How your ability to understand your Will may affect your ability to say “I do”

8th February 2018

Claims that a Will is invalid because a person did not have the ability, or testamentary capacity, to make it are now familiar.  However the test of capacity varies depending on the situation and the recent Court of Protection case of Re DMM [2017] EWCOP 32 and 33 questioned the legal test for the capacity to marry and in particular whether it required the person to understand that marriage would automatically revoke their Will.

The facts

DMM was a retired man with three adult daughters from a previous marriage that ended in divorce.  He had cohabited with a lady, SD, for over 20 years.  In 2013 DMM prepared a Will which gave two thirds of his pension, a legacy of £300,000 and the right to reside at his property for two years after his death to SD.  The remainder of his estate was to be divided between his three daughters.

In 2016 SD took DMM to have a capacity assessment as it was accepted he was suffering from Alzheimer’s disease.  The assessment was in part to check whether he had capacity to marry.  His daughter, EJ, attempted to prevent any marriage between DMM and SD taking place and applied for an injunction and obtained a medical opinion to the effect that DMM did not have mental capacity to marry.

In most circumstances marriage will revoke an existing Will (s. 18 Wills Act 1837).  It was agreed that the marriage of DMM to SD would revoke his will and if he lacked capacity to make a new will it was likely his estate would pass under the intestacy rules.  In this situation the likely result would be SD inheriting more and the daughters receiving less than the Will provided.

The issue to be decided

The case was referred to the Court of Protection and the preliminary issue was “whether the legal test for whether a person has capacity to marry includes a requirement that the person should be able to understand, retain, use and weigh information as to the reasonably foreseeable financial consequences of a marriage, including that the marriage would automatically revoke the person’s will“.

Previous cases had set the capacity to marry relatively low focussing on marriage being a simple contract and that it is a matter of public policy that the test is not too high to be an unfair, unnecessary and discriminatory bar against those with capacity issues potentially denying them the option of marriage.

The outcome

It was concluded that “the fact that a second marriage revokes the Will is information that a person should be able to understand, retain, use and weigh to have capacity to marry”.

Initially DMM was not a party to the proceedings. Shortly after the first judgment, an expert jointly appointed by the parties who was a psychiatrist specialising in old age, reported that DMM did have capacity to marry because he understood that his marriage would automatically revoke his Will and that the financial position of his daughters would be effected by that and his marriage.  In light of the expert report, the judge found that DMM was free to proceed with the marriage.

Along with the test for capacity to marry, this case has highlighted two matters:

  1. There are different tests for mental capacity depending on the specific situation; and
  2. Marriage automatically revokes an existing Will unless the Will has been specifically made in expectation of the marriage.