A wealthy retired insurance broker in his 80’s who has dementia, has recently been the subject of court proceedings relating to whether or not he has the mental capacity to marry.

The man, a divorcee, referred to in the Court proceedings as DMM, had a long term relationship with a woman, SD. In 2013 he drew up a will leaving £300,000, most of his pension and the right to live in his home to her.  His 3 daughters would share the rest of his £1.7 million estate.

After the will had been made, it became clear to DMM’s family that he was suffering from dementia. They then discovered that plans were afoot for him and SD to marry. One of his daughters – knowing that any valid marriage would revoke his will, went to the High Court in 2017 to seek an injunction to prevent him from marrying. This on the basis that she had obtained an opinion from an independent mental capacity assessor who concluded that her father lacked the mental capacity to make a (new) will or to marry.  The daughter had contacted the Register Office and put on a caveat under the Marriage Act 1949 which prevented a marriage.

The girlfriend SD did not, perhaps understandably take kindly to this action and obtained an opinion from a consultant psychiatrist who said that DMM did in fact have the capacity to marry (although he didn’t have the capacity to make a new will). Proceedings were issued at the Court of Protection, which has the power to make decisions in relation to individuals who lack mental capacity.

Judge Nicolas Marston was asked to consider, as a preliminary issue, whether the legal test for whether a person has the capacity to marry includes a requirement that they should understand the financial consequences.

He concluded, in a written ruling: “The fact that a second marriage revokes the will is information that a person should be able to understand, retain, use and weigh, to have the capacity to marry.”

The Judge found that DMM does have the mental capacity to marry. When at some point DMM dies, under the intestacy rules his wife will inherit a much more significant proportion of DMM’s estate than she would have received under the 2013 will, with his daughters likely to inherit far less, around £250,000 each.

Capacity is time and situation specific, which means that even though DMM has Alzheimer’s it is still possible that he has capacity to make certain decisions but not others.  It is no doubt deeply frustrating to DMM’s daughters that SD has swooped in as an extremely unwelcome stepmother at the end of their father’s life.

The Mental Capacity Act 2007, which established the Court of Protection, is a landmark Act which marks a sea change in how capacity is defined – and how those who lack capacity are treated by the law.  Rather than a paternalistic approach, the law now aims to support and enable those individuals who lack mental capacity due to disease or trauma.

This case raises some interesting wider questions; to what extent should adult children be entitled to expect that an elderly parent will leave them their accumulated wealth? How do we identify and prevent financial abuse of vulnerable individuals? Should adult children be able to take steps to “preserve their inheritance” and if so, to what extent?

On the one hand, however uncomfortable it may be for family members, the law says that individuals should be free, if they have the capacity to do so, to make even unwise or foolish decisions. Families clearly do not always know best. And where there are large sums at stake, the motives of those involved can be questionable. On the other hand, the insidious influence of a family member, carer or friend bent on financial abuse of a vulnerable person can be difficult to detect and prevent. It is secretive and unpleasant and I’m certain it takes place more often than we would like to think.

For further information, please contact Sarah Young, a Director and Solicitor at Ridley & Hall who specialises in Contentious Probate law and Financial Abuse, on 01484 538421 or complete our online enquiry form.