As an only child, Jill Langley had every reason to believe she would inherit her elderly, widowed father’s £1mn fortune. But she had to go to court to secure even a slice of his money in a case involving a carer, a new marriage and a fresh will.
Robert Harrington, from Norfolk, died in May 2020, aged 94, having married his carer, Guixiang Qin, a woman 39 years his junior, the year before. According to court documents, in a will made two months before his death, Harrington left everything to Qin and nothing to Langley, the beneficiary of the previous will.
Langley challenged the new will and, in June 2024, a judge found in her favour, ruling that Qin had exerted “undue influence” over a “vulnerable elderly man” who had lacked the capacity to make a will.
The law is outdated. It’s making a mockery out of marriage, morals and decency’
But Qin still benefited from the arrangement. As the court had set aside the will, Harrington in effect died without one, so his assets were divided through a formula for no-will deaths, called intestacy, under which an estate is split between a spouse and children, with the spouse getting the largest share. Qin told the FT through her lawyer that her marriage, which was “nothing but loving and real”, had not been challenged in court. She said she was appealing against the judgment on the will.
Langley, now 71, said: “The law is outdated. It’s making a mockery out of marriage, morals and decency.”
The arguments highlight the mental capacity rules for marriage and for wills. An elderly person suffering from serious dementia cannot normally write a valid will.
But, if they are single or widowed, they can often get married, as the mental capacity legally required for marriage is much lower.
And fair enough, you might think. Who is to judge what’s going on in another person’s heart, even when they’re 90? It’s never too late to find happiness, people say, or to discover it anew.
But there is a big financial complication. A marriage or civil partnership immediately revokes almost any previous will. Without need of a new will, marriage creates a fresh financial settlement — one which normally leaves a lot, if not everything, to the new spouse.
That in turn generates incentives for vulnerable people to come under undue influence to enter into what has come to be called “predatory marriage”. The heirs of well-off old folk have worried about this risk for years. So have lawyers acting for wealthy families.
But the fears have mushroomed since the pandemic, which saw a jump in life-threatening illnesses and deaths — and in will-writing, sometimes carried out in difficult if not chaotic conditions.
“Covid placed a huge obstacle to ensuring that a testator had capacity and was not being influenced to make a will,” says Sally Ashford, a partner at solicitors Charles Russell Speechlys. “It is likely that we will see many more claims against wills which were made during the [pandemic] period.”
Not before time, the government is considering reforming the law in England and Wales (Scottish law is different). The Law Commission, a statutory advisory body, is preparing proposals that it expects to publish early this year in which it will call for either scrapping the automatic revocation of a will by marriage, or for maintaining the status quo.
If the commission goes for change — as many lawyers expect — the government would have to agree and find time for legislation. Moreover, any reform would most likely not be retrospective: disputes stemming from the Covid years would still be handled under existing laws. Fabian Hamilton, a Labour MP campaigning for reform, says there is widespread concern in parliament over predatory marriage. “Many colleagues have reported cases. It’s cross party.”
Concerns about vulnerable people falling prey to exploitative relationships have been growing for years. Extended life expectancy has boosted the numbers surviving into old age with illnesses impairing mental capacity. According to the Alzheimer’s Society, nearly 1mn Britons suffer from dementia, including one in 11 of the over-65s.
This generation of elderly is the richest ever, leaving plenty for potential heirs to dispute. Meanwhile, families are becoming more fluid as people change jobs, homes and partners more frequently, leaving older relatives more likely to be living without close family contact.
It’s important to emphasise that most carers do a difficult job well. Age UK, the charity, notes they offer not just practical assistance but also emotional support, sometimes filling a void left by family members who may lack time or resources for frequent visits.
Closeness matters to humans, including in old age. And sometimes closeness — with a carer, for example, or a new friend — leads to romance. As Age UK says on its website: “Whether you’re separated, bereaved or have been single for some time, it’s never too late to start a new relationship.”
Marriages among those aged 65 and over rose 46 per cent in the decade to 2014 to 11,000 — according to the latest ONS data — far more than the 20 per cent increase in the overall 65-and-over population. The percentage of predatory marriages is likely to be very small. So family lawyers warn that any legal reforms should not over-interfere with a person’s right to wed.
The competence threshold for marriage is low so that, for example, young people with mental disabilities can tie the knot. The 2005 Mental Capacity Act says the person involved must understand what they are doing in getting married. Questions about a partner’s suitability are irrelevant — whatever relatives may think.
Covid placed a huge obstacle to ensuring a testator had capacity and was not being influenced to make a will
For wills, the competence test is tougher — so a person could get married without even understanding that they have a will. The test dates back to an 1870 case where the judge ruled that for a will to be valid the testator should understand the effect of making a will, the extent of their property and the claims of potential beneficiaries.
All well and good. But the rule was set down when the line between capacity and incapacity seemed clearer then than today, when more people are living long enough to suffer dementia. “Living in the twilight zone makes people vulnerable,” says Henrietta Mason, a senior counsel at solicitors Farrer & Co.
In 1975, Lord Templeman, a future appeal judge, declared in court “one golden rule” for aged or sick testators — that a doctor should always be present at the will’s making.
His (non-binding) rule is honoured more in the breach than the observance. Even Templeman himself made a will without a doctor at the age of 88. In an inheritance dispute following his 2014 death, the court ruled that the distinguished law lord had had the necessary capacity.
Parliament has been sufficiently concerned about fraudsters to criminalise predatory marriage in a 2014 law on forced marriage (involving coercion) — making it illegal to ensnare into marriage someone lacking mental capacity, even without coercion.
But, sufficient evidence is rarely available since wedding procedure rules — despite a recent overhaul — do not oblige those officiating, usually registrars or priests, to assess capacity rigorously. They are not trained to do so. There is also no requirement for verbatim records.
Under the 1973 Matrimonial Causes Act, a marriage is void — treated as if it never existed — in rare circumstances, such as bigamy. A previous will is then not revoked — as there never was a valid marriage.
However, in cases when a person is found in court to have lacked the capacity to marry, the marriage is not called void but voidable. It is cancelled only from the moment a judge rules it so, without retrospective effect. Crucially, a will revoked by the now-voided marriage, remains revoked.
In theory, anyone concerned about a forthcoming marriage on capacity grounds can submit a caveat to the registrar — a letter explaining the circumstances, preferably with a doctor’s note. But this little-known rule is barely used: it was taken up just six times in 2023.
There is also an official helpline. The Home Office says: “If individuals have concerns that one or both parties do not or cannot consent to the marriage, they should call the Forced Marriage Unit helpline.”
But predatory marriages often take place without the couple informing the family. Rules require forthcoming marriage announcements to be published, but normally only on paper via register office or church notice boards, which family members may never see. There is no searchable electronic database.
Those who don’t know about a marriage obviously cannot challenge it. Worse, for anxious heirs, the law allows challenges to a marriage on capacity grounds to be made only before the vulnerable person dies.
Before Covid, lawyers were split over scrapping the revocation rule. When the Law Commission surveyed professional opinion in 2017 it found that 60 per cent favoured the status quo. These experts said the current law gave due weight to the importance of marriage and that people generally wanted “their new spouse to inherit the majority or the entirety of their estate”.
Lawyers say the current law often works well in the case of working-age people entering a new relationship after a previous marriage — a much more common happening than old-age unions. It helps people to move on with their new spouses if the new marriage revokes a previous will.
The main losers are the children of the first marriage who, under current law, lose their rights under the old will. (The ex-spouse is normally already cut out of the old will through the divorce settlement itself).
If the law now changes, those first-marriage children would retain their rights under the old will — to the possible disadvantage of the new partner and any new children. But solicitors opposed to changing the revocation rule argue it is often the new family — frequently with younger children — that needs financial protection.
The answer, lawyers say, is to write a will — a new one — if you remarry. You can, for example, pass your assets to your new partner for their lifetime and assign a share to your previous-marriage children that goes to them after the new partner’s death (if they die after you).
Fortunately, the law offers some comfort to those finding themselves on the wrong side of a testamentary settlement — under a 1975 law dependants can secure a limited amount for their financial needs.
How should you protect a vulnerable old person? A checklist:
Keep in touch with your old folk, even when they are in a comfortable care home. Loneliness can drive people to what others see as strange decisions.
Ensure that the power of attorney, which gives control of a vulnerable person’s affairs, is valid. But remember it doesn’t confer rights over marriage, not even a right to be informed.
Ensure the elderly person makes a will. If it’s too late, check the intestacy rules. If these do not address your situation, consider a statutory will, made in court — though this can be expensive.
If you hear the old person might be planning marriage, you can send the local registrar a letter to object. If the registrar accepts this caveat it will be circulated to other register offices. But, crucially, not to religious venues.
If you want a marriage voided on mental capacity grounds, move quickly as you normally won’t have a case if the person dies.
Lawyers say that since the pandemic, support for scrapping the automatic marriage-will link has grown following a surge in challenges to Covid era wills. “Opinion has shifted,” says Andrew Bishop, a partner at solicitors Rothley Law. The Law Commission says it is acting in response to “increasing concerns about what are often called ‘predatory marriages’”.
But even with reform, the law will struggle in cases where evidence is ambiguous and recollections differ, as Daphne Franks knows well.
Franks’s widowed mother Joan Blass was befriended in 2011 at the age of 87 by Colman Folan, a man 24 years her junior. According to court documents, Folan won Blass’s confidence, moved into her house and became her carer, as she developed serious dementia.
Franks, who lived with her husband next door to her mother and held a power of attorney, says she found herself frozen out of Blass’s life. It was only after Blass died in 2016, aged 91, that Franks learnt that Folan and Blass had married the previous October.
Blass’s will was revoked and she died intestate. Franks and her brother lost not only a £200,000 inheritance but also control over funeral arrangements. “It was so distressing,” says Franks. She believes her mother “would have had no idea she was married”.
Franks and her brother took Folan to court over the funeral question. The judge rejected suggestions that Folan had acted with fraudulent intent, aiming to secure the estate. He found in Folan’s favour, commenting on his “deep affection” for Blass. However, he did say that it was “at the very least doubtful” that Blass had had the capacity to marry.
Folan was contacted for comment.
Franks was shaken by the defeat. But determined to raise public awareness about the potential repercussions of later-life marriage, she has launched a grassroots national campaign. She says: “Many people simply don’t know what goes on.”