Capacity to marry

Posted on: February 12th, 2018

When do individuals have the capacity to marry, and who should be making the decision on their right to do so if they lack the capacity to marry? Hannah Rowlatt is a Solicitor in the Court of Protection team, she looks at a recent case to provide example. 

Facts of the case
The individual (who we will refer to as ‘P’) had three daughters from his previous marriage. P had lived with his current partner for 20 years during which time he was diagnosed with Alzheimer’s.

P had a will that left his longstanding partner of 20 years £300,000, most of his pension and the right to remain in his property for two years post death, with the remainder of his estate (£1.7 million) to be divided between his three daughters.

P wanted to marry his longstanding partner, but the marriage would cause his will to be automatically revoked.

P had appointed his daughter as his attorney before he was diagnosed with Alzheimer’s. The daughter entered a caveat at a Registry Office under s29(1) of the Marriage Act 1949 to prevent P from marrying his partner. The marriage would impact significantly on the daughters’ share in P’s estate as the new wife would inherit most of P’s money on his death (albeit the daughter would still inherit a significant sum). The daughter was successful in obtaining an interim injunction to stop the marriage and the case was transferred to the Court of Protection.

Distinction between capacity to marry and capacity to make a will
Case law confirms that an individual may have capacity to marry but not have testamentary capacity. Testamentary capacity, the capacity to make a will, is a much higher threshold. Capacity is decision specific.

An individual has capacity to marry if they are able to understand, retain, use and weigh up information as to the reasonably foreseeable consequences of marriage. One consequence is that upon marriage the individual’s will is revoked. The individual must only be able to understand the nature of marriage and the duties and responsibilities attached to it.

As the capacity thresholds are different, a situation could arise where an individual has capacity to marry, upon marriage their existing will is revoked, but the individual does not have capacity to make a new will.

Outcome of the case
Evidence by a consultant psychiatrist specialising in old age concluded that P did have capacity to marry as he understood that his existing will would be revoked and that his three daughters’ inheritance would be affected by his marriage. The Court ruled that P did have capacity to marry and, as such, he was free to do so.

Statutory will
To stop P dying intestate, which would happen as P’s old will was revoked on marriage, the court could consider a statutory will application by the daughters. A statutory will can be executed for an individual who lacks testamentary capacity, providing the proposed will is in the individual’s best interests as outlined in the Mental Capacity Act. A number of matters could constitute best interests. For example; the individual has expressed wishes to leave their estate to certain beneficiaries, or the intestacy rules would be inappropriate and not what the individual would have intended when he had capacity.

The Court may be persuaded by arguments in favour of the old will. The old will supports arguments of the individual’s testamentary intentions when he had capacity. However, his new wife might not agree to the terms of the proposed statutory will on the basis that she would do far better if P were to die intestate. With a 20-year relationship the new wife might have a chance to improve the terms of the old will.

Other challenges
If no statutory will application were made or ordered by the Court of Protection, P’s estate would remain intestate. Claims under the Inheritance Act would be unlikely because the new wife would do no better than under the intestacy. The daughters would face a difficult decision because even their relatively low intestacy inheritances would be likely to exceed an adult child award under the Act, which is almost certainly why the present course has been followed. The statutory will application is their best hope of a substantial inheritance along the lines of their father’s original will.

Could it be deemed an abuse of POA
By law attorneys have certain responsibilities and duties that they must abide by. In particular, fiduciary duties that mean that they must not take advantage of their position, nor put themselves in a position where their personal interests conflict with their duties. If attorneys do not comply with their fiduciary duties and act for their own benefit at the expense of the individual, they could be removed from their position by an application to the court.

How common is it for caveats to be lodged under the Marriage Act 1949?
Injunctions under the Marriage Act 1949 are extremely rare and an example of a historic piece of legislation being used in exceptional circumstances. It is worth noting that if a party to marriage lacks mental capacity at the time of their marriage, then it would be grounds to have the marriage declared “void” and treated as if it had never taken place.

For more information on the capacity to marry, and other Court of Protection services please contact Hannah on 023 9236 4306 or email