Predatory Marriages & Probate Claims

Where a person enters into a marriage without the mental capacity to do so, that marriage can be held to be voidable under the Nullity of Marriage Act 1971. However, the impact of the Matrimonial Causes Act 1973, Section 12(c) is that the marriage will not be null and void, but rather merely voidable. This means that the marriage, even though unlawfully entered into, continues to exist up until such time as it is declared void by the court.

This presents a problem in relation to how that person’s estate is dealt with. In England and Wales a marriage revokes all previous wills, pursuant to Section 18(1) of the Wills Act 1837. The unlawful marriage, even if it is later annulled, it was an effective marriage until that date. The unlawful marriage revokes a lawful will.

Unless there has been a later will executed, the result is that the person’s estate passes by intestacy. It is not possible to retrospectively revoke the marriage and reinstate an earlier will. This surprising interpretation of the statute was confirmed in the leading case on the matter, that being Re Roberts [1978] 1 WLR 653.

The position is particularly problematic if the marriage is never annulled. In that case, if there is an intestacy, the majority of the estate will go to the spouse, the very one who arranged the predatory will.

Whilst there might be potential claims under the Inheritance (Provision for Family & Dependants) Act 1975, such claims may not be successful.

It is therefore essential, if there is a predatory marriage, for the victim to execute a new will. If the person who did not have capacity to enter into a marriage does not have capacity to write a new will, then a statutory will should be applied for.

A standard statutory will case might take over a year to finalise, although if health is an issue, an interim holding will could be achieved in a matter of hours by specialist lawyers.

Of course, the best solution is to prevent a predatory marriage. In our next blog we discuss how to enter into a caveat with the registrar of marriages preventing such a marriage. In subsequent blogs we will discuss statutory wills, then tax saving estate planning and finally possible applications for reasonable provision from an estate.