Marriage annulment (England)

[Rockchick1984]

My uncle recently died of cancer. The day before he passed away he married his partner of 10 years (DP) - he only did this as he wanted her to receive his pension and it wouldn't pay out unless they were married.

He redid his will after his diagnosis became terminal and left his share of the house to his adult daughter with stipulation that DP could live there until DP chose to sell the property. Uncle and DP were tenants in common with 50% each.

DP has now found out that marriage voids the will and she gets 100% ownership of the house. This is totally against uncle's wishes which he was always very clear on.

Day of the marriage he was bed-bound, couldn't speak, barely knew his name etc. Does my cousin have any grounds to either apply to annul the marriage so that will still stands, or alternatively to apply for her 50% through other means? How likely is it that she will be successful?

As you can imagine this is a difficult enough time for her, without now realising she is not getting the inheritance that she knew her dad wanted her to receive.

If he barely knew his name on the day of the marriage, I would imagine that would make it null and void.
You have to be compos mentis for a legal agreement to be valid.

Have you contacted the registrar who performed the ceremony? Were they satisfied on the day that he had mental capacity to go ahead?

Will the dp not do the decent thing and legalise the daughters share?

DP gave the daughter £5k out of uncle's savings (approx 50% of uncles cash savings) however the property is around £200k and DP now wants to sell the house, buy somewhere smaller and live off the proceeds. DP refuses to even discuss giving any more to daughter "I was his wife, it's my money" etc.

Sadly daughter was present at the marriage and agreed to registrar that uncle's intention was to marry DP, so not sure if that's an avenue to explore. Uncle couldn't even read vows, when asked to confirm "are you Dave Smith" he wasn't sure what he was being asked, and DP had to tell him "just say yes" (not real name obviously)

If the wife doesn't agree to "do the right thing" then your cousin needs to get legal advice as there are a few different avenues. Not sure about getting marriage annulled as I'm pretty sure that only a party to the marriage can do that.
One thing would be to see if the solicitor who prepared the will advised that it would be revoked on marriage. If not then very naughty as it's beyond basic, and potentially a claim there.

Stupid question but presumably the house was owned as tenants in common?

Yes fastday tenants in common.

Thanks all for helping - I want to do what I can to help my cousin, but it's outside my areas of knowledge.

I think it would be utterly heartless to seek to do anything about the marriage

Being barely able to speak his name is not necessarily an indication of not understanding or intending the marriage to take place, and deathbed marriages are legal even when large amounts of pain relief are in place. And it would of course deprive his DP of her widow's pension.

DP could seek a deed of variation, because his intent (after terminal diagnosis) was clear. Or she could take the simpler route of ensuring his wishes are enshrined in her will.

DP wants to sell the property and live off the proceeds Edith so there wouldn't be anything to put in her will.

Worst thing is that the marriage was intended to get DP the pension, however it's actually left her worse off financially on a day to day basis as she loses her pension credit now, and the associated benefits!

I think your cousin needs specialist legal advice.

I doubt she could challenge the validity of the marriage, if my recollection is correct then lack of capacity is a ground on which a marriage is voidable not void and that means that it could not be challenged by a 3rd party nor after the death of one of the parties. The only alternative would be a non-marriage - i.e. a complete failure to conclude a marriage - but if the registrar was there that sound very unlikely.

If that's the case and the DP is resistant to any variation of the will or 'doing the right thing' then the Inheritance Act would be a possible route of challenge but depends on the circumstances.

This really needs a specialist lawyer with all of the facts.

My cousin doesn't particularly want to go down the route of trying to do anything about the marriage but if that is her only way to get her inheritance which is what her father wanted then she is prepared to do that. Surely it's equally heartless for DP to take that away from her?

Not an expert here but from what I understand marriage or no marriage, tenant in common means just that - they are only entitled to their stipulated share of the property, i.e. 50% in DP's case. In fact, even under normal circumstances in a legally married couple, either party can seek to have a joint tenancy changed to one of tenants in common [50% each] without the agreement of the other party. And what's more, your uncle had a will didn't he? That's what a will is for, I'd have thought.

You'd need legal advice, but I don't think a nullifying the marriage would be successful if your daughter was in attendance and happy to proceed on the day.

Have you spoke to wherever your uncle placed the will? Was he advised that it would no longer be valid once he wed? Did he not make another will, did he mention his intentions in that case at all?

You'd essentially need to argue that your uncle didn't intend the wedding to override the will, only to entitle his wife to pension credit. That would be rather difficult, I fear.

Was the £5k offered by your uncles DP accepted? The cynic in me thinks she's had legal advice and was advised to offer a payment to show that she recognises that your uncle intended to leave something...

In fact, even under normal circumstances in a legally married couple, either party can seek to have a joint tenancy changed to one of tenants in common [50% each] without the agreement of the other party. And what's more, your uncle had a will didn't he? That's what a will is for, I'd have thought.

That would only hold true if either the will was made prior to the marriage for the sake of protecting people due to the marriage and stated as such in the will or if the will was rewritten after the marriage. The marriage means that the will is not valid and as his wife the dp inherits everything as his estate is classed as intestate ie no will so inheritance rules apply and with this size of estate the wife would get everything.

You say your uncle made his will after his diagnosis became terminal but how long ago was that if we are only talking a couple of weeks then you probably have got grounds to challenge that an error was made in not excluding the marriage from affecting it but you need specialist legal advice because it will be tricky.

He was receiving treatment for around 6 months prior to being told that it was terminal and the treatment wasn't working. He made the will around that time, and had said that he would marry DP prior to this. He died about 3 months later.

The trouble is that your cousin had the chance to speak up at the time of the wedding and didn't. She's only now deciding it wasn't valid because of the financial repercussions. If your uncle decided to marry his DP then that was his choice.

He chose to marry yes but he didn't know that doing that would revoke his will and that's what he should have been advised at the time, particularly if he had mentioned it. The solicitor could have made the will in contemplation of marriage so that this didn't happen, or at the very least warned him so that he knew what would happen.

Well one of the other grounds for marriage annulment is if it is not consummated which may be relevant for this situation, although I don't know how you'd prove it. But nevertheless, it is only something that can be done by his DW not your cousin.

Yes softholly but the non-consummation grounds are also about voidablity so can only be challenged by one of the parities during their joint lives. In any case she would have to show that there was incapacity or an unjustified refusal to consummate, not merely that consummation did not take place.

For the cousin to challenge it now it would have to be void i.e.: prohibited degrees (e.g. incest); bigamous/polygamous; underage; or a knowing and wilful disregard for certain formalities.

I'm assuming that none of that applies so there is unlikely to be much merit in trying to challenge the marriage. IF there is any scope for legal action it is likely to concern the will or inheritance act.