A most unusual case came before the Court of Protection in July 2017, although the case has only recently become public. A wealthy, retired insurance broker in his mid-80s had cohabited with his partner, a woman in her 70s, for some 20 years or more, having previously been married and divorced many years ago and having three daughters from that marriage. From the reports, it seems his partner had decided she wanted them to get married.
Her problem was he was suffering from Alzheimer’s disease such that his capacity to marry was in question. In November 2016, his partner took him to have a capacity assessment with the intention of revoking his Power of Attorney in favour of one of his daughters, to have him make a new Power of Attorney and to assess whether he was able to marry. The assessment from her Consultant Psychiatrist concluded that he did not have the capacity to revoke the Power of Attorney but he did have the capacity to marry.
The daughter, who had been appointed as his Attorney, then entered a Caveat at the Registry Office to prevent any marriage taking place. She too commissioned a capacity report and that report concluded he did not have capacity to revoke his Attorney nor to marry.
The potential reason why the daughters were anxious to prevent their father marrying was that marriage would automatically revoke his Will. In 2013, he had executed a Will leaving his partner two-thirds of his pension, a legacy of £300,000 and the right to live in his property for two years after his death. The remainder of his not inconsiderable estate was to be divided between his three daughters. If his marriage went ahead, it would leave him intestate and would mean that his partner, now his new wife, would receive a statutory legacy of £250,000, his chattels and half of the balance of his estate, amounting to almost £1,000,000, with the other half of the estate divided between the three daughters. Thus, his partner would do very well financially out of marrying him whilst his children, conversely, would suffer.
In considering what was the test for capacity to marry, the Court looked at the Mental Capacity Act 2005. Under that Act the person is unable to make a decision if he is unable to:
The Court also identified that information relevant to the decision includes the reasonably foreseeable consequences of deciding one way or another.
The Judge then had to weigh up whether he had to understand the financial consequences of marriage. In the end, the Judge decided that he would have to understand that, if he were to marry then that would revoke his Will. He should also be ever aware of that consequence, but not necessarily have to know the detailed financial consequences. On the evidence, the Judge was satisfied that he did understand that his marriage would make a difference to the provisions for his estate and that he knew that the second marriage would revoke his Will. Accordingly, the Judge decided he was free to marry.
We understand that the Judge urged his partner and his daughters to “find a way of moving forward after this very bitter dispute.”
It is open to speculation, having brought this claim, whether the daughters will now be able to patch up their relationship with their step-mother and so secure their future inheritance. It is possible that a more generous approach to their step-mother might have yielded dividends in the long run.