A marriage can be held to be voidable under the Nullity of Marriage Act 1971 where a person enters into a marriage without the mental capacity to do so. The marriage will not be null and void, but rather merely voidable under the Matrimonial Causes Act 1973. Therefore, the marriage continues to exist up until such time as it is declared void by the court even though it was entered into unlawfully
In England and Wales, a marriage revokes all previous wills so the unlawful marriage, even if it is later annulled, was an effective marriage until that date. The unlawful marriage revokes a lawful will. This presents a problem in relation to how that person’s estate is dealt with.
Unless a will was executed after the death of the marriage, the result is that the person’s estate passes by intestacy. It is not possible to retrospectively revoke the marriage and reinstate an earlier will.
If the marriage is never annulled this presents a problem. Under the intestacy rules, the majority of the estate will go to the spouse, the very one who arranged the predatory marriage.
There may be a potential claim under the Inheritance (Provision for Family & Dependants) Act 1975, but such a claim may not be successful.
If there is a predatory marriage, it is essential for the victim to execute a new will but if person who did not have capacity to enter into a marriage does not have capacity to write a new will, then an application on their behalf should be made for a statutory will. A statutory will is a will that is made and ratified by the Court of Protection on behalf of a person who lacks capacity.
A statutory will is not quick solution and could take over a year to finalise and they are considered on a case-by-case basis. If the health of the person is an issue, an interim holding will could be achieved in a matter of hours by specialist lawyers.
A statutory will can also be applied for where a person’s situation has changed and they no longer have the capacity to make a make will or where a person has assets, or is likely to inherit assets, but has never had the capacity to make a Will. The Court of Protection will encourage the person to participate in the application for a statutory will and, will take into account, all relevant factors.