Predatory Marriage – The Great Inheritance Scam?

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 Where a testator dies intestate, either because they never made a will in the first place or because a prior will was revoked upon entering into the marriage, the surviving spouse has a statutory right to a share of the estate: the entire net estate if the deceased left no issue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 which the defendant was a beneficiary. The deceased then married and, following his death, his wife sought letters of administration on the basis that the deceased had died intestate since the will had been revoked by the marriage. Her entitlement to a grant was contested by the defendant, who claimed that the deceased had lacked capacity to consent to the marriage.

The defendant argued that consent was so fundamental to the formation of a marriage that a marriage formed in circumstances where one of the parties could not consent, or had not consented, should not be treated as being a marriage that engaged the revocation provisions of section 18 of the WA 1837 and that the will therefore remained valid.

The Court of Appeal rejected that argument. It was held that a marriage cannot be annulled where one of the parties has died, but in any event, since a voidable marriage is to be treated as subsisting and effective until it is annulled, such a marriage will revoke an earlier will whether or not the marriage is later annulled. It was acknowledged that this could produce the surprising result that a party could be coerced into marriage, thereby automatically revoking their will, and then die without having had the opportunity to annul the marriage, leaving the perpetrator to benefit from the resulting intestacy.

The circumstances in which the courts can make declarations as to the validity of a marriage are now further defined by statute. Section 55 of the Family Law Act 1986 (FLA 1986) provides that a person with sufficient interest can apply to court for a declaration that a marriage was valid on a particular date, but section 58 of the FLA 1986 prevents a court from making a declaration that a marriage was void at inception.

Joan Blass’s family found themselves caught in this particular bind. As the law stands, there is little that can be done to unravel the consequences of a predatory marriage post-death. The only option available to a party who loses their inheritance, or receives a reduced inheritance, as a result of events of this description would be to consider bringing a claim under the IPFDA 1975, but that will not afford a remedy where the disappointed party is outside the category of eligible claimants or where the disappointed party is unable to demonstrate any need for financial provision from the estate.

Preventing predatory marriage/unravelling its consequences

In much the same way that it is possible to lodge a caveat to prevent a grant of probate from being issued, it is possible to lodge a caveat against marriage under section 29 of the Marriage Act 1949 at the local Register Office. The entry of a caveat will not, however, prevent a religious marriage from taking place.

Recourse can also be had to the inherent jurisdiction of the High Court, in the case of vulnerable individuals who possess capacity, and to the Court of Protection, in the case of persons lacking capacity, to put in place protective orders, including injunctive relief, to prevent contact between a vulnerable individual and a person seeking to exploit them, and also to obtain a forced marriage protection order under Part 4A of the Family Law Act 1996 to prevent a marriage from taking place.

It should be noted that the test for capacity to marry is much lower than the test for capacity to make a will or to manage one’s property and financial affairs. It has been emphasised repeatedly in the case-law that the contract of marriage is a simple one which does not need a high degree of intelligence to comprehend. The principles have been helpfully summarised by Mostyn J in NB v MI [2021] EWHC 224 (Fam), in which he held at [27] that a prospective spouse ‘must have the capacity to understand, in broad terms, that marriage confers on the couple the status of a recognised union which gives rise to an expectation to share each other’s society, comfort and assistance’. Beyond this, the wisdom of a particular marriage is irrelevant and it is not necessary that a person understands the financial consequences of a marriage.

Given that the test for capacity to marry is much lower than the test for capacity to manage property and financial affairs, it will often be necessary for the matter to be placed before a dual ticketed judge able to exercise any relevant Court of Protection jurisdiction alongside the inherent jurisdiction to protect vulnerable individuals.

In WU v BU & Ors [2021] EWCOP 54, BU was a 70-year-old lady with vascular dementia and an estate worth circa £1.3m. She had established a relationship with NC, a much younger man. NC had a slew of convictions for dishonesty offences, including fraud, theft and blackmail. He had taken BU to visit a solicitor to make a new will, moved into her home and had received cash from her. He had been arrested after attempting to liquidate BU’s investment portfolio. BU had proposed to NC. NC wished to enter into a civil partnership with BU, expressing the view that he would not marry her because the relationship was platonic and that there was an understanding between them that NC would have sexual relationships with other women. BU herself viewed the relationship as pivotal to her happiness and well-being. She lacked capacity to manage her property and affairs or to make decisions about contact with NC, but possessed the capacity to enter into a marriage.

The court found that there had been a ‘deliberate and calculated attempt’ by NC to subvert any independent decision-making on BU’s part, which had been financially motivated. As a result, and notwithstanding that BU possessed capacity to enter into a marriage, the court made orders preventing contact between NC and BU and made a forced marriage protection order.

In circumstances where a predatory marriage is discovered after the fact, proceedings may be brought in the Family Court to dissolve the marriage and in the civil courts to recover any misappropriated funds. It may well be the case that an individual had capacity to enter into the marriage, but that they lack capacity to litigate, and in such a case some suitable person will need to act as a litigation friend. Where there is a dispute about whether or not the vulnerable individual has capacity, or as to whether or not contact with their spouse or the dissolution of the marriage or other litigation is in their best interests, an application to the Court of Protection will be required.

If the vulnerable individual possesses testamentary capacity, they will be able to execute a new will or to make a codicil republishing the will revoked by the marriage. If they lack testamentary capacity, an application can be made to the Court of Protection for a statutory will. In the case of a very frail individual, such applications can be made on an emergency basis for an interim holding will to be made and may need to be the first line of attack in unravelling the consequences of a predatory marriage. In Re Davey [1981] 1 WLR 164, an elderly lady had married an employee of the nursing home at which she resided, thereby revoking her will. In light of the urgency of the situation, her age and poor health, and the clandestine and suspicious nature of the marriage, the court authorised the execution of a statutory will on the terms of her original will, and without notice to the husband. She died 6 days after the execution of the statutory will.

Avenues for the development of the law

Scope for development of the common law

There have been a handful of cases post-dating Re Roberts [1978] 1 WLR 653 in which the courts have declined to recognise marriages, and have made declarations to that effect, where the marriage was formulated in a foreign jurisdiction in circumstances where one of the parties has lacked capacity or was coerced into the marriage, on the grounds that such marriages offend public policy: see e.g. KC & Anor v City of Westminster Social & Community Services Department & Anor [2008] EWCA Civ 198; B v I (Forced Marriage) [2010] 1 FLR 1721; Re RS (Capacity to Consent to Sexual Intercourse and Marriage) [2015] EWHC 3534 (Fam).

These cases were examined by Mostyn J in NB v MI [2021] EWHC 224 (Fam) and the correctness of the decisions doubted, on the grounds that it is at least seriously arguable that they, impermissibly, offend section 58 of the FLA 1986. This line of authority certainly seems unlikely to be extended as a means of circumventing a marriage solemnised in this jurisdiction.

What these decisions all reveal, however, is a natural repugnancy on the part of the courts to marriages conceived in exploitative circumstances. The argument has not yet been tested in English law, but this begs the question as to whether or not there could be any scope for equity to fashion a remedy so as to deprive a predatory spouse of an inheritance gained through the marriage.

It is an established maxim that equity will not allow a statute to be an instrument of fraud. Equity may also intervene so as to prevent a person from profiting from their own wrongdoing. This latter principle underlies the forfeiture rule, which precludes a person from obtaining or enforcing inheritance rights in cases of unlawful killing. The forfeiture rule does not depend upon, or even require, a successful criminal prosecution to have taken place and the unlawful killing must be proved on the civil rather than criminal standard. There is a statutory scheme, the Forfeiture Act 1982, allowing the court to grant relief from forfeiture, where the rule would produce an injustice.

At present, the forfeiture rule has only been applied in this jurisdiction to cases involving crimes leading to death. However, the public policy basis of the rule is a broad one. In the notorious case of In the Estate of Crippen, Deceased [1911] P 108, Sir Samuel Evans P said:

‘It is clear that the law is, that no person can obtain, or enforce, any rights resulting to him from his own crime …’

The English courts have also withheld legacies from parties who have been found to have procured them by fraud, including marriage related fraud. In Wilkinson v Joughin (1866) LR 2 Eq 319, a woman had purported to marry the deceased, who made provision for her as his wife in his will, when all along she was married to another man. In view of the fraud committed by her, the bequest was held to be void.

In other jurisdictions, the courts have been willing to extend the forfeiture rule to deprive a predatory spouse of inheritance rights. On this basis, in Campbell v Thomas 73 AD3d 103, the New York Supreme Court held that a woman who had secretly married a man who lacked mental capacity as a result of dementia had forfeited any claim to a share of his estate.

On the right facts, it is conceivable that an English court could be persuaded to adopt such an approach in a case of predatory marriage.

Statutory reform

The Law Commission in its report, Celebrating Marriage: A New Weddings Law, makes recommendations for a strengthened system of preliminary checks and, in the case of intended civil marriages, the publishing of notices of intention to marry online, which may, if adopted, offer some enhanced protection against predatory marriage. The issue of inheritance rights was outside of the scope of the Celebrating Marriage project, but the interaction between marriage and the law of wills is an issue that is within the scope of the Law Commission’s Making a Will project and which will hopefully be picked up when the Law Commission resumes that project (which was paused after its commencement in 2017 to focus on the Celebrating Marriage project).

The family of Joan Blass are campaigning for reform of the law. Their MP, Fabian Hamilton, proposed a Private Members’ Bill in 2018 (the Marriage and Civil Partnership (Consent) Bill), but the Bill did not progress beyond a first reading.

One of the goals of the family’s campaign is to create a specific offence of predatory marriage. However, ‘forced marriage’ is already a crime under section 121 of the Anti-social Behaviour, Crime and Policing Act 2014 carrying a sentence of up to 7 years’ imprisonment. A person commits an offence if they use violence, threats or coercion for the purposes of causing another person to enter into a marriage, or cause a person lacking mental capacity to consent to marriage to enter into a marriage, in circumstances where they believe or ought reasonably to believe that their conduct would cause the other person to enter into a marriage without free and full consent.

Beyond circumstances of outright coercion, it is difficult to prove that a person has induced another person to enter into marriage for untoward reasons and it is not easy to precisely define and legislate against predatory marriage.

The reasons that lead two people to enter into a marriage may be multifarious and mixed, and each party may have their own motivation. If two consenting adults wish to enter into a marriage, one for reasons of financial security and another for reasons of companionship, the state should naturally be slow to interfere in such matters save in cases, such as in WU v BU & Ors [2021] EWCOP 54, of very obvious exploitation.

Even cases involving lack of capacity may not be entirely clear cut, there may be nothing inherently exploitative in a marriage formed at the end of a long and loving relationship where the capacity of one of the parties has waned.

One of the proposals of the Marriage and Civil Partnership (Consent) Bill is to repeal section 18 of the WA 1837 outright. That is an outcome that has the potential itself to lead to undesirable results. Given the low threshold for capacity to marry, the repeal of section 18 of the WA 1837 could lead to situations whereby a person enters into a valid marriage but then lacks sufficient capacity to make a new will making provision for their spouse. People are also often not terribly efficient at sorting out their affairs. There is a tension between the expectations of beneficiaries under an earlier will, formulated before a new marriage was in prospect, and the responsibilities that the new spouses owe to one another. In many, if not most cases, it may be preferable that this tension is, by default, resolved in favour of the new spouse by automatically revoking the prior will so that the survivor will at least receive provision on intestacy if either party dies before making a new will.

A more limited amendment to section 18 of the WA 1837, preventing a marriage formed in circumstances where one of the parties did not validly consent by reason of duress or lack of capacity from automatically revoking a will, may be a better solution. If the marriage is not annulled, the survivor would still have the status of a spouse for the purposes of any claim under the IPFDA 1975, which would be considered on its merits, but otherwise any prior will would stand.

Revocation or amendment of section 18 of the WA 1837 would still not provide a complete solution to the problem of predatory marriage, since a predatory spouse would still take on intestacy if the deceased spouse had not made a prior will.

Other commentators have suggested, therefore, that lack of capacity should be added to the circumstances in which a marriage will be void from the outset under section 11 of the MCA 1973. However, that is also not without the risk of undesirable consequences. Capacity may fluctuate. Why should a person who regains capacity and wishes to remain in a marriage formed when they temporarily lacked capacity not retain the status of being a spouse?

The introduction of an express forfeiture rule, depriving a person who has caused another to enter into a forced marriage, defined in equivalent terms to section 121 of the Anti-social Behaviour, Crime and Policing Act 2014, of any financial benefits resulting from such a marriage, akin to that which applies in cases of unlawful killing, would, in my view, be preferrable to sweeping changes to the law relating to marital status and its consequences for wills. A measure of this description would provide a tailored remedy in those rare but devastating cases of predatory marriage, without diminishing the rights that are currently otherwise extended to surviving spouses.