Predatory marriages appear to be on the rise and, as lawyers acting for vulnerable people – most of whom are elderly, with dementia – this is a worrying development.
A predatory marriage is the practice of marrying an elderly person solely for the purpose of gaining access to their estate upon their death. It may seem something of Hollywood fiction, but there are increasing numbers of cases where this happens.
The scenario is invariably as follows: a (usually younger) person gains access to and the trust of an elderly person, with dementia, and a marriage takes place. It would appear to be something of a legal loophole that the test of mental capacity for entering a marriage is low – dementia is not a barrier. The irony is, however, that the test for mental capacity for making a valid will is far higher; solicitors are, in practice, expected to ensure a medical professional is satisfied as to the person’s capacity if doubts exist.
Once the vulnerable person has died, any previous will they have made will be superseded by the marriage. Under English law, marriage automatically invalidates a will. This means that where a predatory marriage has taken place, any previous will that the person suffering from dementia had carefully prepared in order to leave their assets to their family will no longer apply.
Take the example of Joan Bliss. A man 23 years her junior, who described himself as her carer, moved into Joan’s house and married her when she was 91 and suffering from dementia. Joan’s family were not even aware of the marriage, despite her daughter Daphne living nearby and having a power of attorney. Daphne is adamant that she did not have capacity to marry, recalling that “Mum never seemed to know he lived there. She was asking, ‘what is his name? Where did he come from?’.”
We’d call on the government to address this apparent loophole, or we fear the increase in predatory marriages will only continue.
If you would like advice and assistance in making or revising a will, or if you are considering taking out lasting powers of attorney, please get in touch with the legal team here at Optimum Professional Services.