Mental capacity to marry but not to make a Will

It has long been a cause for concern within private client circles that the test for mental capacity to enter into marriage is so much lower than that required to make a Will. The concern stems from the fact that the marriage would automatically revoke any pre-existing Will (unless made specifically in contemplation of the marriage), and can therefore fundamentally change the entitlements to the estate after death.

Once married, if the test for testamentary capacity cannot be met, the newlyweds will be left with either the intestacy provisions to determine the distribution of the estate, or the option to go to court to apply for a statutory will to be made.

This situation was recently considered by the Court of Protection in EJ (as attorney for DMM) and SD. The court was asked to consider the appropriate test for capacity to marry where that marriage would automatically revoke the Will. 

This was a difficult family situation, where an elderly man with dementia wanted to marry his long term partner. His Will left the bulk of his estate to his daughters. As marriage would revoke the Will, the intestacy rules would take effect and result in a greater proportion of his estate passing to his new wife.

The court was asked to consider whether capacity to marry should include the ability to understand the reasonably foreseeable financial consequences of the marriage, including the automatic revocation of the Will.

The court ruled that to have capacity to marry, a person should be able to understand, use and weigh the fact that their Will would be revoked. A further psychiatrist's report was commissioned, which concluded that he did understand his Will would be revoked and his children would receive less from his estate as a result. The elderly man therefore had capacity to marry.

It is possible that the case will be appealed, that he could make a new Will in contemplation of the marriage or after marriage (if the psychiatrist concluded he also had testamentary capacity), or leave his estate to be distributed in accordance with the intestacy rules. If he did not have testamentary capacity, the court could be asked to make a statutory Will instead. 

The revocation of a Will by marriage is one of the less romantic aspects of a wedding, but one which can have significant consequences for the surviving family and needs to be borne in mind when assessing capacity to marry.