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11th November, 2021 by Jennifer Laskey
Last month The Guardian highlighted again the case of Joan Blass who died in 2016 aged 91. Joan Blass had suffered from vascular dementia having been diagnosed in 2011. That same year she met Colman Folan who was 24 years her junior. He moved into the home of Joan Blass just a month later.
Joan lived in a property on the grounds of her daughter Daphne Franks’ home. Daphne recalls how her mother seemed unsure of who Colman Folan was and would refer to him as “Laddo”.
When Joan died her family discovered to their horror that she had in fact married Colman Folan in a Registry Office ceremony. The deputy Registrar appeared satisfied that Joan knew what she was doing and was acting freely despite the fact she could not recall her age or house number at the time. By operation of English law, the marriage revoked all earlier Wills and as a result Colman Folan inherited Joan Blass’ entire estate.
It also gave Colman Folan control of the funeral arrangements for Joan Blass who is buried in an unmarked grave as a result.
Daphne Franks has been campaigning for a change in the law to protect those who are subject to what is known as “predatory marriages”. These differ from forced marriages (in respect of which legislation already exists) where a person who is unable to consent is forced into a marriage, often being sent abroad for such purpose. Predatory marriages occur where someone preys on a vulnerable person to secure financial or other gain. Such marriages also centre around issues of consent.
In 2018, two years after the death of Joan Blass, her daughter’s MP Fabian Hamilton proposed a private members’ Bill to change the law in England to stop a marriage revoking a Will and to reflect something more in line with the law in Canada. There safeguards are inserted into the law to protect vulnerable people from being coerced into marriages they lack the capacity to consent to.
Predatory marriages are more common than you would think and, with an ageing population, likely to increase in number.
It is a peculiarity of English law that on divorce, a previous Will remains valid but on marriage a Will is automatically revoked.
In the ordinary course of a divorce, the soon to be ex-spouses will be advised to change their Wills to reflect the divorce and to ensure that, if the worst should happen, their former partner does not still receive the benefit under a Will made in happier times.
If you marry then any previous Will (unless specifically made in contemplation of such marriage) is revoked. A new Will should always be made to ensure that current wishes are reflected. For the same reason Wills should be reviewed periodically to ensure they continue to recognise those a person would wish to benefit in the event of their death.
Where a vulnerable person lacks capacity it is possible for a Will to be written for them by the Court. The process is designed to ensure that evidence is considered as to what the wishes of that person would be if they were able to express those themselves.
A Statutory Will can be made in a variety of circumstances and may be an option for those who feel that a parent has lost capacity and may have been subject to a predatory marriage.
Alexandra Hornsby, a Director at Howes Percival and specialist in Wills, Trusts and Probate confirms
“It is not uncommon for people to be concerned about a family member losing capacity, and to want to find out the steps they can take to protect them from exploitation. The Court of Protection is there to help in these situations, and Lasting Powers of Attorney, Deputyship Orders and Statutory Wills can all be put in place if appropriate, to protect elderly and vulnerable clients.
There is no doubt that some people target vulnerable older people with a view to gaining financially in the event of their deaths, as well as during their lives. These situations develop quietly and wider family may not be aware of the full extent of what is going on until it is too late. In some cases, bank accounts are emptied before a person dies, meaning that an Estate may be worth nothing at the date of death.
Staying in close contact with older relatives and being fully involved in their lives is essential if they are to be protected from exploitation and coercion”.
Jennifer Laskey, a specialist Contentious Probate lawyer and Director at Howes Percival agrees:
“Undoing the damage of a predatory marriage or a relationship which has been developed purely for financial gain can be extremely difficult. Whilst there are claims that can be brought after death these are not easy to succeed in and will depend entirely upon the individual facts of a case. Prevention really is better than a cure so ensuring predators are kept at arms length is key”.
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