The recent case of Mundell v Name 1, heard in the Court of Protection has ramifications for claims on divorce and also issues surrounding a person’s capacity to make a will and get married. In this blog, Nicola Waldman will consider the issues concerning capacity to make a will and get married. Her colleague Jacqueline Major will consider the matrimonial issues in a separate blog.
The Courts have been asked many times to consider whether a person has capacity to marry. The test is ‘act’ rather than ‘person’ specific. The wisdom of it is irrelevant. The 2004 case of Sheffield CC v E said that the bar must not be set high, to avoid discrimination. That case set out the legal test for this which was that the person in question must understand:
a. the broad nature of the marriage contract;
b. the duties and responsibilities that normally attach to marriage, including that there may be financial consequences and that spouses have a particular connection with each other;
c. that the essence of marriage is for two people to live together and to love one another.
It has also been held that a person must not lack capacity to enter into sexual relations.
These issues were considered again in the case of Re DMM when the Court said that the test for capacity to marry should not be set too high because that would be an unfair, unnecessary and discriminatory bar against those with capacity issues potentially denying them that which all the rest of us enjoy if we choose, a married life.
Re DMM and the Mundell case have also made reference to the fact that having an appreciation of the financial effect of a marriage, particularly if it failed and there were financial remedy proceedings, was setting too high a standard. However, in the former case, the Court said that understanding that a marriage revokes a will is information that a person should be able to understand, retain, use and weigh to have capacity to marry.
This last point is one that causes concern for families and practitioners, as while a person must have an understanding that marriage may revoke a will, they do not have to have capacity to change their will. The consequence of this could be that a will is revoked but the person does not have capacity to make a new one.
The capacity test for making a will is higher than the one to get married. The testamentary test is also based on case law, being the case of Banks v Goodfellow, which said that a will maker (a testator) must:
- Understand the nature of making a will and its effects;
- Understand the extent of the property of which he is disposing;
- Be able to comprehend and appreciate the claims to which he ought to give effect.
- Have no disorder of the mind that pervert his sense of right or prevents the exercise of his natural faculties in disposing of his property by will.
These tests require the testator to have a certain level of understanding which varies according to the complexity of the will itself, the extent of their assets and the claims on them.
The DMM case was one where a widower in his 80’s wanted to get married again; he had three children from a previous marriage to whom he had left the bulk of his estate by an earlier will. He was now suffering from Alzheimer’s disease and his children were concerned that if their father married, it would revoke that will, leaving his widow with more and them with less(under the intestacy rules). One of his children tried to stop the marriage on the basis that he lacked capacity. In this case, the Court decided (with the benefit of a medical assessment) that the widower had capacity to understand that if he married, his will would be revoked and that his children would inherit less, and so they decided he did have capacity to marry and was free to do so. However, this did not mean that he had capacity to change his will or that he could or would do so.
In an age where we are living longer, but often with deteriorating mental health and where second marriages are far more common, it is frequently a concern for children that their parents are unaware of the consequences that a new marriage may have on their will; or even if they are, that they may not be able to do anything about it. This can be a very difficult conversation to have between parent and child.
Options in these cases may be:
- If the parent does want to make a new will but there is some doubt about capacity, arrange a contemporaneous medical opinion to confirm capacity, so that there is evidence if the will is challenged later on those grounds.
- Remember that a will can be made in expectation of a particular marriage so that the marriage does not revoke it; it doesn’t have to be made after the marriage.
- A statutory will application which can be made if the person concerned lacks capacity to make a new will, provided it is in their best interests as per the Mental Capacity Act. A factor that the Court might consider in support of a statutory will is that a previous will expressed the testator’s true intentions when they had capacity.
- A claim under the Inheritance (Provision for Family and Dependants) Act 1975 after the parent has died but within six months of the grant of probate.
It is important to take proper legal advice in these cases.