James McKean, Andrew Bishop & Hollie Richardson highlight the morality & dangers of predatory marriage & probate
- Individuals without mental capacity can be ensnared in predatory marriages, in this jurisdiction and abroad.
- Following an unfortunate change to the law in 1971, these marriages are voidable, not void, and cannot be challenged after death. They allow spouses to take the benefit of the intestacy rules. Beneficiaries under any previous wills are disinherited, and largely without recourse.
- Practitioners should be alert to the testamentary effects of marriage and consider capacity to marry just as they consider capacity to make a will.
The concept of ‘predatory marriage’ may not mean a great deal to English lawyers, and certainly not probate practitioners. But it is a phenomenon which can have serious and permanent testamentary effects.
Take an individual (henceforth ‘A’), whose mental capacity is in doubt. If A marries, the effect of the Matrimonial Causes Act 1973, s 12(c), is that the marriage will not be void, but rather voidable—as in contract law.
Section 16 of the 1973 Act provides
