WILLS, CAPACITY, MARRIAGE AND ABUSE

Marriage and death are, it is said, the most important events in life.

Yet it is natural to have – and act upon – an interest in what happens when we’re no longer around.

Wills enable us to set out our wishes as to how and to whom any assets which we leave behind will be allocated.

Despite how critical they are, research published earlier this year by one global financial services company revealed that one-third of UK adults either of or approaching pension age have not made a will.

Back in 2016, the Law Commission began considering whether the legislation governing wills was still fit for purpose.

That is because the relevant law – the Wills Act – came into force in 1837, the same year that Victoria became queen.

Within the last week, the Commission has announced that the scope of the project is to be extended in relation to two very significant points.

It will now not only consider the advent of electronic wills – a technological advance made available since 2016 – but the potential for individuals who make wills to be the victims of financial abuse which has become known as predatory marriage.

That is when a person who is either elderly or may have lost capacity is married by someone who intends to inherit their estate on death.

From my own experience, I’m well aware how often men and women making wills are surprised to learn that they are automatically revoked upon marriage.

That is worth bearing in mind for several different reasons.

Firstly, none of us know with any certainty what the future holds.

Just as we cannot predict whether we will be among the growing proportion of people who lose mental capacity due to dementia, we do not know if we will meet and marry someone having already made a will while single.

One of the most common prompts for a will is divorce. Myself and my colleagues frequently put wills in place for people after they have exited a failed marriage.

Some of those involved are adamant that they will not repeat the experience but they cannot know for sure.

One glance at the most recent marriage data published by the Office for National Statistics (ONS) makes clear how likely remarriage is.

In 2020, just over half (54.7 per cent) of men and women who married had either been widowed or divorced before.

That figure is more than six per cent up on the proportion just five years before.

For anyone who marries after making a will with the intention of providing for children on their death, it comes as quite a shock to know that tying the knot again effectively disinherits any beneficiary.

The effects of such a situation become even more acute when wills are superseded by the deliberate attempts of marital predators to take advantage of someone’s infirmity or lack of mental capacity.

In recent years, for example, there have been media reports about a number of circumstances in which individuals have apparently been victims of predatory marriage.

That’s why I believe the Law Commission’s latest initiative is so important – something which I’ve been telling Catherine Baksi of The Times.

As the law stands, it is possible to put a will in place in anticipation of marriage with a clause stating that its terms should not be revoked.

However, it must still make reference to a specific person whom the testator intends to wed, and that is difficult to do before any new relationship is embarked upon.

There are many, therefore, who believe that current legislation doesn’t provide sufficient protection and the law should be updated.

With the Law Commission’s consultation due to close in December, it may be some time before we know whether vulnerable individuals will be afforded additional vital protection against abuse.

We can, however, hope that will be the case.