Many people are unaware that marriage has the effect of revoking a Will (unless the Will was prepared "in contemplation" of marriage").
Sadly, this situation is being exploited increasingly by unscrupulous people who marry elderly vulnerable people in the knowledge that the marriage will invalidate any previous Will prepared by the elderly spouse.
If, following the marriage, the elderly person lacks capacity to prepare an updated Will, the Intestacy Rules will apply. The effect of these rules will be that:
- The new spouse will inherit:
- the first £250,000 of assets and all personal possessions, whatever their value; and
- Half of the rest of the estate;
- The other half will be divided equally between any surviving children of the deceased.
In practical terms, this means that the new spouse will inherit the lion's share of the estate, and the whole estate where it is less than £250,000 in value.
Having been made aware of this loophole by a case involving a constituent, Fabian Hamilton MP sponsored a ten-minute rule bill in parliament yesterday in the hope that the UK will follow the three Canadian provinces who have brought in legislation to "stop putting marriage before wills".
Mr Hamilton has highlighted the fact that "there is no training or any provisions set out for registrars to identify whether a person has the mental capacity to enter into a marriage contract at the ceremony". Furthermore, the legal test for capacity to enter to a marriage contract is much lower than that required to execute a Will.
The bill received approval to go forward for a second reading, which will take place on 25 January 2019.
Jonathan Ames, Legal Correspondent for The Times, thinks that the Bill "has little chance of becoming law". However, recent statistics from the Office of National Statistics highlight that the UK's population is ageing. This, together with changes to the structure of society with many more older people living alone, makes it likely that without changes to our current laws, the current situation will unfortunately continue to enable those who seek to take advantage of infirm, elderly people.
As soon as the mother remarried, the mother’s will was declared null and void, leaving the family with no recourse on her estate. The constituent, who previously had power of attorney over her mother’s affairs, did not realise this was the case.