Predatory marriages, capacity and inheritance: how can loved ones be protected?
A predatory marriage occurs where an unscrupulous individual marries a vulnerable and often elderly individual in order to gain access to their assets and inherit their estate on death. Such marriages often happen in secret and as a result of coercive control.
Predatory marriages can lead to family members being disinherited against the vulnerable individual’s wishes because a valid marriage automatically revokes previous wills (unless a will was made in contemplation of that marriage). If a new will is not made after the marriage, the vulnerable person’s estate will be dealt with under the intestacy rules which will allow the predator to inherit much, if not all, of the vulnerable person’s assets.
Both parties to a marriage must have mental capacity to understand the nature of the marriage contract. Capacity to marry has a fairly low threshold and an adult will be presumed to have capacity until proven otherwise. The threshold for capacity to make a will is much higher and so an individual could have capacity to enter into marriage but not to make a will. An individual need only have a rudimentary understanding of marriage and marriage registrars are often ill-equipped to identify capacity / consent issues. A vulnerable individual may retain capacity but still be subject to coercive control whereby they no longer have the ability to exercise their free will in the context of the relationship.
If you suspect that a vulnerable relative is at risk of entering into a predatory marriage, you should share your concerns with them and encourage them to obtain legal advice on making a will in contemplation of marriage and lasting powers of attorney. You could also consider entering a caveat at a particular Registry Office to prevent a marriage certificate from being issued and applying to the court for a Forced Marriage Protection Order. Such orders allow the family to ban further contact between the fraudster and the victim and are registered with the police.
If a predatory marriage has taken place, the marriage may be voidable and a court application should be made to nullify the marriage. That application can currently only be made by one of the spouses. After the victim of the predatory marriage has died, nobody has standing to bring a claim to set aside the marriage. If the law were to be reformed so that marriage does not automatically revoke a will, the incentive for the abuse would be removed. Further safeguards such as the requirement for a capacity assessment ahead of marriage are also being considered by the working party looking at law reform.
It is important to act quickly if a predatory marriage is suspected.