Capacity to marry - Update

This case is a useful reminder that marriage will revoke your will.  In these circumstances, you may wish to execute a codicil to your will which provides that the will shall survive the marriage and continue to be effective.  Ideally, it is advisable to review your will in light of a key life event such as marriage and execute your will in expectation of marriage so that is not revoked. 

The question for Mostyn J to consider was whether A lacked the relevant capacity to enter into a marriage with B. 

A had suffered from learning difficulties as a child and, as a result of a road traffic accident in adulthood when he lost a leg when working as a refuse collector, he was awarded a large sum of compensation.  This award had been calculated to meet his needs and his needs alone.  The award had been used to purchase A's home and the remainder had been invested on his behalf and managed by his deputy.

A and B began their relationship approximately 3 years previously, B had since moved into A's home with her two children and had given up her own council property where she had been a tenant for a number of years. 

Although A did not have capacity to manage his affairs, he was found to have testamentary capacity and had made a will in 2017 leaving his estate to his parents and specifically stating that he did not wish to benefit B.  Mostyn J pointed out that any marriage would revoke the will and that in those circumstances, A should execute a codicil to provide that the will should still be effective, if the marriage did go ahead.

It followed that one of the immediate considerations faced by Mostyn J was that he was being asked to declare that A did not have capacity to marry but at the same time to accept that he had capacity to make a will in 2017 and had capacity to execute a codicil at the time of the hearing.  On this issue, Mostyn J declared that "it would be surprising if the degree of mental capacity that is needed to execute a will is in fact less than the degree of mental capacity that is needed validly to contract a marriage".

Mostyn J considered whether A understood the nature of the marriage contract and the duties and responsibilities of marriage. In particular, did A understand the potential financial consequences of marriage.  Mostyn J stated that it would be "dangerous" to introduce into the test for capacity to marry a requirement of anything more than an understanding that a divorce may result in a financial claim.  In his judgment, Mostyn J held that A did have the necessary appreciation of the financial "ramifications" of a marriage breakdown and he was satisfied that A did have capacity to marry. 

Key takeaway points

This case is a useful reminder that marriage will revoke your will.  In these circumstances, you may wish to execute a codicil to your will which provides that the will shall survive the marriage and continue to be effective.  Ideally, it is advisable to review your will in light of a key life event such as marriage and execute your will in expectation of marriage so that is not revoked. 

Here, A's wealth was derived from an award of damages.  The judgment refers to "numerous authorities in the books which have effectively emphasised the near immunity of personal injury awards from a financial claim" and consequently, if the marriage between A and B did break down, the scope of a claim by B would be "extremely limited". 

There is not a wealth of authorities on the subject of capacity to marry and this decision revisits the issue in 2019 and considers the features of marriage which may have been "empirically the norm" but may not necessarily be essential features today.

Latest

Our lawyers are experts in their fields. Through commentary and analysis, we give you insights into the pressures impacting business today.

VIEW ALL