In business, you may have set up the right documentation including insurances, share holder agreements and more. However, if the documents are not regularly reviewed this can lead to disaster. The intent you have now may not be the right intent for one years or many years time.
A Tale of Marriage for Money
J. Howard Marshall was an American multi-millionaire who graduated top of his class at Yale Law School and went on to own one of the most successful oil companies in the United States. However, it is perhaps his third marriage and death soon thereafter that made him most famous. At the age of 89, he married 26-year-old model Anna Nicole Smith. When he died 14 months later, a bitter dispute erupted over his estate, worth almost $500 million, between Smith and his son from a previous marriage. Until her own death of a drug overdose, Smith was often accused of marrying Marshall for his money.
Perhaps Smith did marry Marshall for his money, targeting an old man whose previous wife had died years earlier. Did Marshall know what he was doing when he married Smith? Did he really promise to leave her half of his considerable wealth? Ultimately, the lawsuit ended up in the United States Supreme Court.
You may be surprised to hear that this scenario happens here with regularity, even among people who don't have vast reserves of wealth. Often we see an senior gentleman marrying a much younger woman who immediately sets out to enjoy, and sometimes outright steal, his money. Usually the children of the gentleman discover the disappearing money too late and a bitter dispute is played out before the courts.
How does this happen?
The main reason this scenario is common is because someone's capacity to consent to be married is arguably more relaxed than the test of capacity for someone to sign a will. This means that a person who may suffer from cognitive dysfunction can still consent to be married. In succession law, the act of marriage revokes any previous will which is the first victory for any unscrupulous new spouse. From here it is relatively easy to gain access to bank accounts, assets and even to have him sign a new will.
At Mitchells Solicitors, we believe this scenario is actually a form of elder abuse. If elder abuse can be defined as "any act within a relationship of trust that results in harm to an older person" then exploiting an older person financially clearly falls within this definition.
It is vitally important to address financial exploitation through marriage while the older person is still alive. The court will only award a statutory will (a court-appointed will made when the older person is deemed unable to make their own will) while the person is still alive. Even then, there must be obvious and significant mental impairment for the court to take this step.
Perhaps the best method of seeking to address the problem is to seek an annulment of the marriage. An annulment may be given under the Family Law Act (Commonwealth) if one person is deemed to be mentally incapable of giving consent to be married, or if the marriage occurred under duress.
This situation is very complex and requires specialist advice from a lawyer experienced in Succession Law.
Bryan Mitchell, Accredited Specialist in Succession Law (wills and estates including estate planning). Mitchells Solicitors, Brisbane.