Predatory Marriage ' The Great Inheritance Scam?

• Law Firm: Gatehouse Chambers
• Subject Matter: Family and Matrimonial, Family Law, Wills/ Intestacy/ Estate Planning
• Author: Ms Charlotte John
• Published date: 23 March 2023

The term 'predatory marriage' is not a legal concept, but rather a convenient descriptor for a marriage entered into in circumstances where one party to the marriage is vulnerable and has been induced to enter into the marriage by the other party who is acting solely for financial gain. The effects of a later life predatory marriage are pernicious and sad, and the current state of the law, particularly in the context of inheritance rights, is unsatisfactory.

The topic gained attention in the United Kingdom following the death of Joan Blass, who died in 2016 at the age of 91 with a diagnosis of severe vascular dementia. Joan had formed a friendship with a man, CF, who was 24 years her junior. Following Joan's death, her family discovered that Joan and CF had married in secret only a few months earlier. If these events were not shocking enough, Joan's family discovered that this secret marriage, for reasons explained further on in this article, had caused them to be disinherited.

This article explores the following issues:

• The impact of marriage on inheritance rights.
• The particular difficulties that arise where one party to a predatory marriage has subsequently died.
• The steps that can be taken to prevent a predatory marriage and to unravel its consequences in the lifetime of a vulnerable individual.
• Possible avenues for the development of the law in this area.

While this article, for convenience, refers to marriages and focuses on the statutory provisions governing marriages, for all material purposes the formation of a civil partnership will have the same consequences.

Marriage and inheritance rights

There are three key consequences of a marriage in the inheritance context:

1. Unless a will has been made in contemplation of a marriage between the testator and a particular person, a marriage will have the effect of automatically revoking any prior will: section 18 of the Wills Act 1837 (WA 1837). Divorce or annulment of the marriage does not revive a will revoked under section 18 of the WA 1837.
2. Where a testator dies intestate, either because they never made a will in the first place or because a prior will was revoked upon entering into the marriage, the surviving spouse has a statutory right to a share of the estate: the entire net estate if the deceased left no issue (children or remoter descendants), or otherwise the sum of '270,000 plus interest and a half share of the residue.
3. A surviving spouse also has standing to bring a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 (the IPFDA 1975).

English law draws a distinction between void and voidable marriages. A void marriage is a nullity from the outset and does not change the marital status of the participants. A voidable marriage, on the other hand, although tainted by some particular defect, is treated as a valid subsisting marriage unless and until the marriage is annulled.

Since a void marriage will be treated as though it had never taken place, an earlier will is not revoked by a marriage that is void in the eyes of English law: Mette v Mette (1859) 1 Sw &Tr 416.

Historically, English law had been willing to treat a marriage formed in circumstances where one party lacked the necessary mental capacity to enter into the marriage as being void from the outset: see e.g. Browning v Reane (1812) 2 Phill Ecc 69.

The position changed as a result of the Nullity of Marriage Act 1971, now re-enacted in all material terms by the Matrimonial Causes Act 1973 (MCA 1973). The grounds on which a marriage is void are set out in section 11 of the MCA 1973 and do not include a lack of mental capacity. Under section 12(1)(c) of the MCA 1973, a marriage entered into by a person who did not validly consent to it, whether as a result of duress or a lack of mental capacity, is merely voidable and not void. A decree of nullity in the case of a voidable marriage does not operate retrospectively and the marriage is recognised as subsisting prior to its annulment (section 16 of the MCA 1973).

Challenging a voidable marriage post-death - the current law

The consequences of this change in the law for inheritance rights were considered by the Court of Appeal in Re Roberts [1978] 1 WLR 653. The deceased had made a will of...