In Sickness and In Wealth14-Aug-2019
By Jessie Hughes, Solicitor, Wills, Trusts & Estates
It is difficult and stressful enough having a relative who suffers with dementia but sadly it seems there are unscrupulous individuals who are deliberately taking advantage of a legal loophole.
The ‘test’ for having the capacity to marry is much less robust that the legal test for having the capacity to make a will yet marriage automatically revokes a previous will. Without a valid will, the intestacy laws state that the new spouse will inherit the entire estate where the deceased had no children or the majority share where the deceased had children. Effectively, predators can target vulnerable people with a view to marrying them and inheriting their estates.
Fabian Hamilton MP used the case of Joan Blass to highlight the dangers of this legal anomaly when he raised a private member’s bill to the House of Commons in November 2018. The estate of Joan Blass (aged 91) passed to a man 23 years her junior as a result of marrying him five months before her death. It has been argued that Mrs Blass, who according to her GP, was suffering from severe dementia and cancer at the time of her marriage, would not have been fit to marry. The Registrar, however, was not aware of this and in the absence of anyone objecting, the marriage went ahead.
In order to give greater protection to vulnerable people, Mr Hamilton is proposing:
• Marriage should no longer revoke a previous will in every case
• Better training for registrars to ensure robust procedures for safeguarding apparently vulnerable individuals are put in place
• The ‘capacity to marry’ should be established via a simple questionnaire, with an option of a medical assessment also available
• Notices of intention of a marriage should be published on the internet
In Mr Hamilton’s opinion, “it is not good enough for a registrar simply to say that because one of the participants in a marriage ceremony was smiling at the time, that meant consent was happily given.”
The bill has been delayed while Parliament concentrates on Brexit-related issues.
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Please note: This is not legal advice; it is intended to provide information of general interest about current legal issues.