This article addresses the tough subject of where marriage has been and is used by unscrupulous individuals to raid a family fortune, and other ploys to achieve the same result.
The “gold digger” who marries for money in the hope of grabbing a fortune after a brief marriage has been the staple of court room dramas and many a film, book and TV show. In the English and Welsh courts, the situation is changing to protect legitimate interests. This process continues alongside efforts to give pre-nuptial arrangements more standing in law, although the position is not yet fully established.
Gareth Ledsham, a partner at Russell-Cooke, and a specialist in will disputes and Court of Protection litigation, addresses these issues. The editors are pleased to share these views with readers and invite responses. This news service does not necessarily endorse all such views. To respond, email firstname.lastname@example.org
Speak to any lawyer practising in private wealth disputes, and they will almost certainly tell you that they have seen an increase in disputes over wills.
There are a number of reasons for this: an ageing population and an attendant increase in diagnoses of dementia; people having increased wealth over which to argue; and the greater incidence of second (or sometimes third or fourth) marriages and families, are all contributors.
Certainly, disputes arising between children from earlier marriages and spouses from subsequent marriages make up a significant proportion of the cases on my desk. Worryingly, an increasing number of these cases are a variation on this theme: the second spouse who was unknown to a deceased’s children.
The scenario is an extension of the financial abuse cases that also make up my caseload. A vulnerable, isolated elderly person (often living with dementia) is befriended by an unscrupulous friend or carer who starts ‘assisting’ with their finances. The ‘friend’ or carer (who will often convince themselves they are following the elderly person’s wishes) will procure a power of attorney or sometimes persuade the person to make a will in their favour.
Some take it a step further and persuade the vulnerable person they are in a loving and sexual relationship with them – and in some cases, get them to marry them.
The sting in the tail of these marriages (and something of which many people are unaware) is that the marriage will (with certain limited exceptions) revoke any existing will, meaning that the new surviving spouse will inherit over half the estate under the rules of intestacy. Any careful estate planning undertaken following the breakdown of the prior relationship therefore comes to naught.
Further, even if the beneficiaries from the prior relationship were able to set aside such a marriage after death on the basis that the deceased did not have capacity when entering into it, this does not help them owing to a quirk in the law which means the old will, would still be revoked by the marriage.
The fact that such circumstances may even arise will come as a shock to many. How can such marriages even take place? The fact of the matter is that the level of mental capacity required to enter into marriage is not high – a person needs to understand the nature of a marriage contract, i.e. that getting married involves duties and responsibilities to the person one is marrying and also the consequences of it, but the courts have ruled this is not a high bar.
A cynic might argue that as solicitors become more aware of issues of undue influence and financial abuse, unscrupulous individuals wishing to continue taking advantage of vulnerable individuals might see marriage as an easier route to their assets.
Certainly, the issues arising have come to the attention of some campaigners who have recently introduced (with the support of Fabian Hamilton MP) a bill under the 10-minute rule in Parliament to overturn the automatic revocation of wills by marriage, as well as to modernise the process of advertising intention to marry by putting this online and widening the remit of those responsible for identifying possible incapacity.
That consideration is being given to such matters is certainly a welcome development. However, consideration also needs to be given to unintended consequences: a change in the rules could result in second spouses missing out if wills are not updated following marriage.
The most effective method to combat financial abuse (however it is exerted) is through vigilance of the elderly and vulnerable, and reporting concerns where these arise. The importance of taking advice where one has less than straightforward family arrangements, cannot be overstated.