons why one often hears of people who choose not to get married, saying things such as ‘Well it’s just a piece of paper’ which they don’t consider to be important and they consider what’s important to their commitment to life with the other person. Unlike participating in litigation or making a will, getting married isn’t something that people frequently take legal advice about. On the other hand, if we take a more legalistic view of marriage, the legal implications of that piece of paper are huge. Marriage fundamentally affects a person’s status in the eyes of the law and the fact that a marriage revokes a will, I would say that’s the tip of the iceberg. Marriage affects whether or not financial claims can be made between parties should the relationship break down. It affects what becomes of a person’s estate on a intestacy. It affects a persons’ position regarding tax. It can affect whether a father has parental responsibility for his own child. It affects whether the Crown can compel one part of the couple to give evidence in a criminal prosecution against the other. The list really does go on. So, I think if we are looking at marriage on that human level of committing to a life with another person, it’s right that the test is a simple one. If one takes a legalistic approach and considered all of those legal implications that arise from that change in status before a marriage could validly be entered into, then the test would almost certainly be far more complicated than the test required for someone to have capacity to enter into a will.
Bethan Byrne, Managing Associate, Mishcon de Reya
And then from a practical point of view, what can be done where a relative, like Daphne Franks, is worried about the possibility of predatory marriage in relation to a vulnerable relative or friend?
Hannah Dart, Managing Associate, Mishcon de Reya
Registrars do have a duty to ascertain whether a person has capacity to marriage though for the reasons already discussed, that is not currently a very high level, it is seen as a simple contract. That said, it would be helpful if anyone who has concerns raises with their local Registry Office that they think their relative might seek to marry and they have concerns about their capacity so that the registrar can ensure that they aware of this and that they ask appropriate questions. Where someone does not have testamentary capacity, it is possible to apply to the Court of Protection for a statutory will. So this would be an option for the family of someone who had a will but married and that will was then revoked, so it now needs to be replaced. In essence, the Court authorises someone else to sign a will on behalf of the person lacking capacity. The application has to set out the proposed terms of the will for the Court’s review and obviously the Court acts as a safeguard there. It will ask questions if an application seems to disinherit the testator’s immediate family, for example.
Sheena Cassidy Hope, Partner, Mishcon de Reya
Also, where there is a concern a person is being coerced into marriage, it may be possible to obtain a Forced Marriage Protection Order under the Family Law Act. For the purposes of that Act, force includes coercion by threats or other psychological means and the Court has held that a marriage to an incapacitated individual is a forced marriage. If the marriage has already taken place, it may be possible to have it annulled under Section 12 of the Matrimonial Causes Act. If a family member has been made aware of a proposed marriage at a register office and believes that one party lacks capacity to marriage, they can lodge a caveat with the superintendent registrar or even seek an injunction and where a party has a lasting power of attorney registered, the attorney can seek the assistance of the Court of Protection.
Bethan Byrne, Managing Associate, Mishcon de Reya
And Sheena, can you explain a bit more about what’s meant in relation to coercion and how this arises in a domestic or a family law context.
Sheena Cassidy Hope, Partner, Mishcon de Reya
Coercive behaviour has been defined as an act or pattern of acts of assault, threats, humiliation and intimidation or other abuse that’s used to harm, punish or frighten the victim. Coercion is usually used as a form of control. The survivor of abuse knows that if they don’t act in a certain way, there will be unpleasant consequences for them or for someone they care about such as, for example, a child. Coercive and controlling behaviour is a form of domestic abuse and it was made an offence pursuant to the Serious Crime Act 2015. Coercive and controlling behaviour though can be one of the most invidious types of domestic abuse as it can consist of a pattern of behaviours that individually, may not be considered abusive, such as checking up where someone has been or looking at their bank statements but these smaller elements continuing and combined can leave the survivor in a position where they are completely terrified to do anything that would displease the perpetrator of that abuse.
Bethan Byrne, Managing Associate, Mishcon de Reya
And bringing it back to the issue of the marriage ceremony, we have an apparent dilemma. Is the answer to require parties to comply with additional formalities, such as a capacity assessment, before a marriage ceremony takes place?
Sheena Cassidy Hope, Partner, Mishcon de Reya
Well, registrars are already given guidance on ensuring that parties to a marriage have capacity to marry. Although it’s understandable why, particularly where predatory marriages have recently become more towards the forefront of public consciousness, it’s being suggested, for example, that registrars should carry out capacity assessments for the purpose of ensuring that marrying couples have sufficient capacity. That comes back to my earlier question about which view we take of marriage, that the human view or the more legalistic view because should that capacity be on the basis of the current test or some other test and if it’s the current test, well that’s not going to address the question about testamentary capacity and the problems of spouses without that testamentary capacity being able to marry. If it should be a different test then should it cover all those other issues I mentioned earlier? So, not just testamentary capacity but the implications for tax, for criminal proceedings and so on. And if it was to cover all of those possible outcomes, it strikes me as unrealistic to expect a registrar to carry out what would be an extremely lengthy and complicated test. Further, the Law Commission has begun a consultation on the law relating to weddings and particularly the requirements that are set out in the Marriage Act for a valid marriage to be formed. And although the question of capacity to marry isn’t within the remit of that weddings consultation, one of the aims of the consultation is to simplify the process of marriage. At present, there is a significant issue of non-qualifying ceremonies and that’s where weddings, typically conducted according to religious rights, have failed to comply with any or sufficient of the requirements in the Marriage Act and these can result in there being no change of legal status, so no actual marriage at all. And frequently, one or both of the parties to that marriage may not even realise this and it can often leave the more vulnerable party to that marriage unprotected and potentially subject to significant hardship should the relationship come to an end, particularly for example if the supposed marriage has lasted for many years, children have been raised, one party hasn’t worked to raise those children and suddenly they are left with nothing and with no support and no claims at all, should the marriage end through either separation or death. The Law Commission considered that simplifying the marriage process and moving to an officiant focussed rather than a venue focussed model, will help reduce the number of those non-qualifying ceremonies. But I would say where the focus is on simplifying the process of getting married, I suspect any move to make the process more complicated, to add in additional hurdles before someone can validly be married, is likely to meet with resistance from those who are seeking to protect a different class of vulnerable person, namely those who are most vulnerable if their marriage isn’t valid.
Bethan Byrne, Managing Associate, Mishcon de Reya
So, is there a satisfactory answer here? How do we balance testamentary freedom and financial autonomy, the right to marry and the protection of the vulnerable? Is this even possible?
Hannah Dart, Managing Associate, Mishcon de Reya
It’s tricky and in matters as personal as marriage and succession, it’s always hard to propose a solution which fits all situations. What seems clear is that the present situation leaves opportunities for abuse in the predatory marriage situations which we’ve discussed. Best practice has to be that anyone who marries should review their will in light of their changed circumstances but that just isn’t an option for everyone if they no longer have capacity to update their will. My own view is that in situations like this, we always have to look to protect the most vulnerable. That is those who cannot replace or amend their will. And for that reason, I am not convinced it makes sense that the default position should be for marriage to revoke a will. Why should those individuals be left intestate? There are other ways in which a surviving spouse may be able to challenge this if necessary. They could seek a statutory will, they could make a claim under the Inheritance Provision for Family Independence Act but I think the simple answer to your question is that no, I don’t believe that marriage should revoke a will.
Bethan Byrne, Managing Associate, Mishcon de Reya
So, Sheena, do you agree?
Sheena Cassidy Hope, Partner, Mishcon de Reya
I do, I think particularly where the law is moving away from a paternalistic approach towards spouses, for example, although prenuptial agreements aren’t binding in this country, they are, can be highly influential when considering how assets should be divided at the end of a marriage. It jars and is inconsistent to have such a paternalistic approach taken to provision in a will which is automatically revoked when the parties get married. So, I think it is separating those two things and having a will not be revoked upon marriage, is something that probably would both help protect those who are vulnerable to predatory marriage and also acknowledge the fact the law has moved away from that more paternalistic approach.
Bethan Byrne, Managing Associate
Mishcon de Reya
Thank you very much and for now, I think we’ll wrap up there. I’d like to say thank you to Hannah Dart and Sheena Cassidy Hope for joining me for this Mishcon Academy Digital Sessions podcast. The Digital Sessions are series of online events, videos and podcasts, all available at Mishcon.com. If you have any questions you would like answered or suggestions of what you’d like us to cover, do let us know at digitalsessions@mishcon.com. Until next time, take care.
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