The Problem With Marriage

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, consider the problems which can be caused by a late marriage

What happens to Wills when someone marries and why does this matter?

In this instance we are considering a scenario where an individual (A) marries (C) shortly before he dies having previously made a Will leaving (B) the entirety of his estate. Let us assume for the sake of argument that B is A’s only child. C is A’s cleaner and 30 years younger than him. It is what some might call a predatory marriage.

Revocation of the Will

The significance of this event will quickly become clear. The Will leaving A’s estate to his only child is revoked given section 18 of the Wills Act 1837:
https://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/section/18

This means it has no effect at all and so A’s estate devolves in accordance with the laws of intestacy.

The current rules of intestacy

So what are the current rules of intestacy where A has died leaving a spouse and child?
The spouse (C) receives all of the deceased’s personal possessions and the first £270,000 entirely. Given this is probably an average estate size, in most instances the child (B) will inherit nothing. Beyond £270,000 the spouse still receives 50%. The child receives the remaining 50%.

So what is the scenario where when A married he had no or limited (mental) capacity?

One would imagine that in this instance, the engagement of a company such as ourselves, under a no win no fee arrangement to contest the legal validity of the marriage and/or dispute the intestacy, would be enough to prove that the marriage was a fraud and not then legally valid. In other words that our efforts on your behalf would successfully lead to the reinstatement of the Will benefitting B.

We previously discussed this in an earlier blog describing it as a “trap”:
https://www.willclaim.com/contesting-a-will-with-willclaim-solicitors-no-win-no-fee-specialists-marriage-a-trap-for-the-deceaseds-children/

A trap in fact that it is very difficult to escape from after A or the parent has passed away.
These are the issues:

Section 12(c) of the Matrimonial Causes Act 1973 provides that where a person who marries has “unsoundness of mind” the marriage is not void but “voidable”, meaning then that it continues until it is declared void:
https://www.legislation.gov.uk/ukpga/1973/18

12Grounds on which a marriage is voidable. [F23(1)A marriage celebrated after 31st July 1971[F24, other than a marriage to which section 12A applies,] shall be voidable on the following grounds only, that is to say— (a)that the marriage has not been consummated owing to the incapacity of either party to consummate it; (b)that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it; (c)that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise;

Section 16 then provides that any decree by the Court in relation to the legal validity of the marriage is “prospective” and not “retrospective”. 16Effect of decree of nullity in case of voidable marriage. A decree of nullity granted after 31st July 1971 in respect of a voidable marriage shall operate to annul the marriage only as respects any time after the decree has been made absolute, and the marriage shall, notwithstanding the decree, be treated as if it had existed up to that time.

The marriage is treated as having existed until the decree – sufficient to have caused the previous Will to have been revoked under section 18 of the Wills Act 1837. If, as in our scenario, A had passed away, the intestacy rules would apply. It is not possible to reinstate the Will.

Confirmatory caselaw “Re Roberts [1978] 1WLR 653”

This case confirmed that any retrospective declaration of nullity in relation to a marriage in similar circumstances was defeated by section 16 of the Matrimonial Causes Act 1973. The argument put forward that section 18 of the Wills Act 1837 only revoked prior Wills where the marriage was valid was rejected. Parliament had expressly confirmed that marriages were to be voidable for lack of capacity and a voidable marriage existed until it was annulled.

If you consider any of these facts and matters are of interest, are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you
simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat and/or visit us at www.willclaim.com.

We provide details about our no win no fee arrangements at https://www.willclaim.com/no-win-no-fee/.