When you see a bride walking down the aisle does it ever cross your mind to think, “did she have capacity to bind into this legal contract known as marriage”?
This very question was discussed in Parliament on the 21st November 2018, in relation to Predatory Marriage. A Predatory Marriage is when somebody marries someone who is vulnerable, whether through disability or age, exclusively for the purpose of gaining their money upon their death.
The main issue discussed in Parliament was the idea of the ability of vulnerable people to consent to marry due to a potential lack of Mental Capacity. Mental Capacity is generally the ability to make your own decisions. In law however, there are several different tests regarding Mental Capacity depending on the type of transaction you wish to carry out. To make matters more difficult, everybody’s Mental Capacity is also consistently changing, somebody who passes the test one day may fail it the next.
Capacity to Marry
The Mental Capacity required to marry is one of the least stringent levels of capacity in law. This is because of the simplicity of the marriage contract, which could “…readily be understood by anyone of normal intelligence.”. It is also because the Courts do not want to set the test for the capacity to marry too high as to be “…an unfair, unnecessary and discriminatory bar against those with capacity issues potentially denying them that which all the rest of us enjoy if we choose, a married life.”
All that’s required for someone to have the Mental Capacity to consent to marry is to:
- Understand the nature of the marriage contract.
- Understand the duties and responsibilities that normally attach to marriage.
In this context “to understand” means to understand, retain, use and weigh up that information as to reasonably foresee the consequences and then communicate a decision to another.
This means that those wishing to enter into a marriage contract, if they have the capacity required to marry, should understand that their Will is automatically revoked (cancelled) and is no longer valid in terms of the distribution of the deceased’s assets regardless of whether they have the higher threshold capacity required to make another Will once they are married. This is where vulnerable people can be exploited in Predatory Marriages. The problem is, is that you don’t have to be aware of this change to your circumstances, you only have to understand it once you are made aware of it.
It is not common knowledge that upon marriage your Will is automatically revoked. There is nothing on a Marriage Certificate to tell you this, but strangely it is noted on a Decree Absolute, if that marriage does not work out.
Capacity to Make a Will
The test for capacity necessary to execute a valid will is based in case law dating back to 1870 and even when the Mental Capacity Act 2005 came into force introducing a range of rules and regulations, it was confirmed that the correct and only test for testamentary capacity is the one outlined in the Banks v Goodfellow judgment.
The law provides that a person has the capacity to make a Will if that person:
- Understands the nature of making a Will and the effect it has;
- Understands the extent of the property they are disposing;
- Is able to comprehend and appreciate the claims to which they ought to give effect; and
- Has no disorder of the mind that perverts their his sense of right or prevents the exercise of their natural faculties in disposing of their property by Will.
Even though an individual may suffer from mental illness, or perhaps the early stages of dementia, it does not necessarily mean that they will be unable to make a valid will. Each case will be considered upon its particular facts and the level of understanding required by the test will vary depending on the complexity of the Will itself and the assets being disposed of.
Once someone gets married and their existing Will is revoked and becomes no longer valid, failing to make a new one will trigger the intestacy rules when that individual dies. The law of intestacy dictates how a person’s assets are divided and how his or her estate is distributed. In many cases the entire estate would go the widow, widower or surviving partner. This can lead to dishonest suitors (sometimes labelled “Gold-diggers”) marrying a vulnerable person knowing that he or she will possibly lack the mental capacity to make a new Will. It is therefore important that this area of law be discussed and any loopholes allowing this sort of behaviour be closed.
What Happened in Parliament
On the 21st November, Fabian Hamilton spoke in a Ten Minute Rule Bill about his proposal for a Marriage and Civil Partnership (Consent) Bill. He spoke passionately about one of his constituents who fell victim to a Predatory Marriage. His proposal for this new Bill consisted of four main items:-
- That marriage should not revoke a previous will.
- That there should be increased training for registrars to identify and help vulnerable individuals.
- An individual’s Capacity to Marry should be established by a questionnaire, which is to be filled in by all those whom are to wed. This would give registrars a better idea of who was vulnerable and who required further intervention.
- “Notices of Intention to Marry” should be published on the Internet to enable family members and those close to vulnerable individuals to take intervention measures at an earlier stage if necessary.
After his impassioned speech, there was not a single “no”, with a second reading scheduled for the 25th January 2019. This proposal to “stop putting marriages before Wills” is a welcome one. If the Bill is passed after its second reading, it will certainly help put the minds of family members of vulnerable individuals at ease, so you better watch this space!