Does marriage revoke a will? The predatory marriage problem

When someone marries, it can change what happens to their estate and cancel any will they made before the union. This can be especially worrying where a vulnerable adult remarries, and it seems the relationship was encouraged or pursued because of what one person stood to gain financially. In some cases, this may be considered predatory marriage and can leave families wondering what happens to an existing will, who will inherit and whether anything can be done. 

Does getting married cancel an existing will? 

Under section 18 of the Wills Act 1837, marriage will usually revoke an existing will. Many people do not realise this and may assume that plans made years before will still stand. Although there is an exception if the document was made with that specific wedding in mind and clearly states that the existing will should stay in force afterwards. 

If no new will is made, the estate will usually pass under the intestacy rules. Where there are children, the new spouse does not necessarily inherit everything, but they may take priority over others who expected to benefit under the earlier arrangements. 

What is predatory marriage? 

Predatory marriage is not a defined legal term; however, The Law Commission describes it as a form of financial abuse where someone marries another person in order to inherit from them. 

Warning signs families should be aware of 

• The new spouse arranging the wedding and handling the paperwork, with barely anyone else involved 
• The person becoming hard to see or speak to without the new spouse there 
• Contact with family and friends dropping off or being discouraged 
• Bank accounts, property or other paperwork changing hands shortly before or after the wedding 
• The wedding itself being rushed, secretive, or kept from family until after it happened 

As an example: a father in his eighties is grieving the recent loss of his wife and struggling with his own health. A few months later, he suddenly marries a woman who had been visiting as his private carer. Neither of his children hears about the wedding until after it has happened. Visits become harder to arrange in the months that follow. When he dies, his children discover that the will leaving everything to them was cancelled the moment he remarried, and his new spouse inherits ahead of them. 

These signs don’t prove anything in isolation, and it may be that the situation is completely above board. However, a combination of circumstances like this could suggest that the marriage was predatory. 

Someone can be capable of marrying but not of making a new will 

One of the difficulties in predatory marriage cases is that the law uses different tests for deciding whether someone has the mental capacity to marry and to make a will. 

The test for marriage focuses on whether the person understands the nature of marriage and the responsibilities that come with it. Making a will involves a different test, including understanding what the document does, broadly what the person owns and who might expect to benefit from their estate. 

In Park v Park [1954], an elderly man married in the morning and made a new will later the same day. The court accepted that he had enough capacity to marry, but found that he did not have the testamentary capacity needed to make the will. The case shows that someone can be capable of making one decision but not the other. 

Re DMM [2017] looked at this issue in a case involving a man with Alzheimer’s who wanted to marry his long-term partner. The marriage would cancel an existing will that benefited his daughters. The court decided that understanding this was relevant when assessing his capacity to marry. After an expert found that he understood the effect on his will and that his children might receive less as a result, the court found that he did have the capacity to marry. 

In practice, the gap between the two capacity tests can leave someone’s earlier wishes undone without them being able to put a valid new will in place. 

Can the marriage be undone after death? 

Under section 12 of the Matrimonial Causes Act 1973, a marriage where one person lacked the mental capacity to consent can be voidable rather than automatically invalid. 

This means the marriage is generally treated as valid unless a court annuls it. If concerns only come to light after the person has died, it may no longer be possible to bring the type of nullity proceedings that could have ended the marriage during their lifetime. 

As a result, families cannot assume that showing the person lacked capacity to marry will automatically undo the marriage or bring an earlier will back into effect. The position after death can be legally difficult, which is one reason getting legal advice quickly matters where there are concerns about a vulnerable person’s marriage. 

Can you protect a vulnerable relative in advance? 

If you are worried about an elderly parent or vulnerable relative entering a marriage for reasons that concern you, it is usually better to address those concerns while they are still alive.  

One useful step is to put a lasting power of attorney (LPA) in place early, while the person still has the capacity to choose someone they trust. This can help with decisions about finances, property or welfare later on if needed. However, the person appointed under the LPA cannot decide whether someone should marry. That is a personal decision that only the individual themselves can make. 

If your relative has already married, they may still be able to make a new will, as long as they have the capacity to do so. Getting independent legal advice at that stage can help make sure the new will reflects their true wishes and is prepared properly. 

What happens to children’s inheritances 

As explained, if an earlier will left the estate to you and your siblings, its revocation can completely change your inheritance. Under the intestacy rules, the new spouse may be entitled to some or all of the estate, regardless of what the earlier will said. 

If you lose out as a result, you may wonder whether you can make a claim under the Inheritance Act. Receiving less than you expected does not automatically mean you can. Whether you have a claim will depend on your circumstances and whether the estate has failed to make reasonable financial provision for you. 

The Law Commission has recommended amending the legislation so that getting married no longer automatically revokes an existing will. However, the Government has not yet made that change, so the current rule still applies. 

Worried a marriage has already revoked an earlier will? 

If someone has died and a later marriage revoked an earlier will, getting legal advice can help clarify the effect on the estate. 

Our experienced team of solicitors can talk through your concerns and explain what options may still be available. Get in touch for a free claim assessment or call us today on 0203 322 5103 

Read more about how we help clients resolve inheritance disputes and protect their interests here. 

This blog provides general information only and should not be treated as formal legal advice.