Rosamund Evans, Lecturer NLS https://www.ntu.ac.uk/staff-profiles/law/rosamund-evans
It is a long established but surprisingly little-known rule in English law that marriage and civil partnership revoke any pre-existing will made by either party. Despite the potentially catastrophic effect the rule can have on the distribution of their estates, it is an issue that is rarely raised prior to the nuptials, so couples sail off on their marital voyage in blissful ignorance of the testamentary time bomb they have inadvertently set ticking.
The rule was inserted into the Wills Act 1837 under s18 and originally applied without exception. The rigidity of the rule that marriage revokes a pre-existing will was subsequently relaxed to a degree by the much later addition of a proviso, which is that a testator may make an express declaration in anticipation of their forthcoming marriage that their will is not to be revoked by that marriage. This was subsequently extended to include civil partnerships.
But having the foresight to make such a testamentary declaration requires the person to have knowledge of the rule and while most couples are happy to spend time and money with wedding planners, caterers, florists, dressmakers etc. going to visit a lawyer is not often on their pre-nuptial tick list.
The fact that getting hitched could completely wipe out a testator’s stated testamentary wishes and jeopardise their children’s inheritance might not be a matter of widespread national concern. Nevertheless, it is of sufficient interest and impact for the Law Commission to have included the issue in its recent consultation on will making in England and Wales.
The Law Commission is reviewing the law relating to wills on the basis that improved medical understanding, advancing technology and societal changes are revealing the need for modernisation of the present law. Although the Law Commission has taken the view that wholesale reform of all the rules on revocation of wills is not necessary, it is considering the principle of revocation by marriage and civil partnership. In the Law Commission consultation document the rationale for the rule in its present form is explained in this way:
“[the law] currently protects the position of second families, for example where a person has remarried and has children from both marriages. Marriage revokes any earlier will and, if a new will has not been made, then the testator’s property will pass to his or her current spouse under the intestacy rules. If marriage did not revoke the will, then the testator’s earlier will remains valid. The testator is unlikely to want his or her first family to inherit on his or her death to the exclusion of the current spouse and the children of the testator’s second family.”
The response to the consultation on the abolition of the rule that a will is revoked by marriage/civil partnership has been mixed. However, one of the most vociferous calls for abolition of the marriage rule has come from sections of the public and politicians who want legislative action to prevent so-called predatory marriages.
The term ‘predatory marriage’ originally arose in the Canadian province of Ontario to describe situations where an individual deliberately exploits a person who has a form of mental impairment and/or emotional or psychological vulnerability by marrying them for financial gain. Typically, the predator is much younger and targets victims who are property owners or have other substantial assets. These kinds of predators are not content with clearing out the victim’s bank accounts; they want to scoop all available assets. And they can do that because the revocation by marriage rule provides them with open access to the victim’s assets post death in a way that is not always possible when the victim is living.
The modus operandi of a marriage predator is usually to befriend the vulnerable individual and quickly build a relationship of control and dependency. Things progress speedily and within a very short time from initial contact the predator has married their victim; having previously isolated the vulnerable person from their family and friends who are often unaware that the marriage has taken place.
This is a form of elder abuse which easily flies under the radar and is under reported in consequence. Legal professionals are most commonly alerted to individual cases because they are approached by family members who discover their elderly relative’s will has been revoked by the marriage only after the victim has died.
The offence of forced marriage introduced in the Anti-social Behaviour, Crime and Policing Act 2014 does not address the problem of predatory marriage in most cases where an older person is involved.
The reasons for an older person entering into a marriage with someone they know, or suspect, is financially abusing them are varied and may be complex. There may be an emotional return for the victim that makes them acquiesce to a marriage with an abuser, especially if the abuser is providing care and companionship. Even in cases where the victim is not capable of consenting to marriage, it may be difficult for marriage registrars to assess the victim’s mental capacity to consent at the time of the wedding. The victim is likely to have been well rehearsed in answering probing questions and may have little comprehension of the significance of the ceremony.
The discussion is further coloured by the question who is the real ‘victim’ in these situations? The actual victim may be unaware they are a victim, depending on their level of understanding. The families of victims of financial abuse are usually the ones who are caused the greatest degree of distress; arguably in some cases perhaps more than the person who is the object of the abuse. But the family’s upset may stem as much from their outrage at losing their inheritance to a stranger than their distress at their relative being exploited. The families could be considered as victims of the financial abuse, but their loss is of an inheritance they were not necessarily guaranteed even without the actions of the abuser. There may be a moral argument for changing the law on revocation of wills by marriage to protect against it being exploited by marriage predators, but the legal arguments are less clear.
It remains to be seen whether the Law Commission will take the opportunity presented by its review to put forward proposals that could address the conflicting arguments for and against reform of this aspect of the law on revocation of wills. In the meantime, the debate on preventing predatory marriage through legislation is likely to continue.
Further reading
Law Commission Wills Consultation
Justice for Joan and Predatory Marriage
Banton v Banton [1998] O.J. No. 3528
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