In the recent case of DMM (Alzheimer’s : power of attorney)  EXCOP 32 the Court ruled that there is a requirement that a person must have the mental capacity to consent to marriage.
This case deals with the proposed marriage of a man, who is suffering from Alzheimer’s Disease, to his partner who he has been cohabiting with for over 20 years. The man had been married before but he and his wife divorced many years ago. He had three adult daughters from his previous marriage.
In 2013, he executed a will leaving his partner £300,000 and a right to reside at the property they had lived in together, which was owned by him, for two years after his death. The remainder of his estate, which is valued in the region of £1.8 million, was to be divided equally between his three daughters.
The issue in this case was that if the man married his partner, the will he executed in 2013 would automatically be revoked having extreme financial consequences on the daughters. If the man was unable to execute a new will after his marriage, due to the Alzheimer’s Disease affecting his capacity to make a will, the rules of intestacy would apply. This would mean that his partner’s inheritance following his death would increase from around £300,000 to over £1,000,000 whilst the inheritance of each of his three daughters would be halved to around £250,000.
The Court ruled, on the basis of the Mental Capacity Act 2005, that the man must have the capacity to consent to marry his partner. In order to have this capacity he must:
- “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 [his] will."
The Court was clear that the threshold for whether someone has the capacity to consent to marriage was not a high one. They do not, for example, have to know what the situation would be if they die intestate. However, they do need to be able to understand, retain, use and weigh up the fact that the act of marriage would change what they wanted to happen when they executed any will which is currently in existence.
In this case, an expert in old age psychiatry was instructed by the parties to determine whether or not the man did have the capacity to consent to marrying his partner. The expert concluded that he did have the necessary capacity because he understood that his will would be revoked by the marriage and the financial position of his three daughters would subsequently be affected. The expert was clear that he knew the will would be cancelled, that he might not be able to make a new will and that the intestacy rules would produce a different result to that which would be produced by the will he had executed. He also understood that as a result of this, his children might receive less and his partner more. He therefore satisfied the test set out by the Court and was able to consent to marrying his partner if he wanted to.
If you have any queries regarding the Mental Capacity Act or whether your loved ones have the capacity to consent to marriage or make a will, please contact Danielle Pawson on 0113 227 3634 or firstname.lastname@example.org.
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