Melinda Giles Capacity to Marry is in the News (especially when a family inheritance is involved…)

Capacity to Marry is in the News (especially when a family inheritance is i

The Mail Online recently highlighted what it termed a legal loophole that lets predators marry the vulnerable and (in the words of the article), steal their family’s inheritance (see link here): https://www.thisismoney.co.uk/money/news/article-6737395/The-legal-loophole-lets-predators-marry-vul...

The article goes on to suggest that dementia sufferers are being groomed and preyed upon, led into temptation to marry with the result that their new spouse may inherit a family fortune.

How does this happen?

The issue of capacity is increasingly spoken about as society deals with a growing number of elderly folk with dementia. However, what is not so widely explained is that there is rarely a blanket “lack of capacity”, and that the term “capacity” or “lack of capacity” is decision and time specific. There are also different levels of capacity required dependent upon the decision that is required. 

So, for example, there is one level of capacity required to make a Lasting Power of Attorney to choose someone to manage your finances, but there is a different level of capacity required to be deemed to manage your own finances. These different tests are compounded by the basic provision in the Mental Capacity Act, that everyone must be assumed to have capacity unless proven otherwise. This is one of our basic rights, and yet it is one that troubles family and friends who seek to protect a loved one that they view as vulnerable.

And here we come to the marriage issue. The stereo typical situation is one where an elderly widow or widower, perhaps with a diagnosis of dementia, marries someone usually much younger, even sometimes without the knowledge of their own children. The Registrar of Marriages is entitled to assume that those choosing to enter into a contract of marriage have the capacity to do so. Even where concerns are flagged, the test that is then applied is set at a level so as not to deny those with capacity issues the type of relationship that most people enjoy. And so, the test is mostly about the issues such as enjoying each other exclusively and the general nature of marriage. It does include a basic understanding that marriage revokes any previous will, but crucially does not, currently, require those marrying to have the level of capacity required to make a valid will.

And herein lies the problem for families; if you marry, then any previous will is revoked (cancelled). In addition, if you die without a will the current law is that the majority of your estate will pass to your spouse. The test for what is known as “Testamentary Capacity” (ie, the test for making a new will) is quite high as there is a need to fully understand your financial position, and the nature of the will that you are choosing to make and this includes any duties or obligations to provide for those (including your spouse). And this is when it becomes complicated, leading to the type of situations highlighted by the Mail Online. As the article states, campaigners are calling for change.

What can you do if you think that your family member is a victim? I would suggest supporting your family member as much as you can, staying close and encouraging them to take legal advice throughout. Ultimately it is possible to make an application to the Court of Protection for a Statutory Will, and therefore if really concerned the earlier you take independent advice the better.


Awards & Recognitions

The expertise of our solicitors is regularly recognised by some of the profession’s most distinguished organisations. As well as being a member of a number of Law Society schemes, we have won awards at the Law Society Excellence Awards, the Halsbury Legal Awards and the Modern Law Awards. We have also received recognition in the form of the Lexcel mark of quality, a Legal 500 listing and a place on the shortlist of The Lawyer’s Boutique Firm of the Year.

Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson