In a bind: the legal future of wills and weddings
In 2011, Daphne Franks’ mother Joan Blass was diagnosed with vascular dementia.
Daphne had noticed a change in her mother’s personality, she became forgetful and easily frustrated. Joan had previously smoked and had a major stroke in her late 60s: both predictors for vascular dementia.
In the months after Joan was diagnosed, while she was gardening at the front of her home, she met a man who introduced himself to her over the fence. At some point after – Daphne is not sure when – the man moved into Joan’s home.
“We never knew when he moved in because he wouldn’t discuss anything with us. He was incredibly secretive. Mum didn’t know he was living there. She kept asking me, “Where does he live?”, “Where does he come from?”, “Did you get him for me?”. Which broke my heart later on, she thought he was her carer.”
Daphne only realised the man had moved in after his belongings appeared around Joan’s house, even though Joan’s house was next door and Daphne saw her several times a day.
Later, Daphne and her brother would find out the man was a hoarder – the upstairs of her mother’s house was turned upside down and the man’s collection of jackets was strewn across what was formerly her mother’s bedroom.
The man was intensely secretive. When asked his age by Daphne’s brother, he replied “seventies”. He was in fact 62 at the time.
After some persistence, Daphne and her brother found out his actual address, which led to a derelict house less than a mile away from her mother’s.
Eventually, the man would ostracise Daphne and her family.
“When I went across to see Mum, the man wouldn’t look at me or speak to me… He wouldn’t reply if I spoke to him. I found that really scary.”
Daphne realised that the man had followed a pattern followed by many predators and abusers:
“What they do is turn up out of nowhere, be over-friendly as he was in the start. Move on to the person quickly, then isolate them. He took to locking the door from the inside so we couldn’t get in. If we went over to see Mum, he would answer the door but very, very slowly.”
“No safeguarding concerns”
Throughout this time, Daphne and her family sought help from all the official bodies possible.
First, she called Joan’s GP, and insisted that they hold a practice meeting about her mother’s situation.
Resultantly, the GP practice advised Daphne to call social services but offered no further support.
Daphne called social services, who made a visit to Joan’s home. In England, social services do not have right of access. Daphne had asked them to look in the upstairs of the house to see that it was in complete disarray.
After the visit, they called Daphne to say that “there were no safeguarding concerns”. However, to this day, Daphne remains unsure if they ever accessed the property.
Daphne went to the police on at least two occasions. The first was very early after they suspected the man had moved in. The police told Daphne that nothing could be done as the man was there “at [Joan’s] invitation”.
For Daphne, the officer simply lacked an understanding of dementia: Joan did not know who the man was and did not have capacity to invite someone into her home.
Much later, after a visit to Joan one evening, Daphne and her husband heard her say to the man as they were leaving: “Did I say what you wanted me to say?.” Thinking this clear evidence of grooming, Daphne went to the police again but was simply not taken seriously: “People will say you just don’t like him.”
Finally, Daphne consulted with her family solicitor, who advised her that Joan would not be able to make a new will due to her current lack of capacity.
Daphne asked the solicitor if the man could marry her mother, to which the solicitor advised that “no, because of [Joan’s] dementia there will be something in place”.
Joan died in 2016. Three days after her death Daphne received a call from her family GP. “Did you know your Mum was married?” the GP said.
The man had taken Joan to Leeds Register Office in October 2015, and the ceremony was witnessed by the man’s son and a woman the man knew from a local pub.
The man’s interruption of the last years of Joan’s life were acutely distressing for Daphne.
However, her mother’s death unveiled the true scale of the matter and the legal challenges that Daphne would begin to campaign against.
In England and Wales (also in Northern Ireland, but not in Scotland), marriage revokes a will, meaning that the wills drawn up by Joan in 2004 were nullified by her marriage to the man.
With effectively no will, the man – Joan’s spouse – stood to inherit the first £270,000 of Joan’s estate. In Joan’s case, this was all of it.
The man also inherited Joan’s share in her own home (Daphne and her brother owned half after the passing of their father).
The man also had complete control over Joan’s funeral, which he carried out in secret so Daphne and her family could not attend.
Although Joan wanted to be cremated, the man buried her in an unmarked grave in a churchyard in Otley, a town with which she had no connection.
Marriage and mental capacity
Joan’s marriage and the events after her death raise questions that highlight clear gaps in the law that leave adults that lack capacity vulnerable to financial abuse, or rather – what Daphne terms – predatory marriage.
How was Joan able to get married if she lacked capacity?
By law, registrars are meant to conduct interviews with both parties separately before a wedding ceremony can take place.
In an interview, a registrar should endeavour to establish that the party understands the implications of the marriage. Leeds Register Office initially told Daphne that Joan and the man would have been subject to separate 45-minute interviews.
“I wrote back then and said they won’t have done. My mum couldn’t speak for more than three sentences before saying, ‘Oh, the hole in my head,’ and bursting into tears.”
One of Daphne’s goals is to make it compulsory to record pre-marriage interviews and the wedding ceremonies. Currently, no evidence is kept of marriage aside from the certificate itself.
“If you ring your bank, your call is recorded but marriage isn’t recorded for evidence,” says Daphne.
“A senior registrar said to me just a few weeks ago, ‘there’s no need for evidence in marriage because that’s what the witnesses are for’.”
The witnesses at Joan’s wedding were chosen by the man and not known to her.
After Joan’s death, the police built a case that the wedding was a forced marriage, a crime recognised in the UK. This was presented to the Crown Prosecution Service, where it failed due to lack of evidence.
A later letter from the Leeds Register Office informed Daphne that Joan could not fully answer the questions given to her: “The questions that proved problematic were her age and house number… By recalling how many years separated herself and her brother, she eventually answered to my satisfaction. In respect of her address, she was able to name the street but could not remember the number of her house. [The man] started to intervene and he was reminded that Mrs Blass had to answer by herself. In view of her memory problem mentioned above, I decided that the street name only would be acceptable.”
In the letter, the registrar then said that based on “how the information had been given” and Joan’s “demeanour”, the wedding should go ahead.
Although there has been a clear failure of the registrar here, Daphne is unequivocal she does not hold one person or organisation to blame.
“The registrars are in a really difficult situation and a role that can be very low paid. They are asked to assess capacity with no real tools.”
Daphne has also spoken to many registrars who have helped her fill in the gaps as to why their duties are not always carried out.
“It’s really hard for them to stop a wedding, as they’ve got an expectant audience in front of them. I know they’ve been threatened with everything from being sued to physical violence… Some have told me that they’re often the only people in the register office on a Saturday. So, when they have 30 people in a wedding party in front of them, you can see why they don’t do it.”
Daphne has had some success here; the Forced Marriage Unit is introducing some safeguarding training for registrars.
Daphne has also had a productive working relationship with her local MP, Fabian Hamilton: “Fabian has been fabulous. He was really the first person who listened. I bounced into his surgery soon after Mum died and said ‘Hello, I want to change the laws and procedures around marriage’, which sounded a bit mad, but he listened to me.”
Since then, Hamilton has put the work in to bring this issue to the fore. In November 2018, he brought a private member’s bill to parliament that relayed Joan’s story and outlined all of Daphne’s recommendations. The bill was agreed upon unanimously.
Daphne jokes, “I think our bill was about the only thing that united the House of Commons in the time of Brexit!”.
However, probably due to Brexit, the bill ran out of parliamentary time. Hamilton has gone on to raise the matter in the House twice since.
Law Commission report
Although there may be limited movement on the floor of the House, there looks to be a seismic change to the law soon, thanks to Daphne’s efforts.
The Law Commission has recently published its report on weddings reform. The report contains no less than 14 mentions of ‘predatory marriage’, which is significant in that Daphne popularised the term in England.
Although Daphne’s recommendations are largely accepted by the Law Commission’s report, the central tenet of her campaigning falls out of the project’s scope: marriage revoking a will. This will be addressed in its upcoming report on making a will, which was paused for the weddings reform project.
The report acknowledges this and makes one recommendation: “We also provisionally propose that, in the event that a marriage continues to revoke a will, it should not do so where a person has capacity to marry but does not have (and is unlikely to recover) testamentary capacity.”
This proposal would differentiate between having capacity to marry and to make a will.
Daphne calls this suggestion “an unworkable piece of law”.
“Even though she had a five-year history of dementia in her medical records, we couldn’t prove that she lacked capacity to marry on the day. The reason why we couldn’t prove it is because no evidence is kept at marriage… How can you therefore prove that at the time of marriage, someone did have capacity to marry, but not capacity to make a will? Registrars would need to do two capacity assessments on the same day, which is just ridiculous.”
That said, the report echoes a lot of Daphne’s other points. It agrees that notifications of weddings should be published online to show marriage is a public matter.
Daphne has asked for a link between powers of attorney and marriage, and the Law Commission has suggested a system of pre-emptive caveats put in place by deputies or attorneys.
It is currently possible to create a caveat in anticipation of a notice of marriage being given but this takes it a step further.
Finally, the Law Commission’s report is a sign that Daphne’s work is beginning to have some real payoff.
What happened to Joan is not an isolated case. In a recent BBC Radio 4 programme which featured Daphne, File on Four conducted a small survey of private client solicitors which found that they received an average of two queries a week about predatory marriage.
Daphne has created a network of other families who have gone through similar situations and has found that what happened to her mother was not as rare as first anticipated.
Joan’s story illustrates the general lack of understanding of dementia throughout the institutions that are meant to safeguard vulnerable adults.
Before and after her death, Daphne uncovered a litany of failures at every point where someone should have stepped in to prevent her mother’s marriage happening.
Refusing to blame anyone, Daphne remains headstrong and undeterred to make sure the same thing doesn’t happen again.
“We have got a really long way,” she says, “and people have said to me, ‘when you started, I bet you never thought you’d get this far, did you?’. But I did, otherwise I wouldn’t have started.”