22 November 2019 by

What mental capacity is needed to marry?

It is well known that to be able to enter into legal arrangements, including to make a Will or a Lasting Power of Attorney, a certain amount of mental capacity is first required – but what about getting married?

A recent case considered this and the Court’s decision reinforced the point on which we advise daily: just because someone does not have mental capacity to make decisions in relation to one thing, it does not mean that they lack capacity to make decisions about something else.

So what happened?

Following an accident as a child, P developed severe learning difficulties; he was deemed incapable, because he lacked sufficient mental capacity, of managing his financial affairs. Following an application to Court, the Court appointed someone to manage P’s financial affairs (the “Deputy”).

After turning 18, P made a Will.  In order to enter into a Will, the person making it must:

  • understand that they are making a Will and its effect (i.e. what it does) and the extent of their property which will pass under the Will (i.e. what they own);
  • understand who might expect to inherit under their Will; and
  • not have a ‘disorder of the mind’ (whether temporary, for example suffering a side effect of prescription drugs, or permanent) which affects their ability to understand.

P passed these tests and was therefore found to have sufficient mental capacity.

Sometime later, P announced his intention to marry a lady who he had met 3 years previously and who (along with her children) had moved in to live with P at his home.

The Deputy then applied to the Court to prevent the marriage on the grounds that – as P didn’t have sufficient capacity to understand his finances – P could not understand the effect that marriage would have on his financial position, namely that:

  • his Will (under which his parents are appointed sole beneficiaries) would be revoked by marriage;
  • his parents would not be beneficiaries following the marriage unless a new Will was entered into (as under the rules of intestacy they would not inherit if he was survived by his wife); and
  • if P and his wife divorced, she might have a claim on his assets.

The Deputy produced to the Court a medical practitioner’s report stating that P is easily persuaded, very vulnerable, and there was therefore potential for him to be exploited. The Deputy also told the Court that P had expressed indecision about the marriage.

The judge rejected the Deputy’s application on the following grounds:

  • even after his accident, P had been found to have sufficient mental capacity, and the level of understanding required, to enter into a Will which is ‘likely’ higher than it is to make a decision to marry someone; and
  • P only needed to understand that his wife might have a claim on his assets (whether following death or on divorce), but he did not need to appreciate the details of such a claim.
Why is the case important?

The Court’s decision was not really a ‘shock’. It does however highlight that, although you do not need to take professional/legal advice when entering into every legal arrangement, it is much easier to defend a claim brought on the grounds that you lacked capacity to enter the arrangement where there is contemporaneous evidence of capacity.

A suitably qualified solicitor will be able to guide you to ensure that appropriate evidence is obtained prior to entering the arrangement, and record how they reached the conclusion that you did indeed have sufficient capacity to enter into an arrangement. Having such evidence could help your personal representatives to defend a claim, and provide your estate with a better chance of avoiding significant legal costs in subsequent contentious proceedings.

If you would like further guidance please contact someone from our Wills and Probate team.

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