Court ruling proves you need a higher degree of mental capacity to write a Will than to get married…

Court ruling proves you need a higher degree of mental capacity to write a Will than to get married…

The Court of Protection has approved the right of a man with dementia to marry his long-term partner, against the wishes of the daughters of his first marriage.

The father of three adult daughters divorced from their mother many years ago. Now in his mid-eighties, he had cohabited with his partner for over twenty years.  He’d made a Will in 2013 giving his partner most of his pension, a £300,000 cash legacy, and the right to live in his house for two years after his death.  His daughters were his ‘residuary beneficiaries’ who would inherit the bulk of his estate, and his house after the two-year Trust period ended.

In late 2016, when he had already been diagnosed with suffering from Alzheimer’s disease, the father announced his intention to marry his partner.  His marriage would have a significant adverse effect on his daughter’s expected inheritance, as it would automatically revoke his 2013 Will.  With this in mind, one of his daughters sought and obtained a medical opinion to the effect that her father did not have sufficient mental capacity to marry.

Moreover, his advancing dementia meant he would be legally incapable of making a new Will after the marriage, so he would die ‘Intestate’, and the daughters would get only the statutory legacies set out by the Governments ‘Rules of Intestacy’; his surviving spouse being entitled to all his personal possessions, the first £250,000 of his estate, and half the balance.

The challenging daughter’s initial steps in the marriage registry office and the family courts resulted in a temporary injunction preventing the marriage under the Marriage Act 1949. The case was then referred to the Court of Protection, and was heard in September 2017.

Dr Hugh Series, an eminent consultant psychiatrist who specialises in conditions in ‘old age’, was instructed by the Court to assess the father’s capacity to consent to marriage.  His brief was to consider not just the father’s understanding of the personal aspects of marriage, but also the effect on his daughters’ finances.

Dr Series testified that the father did indeed understand that his children might receive less than before, and that his new spouse might receive more, and so stated that the father had the capacity to marry.  The Judge accepted this opinion, and made an order to its effect, at the same time he refused the challenging daughter permission to appeal.

Sadly, there are some circumstances outside a family’s control when dealing with a parent with dementia.  In many cases though there are options that can be considered before it is too late.  Heir Tight Wills helps clients put in place robust provisions and valid documents, to protect their loved ones and their assets both during their lifetime and after their death.  For a FREE Consultation to discuss writing or updating your Will & estate planning provisions, contact Rachael Rodgers on 0845 519 7585, or CONTACT US (link) via email.

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