Public awareness of predatory marriage has grown in recent years but, until recently, the law has been slow to keep up. The Law Commission’s May 2025 report on Modernising Wills Law explores how inheritance law might be reformed to implement formal preventions against the risk of predatory marriage. In this article, Geoff Kertesz, partner, Judith Swinhoe-Standen, senior associate, and Dion Bird, trainee solicitor, consider whether those measures will do the trick, as well as whether recent case law from England and Wales, or further afield, offers alternative guidance on tackling the issue.

What is predatory marriage?

Predatory marriage usually involves a person pursuing and marrying an individual who is more vulnerable than themselves, often older and invariably wealthier. The predator’s aim is to inherit the victim’s estate because in England and Wales, marriage will revoke any existing will unless that will was made in contemplation of the marriage. As a result, a will made before the marriage becomes ineffective, and the new spouse could inherit a substantial part, or even all, of the estate under the intestacy rules if a new will is not prepared after the marriage.

Why is predatory marriage a problem in the context of wills and estates?

Every decision a person makes requires a certain level of mental capacity. The threshold for capacity to make a will is higher than the threshold for capacity to marry.

If the victim of the predatory marriage has capacity to marry, but lacks capacity to make a new will, the intestacy rules will apply. Under these rules, the surviving spouse inherits most of the victim’s estate. We explain the intestacy rules in further detail below.

Alternatively, the victim might have capacity to make a new will after the marriage (usually leaving most or all of their estate to their new spouse to the exclusion of their relatives). If they then lose capacity to make or amend a will soon afterwards, they may be unable to change the will, meaning their relatives remain excluded from inheriting.

It is difficult to challenge a will of a person who is still alive because it has not yet come into effect. This is not therefore a viable option for concerned relatives, who often have no option but to wait until the victim has died to try to challenge the validity of the will and/or the marriage.

Capacity to marry vs capacity to make a will

As stated above, a person must have a higher level of capacity to make a will than is required to marry.

What is the test for capacity to marry?

The test for determining a person’s capacity to marry was set out by Mr Justice Hayden in the recent case of A Local Authority v AC (Consent to Marriage). The couple must:

• recognise that two people are making a commitment for their lives to be joined together,
• wish that status to be recognised by others, and
• understand that a formal process is required to enter into, and leave, a marriage.

Mr Justice Hayden also took the view that capacity to consent to sexual relations was an intrinsic component of the test for capacity to marry.

What is the test for capacity to make a will?

The test for capacity to make a will was established in the landmark case of Banks v Goodfellow. A person making a will must:

• understand the nature and effect of making a will,
• comprehend the extent of the property they are disposing of in their will,
• understand and appreciate the claims of those who might expect to benefit from their estate, and
• have no disorder of the mind or insane delusion that poisons their affections, perverts their sense of right, or influences the disposal of the property.

What are the intestacy rules?

The intestacy rules apply only if there is no valid will and are therefore a last resort.

If the victim lacks capacity to make a new will after their marriage to the predator, or if the victim’s relatives can successfully overturn a will made after the marriage, the intestacy rules will apply.

These rules appear in section 46 of the Administration of Estates Act 1925 and set out who inherits the deceased’s estate in the absence of a valid will. Surviving spouses or civil partners (ie the predator) are heavily favoured over other categories of beneficiary:

• where the deceased dies leaving a surviving spouse or civil partner but no children, the surviving spouse or civil partner inherits the whole estate,
• where the deceased dies leaving a surviving spouse or civil partner and children, the surviving spouse or civil partner receives all of the deceased’s personal chattels (a person’s tangible moveable property) and receives a fixed amount of money from the estate (currently £322,000). The remainder of the estate is divided 50% to the surviving spouse or civil partner and 50% to the deceased’s children,
• if the estate is worth less than £322,000, the surviving spouse or civil partner inherits the whole estate and the deceased’s children receive nothing.

This means that if the challenger is unhappy with how the intestacy rules apply (because the predator receives a substantial benefit from the victim’s estate), the only remaining avenue is to challenge the marriage’s validity retrospectively. This will inevitably be an uphill battle considering the low threshold for capacity to marry and considering that one of the parties to the marriage would by then have died, bringing about the end of the marriage.

Langley v Qin

The interaction between the intestacy rules and the two capacity tests is well illustrated by Langley v Qin, widely regarded as the leading recent case on predatory marriage. The case concerned the marriage of 93-year-old widower Robert Harrington to his 54-year-old paid carer, Guixiang Qin.

Mr Harrington had one daughter from his previous marriage (Jill). After marrying Ms Qin, he prepared a new will that left his fortune to Ms Qin and omitted Jill entirely.

After Mr Harrington died, Jill disputed the validity of the new will, stating that Ms Qin had exerted undue influence over Mr Harrington. The court found in favour of Jill, determining that both the marriage and the will were procured through undue influence.

While this appeared to be a victory for Jill, the court was unable to overturn the marriage after death and, because the later will revoked any previous wills, the estate fell to be administered under the intestacy rules. This meant Ms Qin remained entitled to inherit substantially, despite the will’s invalidity, as she remained Mr Harrington’s spouse at his death.

Langley v Qin shows that, even where a person has strong grounds for challenging the validity of a marriage or a will, if the potential benefit is minimal, it may not justify the time, cost, and expense of bringing the challenge. This can be bitterly disappointing for the relatives of a victim of a predatory marriage, particularly if the outcome remains that the predator still inherits substantially from their victim’s estate, as they may do under the intestacy rules.

Can anything be done to prevent a predatory marriage?

At the moment, it is difficult to prevent a predatory marriage or the resulting inheritance consequences.

First, as set out above, the law in England and Wales is not on the victim’s side. To the extent that any concerns can be raised before the marriage, the main onus is arguably on the celebrant or registrar conducting the marriage, who may not know the couple or feel it is not their business to interfere.

Secondly, raising the topic with a relative whom you fear is falling victim to a predatory marriage can risk creating an irreparable family rift. They may feel optimistic about their prospective marriage and take offence at the suggestion that their future spouse is financially motivated or is manipulating them into the marriage. It is also possible that the marriage is a genuine love match and any suspicions unfounded. Raising these concerns, however well-meant, can easily backfire, causing victims (possibly with the predator’s encouragement) to isolate themselves from the concerned relatives, and leaving those relatives helpless to prevent the marriage.

Reforming the law on predatory marriage: the Law Commission’s report

In recent years, relatives of victims of predatory marriage have sought to raise public awareness of the issue. These efforts have culminated in a proposal to reform the law to protect against predatory marriage in the Law Commission’s report on Modernising Wills Law.

The most fundamental change the report recommends insofar as predatory marriage is concerned is that marriage should no longer automatically revoke a will. The effect of this would be to preserve the victim’s existing testamentary arrangements and to reduce the incentive for predatory marriages. This change focuses on the principal harm caused by predatory marriage (ie, the inheritance issues outlined above) rather than on the validity of the marriages themselves. This recognises the fact that victims’ families often find it is difficult, and in some cases impossible, to challenge the validity of the marriage once the victim has died.

There is no guarantee the new rule will come into effect, and if it does, it may not do so for several years. However, its inclusion in the proposed reforms suggests it is more at the forefront of minds than ever, meaning the public may already be more aware of the warning signs of predatory marriage.

Foreign guidance on tackling predatory marriage

Meanwhile, some other jurisdictions are ahead of England and Wales and already have mechanisms to mitigate the risk of predatory marriage. In New Zealand, under the Marriage Act 1955, it is possible to lodge a caveat against a proposed marriage. A marriage caveat is a formal notice entered with the authority responsible for issuing a marriage licence to prevent a marriage from proceeding until objections to the marriage have been investigated. It is similar to the English procedure of entering a caveat to prevent a grant of probate from being taken out.

This was examined in the recent case of Stanton v Stanton, in which a daughter lodged a caveat to try to prevent her mother from marrying her second cousin. She argued that her mother, who had a history of mental health issues, lacked the requisite capacity to consent to the marriage and was vulnerable to manipulation.

The court found that the mother and her second cousin both freely consented to the marriage and that being second cousins was not a prohibited degree of relationship under New Zealand matrimonial law. Accordingly, the court allowed the marriage to proceed.

The daughter’s unsuccessful challenge highlights how difficult it can be to establish the necessary grounds to stop a marriage from proceeding, even where there are legal mechanisms available to prevent predatory marriages. Despite this, it shows that it can be worthwhile to build these kinds of safety checks into legislation. They allow concerns to be examined independently before the proposed marriage, rather than leaving relatives to address them, usually when it is too late.

Key takeaways

• Predatory marriage can have significant testamentary consequences because marriage currently revokes an existing will unless that will was made in contemplation of the marriage.
• The threshold for capacity to marry is lower than the threshold for testamentary capacity.
• Once a victim of a predatory marriage dies, it can be extremely difficult to undo the consequences of the marriage, particularly where the estate falls to be distributed under the intestacy rules.
• Even a successful will challenge may not achieve the outcome family members want if the marriage itself remains effective.
• The Law Commission has proposed abolishing the rule that marriage automatically revokes a will, thereby preserving existing testamentary arrangements and reducing the incentive for predatory marriage.
• Until any reforms are enacted, sensitive and tactical communication with vulnerable individuals and awareness of the warning signs of predatory marriage remain the best means of protecting potential victims and their intended beneficiaries.