Safeguarding against predatory marriage

The 2001 film Heartbreakers starring Sigourney Weaver and Gene Hackman is hilarious – one of my favourite light-hearted films. It’s about a mother-and-daughter con team who targets wealthy men. The film is set in Palm Beach and nothing in the film is realistic except for the Miami Beach tans.

It’s funny, but it’s not real - or rather - it’s funny because it’s not real.

I was reminded about this film – a blast from the past - when the Law Society Gazette reported on predatory marriage last week. A sobering article about the outdated mental capacity laws for will writing and the growing risk of undue influence on our elderly population.   

Banks v Goodfellow

The mental capacity test for writing a Will was established in a case called Banks v Goodfellow in 1870 – when the average life expectancy of a newborn girl was 45 - it’s now 83. Dementia and age-related cognitive impairments of the mind didn’t really exist in 1870 because people didn’t live long enough to develop them.

It is now commonly accepted that mental capacity fluctuates – there can be good days and bad days. The problem is that the old test in Banks v Goodfellow does not account for this grey area when the lines between capacity and impairment are blurred. It is the people who sit within this grey area who are most at risk of undue influence – because in law they have full mental capacity, but the reality might be very different.

Predatory marriage is when someone is pressured or led into a marriage or civil partnership by another party for financial gain. Unlike Heartbreakers where a series of funny events befall the characters, which lead to untimely marriages, in reality, those preyed upon are usually vulnerable individuals – sitting within this grey area of capacity.

Capacity thresholds

Predatory marriage, capacity and undue influence all need serious thought. As the Law Society article poignantly states - the capacity threshold to marry is very low, yet the test for the capacity to make a Will is high. And so the situation arises when someone can marry but is unable to make a new Will – the previous Will having been automatically revoked by the marriage!

To be clear – marriage automatically revokes all previous wills, so if someone remarries without making a will their estate could pass to the new spouse leaving children and other intended beneficiaries with nothing. This is usually not the intended outcome but is often the sad reality for those vulnerable individuals.

For advice on this subject, get in touch with Winter Addis, associate solicitor at Muckle LLP on 01768 347 084 or email [email protected]