www.newlawjournal.co.uk | 27 March 2020 Wills & probate / Family LEGAL UPDATE 13

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The predatory trap

James McKean, Andrew Bishop & Hollie Richardson highlight parties, raising a sinister twist on the the morality & dangers of predatory marriage & probate scenario proposed above in which A and C are siblings. Parliament legislated for mental deficiency as a new ground for the IN BRIEF This can have unsettling implications for voidability of a marriage in the Matrimonial ffIndividuals without mental capacity can the law of probate. A marriage ordinarily Causes Act 1937, s 7. Judges were however be ensnared in predatory , in this revokes previous wills made by that prepared to treat pronounced cases of jurisdiction and abroad. individual (Wills Act 1837, s 18(1)). Even incapacity as void, thereby taking them ffFollowing an unfortunate change to the if A’s marriage is later declared a nullity, A outside the voidability limitations of the law in 1971, these marriages are voidable, not will need to reinstate any prior wills, or else 1937 Act, as in Re Park [1954] P 112, [1953] void, and cannot be challenged after death. die intestate. 2 All ER 1411. They allow spouses to take the benefit of But what if A has since lost capacity to Therefore, prior to 1971, a marriage could the intestacy rules. Beneficiaries under any make a will? Or, worst of all, what if A dies be void for lack of capacity. A previous wills are disinherited, and largely before the marriage can be nullified? would leave a prior will intact, and without recourse. This is the essential problem on which beneficiaries could apply after the testator’s ff Practitioners should be alert to the this article is based. Its ingredients death to have that marriage declared testamentary effects of marriage and consider are these: null and void. capacity to marry just as they consider ffA produces a will, the benefit of which is capacity to make a will. received primarily by B (the Will); The 1971 transformation ffA then marries C (the Marriage), the This position was changed by the Nullity of he concept of ‘predatory marriage’ effect of which is to revoke the Will and Marriage Act 1971, the effect of which was, may not mean a great deal to disinherit B (Wills Act 1837, s 18); for these purposes, identical to the 1973 Act. English lawyers, and certainly not ffA dies intestate. B has lost the benefit The two Acts set out the situations in which a Tprobate practitioners. But it is a of the Will but cannot unravel the marriage could be void, including parties who phenomenon which can have serious and Marriage (Matrimonial Causes Act were prohibitively close relations, , permanent testamentary effects. 1973, ss 12(c) and 16). and (1973 Act, s 11). Take an individual (henceforth ‘A’), whose The Acts then set out vitiating factors that mental capacity is in doubt. If A marries, the This scenario can all too easily be would make a marriage voidable (1973 Act, effect of the Matrimonial Causes Act 1973, s procured deliberately: a predatory s 12). These include duress, unsoundness of 12(c), is that the marriage will not be void, marriage. If A’s capacity is uncertain, C can mind, and lack of mental capacity. but rather voidable—as in contract law. connive to marry A, revoke the Will, and, Unlike the 1937 Act, both void and Section 16 of the 1973 Act provides if A dies soon after, take the benefit of the voidable factors are given exhaustively. Not that any decree by the court that A’s intestacy rules as spouse. B is disinherited. only that, but s 16 of the 1973 Act provides marriage is null and void is prospective, not that a declaration of the nullity of a voidable retrospective: The law prior to 1971 marriage had no retrospective effect. The problem of void and voidable marriages The enormity of this change was seen ‘A decree of nullity granted after 31 July is not a new one. Before the Marriage Act five years later in Re Roberts [1978] 1 WLR 1971 in respect of a 1835, even a marriage between brother 653, [1978] 3 All ER 225. A made the Will shall operate to annul the marriage only and sister may merely have been voidable, for the benefit of B in 1973. A then married as respects any time after the decree has until annulled by order of an ecclesiastical C in 1974, allegedly in a state of senile been made absolute, and the marriage court. By the nineteenth century, the civil dementia. B sought to rely on the Will to shall, notwithstanding the decree, be courts preferred to restrict the availability oppose C’s application for a grant of letters treated as if it had existed up to that time.’ of annulments to the lifetime of the of administration. 14 LEGAL UPDATE Wills & probate / Family 27 March 2020 | www.newlawjournal.co.uk

As B conceded, any retrospective provided exhaustive categories of voidness themselves disinherited. Mrs Blass may declaration of nullity was defeated by s and voidability, and expressly denied not even have been aware that she had 16 of the 1973 Act. So B argued that s 18 judges the power to make retrospective re-married. of the Wills Act 1837 only revoked prior declarations in voidable cases. The Court As a result, Fabian Hamilton MP wills where the marriage was valid. This of Appeal therefore concluded that introduced the Marriage and Civil submission was rejected. Parliament had Roderic Wood J had no power to make the Partnership (Consent) Bill. The Bill, which expressly legislated for marriages to be declaration he did (but refused to recognise has since withered on the parliamentary voidable for lack of capacity. A voidable the Bangladeshi marriage under conflicts vine, proposed primarily to revoke s 18 marriage subsisted until it was annulled of law rules, such recognition being against of the Wills Act 1837. This mirrors the and ‘where a marriage is voidable the public policy). position in some Canadian provinces, persons who are concerned with the There has been little substantive caselaw including Alberta’s Wills and Succession Act grounds which make it voidable are the since. It is hoped the area is ripe for reform. 2010, s 23(2)). parties to the marriage and nobody else’, An alternate solution would be to update per Mr Justice Walton at [656]. B had Policy issues the court’s armoury to deal with the no remedy. The 1973 Act tries to balance a historic problem. Section 55 of the Family Law Act tension: between certainty and morality. 1986 sets out the declarations a court may Subsequent case-law There would be unsettling consequences make about a marriage. As the Court of In Re Davey [1981] 1 WLR 164, [1980] 3 if marriages could be easily and Appeal observed in The City of Westminster v All ER 342 a not dissimilar scenario came retrospectively set aside. Yet our law and IC at para [26]: ‘What is significantly absent before the Court of Protection. A, aged society will not tolerate marriages formed is a sub-paragraph permitting a declaration 92, married C, an employee at his nursing in various immoral circumstances. that the marriage was at its inception an home. The danger of a repeat of Re Roberts The same policy tension can be seen as invalid marriage.’ was invoked successfully as a ground for far back as Harris v Hicks (1692) 2 Salk. urgently making a statutory will on A’s 548. The question in that case was incest, Practical pointers behalf. This proved to be prescient; A died a not incapacity, but is identical in all other Practitioners will be familiar with questions week after the statutory will was made. respects. The Ecclesiastical Court of of capacity in relation to wills. With elderly The City of Westminster v IC [2008] EWCA Coventry moved to annul an incestuous or vulnerable clients, it is suggested Civ 198, [2008] All ER (D) 276 (Mar) at marriage, for obvious moral reasons. that similar attention should be paid to least at first instance ([2007] EWHC 3096 The Court of King’s Bench prohibited the capacity to marry. (Fam)), contains the clearest judicial assault annulment (though allowed In the case of a marriage that has on Re Roberts that the authors have been for incest to proceed) in order to protect already taken place, A’s capacity should be able to find. the issue of the marriage. Voidability was, considered. Swift action may be needed In this case, the Family Court was as it is now, the uneasy compromise struck to challenge that marriage, or make required to consider an individual between morality and certainty. a new will. referred to as IC, who had been married Part of the problem appears to derive However, a beneficiary may not know if a in Bangladesh. IC was demonstrably from the imperfect analogy with contract testator has been married. In rare cases, A vulnerable and lacked capacity. Mr Justice law. When a voidable contract is set themselves may not realise that they have Roderic Wood clearly felt uneasy about a aside (rescinded), it is broadly speaking married C. finding in English law that the Marriage rescinded ab initio. It is ‘treated in law There is also the danger of a marriage was merely voidable. The judge’s creative as never having come into existence’ having taken place abroad, in a jurisdiction solution was as follows (para 104): (Johnson v Agnew [1980] AC 367, [1979] with more relaxed capacity rules, as in The 1. The 1973 Act made voidable a marriage 1 All ER 883 at 393 per Lord Wilberforce), City of Westminster v IC. It may be difficult to where inter alia one party’s consent was unlike s 16 of the 1973 Act, which more establish if such a marriage took place and, vitiated by ‘unsoundness of mind’ (s closely reflects the contractual remedy of if so, whether it was valid according to the 12(1)(c)); termination. law of that jurisdiction. 2. Unsoundness of mind covered a Another inconsistency is with the In the case of a prospective marriage, spectrum of conditions, from subtle criminal law. is a an individual’s capacity may have to be maladies to individuals with obvious criminal offence under s 121 of the Anti- confirmed in advance; see Mundell v Name 1 unsoundness, such as IC; social Behaviour, Crime and Policing Act [2019] EWCOP 50. 3. It was only the former that was 2014. C might in theory be imprisoned If it appears that a party already lacks contemplated by the draughtsman of for up to seven years for forcing A into capacity, a deputy should consider the s 12(1)(c); a predatory marriage, though that merits of a statutory will. It may be 4. Where an individual ‘demonstrably had marriage would be capable of having necessary to act quickly—perhaps even by no mental capacity’ then it would be significant, even irrevocable, testamentary way of urgent application, as in Re Davey. ‘repugnant to public policy’ to recognise consequences. Unfortunately, as is the premise of a marriage as valid (and so presumably this article, once A has died, options are it fell outside the procedure of the Reform limited. B may wish to consider a claim 1973 Act). The Marriage was therefore The sad case of Mrs Blass came before under the Inheritance (Provision for Family declared invalid. Parliament in November 2018. Mrs Blass and Dependants) Act 1975 or else throw was A: a widow suffering from dementia. themselves on the mercy of the intestacy The authors have some sympathy with She formed a close relationship with C, a rules. NLJ the judge’s dilemma, which is comparable younger individual who came to exercise a to the treatment of incapacity under the controlling influence. The two were married James McKean, New Square Chambers, old Matrimonial Causes Act 1937. The in secret. This secret marriage unmade a Andrew Bishop and Hollie Richardson, difference of course is that the 1973 Act has previous will and Mrs Blass’s family found Shoosmiths LLP.