Modernising Wills - Heather Roberts

The forum focused on will disputes and the increasing challenges of mental capacity issues that are having a significant impact on the landscape of wills. The forum brought to the fore the question of whether the law needs to be modernised as the landscape shifts?

Law Commissioner Professor Nick Hopkins, Professor Robin Jacoby from the University of Oxford and a panel of experts discussed the Law Commission’s wills project and its proposed supplementary consultation paper covering the topics of predatory marriage and digital wills.

Heather shares her main takeaways from the event and highlights the main issues of discussion on the day.

I found this to be an interesting forum and it was great to see a lot of people in the room - a mix of contentious practitioners and non-contentious practitioners. It is not known when a decision will be reported following the closure of the consultation later this month, but it was helpful that the forum took place, in particularly in the north, giving the northern powerhouse a voice. It will be interesting to see what the outcome is. I would like to thank STEP and particularly those involved in putting the event together.

The two main topics discussed were the introduction of electronic wills becoming valid or validly being executed under the Wills Act 1837. The second topic was the issue of predatory wills and how a revision of the Wills Act 1837 could help prevent these.

What is a predatory marriage?

Predatory marriage is when someone who is usually elderly and vulnerable and is unlikely to have capacity to make a will but may still have capacity to marry, or simply hasn’t been properly assessed for capacity prior to the marriage.

There was first a consultation in relation to predatory marriage in 2017 raising some public awareness of the issue and the campaign has been ongoing since then.

The test of capacity to make a will is quite a high standard whereas the test for capacity to marry is quite low. You can therefore end up in a situation where the revocation of the Will then leaves the entire estate to the new predatory spouse under the intestacy rules, with the person not having capacity to understand the consequences. In fact, it was found during the 2017 consultation that the majority of the public were completely unaware that marriage revoked a will.

With marriages, the onus is simply on the registrar to assess a person as to whether they have capacity to marry. They are not specialists who can recognise whether someone is being taken advantage of. It is often simply a matter of them checking a person’s identity. If somebody does get married this automatically revokes their will under the current rules of the Wills Act, and this can have a devastating effect on families. Not only does the family lose their potential inheritance under a prior will, they also lose complete control over the administration of the estate plus the deceased’s funeral and burial arrangements.

We heard from Daphne Franks who is a campaigner in this area and has made public her family situation for satisfying emotional video to watch and her story is one that has raised the public awareness of this issue. One of the hardest things for her and her family was not the loss of their inheritance but was that fact that they didn’t get to go to her mother’s funeral and that her mother now lies in an unmarked grave, with nothing legally they can do about it.

Is removing the automatic revocation clause appropriate?

The event panel debated whether amending the s.18 Wills Act to remove the automatic revocation clause would be appropriate or whether it would give rise to more litigation?

Research suggested that there are around 100 predatory marriages per year reported to solicitors, so it was considered to be a relatively small amount of “fringe” cases in comparison to the number of marriages per year.

The consensus in the room however was that the figure is in fact higher than that. There are likely to be many incidents that go unreported, and I have had at least a couple of enquiries in relation to predatory marriages over the last few years.

Issues for the families

The main issue for families who find themselves dealing with a predatory marriage situation is that it often doesn't come to light until after the person has passed away. If it comes to light whilst they are still alive and it was found that that person did not have capacity to marry, the current issue with the Matrimonial Causes Act 1973 means that a marriage cannot be voided and is simply voidable.

If the marriage is only voidable, the effect is not retrospective and therefore it still applies that s.18 Wills Act still revokes the Will. It leaves the family, if the person is still alive, to try and urgently make a statutory will through the Court of Protection, though this is time consuming and costly and often there is not time to do it.

Drafting new wills.

The contrasting view discussed was that if the clause was repealed, people would have onus on them to ensure that they had a new Will made, if they had an old will that did not reflect their new relationship. 40% of the adult population apparently do not have a will, so the concern was that people simply wouldn’t know to update their will once they were married. This could therefore leave a new spouse in a genuine marriage not being properly provided for.

It was discussed how it would be easier for a spouse to bring a claim under these circumstances under the Inheritance (Provision for Family and Dependants) Act 1975, than it would be for an adult child to bring a claim under the act should the revocation clause remain. Adult children claims under this Act are difficult to bring and rarely successful.

It was also discussed what the original reason was for the inclusion of the revocation clause. After some research it transpired that prior to 1837, it was the legal position that only women's wills were revoked upon marriage as women were not allowed to hold or own their own assets after marriage. The wills act in 1837 therefore levelled the playing field for equality, but there was no apparent other good reason to include the provision.

The arguments for and against repealing the clause.

We heard submissions from two barristers Sarah Harrison of Parklane Plowden Chambers and Ellis Gomer from 5 Stone Buildings. Sarah was arguing in favour of an amendment to the Wills Act to repeal the clause, and Ellis was arguing against. His view was that further protections could be put in place rather than simply removing the clause entirely, for example amendments to the Matrimonial Causes Act to allow a marriage to be void rather than just voidable if a person was found to not have capacity. This is apparently an option that has already been considered, but rejected, by the Law Commission. He also suggested inserting an exception into section 18 of the Wills Act that if a person was found to lack testamentary capacity when they got married, that the will would not be revoked.

It was a yes to repealing Section 18 of the Wills Act

After hearing submissions from both barristers, the forum was asked to vote on whether the section 18 of the Wills Act should be repealed entirely or whether it should remain.

72% of the room agreed that should be repealed. Interestingly, the room was then asked whether they thought repealing section 18 would increase litigation, and 72% of the room agreed that it would.

We then heard from Professor Robin Jacoby who is an eminent expert in preparing capacity reports in litigation cases relating to testamentary capacity. He was in favour of an amendment to the Wills Act to help prevent predatory marriage. He commented that 76% of the cases in which he'd been instructed to prepare reports were in relation to wills prepared by professionals. He said in 52% of those cases, the people who have drafted the wills had made mistakes.

These were often mistakes by will writers as opposed to solicitors, and he called for them to “do better”. He commented that they need to ask the right questions, explore the family situation and look out for red flags, such as wills being prepared in a care home. He'd come across around 40 cases of overt ‘gold digging’, by both men and women in predatory situations. We have to remember that when cases where an expert is being instructed, they are usually deeply into litigation. There are still many situations and victims that simply go unreported and never reach that point.

It was a yes to repealing Section 18 of the Wills Act

In my opinion section 18 of the Wills Act should be repealed entirely alongside a campaign by local authorities to raise public awareness of the need for wills, with perhaps advice and literature being given out by registrars when applying for marriage licences, to avoid old wills not then being favourable to the new spouse.