Member Article

Predatory or forced marriages faced by individuals (usually elderly) whose mental capacity is in doubt or who are vulnerable to undue influence remain an open wound for many families.

As things stand, an unscrupulous individual can engineer a marriage to a vulnerable person, by-passing any possible dispute about a will, meaning the predator gains the entire estate with no legal redress for disappointed beneficiaries or concerned family members.

Shoosmiths has provided invaluable advice and support to Fabian Hamilton MP and Daphne Franks’ Justice for Joan campaign to change the law to end the abuse that is predatory marriage.  Reforming the law so that marriage would not revoke a will would automatically remove the incentive for the abuse, bringing justice and protection for the vulnerable and their families.  A recent case has once again highlighted the urgent need for reform in this area of law.

The recent case of WU v BU & Ors [2021] EWCOP 54

In this case, BU was 70 years old with vascular dementia and an estate estimated at £1.3m. BU entered a romantic relationship with NC in around 2016, which led to strain in her previously close family relationships.

NC had a history of convictions for dishonesty. Over the course of their relationship, NC persuaded BU to visit a solicitor to make a new will, moved into BU’s house and received cash from BU estimated at £80,000 by police.

The judge found that: “The picture which emerges from the individual pieces of evidence is compelling. From the very outset, their relationship was characterised by financial motive”.  In addition, the judge stated: “Having listened carefully to all the evidence, I find him to have engaged on a deliberate and calculated attempt to subvert any independent decision-making on BU's part”.

NC was arrested on 14 May 2020 following reports by BU’s investment holders of concerns around withdrawal requests.

Within a week, BU’s daughter brought court proceedings due to concerns that BU’s relationship with NC was one of coercive control, particularly in relation to BU’s financial affairs. Expert evidence has borne out those concerns. On 19 May 2020 the Court of Protection held that BU lacked capacity to manage her own property and finances and appointed a deputy to do so. However, BU retained capacity to marry.

On 24 September 2021 the court ordered:

1. A continuation of an injunction preventing NC from having contact with BU. This was endorsed by a penal notice which threatened NC with imprisonment if NC disobeyed the order, as he had done previously.

2. A Forced Marriage Protection order to prevent any marriage taking place. The judge ordered this to ensure BU is protected from any attempt to be forced or coerced into a marriage with NC.

When summing up, the judge stated:

“Whilst I recognise that the making of a forced marriage protection order is a very significant step to take in circumstances where BU has been found to have capacity to enter into a marriage, I am persuaded for all the reasons I have explained that she would not be giving a valid consent to such a marriage or civil partnership.”

This judgment highlights the court’s willingness to recognise the abuse embodied by forced or predatory marriage with a vulnerable victim. It also demonstrates that a vulnerable person can retain capacity but still be subject to coercive control whereby they no “longer [have] the ability to exercise … individual free will in the context of any ongoing relationship …”

For BU, court intervention has prevented future abuse. However, too often, family members do not find out about the abuse during their vulnerable loved one’s lifetime. The law (which we are seeking to reform) is such that, once the victim of predatory marriage dies, no claim can be made to set aside the marriage on the basis that they lacked capacity, were subject to duress or even made a mistake. The marriage revokes the victim’s will automatically and the predator receives all or most of the estate.

The only claim to mitigate the damage would be under the Inheritance (Provision for Family and Dependants) Act 1975, which is not an avenue open to all people due to restricted categories of claimant.

It is important to note that questions and claims can still be raised after death surrounding will validity, lifetime transactions or gifts. Such claims may focus on grounds such as lack of capacity and undue influence.

There is a presumption in favour of undue influence in questionable lifetime gifts or transactions if:

1. There exists a relationship of trust and confidence and ascendancy

2. The transaction calls for an explanation

3. The donor did not act free of the influence and in effect did not enter into the transaction “after full, free and informed thought about it” (Hammond v Osborn [2002 EWCA Civ 885)

The leading case on this point is Royal Bank of Scotland plc v Etridge (No 2) [2001] UKHL 44. This presumption would work against the predator and is a useful argument to make.

However, claims challenging wills and/or gifts would only benefit a claimant who was already a beneficiary by other means: say, by benefit under a previous will where a later purported will is set aside, or under a current will if lifetime transactions are set aside. In too many cases, the predator may still benefit from their wrongdoings.